Wilkinson's application, No.4662, 1877, was opposed on the ground that the patent, No. 109, 1878, dated 8th January, 1878, was already sealed for substantially the same invention. Giffard, S. G., allowed Wilkinson's application to proceed upon condition that the patent be dated 9th January, 1878.

If the evidence is conflicting and the Law Officer cannot decide which side is speaking the truth, he will allow the application to proceed (Liddell's Patent, No. 3872, 1875, opposed by Stevenson before Giffard, S. G., 6th May, 1876).

In the case of Abel's application, No. 1908, 1876, opposed by De Muller, 2nd August, 1876, Giffard, S. G., held that he could not take any official notice of alleged fraudulent proceedings on the part of the foreign communicator of Abel's invention as against the opponent, which took place abroad. He could not look behind the applicant Abel, who, as the first importer or introducer of the invention into Her Majesty's realm, was in law the inventor.

The Law Officers in the case of cross oppositions, one being before each of them, will sometimes sit together to hear them. This was done by Holker, A. G., and Giffard, S. G., in the cases of Aulagnier's application, No. 2578, 1876, and Herzog's application, No. 3285, 1876, heard 6th Dec., 1876.

The Law Officers have power to grant costs under Sect. 14, 15, & 16, Vict. c. 83, and this power is frequently exercised, although, as the costs are in the absolute discretion of the Law Officer, it does not necessarily follow that he will order them to be paid.

Oppositions before the Lord Chancellor.-The practice as to entering oppositions at this stage is regulated by the order of Lord St. Leonards of the 15th October, 1852, which is as follows: "Every application to the Lord Chancellor against or in relation to the sealing

of Letters Patent shall be by notice, and such notice shall be left at the Commissioners' office and shall contain particulars in writing of the objections to the sealing of such Letters Patent." It is not necessary to obtain leave to enter an opposition before giving notice of the objections. (Re Vincent's Patent, L. R. 2 Ch. 342.)

The proceedings were formerly on the common law side of the Court of Chancery, of which the Lord Chancellor was the sole judge, and his jurisdiction in relation to Letters Patent was expressly excepted from the Act constituting the Court of Appeal in Chancery (14 and 15 Vict. cap. 13, s. 83). This jurisdiction is still reserved to him by the Judicature Acts.

The onus of proof lies on the opponent. Ex parte Sheffield (L. R. 8 Ch. 237). The evidence is taken by affidavits, not by statutory declarations, and the parties must either conduct their cases in person or be represented by solicitors and counsel. Diligence must be used in prosecuting a case of opposition; thus, where an opponent only filed affidavits on the morning of the day appointed for the hearing, the Lord Chancellor refused to read them, and ordered the patent to be sealed. (Re McKean's Patent, 1 De G. F. and J. 2.) It would seem that there is no jurisdiction to order cross examination on the affidavits before an examiner, but on the hearing before the Lord Chancellor witnesses may be examined viva voce. (Re Gething, L. R. 9 Ch. 633.) When the opponent is out of the jurisdiction, service of the petition for the Great Seal may by leave be made on his solicitor. (Re Campbell's Patent, 22 L. T. o. s. 93.)

The decisions as to the right of a person, who did not enter an opposition before the Law Officer, to oppose the sealing of a patent before the Lord Chancellor, have not been uniform. The practice was allowed in

the cases of Ex parte Henson v. Alcock (1 Web. P. C. 432); Re Cutler's Patent (1 Web. P. C. 418); Re Fawcett's Patent (2 De G. M. and G. 439); Re Brennand's Patent (3 De G. F. and J. 695); Ex parte Yates (L. R. 5 Ch. 1); whilst it was not permitted in Re Mitchell's Patent (L. R. 2 Ch. 343); and in the last reported case, Ex parte Manceaux (L. R. 5 Ch. 518), Lord Hatherley, C., said that opposition at this stage was an indulgence to the opponent, who would in future be obliged to pay the costs of the hearing, unless there had been fraud on the part of the petitioner.

The Lord Chancellor has full jurisdiction at the last moment to affix, or to refuse to affix, the Great Seal (Re Cutler's Patent, 1 Web. P. C. 420), all his powers in this respect being expressly reserved by the 15th section of the Patent Law Amendment Act, 1852.

