Re Usines De Melle's Patent [1954] HCA 32

HIGH COURT [1954.

Gonsicies Cee Ne,

H.C. or A. 1954. Ww

Metgourye,

June 3,7,

July 20.

Pullagar J.

IN RE USINES DE MELLE and FIRMIN BOINOT'S PATENT

[HIGH COURT OF AUSTRALIA.]

Patent—Hxtension of term—Originating summons—On Register in the name of

foreign corporation and individual—Prior dissolution of corporation—Devolution of interest in patent—Law applicable thereto—Absence of provision in Common- wealth law—Private International Law—Moveable—Mobilia sequuntur per- sonam—Whether domiciliary law as to succession—Lex situs—Bona vacantia— Whether part of common law of Commonwealth—Expiration before hearing— New grant or extension of term—Patents Act 1903-1950 (No. 21 of 1903—No. 80 of 1950) ss. 32, 84 (5), 110a (1) (2).

Section 84 (5) of the Patents Act 1903-1950, provides that the court may " order the extension of the term of the patent . . . for a further term" or " order the grant of a new patent for the term therein mentioned "'.

On an application for an extension of the term of letters patent granted in 1936, it appeared that the patent had been applied for by, and granted to, and had at all material times stood in the register of patents in the names of, a company incorporated in France and the applicant. The company had been dissolved in France in 1941. At the date of the hearing the patent had expired.

Held that, in the absence of evidence as to any possible rule of French law as to succession to the property ofa dissolved corporation, the proper procedure under s. 84 (5) of the Act was to extend the term of the original letters patent notwithstanding their expiry, rather than to order the grant of a new patent.

Per Fullagar J.: Since there was no provision in the Commonwealth Act governing the devolution of the corporation's interest in the patent, the ordinary rules of private international law must be applied. The interest was a moveable, the general rule as to which is mobilia sequuntur personam. If there was any law of the domicil of the corporation which was a true law relating to succession, that law would apply; but if there was no such law, the lex situs would govern the devolution : In re Barnett's Trusts, (1902) 1 Ch. 847, discussed. According to the common law of England, the property of a dissolved corporation vests in the Crown as bona vacantia and this rule is part of the common law of the Commonwealth.