Maeder v Busch [1938] HCA 8

Rese rachel" Es meld

HIN, ee igi

H.C. oF A. 1937-1938. we Apetawe,

1937, Oct. 19-21.

Sypvey,

1938, Mar. |.

Dixon, Evatt and MeTiernan

eo ee ee ee THA Rescare A TA [adding eae ihe Ges ies ed HIGH COURT [1937-19385 {HIGH COURT OF AUSTRALIA.} MAEDER r x . : § ki . . APPELLANT; PLAINTIFF, AND BUSCH AND ANOTHER . B é E . ResponpEnts. DrrEnpantTs,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

Patent—Validity—Permanent waving of human hair still growing on the head— Process in relation thereto—Prior knowledge and user—New method. of conducting operation on part of the human body, Whether patentable.

M. was granted letters patent in respect of an improved process of, and means for, producing permanent waves in human hair still growing on the head. It was common knowledge that the hair had to be moistened and warmed in order to produce the desired waves. M.'s claim was for the use in the waving process of (1) a sulphide solution, (2) more particularly, a hydrosulphide solution, (3) any such solution together with the warming of the hair to a temperature of approximately 100 degrees C. In an action by M. for infringement evidence was adduced which showed that before the grant of M.'s patent such solutions were known in the business or occupation of hairdressing as useful for this purpose, and that they were so used from time to time and on many occasions by hairdressers in their ordinary work. The degree of heat required was varied as appeared to be necessary, and the application of a temperature of 100 degrees C. was adopted in common practice. This evidence was accepted by the trial judge, who found that the grant of letters patent was invalid on the grounds of prior public commercial user and want of novelty.

Held that the claims upon which M, based his action were invalid by reason of prior common knowledge and prior public user.