not grant a second patent in derogation of a former grant, and will not assume, without scire facias, that the first patent is void. See Ex parte Bailey (L. R. 8 Ch. 61) and Ex parte Henry (L. R. 8 Ch. 167, 169).

The rule does not, however, apply where mala fides is present. Thus, where a servant having filed a provisional specification, his master afterwards filed a provisional specification for the same invention, and then a complete specification, and obtained a patent. There was grave suspicion that the master had surreptitiously obtained a knowledge of the servant's invention, and the servant's patent, notwithstanding the existence of the master's patent, was ordered to be sealed and dated as of the day of his application (Ex parte Scott and Young, L. R. 6 Ch. 274). The consequence of this would be that by virtue of the 24th section of the Patent Law Amendment Act, 1852, acts done under the patent first sealed would be an infringement of the patent with an earlier date. (See Saxby v. Hennett, L. R. 8 Ex. 210.)

On the other hand, in Ex parte Bailey (L. R. 8 Ch. 60), where, except that the relation between the parties was not that of master and servant, the facts seem to have been the same as in Ex parte Scott and Young (which, however, does not appear from the report to have been cited), Lord Selborne, C., refused to enter into the question of fraud, and only allowed the patent of the first applicant to be dated as from the day of the application for the Great Seal.

But the principle of Ex parte Bates and Redgate only applies to the case of a grant actually made and sealed; and therefore a second applicant who, with his petition, files a complete specification under the 9th section of the Patent Law Amendment Act, 1852, and thereby becomes entitled for six months to "the like powers, rights, and privileges, as might have been conferred on

him by letters patent. . . . duly sealed as of the date of such application," does not acquire the rights of a patentee, so as to prevent a person who had previously applied for a patent for a similar invention from obtaining a patent. (Ex parte Henry, L. R. 8 Ch. 167.)

In some instances terms have been imposed upon the petitioner before sealing his patent. Thus, when a master and his foreman had both invented certain improvements, for which the master alone applied for a patent, but was opposed by the foreman on the ground of prior invention by the latter, Lord Cranworth, C., ordered the patent to be vested in trustees for the benefit of both. (Re Russell's Patent, 2 De G. and J. 130.)

If application for the Great Seal be made during the continuance of provisional protection, and, by reason of an opposition, the provisional protection expires before the sealing, the case falls within the saving clause of the 20th section of the Patent Law Amendment Act, 1852, and the Lord Chancellor will order the patent to be sealed, although the petition for the Great Seal was not presented until just before the expiration of the protection. (Ex parte Bailey, L. R. 8 Ch. 60.) And the Lord Chancellor will sometimes direct a patent to be sealed, even where the petition for the seal has not been presented until some months after the expiration of provisional protection, if the delay can be explained by reasons sufficiently satisfactory to induce him to do so; but these reasons must be of a very special nature, such as the interposition of a Government Department, on the ground of an apprehended detriment to the public service by the publication of the invention. (Re Mackintosh's Patent, 28 L. T. 280; S. C. 2 Jur. N. s. 1243; and see Re Hersee and Smyth, L. R. 1 Ch. 518.)

When the sealing of a patent is opposed on the

ground that the invention is similar to that comprised in a prior patent, and reference is made to the Law Officer, the opponent will be ordered to pay the costs of the hearing, unless there has been fraud on the part of the applicant. (Ex parte Manceaux, L. R. 5 Ch. 518.)

However, where an opponent was not allowed to read his affidavits, on the ground that they were filed too late and the patent was sealed, the Lord Chancellor refused to give costs against the opponent. (Re McKean's Patent, 1 D. F. J. 2.) If the petition for the Great Seal be refused, the petitioner must pay the costs. (Ex parte Yates, L. R. 5 Ch. 1; Re Nickel's Patent, Hindmarsh on Patents, 536; 1 Phil. 36.)

When the opposition is not unreasonable, no costs will be given. (Ex parte Fox, 1 V. & B. 67; 1 W. P. C. 431.) But an unsuccessful opponent, who had not opposed before the Law Officer, will be ordered to pay costs. (Ex parte Henson, Re Alcock's Patent, 4 My. & Cr. 511; 1 W. P. C. 432; Re Cutler's Patent, 4 My. & Cr. 510), and the costs of objections filed and afterwards withdrawn, and of a petition rendered necessary by them have been ordered to be paid by the objector. (Re Copley's Patent, 31 L. J. N. s. Ch. 533.)

The Lord Chancellor has power under the twentieth section of the Patent Law Amendment Act, 1852, to order a patent to be sealed although the petition for the Great Seal was not presented until after the expiration of seven months from the date of application. This was decided by Lord Cairns, C., in the case of Johnson's Patent, November, 1878. The delay had unavoidably arisen in this case in the office of the Attorney-General, and the Attorney-General had certified on the petition that the delay had not been occasioned by the neglect or default of the petitioner.

171

CHAPTER IX.

THE LETTERS PATENT: THEIR DATE, DURATION, AND

EXTENT.

THE form in which letters patent are usually issued is given in the Appendix to this volume. On reference thereto, it will be seen that the Crown, with a superabundance of words and formality, grants unto A. B., his executors, administrators, and assigns, especial licence, full power, sole privilege and authority, that he, the said A. B., his executors, &c., from time to time, and at all times thereafter during the term of years thereinafter expressed (viz. fourteen years), shall and lawfully may make, use, exercise, and vend his invention within the United Kingdom of Great Britain and Ireland, the Channel Islands, and Isle of Man, in such manner as to the said A. B., his executors, &c., shall in his or their discretion seem meet; and that the said A. B., his executors, &c., shall have and enjoy the whole profit, benefit, commodity, and advantage from time to time coming, growing, accruing, and arising by reason of the said invention, for and during the term of years therein mentioned. Then "all and every person and persons, bodies politic and corporate, and all other our subjects whatsoever, of what estate, quality, degree, name, or condition soever they be," are strictly commanded not to infringe the patent. It is, however, provided that, if it shall be made to appear to the Crown or the Privy Council that the grant is contrary to law, or prejudicial or inconvenient to the subjects of the realm in general, or that the invention is not a new

invention as to the public use and exercise thereof within the United Kingdom, &c., or that the said A. B. is not the first and true inventor thereof within the realm, the patent shall be void.

There are also other provisoes, the two most important of which are-first, that declaring the grant to be void if the said A. B., his executors or administrators, shall not particularly describe and ascertain the nature of the invention, and in what manner the same is to be performed, by an instrument in writing (to wit, the specification), under his or their hands and seals, and cause the same to be filed in the Great Seal Patent Office within six calendar months next after the date of the letters patent; and second, that which declares the patent to become void at the expiration of three years or seven years, in case the stamp duty of £50 is not paid to the Commissioners of Patents before the expiration of the third year, and the stamp duty of £100 before the expiration of the seventh year.

The law officer has power, under the fifteenth section of the Patent Law Amendment Act, 1852, to direct all such restrictions, conditions, and provisoes, as he may deem usual and expedient or necessary, in pursuance of the provisions of the Act, to be inserted in the letters patent. Moreover, under the sixteenth section of the same Act, the Crown has power, by warrant under the sign-manual, to direct the law officer to withhold his warrant, or to direct that any letters patent for the issuing whereof he may have issued a warrant, shall not issue, or to direct the insertion in any letters patent of any restrictions, conditions, or provisoes which the Crown may think fit, in addition to, or in sub

This proviso is modified to meet the case of a complete specification being filed, instead of a provisional specification, along with the petition and declaration. See the Form in the Appendix.