Alexander Turnbull & Co., Ltd v. Cruikshank & Fairweather [1905] ScotLR 42_743 (23 June 1905)

Alexander Turnbull & Co., Ltd v. Cruikshank & Fairweather [1905] ScotLR 42_743 (23 June 1905)

The defence based on the alleged invalidity of the patents is irrelevant in an action for damages against patent agents for negligence causing the lapse of patents. The patents must be treated as valid unless and until set aside in proper proceedings. The defenders cannot mitigate damages by attempting to prove the patents invalid; damages are to be assessed on the footing that the patents were valid at the time of loss.

Citation
[1905] ScotLR 42_743
Parties
Pursuer: Alexander Turnbull & Company, Limited; Defender: Cruikshank & Fairweather
Jurisdiction
Scotland
Judgment Date
23 June 1905
Procedural Posture
Civil / Reclaiming Note (appeal) From Interlocutor of Lord Ordinary
Outcome
Defenders' reclaiming note refused; Lord Ordinary's interlocutor adhered to.
Legal Topics
Loss of Patent, Negligence of Patent Agents, Relevancy of Defence of Patent Invalidity, Assessment of Damages, Mandate, Mitigation of Damages
Patent Law Professional Negligence Damages Loss of Patent Negligence of Patent Agents Relevancy of Defence of Patent Invalidity Assessment of Damages Mandate +1 more

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Parties

Alexander Turnbull & Company, Limited

Pursuer

Cruikshank & Fairweather

Defender

Procedural Posture

Civil / Reclaiming Note (appeal) From Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether a defence based on the alleged invalidity of patents is relevant to an action for damages against patent agents for failure to notify renewal fees, resulting in lapse of patents.
  2. 2 Whether the alleged invalidity of the patents can be used in mitigation of damages.

Ratio Decidendi

The defence based on the alleged invalidity of the patents is irrelevant in an action for damages against patent agents for negligence causing the lapse of patents. The patents must be treated as valid unless and until set aside in proper proceedings. The defenders cannot mitigate damages by attempting to prove the patents invalid; damages are to be assessed on the footing that the patents were valid at the time of loss.

Court Disposition

Defenders' reclaiming note refused; Lord Ordinary's interlocutor adhered to.

Orders

  • Sustains the second plea-in-law for the pursuers.
  • Repels the fourth plea-in-law for the defenders.