Re Northey Rotary Engines Ltd's Patent [1950] HCA 26

Re Northey Rotary Engines Ltd's Patent [1950] HCA 26

The application was refused because the only commercially relevant modified form was not the same invention as that described in the United Kingdom provisional specification and was therefore bad for disconformity; in any event, even if valid, no extension should be granted because the patentee had not made real efforts before 1948 to exploit the invention in Australia and had not proved loss or damage caused by hostilities.

Jurisdiction
Australia
Procedural Posture
Petition Under S. 84 of the Patents Act 1903 1946 to Extend the Term of Letters Patent 19032/34 / Application for Extension of Patent Term
Outcome
Application refused.
Legal Topics
['extension of Patent Term' 'patent Disconformity' 'same Invention Requirement' 'inadequate Remuneration' 'failure to Exploit Invention' 'loss or Damage on Account of Hostilities']
['intellectual Property' 'patent Law'] ['extension of Patent Term' 'patent Disconformity' 'same Invention Requirement' 'inadequate Remuneration' 'failure to Exploit Invention' 'loss or Damage on Account of Hostilities']

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Procedural Posture

Petition Under S. 84 of the Patents Act 1903 1946 to Extend the Term of Letters Patent 19032/34 / Application for Extension of Patent Term

Legal Issues

  1. 1 ['Whether the modified form of the machine was the same invention as that applied for in the United Kingdom and therefore capable of being protected under the Australian Letters Patent.' 'Whether the patentee satisfied the conditions for an extension under s. 84, sub-ss. 4 and 5 of the Patents Act 1903-1946.' 'Whether the patentee proved loss or damage on account of hostilities under s. 84 (6).']

Ratio Decidendi

The application was refused because the only commercially relevant modified form was not the same invention as that described in the United Kingdom provisional specification and was therefore bad for disconformity; in any event, even if valid, no extension should be granted because the patentee had not made real efforts before 1948 to exploit the invention in Australia and had not proved loss or damage caused by hostilities.

Court Disposition

Application refused.

Orders

  • ['Application refused.' 'The petitioner must pay the costs of the Commissioner of Patents including any reserved costs.']