vention on board a single ship, however public, or for whatever length of time, as a general user. They were satisfied that the invention had not been publicly used at the date of the original letters patent. Although Porter believed himself to have been the original inventor at the time when the original patent was taken out, it was clear that he could not think so at the time of the extension. Seeing that he was not the original inventor, the patent ought never to have been granted, and the prayer for extension should not have been listened to" (Honiball's Patent, 3 Eq. Rep. 225; S. C. 2 W. P. C. 201).

CHAPTER XII.

EXTENSION OR PROLONGATION OF LETTERS PATENT.

NOTWITHSTANDING the merit and utility of his invention, a patentee sometimes finds himself nearly at the expiration of the term for which his patent was granted, without having reaped the reward which he was fairly entitled to expect. This may have happened from various causes. To perfect the invention, to work it out, and to bring it before the public, may have been attended with great expenses, which were never repaid. It sometimes occurs that the public are slow to acknowledge the merit of an invention of real value, and the patentee's privilege is on the point of expiring before they can be brought to extend their patronage to it. It may be that the patentee's monopoly has been infringed, and that large costs have been incurred in enforcing or defending his just rights. Or it may be that the patentee did not himself possess the means, and was never fortunate enough to meet with a capitalist to advance what was necessary to work the invention. From some one of these causes, or from several of them combined, it occurs frequently that a patentee fails to derive any benefit, even if he escapes loss, from an invention of sterling merit and utility. Previous to the passing of the statute 5 & 6 Wm. IV. c. 83, there was no mode of obtaining the extension of a patent privilege except by an Act of Parliament, which was attended with considerable cost. But a much less expensive mode was provided by the fourth section of that Act, namely, by petition to the Queen

in Council; and her Majesty was empowered, after report from the Judicial Committee, to grant new letters patent, for a term not exceeding seven years after the expiration of the first term. In case the patentee believes that a further term of seven years will not suffice for his reimbursement and remuneration, then he may proceed, under the second section of the 7 & 8 Vict. c. 69, and apply for a longer period of extension, which cannot, however, exceed fourteen years. The benefit of these enactments is extended, by the fourth section of 7 & 8 Vict. c. 69, to the assignee of a patentee; and the provisions of these Acts, and of the Act 2 & 3 Vict. c. 67 (to be noticed hereafter), are extended to patents granted under the Patent Law Amendment Act, 1852, by the fortieth section of that Act, and the seventh section of 15 & 16 Vict. c. 115.

An assignee is allowed to apply for an extension, but he does not stand altogether in the same favourable position as the patentee. It is chiefly with the view of rewarding a meritorious inventor that the extension of a patent is granted. If, however, the assignee be a person who has assisted the inventor with funds to enable him to perfect the invention and bring it into use, this will be looked at by the Privy Council as a favourable feature in a petitioning assignee's case (Norton's Patent, 1 Moore, P. C. C. N. 8. 339), in which case the petitioners, who were a public company, were refused a prolongation which they applied for after the death of the inventor. See also the case of Napier's Patent (13 Moore, P. C. C. 543). Pitman's Patent (8 Moo. P. C. C. N. s. 297). Normand's Patent (L. R. 3 P. C. C. 193).

The proceedings commence by the insertion of advertisements in the public prints, giving notice of the patentee's intention to apply for a prolongation of his

patent, and a petition setting forth the facts must then be presented to her Majesty in Council. Any person is entitled to enter a caveat, and to be heard in opposition when the case is entered upon before the Judicial Committee of the Privy Council (Lowe's Patent, 8 Moore, 1 P. C. C). Not more than two barristers will be heard on each side; that is to say, two in support of the applicant's case, and two in opposition. Where, however, more parties than one oppose, and they have separate and independent grounds of opposition, each will be allowed two counsel.

All facts material to the petitioner's title must be stated in the petition (Johnson's Patent, L. R. 4P. C. C. 83). In one case when such facts were omitted the hearing was postponed, and the petition directed to be amended (Hutchison's Patent, 14 Moore, P. C. C. 364). In another case where important facts were not set forth the application was refused (Pitman's Patent, 8 Moore, P. C. C. N. s. 293).

The petitioner must be prepared at the hearing with evidence to show that there is an invention; that the invention possesses utility and is a benefit to the public; that all reasonable means had been taken to make the invention productive; and if his case is that he has never been reimbursed his expenses, he must give reasonable evidence of the amount of his loss. If, however, there is a balance of profit, but to an extent incommensurate with his fair expectations, he will be required to show what the real profit has been. "It is the duty of a patentee to take upon himself the onus of satisfying the Committee in a manner which admits of no controversy of what has been the amount of remuneration which in every point

As to the right of an alien living abroad to be heard in opposition to a prolongation of Letters Patent, see "Schlumberger's Patent" (9 Moore, P. C. C. 1).

of view the invention has brought to him, in order that their lordships may be able to come to a conclusion whether that remuneration may fairly be considered a sufficient reward for his invention or not. It is not for the Committee to send back the accounts for further particulars, nor to dissect the accounts for the purpose of surmising what may be their real outcome if they were differently cast; it is for the applicant to bring his accounts before the Committee in a shape which will leave no doubt as to what the remuneration has been that he has received." (Per Lord Cairns in Re Saxby's Patent, L. R. 3 P. C. 292; S. C. 7 Moore, P. C. C. N. s. 85. See also Re Clark's Patent, L. R. 3 P. C. C. 421; S. C. 7 Moore, P. C. C. N. s. 255; Wield's Patent, L. R. 4 P. C. C. 89.) The accounts must, therefore, be clear, unreserved, and properly proved (Hills' Patent, 1 Moore, P. C. C. N. s. 258). The profit, year by year, must be shown (Perkins' Patent, 2 W. P. C. 6). If books of account are not forthcoming, the petitioner will be required to explain their absence (Markwick's Patent, 13 Moore, P. C. C. 310). If a patentee so deals with his rights that he is unable to show what amount of profit has been made by working the patent, he will be considered to have disentitled himself to an extension (Trotman's Patent, L. R. 1 P. C. 118). In taking an account of the profits and loss, the patentee is entitled to charge for personal expenses and loss of time in endeavouring to bring the invention into use (Trotman's Patent, L. R. 1 P. C. 135; Newton's Patent, 14 Moore, P. C. C. 156; Perkins' Patent, 1 W. P. C. 6; Carr's Patent, L. R. 4 P. C. 541; S. C. 9 Moore, P. C. C. N. s. 379). And the cost of making experiments has been allowed (Kay's Patent, 1 W. P. C. 572). Law expenses incurred by the patentee in maintaining his rights are in general allowed in deduction of profits, but this will not be