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Majesty's Colonies and Plantations abroad, without further proof or production of the originals. q

mitted to Scot

Certified printed copies,' under the seal of the Com- To be transmissioners, of all Specifications and Complete Specifica- land and Iretions, and fac-simile printed copies of the drawings land. accompanying the same, if any, Disclaimers and Memoranda of alterations filed under the Patent Law Amendment Act, shall be transmitted to the office of the Director of Chancery in Scotland, and to the Enrolment Office of the Court of Chancery in Ireland, within twenty-one days after the filing thereof respectively, and certified copies or extracts from such documents shall be furnished to all persons requiring the same, on payment of such fees as the Commissioners shall direct; and such copies or extracts shall be received in evidence in all Courts in Scotland and in Ireland respectively, in all proceedings relating to Letters-patent for inventions, without further proof or production of the originals.

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CHAPTER V.

THE GRANT AND ITS CONSTRUCTION.

stat. 21 Jac. I. of

the Royal Pre

rogative.

Reservation by THE grant of Letters-patent for inventions is the Prerogative of the Crown. In Boulton v. Bull, Mr. Justice Heath observes: "The Statute of 21 Jac. I. prohibits all monopolies, reserving to the King, by an express proviso, so much of his ancient Prerogative as shall enable him to grant Letters-patent, and grants of privilege for the term of fourteen years or under, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures."

Royal grants of the present day construed as

grants between subjects.

The principles of interpretation with reference to Royal grants of the present day are thus laid down by Mr. Justice Coleridge in a recent case: "Although in the old books not a few cases may be found distinguishing between grants from the Crown and grants from a subject, on grounds, some of them hard to reconcile with justice. or common sense-some of them reasonable enough at the time with reference to the then condition and interests of the Crown, but wholly unreasonable now; yet the general principle to be traced in the main current of authority is both a just and reasonable one, establishing the same guiding principle of construction for instruments

⚫ (1795) Watts' engine, 2 H. Bla. 465.

b

R. v. Archipelago Company (1853), Q. B., 21 L. T. 33.

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of both kinds. If, indeed, the King has been deceived by Grounds of any false suggestion as to what he grants or the considera- avoidance. tion of his grant,-if he appears to have been ignorant or misinformed of his interest in the subject matter of his grant, if the language of his grant be so general that you cannot in reason apply it to all that would literally fall under it, or if it be couched in terms so uncertain that you could not tell how to apply it with that precision which a grant from one so especially representing the public interest ought in reason to have, or if the grant, reasonably construed, would work a wrong or something contrary to Law-in these and such like cases the grant would be perhaps either wholly void or restrained according to circumstances, and equally so whether the technical words ex certâ scientiâ et mero motu be used or not. That is applying the same principles of construction on which a grant from a subject is construed, viz., on default of effectuating the intention of the grantor, to hold the grant valid, or to construe it secundum intentionem domini regis, and not in deceptione domini regis. It is satisfactory to see that this language of good sense, used even in times when the Prerogative was at least suffi

C

A strong contrast to the language used in the House of Commons on the motion before alluded to of Lawrence Hyde, where "Mr. Spicer said: This act may touch the Prerogative Royal, which, as I learned last Parliament, is so transcendunt, that a subject may not aspire thereto.' Sir F. Bacon said: 'I say, and say it again, that we ought not to deal, or judge or meddle, with Her Majesty's Prerogative.' I wish, therefore, every man to be careful of this business. Dr. Bennett said: He that goeth about to debate Her Majesty's Prerogative had need to walk warily.' Mr. George Moore said: We know that the power of Her Majesty cannot be bound by any act; why, therefore, should we thus talk? Admit that we make this act with a non obstante, yet the Queen may grant a Patent with a non obstante, to cross this non obstante.' On a subsequent day, the subject was again introduced, when Mr. Spicer said, 'It is to no purpose to offer to tie Her Majesty's hands by Act of

Construed on principles of good sense.

