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November, 1974 a Notice of
Opposition to application number
33574 was filed by the second-named
Defendant. After that date, the
second-named Defendant inspected
the specification of No. 33511 and
on the 21st April, 1976 applied to
amend its Notice of Opposition by
citing against No. 33574 certain
information disclosed in the
specification of No. 33511. This
application was duly granted by the
Controller.
The result of this sequence of
events was that the Plaintiff was
embarrassed by the priority date
which was obtained in respect of
33511 by reason of it being a
Convention Application. It sought in
these proceedings to disclaim the
priority date of application in the
U.K. (14th August, 1968) in favour
of the date of application in this
country (5th August, 1969) by
attempting to convert patent no.
33511 into a patent granted in
pursuance of an application under
Section 6 (1) of the Act by the true
and first inventor or his assignee
instead of a Patent granted under
Section 6(2) on the application of a
person who had applied in the
convention country. The Plaintiff
sought orders pursuant to Section 65
of the Act requiring the necessary
changes to be made in the Register of
Patents.
"Section 65 (1) provides that:
Subject to the provisions of this
Act, the Court may on the
application in the prescribed manner
of any person agreed by the non-
insertion in or omission from the
Register of any entry or by any entry
made in the Register without
sufficient cause, or by any entry
wrongly remaining in the Register, or
by an error or defect in any entry in
the Register make such order for
making, expunging or varying any
such entry as it may think fit".
Held
: (Supreme Court, per Parke
J. nem. diss.) that "to succeed in his
application, the Plaintiff must
extablish:
(1) that it is a "person aggrieved"
within the meaning of the section,
and that it is aggrieved by reason of
"the non-insertion in or omission
from" the register of an entry; and
(2) that apart altogether from the
construction of Section 65 (1) the
relief which it claims is permissible
under the. Act."
In relation to (1) above that the
Plaintiff, being the applicant for the
registration of the Patent, was not a
"person aggrieved" within the
meaning of Subsection 65 (1).
Further, that the purpose of the
section was to make provision for
cases in which, by error or some
impropriety, an intended entry was
"not inserted" or "omitted". This
had not been contended in this case.
It had been contended that the
subsection might be used by a
registered proprietor to mend his
h a nd a f t e r t he c omp l e t ed
Specification had been accepted and
even after the Patent had been sealed,
because something unforeseen had, in
the meantime, arisen. This was not
the intention of the section.
In relation to (2) above that the
Convention Application cannot be
amended into an application made
under Section 6 (1) of the Act either
as the true and first inventor or the
invention to which the application
related or as the person to whom the
true and first inventor of the
invention had assigned the right to
make the application after the sealing
and granting of the Patent. Rule 84
(1) of the Patent Rules 1965 was
considered. This provides for an
application to be made for leave to
amend an application for a Patent. It
was noted that it was the practice of
the Patents Office, under this rule, to
allow a Convention Application to be
amended into an application made
under Section 6 (1) of the Act at any
time up to the acceptance of the
complete Specification even though it
is not expressly provided for in the
Rule. It was further noted that under
Rule 26 (1) a Certificate of
Inventorship was required for an
application made under Section 6(1)
whereas it was not required for a
convention application. Thus, it
would appear to be wholly contrary
to the provisions of the Act that a
Patent granted pursuant to a
convention application for which a
Certificate of Inventorship was not
necessary, could, subsequent to the
granting and sealing of the Patent, be
converted into one made pursuant to
an application under Section 6 (1)
where such certificate was essential.
Beecham Group Limited and the
Controller of Patents Designs and
Trade Marks and Bristol Myers
Company—
Supreme Court (per
Parke j. with Henchy & Griffin
J J . ) - 11 May, 1978—Unreported.
FAMILY LAW
Family Law (Maintenance of Spouses
and Children) Act 1976—Effect on
Spouses right to maintenance under
Section 5 of a consent to petition for
Divorce A Mensa et Thoro and
motion for Alimony Pendente Lite
prior to Act.
The Plaintiff and Defendant were
married and had four children. In
1971 the Plaintiff had issued a
petition for Divorce A Mensa et
Thoro against the Defendant. In
1972 the Plaintiff brought a motion
for alimony pendente lite.
In 1973 it was announced in
Court by Counsel for the parties that
a settlement of the petition had been
reached on the basis of a written
consent signed by the parties and
their respective solicitors and such
settlement was handed into court. By
the consent of the parties, the court
ordered that the said consent should
be received andfiled with and deemed
to be part of the order of the
Court and also by consent directed
that all further proceedings on the
petition and on foot of the motion for
alimony pendente lite be stayed on
the terms set out on the consent with
liberty to either party to apply to the
court at a later date.
The relevant provisions of the
consent included:
1.That the petition should stand
dismissed and that the motion for
alimony should be adjourned sine
die.
2. That the Defendant should pay to
the applicant in full satisfaction of
all claims in the petition the sum of
£10,000.
3. That the parties were to act as
joint guardians of the children and
the custody of the children was
granted until further order to the
applicant.
4. The Defendant undertook to pay
for the education of certain of the
children.
5. The Plaintiff undertook to
indemnify and keep indemnified
the Defendant against all claims of
whatever nature whether arising
either before or after the execution
of the consent for which he might
otherwise be liable as husband of
the Plaintiff.
6. Liberty was reserved to either
party to apply to the court.
On the 24th March, 1977 a
Special Summons was issued in the
High Court by the Plaintiff against
the Defendant claiming inter alia:
1. Relief pursuant to Section 11 of
the Guardianship of Infants Act
1964.
2. An order giving directions
regarding the welfare of the two
younger children and directing the
Defendant to pay towards the
maintenance of these two children
such weekly or other periodical
sums as having regard to the