COURT OF APPEAL

Dominion, Volume 13, Issue 17, 15 October 1919, Page 3

COURT OF APPEAL

WIRELESS PATENT MARCONI COMPANY'S CASE The Appeal Court was engaged yesterday in hearing a motion for an ordor for leave to appeal against a judgment of His Honour tho Chief Justice (Sir Robert Stout) in respect, to the extension of time granted tho Marconi Wireless Telegraph Company, of London, in relerenco to certain patents. The motion was moved on behalf of tho Crown. On the Bench were His Honour Mr. Justico Edwards, Mr. Justice Chapman, Mr. Justice Sim, and Mr. Justice Hoskinir. ' Sir John Salmond, K.C.. appeared for tho Crown, and Mr. M. Myers for tho Marconi- Company. The facts were that the Marconi Wireless Telegraph Company, Ltd., of London, petitioned for an extension of tho term of letters patent granted to tho company lor the invention of "improvements in instruments for the detection and measuring of alternating electric current," dated August 8, 1905. This petition was heard on June 27, and the Chief. Justice, who heard the case, gave judgment and made n final order extending the Letters Patent for a period of seven years. Against this there was a petition that the order bo rescinded on tho ground that neither tho Registrar of Patents nor the Law Officers of the Crown had knowledge of the time and place appointed for the hearing of the petition. His Honour the Chief Justico on August 4 made an order dismissing the motion. It was against this that the motion, for leave to appeal was made on behalf of the Crown and on behalf of the Registrar of Patents. Sir John Salmond, in opening, stated that the application for leave to appeal was made on behalf of the Crown, although the Crown was not a party to the proceedings when the order was made. It was settled law that the Appeal Court could grant leave to a person who was. not a party to the proceedings. Mr. Justice Hosking: That was specially done in the case of tho Bank of New Zealand v. Ewing.

Sir John Salmoud: The Crown was interested in the order on the ground that tho patent bound the Crown, and the Crown could be called upon to pay compensation. The extension of the order was un order against the Crown. Tho application was also made on behalf of the Registrar of Patents, oh the ground tliat ho had a statutory right to bo heard on petitions for the extensions of a patent and had not been heard. Tho statutory right was conferred by section 20 of tho Patents, Designs and Trade Marks Act. The Registrar had four months in which to appeal, and that time would expire shortly. Sir John Salmoml then traced tho history of tho case and stated that it was settled law on an application for an extension of a patent for the. applicant to prove that ho Had not received adequate remunerat:on, and in determining that question the Court took account of the . total remuneration received not only in tho country where the application was made But throughout the world in respect to the same invention. His Honour tho Chief Justice did not view the matter from that point at all, and confined Ins attention to the question whethor or not the Marconi Company had been sufficiently remunerated in New That was not tho question; the question was whether tho Marconi Company as such' had ' been adequately remunerated throughout the world for the Fleming Valve, a very ingenious instrument Tho very same application, remarked counsel, was made quite recently to the High Court of England, and it was elaborately argued. The application was refused on the ground that' the Marconi Company had been adequately remunerated. The' Fleming Valve was free property in the rest of the world, and by tho decision of tho Chief Justice it was protected for seven years in New ' Zealand , „ ~ , : Mr. Myers said that the SolicitorGeneral had referred to certain dates and -facts which he regarded as important, and it was his (Mr. -Myers s) intention to give the history of the matter in chronological order. On January 23 the- Marconi Company's solicitors Rave a notice, that tiiey were in no way bound to give, to the Registrar of Patents tniit it. was the intention of the company to proceed with the nctition for un extension of time. Tho Registrar acknowledged that letter on January 29, and that was the only communication received from the Crown authorities, of any sort or kind, until the petition was disposed of. On January 23 and 30 and ■February' 0 there appeared an advertisement in the "Gazette" and on the same •dates the notice was advertised in the "Evening Post" and The Dominion. Oho would suppose that if the Crown intended to oppose, some intimation t would have been given to. the company's solicitors. On February 7 the Solicitor-Gen-' eral and the Resistor- were served with copies of tlio petition. Then came tho order of Mr. Justice Edwards, which was duly complied with. On May .10 tho caw c-nnie before' His Honour the Chief Justice, whose attention was subsequently drawn to the English decision. On June 27' the Chief Justice gave his decision, and it was not until July 17 that steps were taken on behalf of the Crown, when the motion to rescind.was liled. On Julv 23 the motion was argued before the" Chief Justice, and on August 4 His Honour delivered judgment dismissing the motion. Tho Crown waited 43 days before taking the next step-that was from August i to September IG-when notice to proceed with the application now before the Court was given.' Mr. Myers contended that if the Court decided that the matter should be gone into, it should be by way of rehearing, otherwise the Marconi Company would be prejudiced. The Marconi Company was not the only company concerned in the case: there was the Amalgamated Wireless, an Australian company, which had been licensed by the Marconi Company. Mr. Myers contended that the proceedings were not begun in time, and be quoted authorities to show that thh Court could grant leave when there were merits in the reasons for not beginning proceedings within the time. If a nonparty allowed 38 days to elapse and then ■13 days after taking a wrong course, as in the present case, there was no merit in the reasons for not beginning proceedings within the time. He contended that leavo to appeal should not be granted. , , , , Sir John Salmond said that ho had one observation to make. Mr. Myers had expressed surprise that the .Crown did not think it necessary to give notice of opposition to the application. At that time the attitude of the Crown was not one of opposition but one of delay. A similar application had lieon made by the Marconi Company in England, and if the application in England had been granted the Crown here would not have opposed the application but would have consented to it. It was only when the application was refused in England that the attitude of the New Zealand Government became one of opposition. It would have been quite premature, when the order was made, for the Crown to say what its attitude would be; in any case, if proceedings were begun an adjournment would have beon necessary until the case in England had been settled. It never occurred to the Crown that tho proceedings here would be rushed and a decision reached before the English case was settled. Tho attitude of the Crown was not a case of acquiescence or opposition, The Court delivered oral judgment immediately argument was concluded. Hia Honour Mr. Justice Edwards, after briefly reviewing the case, said the Court was unanimously of opinion that leave to appeal must be allowed the Registrar of Patents.