ciently favoured in Courts of Law, and in the very books to which reference is made for a strict and inequitable construction, and in the celebrated Alton Wood's case, which contains a store of learning on this head, in what Lord Coke calls the Treasurer's brief and effectual judgment,' it is laid down that no violent or strained construction is to be made of the King's grant, but his grant shall be taken in its usual and common sense, according to its intent and meaning.' In Sir John Molyn's case, Lord Coke desires the reader' to note the gravity of the ancient sages of the law to construe the King's grant beneficially for his honour and the relief of the subject, and not to make any strict or literal construction in subversion of such grants.' And Lord C. B. Comyns, in his Digest, gives accordingly the substance of this case, and Beverly's case, and the Churchwardens' case, in these words: When the King's grant is capable of two constructions, by one of which it will be valid and the other void, construction must be made to make it valid, for that will be more for the benefit of the subject and the honour of the King, which ought to be more regarded than his profit.'"

The following is the Form (prescribed by the Patent Law Amendment Act, 1852) of the Letters-patent at present issued.

Parliament, when she may loosen herself at her pleasure.' Mr. Davis said: 'God hath given that power to princes which he attributes to himself, Dixi quod Dii estis.'" D'Ewes, 652.

c 1 Co. Rep. 26.

d 6 Co. Rep. 6.

e Tit. "Grant by the King," G. 12.

19 Co. Rep. 129.

10 Co. Rep. 66.

LETTERS-PATENT.

VICTORIA, by the grace of God of the United Kingdom of Queen's Title. Great Britain and Ireland Queen, Defender of the Faith;

To all to whom these presents shall come, greeting:

Whereas

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which Petition.

hath by his Petition humbly represented unto Recital of Usk that he is in possession of an Invention for the Petitioner conceives will be of great public utility; that he is the true and first Inventor thereof, and that the same is not in use by any other person or persons, to the best of his knowledge and belief:TM The Petitioner therefore most humbly prayed, that We would be graciously pleased to grant unto him, his executors, administrators and assigns,

As to the general powers of the executive in allowing or prohibiting the importation or exportation of particular goods, or the carrying on of any trade, see Heinec. El. Jur. Civ. ii. 169; Puff. iv. 6, 10; Valin, Com. i. 217; Vattel, i. 94; Blk. bk. iv. pt. 3, ch. i.; Chitty, P. C. ch. x. § 2; Hawk. P. C. i. c. 29, § 20; Com. Dig. "Patents;" Noy, 182; Hindm. 7; Foster, Sci. Fa. 237; Godson, 10; Skin. 224; Hard. 55; 1 Rol. 5; Anderson's Hist. and Chron. Ded. i. 478; Child v. Sands, 4 W. & M., K. B.; Carth. 295; Dyer, 177. In the Case of Monopolies (Darcy v. Allein, Noy, 178), it was said, “Such Charter of a monopoly against the freedom of trade and traffic is against divers Acts of Parliament, as 9 Edw. III. c. 1 and 2, which, for the advancement of trade and traffic, extends to all things vendible, notwithstanding any Charter of franchise granted to the contrary, or usage, or custom, or judgment given upon such Charters, which Charters are adjudged by the same Parliament to be of no force and effect."

1 The King cannot grant but by matter of record (Com. Dig. "Prerog."), and by the Common Law no grant is available or pleadable, unless under the Great Seal. R. 2, Co. 16 b; 2 Rol. 182, 1. 5.

The use of the plural form by the King in his grants dates from the reign of John. 2 Inst. 2.

In Lovell v. Hicks (1836, 2 You. & Coll. 46), the subject matter of a Patent (economical baking apparatus by means of alcoholic evaporation) turned out a mere bubble. The Patent was set aside, as obtained by fraud upou the Crown, and the money paid under an agreement to purchase a share in the Patent ordered to be returned.

The allegations in the Petition as to the utility and novelty of the invention are the grounds on which the scire facias is prosecuted for a repeal of a Patent, as obtained by fraudulent representations to the Crown.

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