Re Bendix Aviation Corporation Patents [1961] HCA 76

High Court of Australia Menzies J. Re Bendix Aviation Corporation Patents [1961] HCA 76

ORDER Order accordingly.

Menzies J delivered the following judgment:—

Nov. 29 Menzies J

This application has been fully argued and because I have had the opportunity during the luncheon adjournment to consider the substance of the arguments addressed to me I do not think that any good purpose would be served by my reserving the matter.

The applicant was the holder of two Australian patents, No. 145806 and No. 146006, relating to hydraulic brakes which I need not describe but which are referred to in the documents as Hydrovacs. These patents were both dated 5th December 1940 and they both expired on 4th December 1956.

The patents were convention patents based upon a United States patent, and it was not until after the war was over that the Australian applications were made. The first was made some time in 1947 and I have it in mind that the second was not made until 1951. If there be that difference, that is the only difference in the two patents and it is not material for present purposes. I can therefore do as counsel did and deal with both applications together.

On 1st June 1956 the patentee, pursuant to s. 95 of the Patents Act 1952 Cth as amended, sought extensions of the two patents on the ground of war loss, and it appears that all the necessary formal steps were taken.

The application can be granted if I find, and cannot be granted unless I find, that the patentee as such suffered war loss by reason of hostilities between His Majesty and a foreign state. In considering whether there was such loss, I think I ought to have regard to the period since 5th December 1940, notwithstanding that it was not until after the war was over that the applications for Australian patents were made and granted.