R v Commissioner of Patents; Ex parte Martin [1953] HCA 67

89 C.L.R.] OF AUSTRALIA. 381

(HIGH COURT OF AUSTRALIA.] THE QUEEN AGAINST

COMMISSIONER OF PATENTS ; Ex parte MARTIN.

MARTIN . ' ' é j 5 ' 5 APPLICANT ;

AND

COMMISSIONER OF PATENTS . 5 é RESPONDENT.

Patents—A pplication and letters patent—Amendment—Error—Misdescription of ¥, CO. or A.

applicant as actual inventor—Power to amend certain documents fixed by statute 1953. —Extension of power by regulation—Validity— Clerical error ''—Patents Se Act 1903-1950 (No. 21 of 1903—No. 80 of 1950), ss. 108, 117—Patents Regula- MrtBourne, tions 1912-1949 (S.R. 1912 No. 76—S.R. 1949 No. 89), reg. 147. June 10, 11, : 125 0by An applicant for letters patent inadvertently declared in his application eS '- et. 12.

that he was the actual inventor of the invention concerned, whereas in fact

he was the assignee. Letters patent were duly issued to the applicant on the Marae

basis of his application and were sealed as of 21st June 1945, the date of the Webb,

a ' - f : Fullagar, application. The letters patent which were in the form in the First Schedule _ Kitto and to the Patents Act 1903-1950, recited that the applicant had made a declaration Uelor edo that he was the actual inventor of the invention, and contained a proviso that the letters patent should be void if it were made to appear that, inter alia, the patentee was not the actual inventor of the said invention. On 23rd February 1951, the patentee applied to the Commissioner of Patents to amend the application and the letters patent so as to show that he claimed

not as actual inventor but as assignee of certain persons.

Held by Webb, Fullagar, Kitto and Taylor JJ. (Williams A.C.J. dissenting), that, whether the letters patent were invalid or not, the amendment of docu- ments was not appropriate to meet the situation which had arisen ; by Webb J.

H. OC. or A. 1953. SNE