McDonald v Commissioner of Patents [1913] HCA 10

15 CLR] OF AUSTRALIA.

ance and consequent thereon, and sub- H.C. or A.

stituting a declaration that the pluintifT

1912. —~

is entitled to damages for breach of the powserr

contract in the pleadings mentioned, and limiting the order for costs to the

v. Rew.

costs up to and including the costs of

the trial.

Cause remitted to Supreme Court.

Solicitors, for the appellant, James & Darbyshire, Perth. Solicitors, for the respondent, Lohrmann & McDonald, Perth.

as E

(HIGH COURT OF AUSTRALIA.]

McDONALD AND ANOTHER .

AND

THE COMMISSIONER OF PATENTS

N. McG.

APPELLANTS ;

RESPONDENT.

ON APPEAL FROM THE COMMISSIONER OF PATENTS.

Patent—Application—Refusal to accept application and specification—Appeal to H.C. or A. High Court from Commissioner of Patents—Costs—Patents Act 1903-1909(No. 1913,

21 of 1903—No. 17 of 1909), sec. 46.

Where an application for a patent, accompanied by a specification, has been duly lodged with the Patente Office, and there is no objection to the specifica-

= Mrrpourne, Feb. 27, 28,

tion on the ground that the invention is already patented, or is the subject of Gimin 0.3, a prior application for a patent, the Commissioner should not refuse to accept Barton,

Isaacs and

the application and specification unless it is clear and obvious that a patent Gavan Duffy JJ.

cannot be granted.

Therefore, where there was evidence that the device for which a patent was sought was new, useful, effective and convenient in use, and involved some

substantial exercise of the inventive faculty :

H.C. oF A.

1913. — McDonaLp

HIGH COURT 1913.

Held, that the Commissioner was wrong in refusing to accept the applica- tion and specification.

'The costs of an appeal to the High Court from the decision of the Commis- sioner are in the discretion of the Court.

AppEAL from the Commissioner of Patents.

An application was made by Murdoch McDonald and George Walter Hall for a patent for an "improved attachment for wheels of self-propelled vehicles." The provisional specification lodged with the application described the nature of the invention as follows :—" This invention has been devised with the object of providing simple means which can be readily attached to or detached from the wheels of motor cars or other self-propelled vehicles, which will prevent 'racing' or skidding when traversing loose or slippery ground. According to this invention separate chains are passed transversely around the tire in front of or attached to the spokes, and thus afford a better gripping means for the wheels." The complete specification further described the invention by reference to certain drawings substantially as follows:—According to this invention, a number of separate chains are passed transversely around the tire and rim in front of or attached to the spokes in order to prevent the tire skidding or racing when on loose or slippery surfaces. The chains may be straight and long enough to pass around the tire and rim and then around the spoke, and the extremities are adapted to be clipped or hooked together by a spring clip or hook or the like to hold the same in position. If preferred, the chain may be provided at one extremity with a double end, that is, with two branches, in order to facilitate the fastening of the same to the spoke, while the other extremity is provided with a hook. With this arrangement the double end is passed around the spoke and the end link of one branch is passed through the end link of the other branch; the main portion of the chain is passed trans- versely around the rim and tire, and the hook is then connected with the end link of the first mentioned branch, when the end link of the second mentioned branch will fall back over the outer end of the hook and so form a lock or keeper, thus preventing accidental displacement of the chain, The claims in