McGlashan v Rabett [1909] HCA 85

McGlashan v Rabett [1909] HCA 85

The patent should be granted because the opponent failed to prove that the combination described in the application was substantially identical with any previously used combination; in combination patents, novelty resides in the combination; unless it is clearly established that the patent cannot stand for want of novelty, the grant should proceed.

Parties
Appellants: A. H. McGlashan and A. J. McGlashan; Respondent: Rabet/Rapert
Jurisdiction
Australia
Judgment Date
06 August 1909
Procedural Posture
Appeal / On Appeal From Registrar of Patents Decision
Outcome
appeal allowed
Legal Topics
Novelty, Combination Patents, Onus of Proof, Opposition to Patent Grant
Intellectual Property Patents Novelty Combination Patents Onus of Proof Opposition to Patent Grant

Case Brief

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Parties

A. H. McGlashan and A. J. McGlashan

Appellants

Rabet/Rapert

Respondent

Procedural Posture

Appeal / On Appeal From Registrar of Patents Decision

Legal Issues

  1. 1 Is the applicant's invention novel within the meaning of the Patents Act 1903?
  2. 2 Does the combination of old elements constitute a patentable invention?
  3. 3 Has the opponent discharged the onus of proving want of novelty?

Ratio Decidendi

The patent should be granted because the opponent failed to prove that the combination described in the application was substantially identical with any previously used combination; in combination patents, novelty resides in the combination; unless it is clearly established that the patent cannot stand for want of novelty, the grant should proceed.

Court Disposition

appeal allowed

Orders

  • Patent to be granted.
  • Respondent to pay costs of the appeal and proceedings before Commissioner, taxed in the High Court.