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

High Court of Australia Williams A.C.J. Webb, Fullagar, Kitto and Taylor JJ. R v Commissioner of Patents; Ex parte Martin [1953] HCA 67

ORDER Order nisi for mandamus discharged with costs and the motion dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 12 Williams A.C.J.

We have before us two proceedings by Henry George Martin relating to letters patent granted to him under the provisions of the Patents Act 1903-1950. These letters patent are 136/148 granted to him on 15th June 1950, pursuant to application No. 21477 lodged at the Patent Office on 21st June 1945, and letters patent 136/296 granted to him on 16th June 1950, pursuant to application 30004 also lodged at the Patent Office on 21st June 1945. Letters patent 136/148 were granted for an invention for improvements in writing instruments. Letters patent 136/296 were granted for improvements in inks. Each letters patent contains a statement that Martin "has made a declaration in the prescribed form that he is the actual inventor of the said invention". Each letters patent also provides that it is subject to certain conditions, one of which is "that these letters patent shall be void if it is made to appear that the said patentee is not the actual inventor of the said invention". Each letters patent states that the letters are made patent this twenty-first day of June 1945, and to be sealed as of 21st June 1945. This date is of course in accordance with s. 69 of the Patents Act which provides that, subject to the provisions of the Act, every patent shall be dated and sealed as of the date of the application.

It now appears that Martin was not the actual inventor of the inventions referred to in the letters patent and that he should have applied for the patents, not as the actual inventor, but as the assignee of the actual inventor or inventors. He now claims that the actual inventors of the invention, the subject of application 21477, were Laszlo Jozsef Biro and himself and that the actual inventor of the invention, the subject of application 30004, was Laszlo Jozsef Biro, and he has made requests to the Commissioner of Patents under reg. 147 of the Patents Regulations 1912-1949 to amend these applications and the letters patent accordingly. He seeks to amend application No. 21477 by inserting the words "the assignee of Laszlo Jozsef Biro, technician of 3040 Oro Street, Buenos Aires, Argentine, and the said Henry George Martin" in the blank space on the printed form of application marked with the marginal reference No. 5 and to amend application No. 30004 by inserting the words "the assignee of Laszlo Jozsef Biro, technician of 3040 Oro Street, Buenos Aires, Argentine" in the blank space on the printed form of application marked with the marginal reference No. 5. He states that the reason for making the amendments is that the words sought to be inserted were omitted from the applications owing to accident, mistake or inadvertence.