commencement of the Act be repealed by scire facias, is still available by way of defence to an action of infringement, and is also a ground of revocation. A petition for revocation of a patent may be presented by (a) The Attorney-General in England or Ireland, or the Lord Advocate in Scotland. (b) Any person authorized by the Attorney-General in England or Ireland, or the Lord Advocate in Scotland. (c) Any person alleging that the patent was obtained in fraud of his rights, or of the rights of any person under or through whom he claims. (d) Any person alleging that he or any person through whom he claims was the true inventor of any invention included in the claim of the patentee (1). (e) Any person alleging that he or any person under or through whom he claims an interest in any trade, business, or manufacture, had publicly manufactured, used, or sold within this realm, before the date of the patent, anything claimed by the patentee as his invention. The plaintiff must deliver with his petition particulars of the objections on which he means to rely, and no evidence shall, except by leave of the Court or a judge, be admitted in proof of any objection of which particulars are not so delivered (2). Where a patent has been revoked on the ground of fraud, the comptroller may, on due application by the true inventor, grant to him a patent in lieu of and bearing the same date as the date of the revocation of the patent so revoked, but the patent so granted shall cease on the expiration of the term for which the revoked patent was granted (3). A register of patent agents has been established, and it has Register of been enacted that after 1st July, 1889, no person shall be patents, entitled to describe himself as a patent agent, whether by advertisement, by description on his place of business, by any document issued by him, or otherwise, unless he is registered as a patent agent in pursuance of the Act (4). (1) See as to practice where the respondent is outside the jurisdiction: Re Drummond's Patent, 43 Ch. D. 80. (2) Patent Act, 1883, s. 26, sub-s. 5. (3) Patent Act, 1883, s. 26, sub-s. 8. This is a new provision, the law prior to 1883 gave power for the revocation of a patent obtained in fraud of the first and true inventor, but it did not prescribe any means of vesting the patent rights in the person entitled thereto. (1) Patent, &c., Act, 1888, s. 7. See as to actions in respect to patents, Van Gelder, &c. v. Sowerby Bridge,&c., Society, 44 Ch. D. 374 (parties); Longbottom v. Shaw, 43 Ch. D, 46; Garrard v. Edge, 44 Ch. D. 224 (particulars of objections); American Braided Wire Co. v. Thomson & Co., 44 Ch. D. 274 (as to measure of damages). Statutes and rules. Definition. Definition CHAPTER VIII. DESIGNS. The law with regard to designs is now governed by the Patents, Designs, and Trade Marks Act, 1883 (1) (which repeals the earlier statutes (2) dealing with the subject), as amended by the Acts of 1886 and 1888 (3), and the rules thereunder, and these three Acts are to be collectively cited "as the Patents, Designs, and Trade Marks Acts, 1883 to 1888." By the sixtieth section of the Patents, Designs, and Trade Marks Acts, 1883, a design is defined to mean any design applicable to any article of manufacture or to any substance artificial or natural, whether the design is applicable for the pattern or for the shape, or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, engraving, staining, or any other means whatever, manual, mechanical or chemical, separate or combined, not being a design for a sculpture or other thing within the protection of the Sculpture Copyright Act of the year 1814 (54 Geo. 3, c. 56) (4). This statutory definition requires to be somewhat supplemented by the decisions under the former law. From these we learn that a design is that which imports among other things variations in old forms in respect of size, configuration, colour and other qualities; but where size may introduce novelty in some parts of a design it may not do so in others. Configuration may constitute a new design, for where there is alteration of proportions that may be a new design (5). The term "proprietor" of a design is defined by the Act to of proprie include four classes of persons (6). tor. (1) The author of a new and original design, unless he executed the work on behalf of another person for good or valuable (1) 46 & 47 Vict. c. 57. (2) 5 & 6 Vict. c. 100; 6 & 7 Vict. (*) This definition is nearly the same as that of 5 & 6 Vict. c. 100. (5) Harrison v. Taylor, 5 Jur. (N. S.) 1219. (6) Sect. 61. consideration, in which case (2) such other person shall be con- Proprietor. sidered the proprietor; (3) any person who acquires a new and original design for a good or valuable consideration, and the right to apply it either exclusively or otherwise, and (4) every person on whom the property in such design or such right to the application thereof shall devolve. Thus, in a case where a foreign company authorized their agent to register certain designs in his own name, but did not assign to him the designs or the right to apply the same to the goods, the Court held that the agent was not the proprietor, and that the registration being wrongful must be expunged (1). In order that a design should be entitled to be registered it Origin must be original. In a case which was heard soon after the ality. It was also pointed out in the same case, that "it was not every mere difference of cut, every change of outline, every change of length or breadth or configuration, which constituted novelty of design." It has been decided that where a design has been registered in one or more of the classes of goods for a particular article of a certain material, a similar design cannot be registered by another person in another class for a similar article made of a different material, as not being "new and