Societe Des Usines Chimiques Rhone-Poulenc v Commissioner of Patents [1958] HCA 27

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es

100 C.L.R.] OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.)

SOCIETE DES USINES CHIMIQUES RHONE-

POULENC '} APPELLANT;

AND

COMMISSIONER OF PATENTS é RESPONDENT.

Patents—Application—Statutory construction—Provision that Act applied to all applications for patents lodged after its commencement—Divisional application— Whether Act applicable thereto—Provision that person " who has made" appli- cation for a patent may . . . —Whether includes application under former Act— Provision that" where in respect of an application . . . lodged under the repealed Acts, the Commissioner has . . . allowed the applicant to amend the application and specification and drawings or any of them s0 as to apply to one invention only and the applicant has made an application under this Act for an invention excluded by the amendment the priority date ...."—Whether limited to cases where subject matter of later application has been made the subject of specified claim in earlier application—Where later application is made before publication of original specification—Where original specification discloses a plurality of inventions—Single invention—What is—Words " so as to" —Whether referring to purpose or consequence—Costs—Of successful appellant—Against refusal by

commissioner to accept application—Whether commissioner liable to pay— Bvidence—Admissibility—Ezaminer's report—Forwarded by commissioner to applicant under provisions of Act—Patents Act 1952-1955 (No. 42 of 1952— No. 3 of 1955), 83. 5, 35, 45 (1) (4) (5), 51, 55, 161.

Section 5 of the Patents Act 1952-1955 provides that the Act shall apply to and in relation to all applications for patents lodged after its commencement but that the repealed Acts should apply notwithstanding their repeal to and in relation to all applications for patents lodged before the commencement of the Act. Section 45 (5) provides as follows :—* Where, in respect of an appli- cation for a patent lodged under the repealed Acts, the Commissioner has required or allowed the applicant to amend the application and specification and drawings or any of them so as to apply to one invention only and the applicant has made an application under this Act for an invention excluded by the amendment, the priority date of a claim of the complete specification lodged under this Act, being a claim fairly based on matter disclosed in the