Farbridge V. The Registar Of Patents

1946  Present: Wijeyewardene and Rose JJ.

FARBRIDGE, Appellant, and THE REGISTRAR OF
PATENTS, Respondent.

74-D. C. Inty. Colombo, 82.

Patents-Extension of term of patent-Points for consideration by Court- Right of appeal from decision of District Court-Patents Ordinance (Cap. 123),ss. 28, 36.

A decision of the court made under section 28 (3) of the patents Ordinance is subject to an appeal to the Supreme Court.

Where the petition of a patentee for an extension of the term of his patent is referred to the court the court will, under section 28 (4) of the  Patents Ordinance, consider whether (a) the petitioner has proved that his invention is of great practical utility, (b) the patentee?s accounts show clearly and precisely how he has been remunerated in respect of his patent, (c) there are other circumstances favourable to the grant of  an extension.

APPEAL from a judgment of the District Court of Colombo. The appellant, who was the patentee of an invention, presented a  petition to His Excellency the Governor praying for an extension of  the term of his patent. The petition was referred by the Governor to the District Court of Colombo.

                H. H Basnayake, Acting Attorney-General (with him H. M. R. Weerasuriya, C. C.), for the Crown, took a  preliminary objection.-Under section 28 of the Patents Ordinance there is no right of appeal to the Supreme Court from a ?decision? of the District Judge. See The County Council of Kent and the Councils of the Boroughs of Dover & Sandwich 1. Section 28 is a self-contained section.

                [WIJEYEWARDENE, J. referred to section 36.] That section refers to cases under sections 30, 31, 32, 33 and 34. The word ?decision? in section 36 is the equivalent of a judgment, whereas the word ?decision? in section 36 is the equivalent of a judgment-In re an Arbitration between Knight and the Tabernacle Permanent Building Society 2; Vita Municipality v. Gangaram Latyaji Jadhev 3.

              H. V. Perera, K. C. (with him D. W. Fernando), for the petitioner, appellant. ?So far as the English Act is concerned there is an express provision that no appeal lies-section 92 of the 1907 Acts as amended by the Act of 1932. The case of The Country Council of Kent and the  Councils of the Boroughs of Dover & Sandwich (supra) has no application to the facts of the present case, but the reasoning is applicable. The ?decision? contemplated in section 36 is a decision by Court. The same meaning should be given to the ward ?decision? in section 28. The report  to the Governor has a legal significance and the decision of the court is a decision of a court acting judicially- The King v. Electricity Commissioners 4.

Foot notes

    1(1891) 1 Q. B. D. 725.                                                                                         3(1941) A. I. R. Bombay 184.
    2(1892) 2 Q. B. D. 613.                                                                                         4(1929) 1 K. B. 171.

[At this stage Counsel was requested to argue on the merits.]

The application was for an extension of a patent. The matters to be considered by the District Judge in such an application are indicated in  section 28 (4)-namely, the nature and merits of the invention in relation to the public, the profits made by the patentee, and the other circumstances of the case. The Judge must find whether the patentee was adequately remunerated within the fourteen years. The merit which has to be shown is that the invention is one of great practical utility. The Judge has erred when he said that ?the acid test of utility is the quantum of sales?. The  quantum of sales is dependent on utility but that is not the only thing. See Terrell on Patents, 8th ed., p. 298. The question of degree of utility of the invention is only ancillary. The main question is  adequate remuneration. The question whether the period

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