Scottish Court of Session Decisions

By deed of assignment dated 26th December 1883, registered in the Patent Office, William Harvie, lampmaker, Broomielaw, Glasgow, sole partner of “The Ross Patent Paragon Valve Company,” acquired exclusive right to certain letters-patent granted for an improved valve to prevent waste of water in water-closets, urinals, &c.

In April 1886 Harvie brought a suspension and interdict against William Ross, brassfounder, for an alleged infringement of the said letters-patent, and on May 25th interim interdict was granted by Lord Trayner. This interlocutor bore that the “Lord Ordinary having heard counsel for the complainer, and considered the proceedings, in respect that the respondent has failed to find caution as appointed by interlocutor of 1st May, grants interim interdict.”

Upon 18th October the present petition and complaint was presented (with the concurrence of the Lord Advocate) for breach of interdict against William Ross, and Thomas Ross, his son.

The complainer averred that William Ross manufactured and sold valves and apparatus so constructed as to be in infringement of the fore-said patent rights, and further, that in order to evade the interdict he had assumed as a partner his son Thomas Ross, who was pushing the sale of the said valves both in Glasgow and elsewhere; that the said Thomas Ross was well aware of the interdict against his father, and of the fact that the articles sold were made and sold in infringement of complainer's patent, and knowingly and wilfully aided him in breaking it, to the great prejudice of the complainer.

William Ross and Thomas Ross lodged separate answers. William Ross denied that his firm manufactured or sold valves of the kind referred to in the interdict proceedings, and stated that the valves which they now manufactured were not those referred to in the interdict, but were made and sold under a patent of his own, and were dissimilar.

Thomas Ross, while admitting the existence of the interdict against his father and partner, stated that no interdict had been ever obtained against him, and denied that he or his firm sold any valve to which the interdict against his father applied. He also took various objections to the validity of the letters-patent, in respect that the complainer was not the full and true inventor, that the alleged invention was not publicly known before the letters-patent, and not of public utility, &c.

Argued for the complainer—Proof should be allowed against both respondents, and the statements in the answers for Thomas Ross relative to the alleged invalidity of the letters-patent should be disallowed as irrelevant. The respondent Thomas Ross had been assumed as a partner since the interdict was granted, and with a view to enable the respondents to try and break it with impunity. The son was well aware of the existing interdict against his father, and that being so, he was not entitled to raise any question as to the validity of the letters-patent.

Authority— Dudgeon v. Thomson, March 17, 1876, 3 R. 604 and 975, and 4 R. (H. of L.) 88.

Replied for respondents—There was no case against Thomas Ross. He was assumed a partner after the interdict was granted. He was a partner working for his own interest, and not merely as the hand of another. Alternatively, if there was any case against Thomas Ross, then he was entitled to a proof of all his averments, including his allegations against the validity of the letters-patent. In any view, the complainer had not made his statements sufficiently specific against either of the respondents.

At advising—