Where there has been no opposition before the Law Officer, the Lord Chancellor will not enter into the merits of the case, but will refer the matter back to the Law Officer. (Re Fawcett's Patent, 2 De G. M. and G.; Ex parte Yates, L. R. 5 Ch. 1; Ex parte Manceaux, L. R. 5 Ch. 518.) And when the opposition is based on the existence of a previous patent for the same invention, the reference will be to ascertain whether, having regard to the prior patent, the seal ought to be affixed to the patent applied for. (Ex parte Yates, L. R. 5 Ch. 1; Ex parte Manceaux, L. R. 5 Ch. 518.)

But where the matter has been before the Law Officer and he has given his decision, an appeal will not be allowed, unless a case of surprise or fraud can be made, or unless some material fact which, if brought before the Law Officer, would have led him to decide differently, has come subsequently to the knowledge of the party appealing. (Re Vincent's Patent, L. R. 2 Ch. 341; Re Simson's Patent, 21 L. T. o. s. 81; Ex

parte Sheffield, L. R. 8 Ch. 237.) Nor will the opponent be allowed to raise on those facts before the Lord Chancellor a new argument which he omitted to raise before the Law Officer. (Ex parte Sheffield, L. R. 8 Ch. 237.)

After the matter has once been before the Law Officer, the Lord Chancellor will not refer it back to him, but will himself decide on the evidence; the question then being (according to Lord Cottenham, C., in the case of Simpson and Isaacs' Patent, 21 L. T. o. s. 81) not whether the petitioner has made out that he is the true inventor, and that the invention is new, but whether such a primâ facie case has been made out that the Lord Chancellor ought to put him into a position to litigate the question with the public. And in Re Russell's Patent (2 De G. and J. 130), where the novelty of the invention was contested, Lord Cranworth, C., thought that in such a case it was better to run the risk of putting the party opposing to the costs of ulterior proceedings than to withhold the Great Seal from the patent, for the obvious reason that the one course would create a remediable, and the other an irremediable injury. (See also Re Tolson's Patent, 6 De G. M. and G. 422; In re Lowe's Patent, 25 L. J. Ch. 454; In re Simpson and Isaacs' Patent, 21 L. T. o. s. 81.) And this principle will be also applied where there is a question whether the invention is properly the subject-matter for a patent. (Re Spence's Patent, 3 De G. and J. 523.) But where it is quite clear that the invention had been dedicated to the public by the inventor before applying for a patent, the Great Seal will be refused. (Re Adamson's Patent, 6 De G. M. and G. 420.) The sealing of a patent will not be refused on the ground of alleged want of utility. (Re Cutler's Patent, 1 Web. P. C. 431.)

In cases where there are rival applications for a

patent for the same invention, and there is a conflict. of evidence as to priority of discovery, the patent will be awarded to him who is first in a position to seal it. (In re Lowe's Patent, 25 L. J. N. s. 454.)

But where the second applicant has actually procured the Great Seal without having been opposed, he will hold his patent against all the world, and when the first applicant petitions for the Seal, it will either be refused, or if granted, the patent will be dated after that of the second applicant, under the provisions of the 23rd section of the Patent Law Amendment Act, 1852. Thus, in the case of Ex parte Bates and Redgate (L. R. 3 Ch. 577), application was made for a patent on the 2nd October, and a second applicant applied for another patent for the same invention on the 2nd November, and obtained his patent, without having been opposed, on the 12th December. The first applicant on the 19th March applied to have his patent sealed, and asked to have it dated as of the 2nd October. This, however, was refused by Lord Hatherley, C., who said, "When one patent actually exists, and is brought to the notice of the Lord Chancellor, a second patent cannot be granted for the same invention." Accordingly he only permitted the first applicant to include in his patent so much of his invention as was not covered by the patent already granted; nor would he allow the first applicant's patent to bear an earlier date than the day of his application for the Great Seal, so that it was dated after the second applicant's patent.

And so, where the Law Officer had reported that part of an invention for which a patent was sought was the subject of an existing patent, the Lord Chancellor ordered that part to be excluded from the new patent. (Ex parte Manceaux, L. R. 6 Ch. 273.)

The principle of these cases is that the Crown will