Non-user of the patent creates a strong presumption against the merit of an invention, which presumption can only be rebutted by the strongest evidence (u). But the same objection being raised in Re Hughes' Patent (x), the application was granted after strong and unanswered evidence of merit, though the patent had not been used in England during the whole term (y).

In Re Betts' Patent (2) Lord Chelmsford said: "Dobbs' specification may have given the petitioner the idea of the possibility of uniting the two metals tin and lead, and may thus have deprived him of the merit of originality. But in Dobbs' hands the discovery was barren; the petitioner, however, who followed out his suggestion, and after repeated experiments gave it a practical application, is the real benefactor to the public, and is entitled to claim that description of merit which constitutes one of the grounds for extending the term of a patent" (a).

Where the applicants are a company who have purchased the patent for the purpose of trading with it, and not at all with the view of encouraging or rewarding the inventor, and an extension of the term of the patent would confer no benefit upon the latter at all, the application will be refused (b), but otherwise, if the inventor will reap a profit from the extension (c).

Where part of the invention is sufficiently meritorious and part not so, an extension of the term will be granted for the meritorious part only (d).

Merit is a vague term. as to wherein it consists.

Different persons have different ideas

Each case that comes before the Privy Council must of necessity, therefore, be decided upon the facts of that particular case. It is otherwise with the other necessary condition for an extension, viz., the inadequacy of the remune

(u) In re Allan's Patent, L. R., 1 P. C. 507; 4 Moo. P. C., N. S. 443; Bakewell's Patent, 15 Moo. P. C. C. 385.

(x) L. R., 4 App. Cas. 174.

(y) See also In re Wright's Patent, 1 Web. P. C. 575; In re Herbert's Patent, L. R., 1 P. C. 399; 4 Moo. P. C., N. S. 300; Southby's Patent, 8 P. O. R. 433.

(2) 1 Moo. P. C., N. S. 49.

(a) See also In re Hill's Patent, 1 Moo. P. C., N. S, 258, at p. 265. (b) Norton's Patent, 1 Moo. P. C. N. S., 339; Sillar's Patent, Good P. C. 581, 582.

(c) Houghton's Patent, L. R., 3 P. C. 461; 7 Moo. P. C., N. S. 309.

(d) Bodmer's Patent, 8 Moo. P. C. C. 282; Lee's Patent, 10 Moo. P. C. C. 226; Church's Patent, 3 P. O. R. 95; Joy's Patent, 10 P. O. R. 89.

ration of the inventor. Here figures can be dealt with, and a nearer approach to uniformity of decision obtained. It is possible, therefore, to gather from the various decisions a reasonably accurate set of rules for the guidance of the applicant for an extension on the ground of the inadequacy of the remuneration.

The sufficiency of the remuneration will be estimated with a view to the importance of the invention and the benefit the public have derived from it. That which would be ample remuneration for one patent would be considered inadequate for another. Refining sugar by filtering it through animal charcoal was an invention of great value and importance. The patent was extended for six years on the ground that although there had been a considerable profit it bore no relation to the great merit of the invention (e). So in Re Newton's Patent (f) the Privy Council granted an extension on the ground that there had not been sufficient remuneration considering the value of the invention.

If the patentee is a manufacturer of the patented article, the Privy Council will not endeavour to distinguish accurately his profits as a patentee from his profits as a manufacturer, but will consider the gross amount of profits (g). In this case Lord Brougham said: "We cannot weigh in golden scales the proportions between manufacturers' profits and patentees, but we must take it in the gross, and apply our minds as men of the world, men of business-neither unfairly towards the inventor, nor extravagantly and romantically towards him in his favourneither against him pressing, nor in his favour straining. We must ascertain whether he has, in the eyes of men of ordinary but enlightened understandings, judging fairly between him and the public, had a sufficient remuneration."

The ground of this view of the case appears to be that the possession of the patent has placed the manufacturer in an advantageous position in obtaining orders (h).

(e) In re Derosne's Patent, 2 Web. P. C. 1.

(f) 14 Moo. P. C. C. 156.

(g) In re Muntz's Patent, 2 Web. P. C. 113.

(h) In re Johnson's Patent, 8 Moo. P. C., N. S. 282; also Saxby's Patent, L. R., 3 P. C. 292; 7 Moo. P. C., N. S. 82.

In the accounts which the patentee must file upon an application for an extension, when he is a manufacturer of the patented article he should, so far as possible, distinguish profits as a manufacturer from profits as a patentee (); and in cases where it can be shown that the reasoning in Johnson's case (supra) does not apply, he will be allowed to deduct his profits as a manufacturer before an estimate is taken of his profits as a patentee (k).

But where he ascribed two-thirds of the profits to the manufacturer, and only one-third to the patent, it was held to be unreasonable (1).

It will be observed that the cases quoted above appear to conflict with the principles laid down by Lord Brougham in Muntz' case (m). These words cannot be read as meaning that no regard whatever will be paid to the fact, that a great portion of the patentees' plant, expenditure, or time, is devoted to the business of an ordinary manufacture, from which some profits would be derived, even if no patent were in existence, but that no attempt will be made to go into minute details of figures. The profits will be treated in gross, and then their lordships will apply their general knowledge, as men of the world, in coming to a conclusion as to how much the patentee has received from the profits of his invention.