original" within the meaning of the Patents, Designs, and Trade Marks Act, 1883 (3). In a very recent case in the Scotch Courts the judge said that the standard to which an inventor must attain in order to have legal protection, is in no case a high one, and that there need be no artistic merit. In this case it was decided that a moulding for an oven door, the chief improvement of which was the cutting of the corners, so that it fitted, as to the moulding or the oven itself, was sufficiently novel and original to entitle the proprietor to protection (4). (1) In re Guitaman's Registered Design, 55 L. J. Ch. 309. (2) Le May v. Welch, 28 Ch. Div. 24, 33; Smith v. Hope, 6 R. P. C. 200. VOL. I. (3) In re Read and Greswell's Design, 42 Ch. D. 260. () Walker, Hunter & Co. v. Falkirk Iron Co., 4 R. P. Cas. 390; affirmed, 14 App. Cas. 550. X A design also must not have been previously published, and in a recent case where a man had shown a design to his agent, and that agent had shown it to two customers, it was held that there had been such a publication as to disentitle the plaintiffs to registration (1). The applicant must state, (a) the nature of the design; (b) the class or classes of goods (2) in which he desires the design to be registered, and (c) he must also furnish a sketch or drawing, or three exactly similiar drawings, photographs or tracings of the design, or three specimens of the design to the comptroller, and if such drawings, &c., are not delivered on the application, they must be delivered before any sale of the article after registration (3). There are fourteen classes of goods in which designs may be registered, and in case of doubt the comptroller is the judge of the class to which they belong (4). The comptroller, if he accepts the design, grants a certificate, and when the design is registered, the proprietor of such design has a copyright therein for five years (5). The comptroller is on registration to enter on the register the name, address and description of the registered proprietor, and the date upon which the application was received, which day is to be deemed to be the date of registration (6). (1) Blank v. Footman, Pretty & Co., 39 Ch. D. 678; following Humpherson v. Sayer, 4 Rep. Pat. Cas. 413. (2) The classes into which goods are divided for the purposes of registering designs are as follows: 1. Articles composed wholly of metal not included in Class 2. 2. Jewellery. 3. Articles composed wholly or partly of wood, bone, ivory, papier mâché, or other solid substances, not included in other classes. 4. Articles composed wholly or partly of glass, earthenware, or porcelain, bricks, tiles, or cement. 5. Articles composed wholly or partly of paper (except hangings). 6. Articles composed wholly or partly of leather, including bookbinding of all materials. 7. Paper hangings. 8. Carpets and rugs in all materials, floorcloths and oilcloths. 9. Lace and hosiery. 10. Millinery and wearing apparel, including boots and shoes. 11. Ornamental needlework on muslin or other textile fabrics. 12. Goods not included in other classes. 13. Printed or woven designs on textile piece goods. 14. Printed or woven designs on handkerchiefs and shawls. Design Rules, Dec. 1883, Sched. 3. The comptroller may refuse to re- (3) Sects. 49 and 50. No article to which a registered design has been applied is to be sold or delivered on sale until such article has been stamped under classes one to twelve inclusive, with the abbreviation Ra, and in the two remaining classes with Regd (1). If this is not done, the proprietor of the design loses all right thereto. Every piece sold must be marked in some way or other with the mark required, either by stamping the article itself, or as was pointed out in a recent case (2), "by tying on a label, or, by printing something on the packet in which the article is." The proprietor, however, is not bound to mark anything but that which he sells. A book called, "The Register of Designs" is to be kept at Register. the Patent Office, in which the comptroller must enter the names and addresses of proprietors of registered designs, notifications of assignments, and of transmission of registered designs and other matters, and such register is to be primâ facie evidence of any matters directed or authorized by the Act to be entered therein (3). The Act provides that any person who, without the licence of the registered proprietor, shall apply or cause to be applied (4), such design, or obvious imitation thereof, to any article of manufacture shall be liable to a penalty for every offence of a sum not exceeding £50, but that the total sum to be recovered in respect of any one design shall not exceed £100 (5). The same penalty is also imposed upon any one for publishing or selling the articles with the fraudulent design upon them, but the person who sells must know that such design has been fraudulently used, and therefore it is requisite to give him notice (6). Besides this remedy, the Act provides another by way of damages, if the person whose design has been imitated elects to bring an action for the recovery of any damages arising from (1) 46 & 47 Vict. c. 57, s. 51 and Rule 32. (2) Blank v. Footman, Pretty & Co., 39 Ch. Div. 678. So long as the copyright in a design exists, no one but the proprietor and any one duly authorized by him, or some one whose design has been refused registration by the comptroller, on the ground of its similarity with a registered design, shall be entitled to inspect the design: sect. 52 of Act of 1883, and sect. 6 of Amending Act, 1888. But any person who applies to the comptroller and furnishes him with such information as may enable him (3) Sect. 55 of Act of 1883. (*) See on infringement: M'Crea v. Holdsworth, L. R. 6 Ch. App. 419. () Sect. 58 as amended by sect. 7 of Act of 1888. (") Halsey v. Brotherhood, 15 Ch. Div. 414. |