Electric & Musical Industries Ltd's Patent, Re [1949] HCA 62

High Court of Australia Webb J. Electric & Musical Industries Ltd's Patent, Re [1949] HCA 62

ORDER Order that there be a re-grant of letters patent No. 17139/34 for the term of seven years from the expiration of the original, that is from 13th April 1949, subject to the conditions contained in the above judgment, and that applicant pay the costs of the commissioner.

Cur. adv. vult.

J. Webb delivered the following written judgment:—

Dec. 16 Webb J

This is an application by way of originating summons under s. 84 (6) of the Patents Act 1903-1946 asking that the term of a convention patent relating to a system of circuits to be used in television receivers and transmitters which was granted in the United Kingdom be extended on the ground of war loss. The effective date was 13th April 1933, and the patent expired on 13th April 1949. Any extension therefore must be by way of re-grant. Before dealing with the facts it is desirable to make a short statement of the law applicable.

Sub-section (6) provides that the Court may have regard solely to the loss or damage suffered by the patentee by reason of hostilities between His Majesty and any foreign State. It does not apply if the patentee is a subject of such State or is a company the business of which is managed or controlled by such subjects or is carried on wholly or mainly for the benefit or on behalf of such subjects. As pointed out by Williams J. in Gillette Industries Ltd. v. Commissioner of Patents [1] , the Court may in the exercise of its discretion have regard to other matters which the Court takes into account under s. 86 (1)-(5) upon an application by petition to extend a patent on the ground that the patentee has been inadequately remunerated by his patent. But generally the Court confines its attention to the question whether the patentee has suffered loss or damage by reason of the hostilities. In what is known as the Rhone Case [2] Sargant J. described an application of this kind as one for an extension by way of quasi-substitution. He said the Court was empowered to take into account the fact that part of the original term had been rendered ineffective by reason of the war, and was empowered to give a substitutional term in lieu of the ineffective term. In In the Matter of Letters Patent granted to von Kantzow [3] a similar view was taken by Lord Simonds.