In estimating profits, a deduction will be allowed for the expenses of experiments in bringing the invention to perfection (n). And also in respect of the costs of litigation necessary to maintain the validity of the patent, and to restrain infringers (o). But not where actions have been compromised, improvidently, and costs abandoned without sufficient reason (p). The expenses of taking out the patent will be allowed as a deduction (q). So also will the expenses incurred in bringing the

(i) In re Betts' Patent, 1 Moo. P. C., N. S. 49.

(k) Ib.

(1) In re Hill's Patent, 1 Moo. P. C., N. S. 258; also Duncan & Wilson's Patent, 1 P. O. R. 257.

(m) 2 Web. P. C. at p. 120.

(n) In re Bate's Patent, 1 Web. P. C.

739; also In re Kay's Patent, 1 Web. P. C. 568.

(0) In re Galloway's Patent, 1 Web. P. C. 724.

(p) In re Hill's Patent, 1 Moo. P. C., N. S. 258.

(q) In re Roberts' Patent, 1 Web. P. C. 573.

invention in general public use (). And a deduction will be allowed in respect of the personal expenses of the patentee, and by way of salary for the exclusive devotion of his time in bringing the patent into practical operation and public notice (s). A patentee residing in America, for the purpose of getting the patented article into general use in England, employed an agent and allowed him half profits. This half was allowed to be deducted (t).

But, on the other hand, the patentee must add to his profits the profits arising out of the manufacture of the patented article, even though intended for exportation (u).

So also he must add the profits which have been made by any other persons interested in the patent, such as his licensees (a) or the assignees of a part, with free right to use the invention (y).

And in Re Johnson's patent Lord Justice James said: "Their lordships are of opinion, that where the question to be considered is, whether an invention has been sufficiently remunerated or not, in taking into consideration the remuneration received, they must have regard to the remuneration which the invention has brought in to the patentee, or the person who claims the right of the patentee, whether it be in one country or another" (z).

We have seen by sub-section 6 of the section of the Act of 1883, now under consideration, the rules of the Privy Council, which have been heretofore in force, are to continue until amended or altered.

Rule 9 is as follows:-" A party applying for an extension of a patent must lodge at the council office six printed copies of the specification, and also four copies of the balance sheet of expenditure and receipts relating to the patent in question, which accounts are to be proved on oath before the lords of the committee at the hearing." This must be done within one week of the hearing: rule 10.

(r) In re Galloway's Patent, supra. (s) In re Carr's Patent, L. R., 4 P. C. 539.

(t) In re Poole's Patent, 4 Moo. P. C., N. S. 452.

(u) In re Hardy's Patent, 6 Moo. P. C. C. 441.

(x) In re Trotman's Patent, L. R.,

1 P. C. 118; 3 Moo. P. C., N. S. 488; but see Thomas' Patents, 9 P. O. R. 367, 373.

(y) Thomas' Patents, 9 P. O. R. 367. (2) L. R., 4 P. C. 75; 8 Moo. P. C. N. S. 282; see also Hardy's Patent, 6 Moo. P. C. C. 441.

The judicial committee will not enter into the accounts in a case for extension unless they have been filed in accordance with this rule (a).

But in exceptional cases, the filing of perfect accounts may be excused (b). Where the estate of a deceased patentee was of little value, and no accounts had ever been kept, the petitioner, the administratrix and widow of the patentee, was examined to prove an allegation in the petition, to the effect that not only had there been no profits, but a considerable loss (c).

And where the invention was of exceptional merit and it was clear that a loss of about £8,000 had been incurred, it was held that extreme accuracy in the accounts was unnecessary (d).

The account of profit and loss ought to be clear and precise (e). The application will be refused if the petitioner's accounts are unsatisfactory (ƒ). The accounts furnished by the petitioner not containing sufficiently full and accurate information in respect of the patent, or the remuneration received by him, the judicial committee declined to recommend a prolongation of the term (g). In one case, the accounts being primâ facie unsatisfactory, the judicial committee directed the question of accounts to be taken before considering the merits of the invention (h). And where the accounts were primâ facie satisfactory, the petitioners were allowed to prove the merits of the invention before going into the accounts (i). The books of the petitioner in respect to profits arising from his patent having been lost during his bankruptcy, the account of profit and loss was taken upon his own evidence (k). This was an exception to the general rule, which is, that evidence will not be received from the petitioner; but in the

(a) In re Johnson's & Atkinson's Patent, L. R., 5 P. C. 87; and see In re Yates' & Kellett's Patent, L. R., 12 App. Cas. 147.

(b) In re Lowe's Patent, 10 Jur. 363. (c) In re Heath's Patent, 8 Moo. P. C. C. 217.

(d) In re Darby's Patent, 8 P. O. R. 380, 384.

(e) In re Betts' Patent, 1 Moo. P. C., N. S. 49; In re Saxby's Patent, 7 Moo. P. C., N. S. 82; In re Lake's Patent,

8 P. O. R. 227; but see In re Deacon's Patent, 4 P. O. R. 119, 122.

(f) In re Trotman's Patent, 3 Moo. P. C., N. S. 488.

(g) In re Clark's Patent, 7 Moo. P. C., N. S. 255.

(h) In re Wield's Patent, L. R., 4 P. C. 89.

(i) In re Houghton's Patent, L. R., 3 P. C. 461; 7 Moo. P. C., N. S. 309. (k) In re Hutchinson's Patent, 14 Moo. P. C. C. 364.