Scottish Court of Session Decisions

The Patents and Designs Act 1907 (7 Edw. VII, cap. 29) enacts—Section 18 (1)—“A patentee may … present a petition to the Court praying that his patent may be extended for a further term.…” Section 92 (1)—“In this Act, unless the context otherwise requires, ‘the Court’ means, subject to the provisions as to Scotland, England, and the Isle of Man, the High Court in England. (2) Where by virtue of this Act a decision of the Comptroller is subject to an appeal to the Court, or a petition may be referred or presented to the Court, the appeal shall … be made and the petition referred or presented to such judge of the High Court as the Lord Chancellor may select for the purpose, and the decision of that judge shall be final.…” Section 94—“In the application of this Act to Scotland … (4) The provisions of this Act conferring a special jurisdiction on the Court as defined by this Act, shall not, except so far as the jurisdiction extends, affect the jurisdiction of any Court in Scotland in any proceedings relating to patents or designs; and with reference to any such proceedings, the term ‘the Court’ shall mean any Lord Ordinary of the Court of Session, and the term ‘Court of Appeal’ shall mean either Division of that Court. (5) Notwithstanding anything in this Act, the expression ‘the Court’ shall, as respects petitions for compulsory licences on revocation, which are referred by the Board of. Trade to the Court in Scotland, mean any Lord Ordinary of the Court of Session, and shall, in reference to proceedings in Scotland for the extension of the time of a patent, mean such Lord Ordinary.”

William Henry Lawrence, residing at 35 Melville Street, Pollokshields, Glasgow, and Robert Kennedy, residing at 3 Springhill Avenue, grantees of letters — patent 6129 of 1896, presented a petition to the Court under the Patents and Designs Act 1907 (7 Edw. VII, cap. 29) for extension of the said letters-patent. Answers were lodged for the Comptroller-General of Patents, Designs, and Trade-Marks, and for the Board of Trade.

On 8th February 1910 the Lord Ordinary ( Cullen) refused the prayer of the petition.

The petitioners having reclaimed, the respondents maintained that the reclaiming-note was incompetent.

Argued for the respondents—The right to come to the Court of Session for the extension of letters-patent was conferred for the first time by section 18 of the Patents Act 1907 (7 Edw. VII, cap. 29) ( sup. cit.). Prior to that statute such applications went to the Privy Council—Patents Act 1883 (46 and 47 Vict. cap. 57), sec. 25. Accordingly there was no encroachment on the existing jurisdiction of the Court of Session. On the contrary, a new jurisdiction had been given to the Lord Ordinary by the said Patents Act 1907. The right to reclaim to the Inner House, and finally to appeal to the House of Lords, was not implied. When a new and special jurisdiction was given to any Court, the exercise of it fell to be regulated entirely by the conditions of the statute under which it was conferred— Magistrates of Portobello v. Magistrates of Edinburgh, November 9, 1882, 10 R. 130 ( per Lord Justice-Clerk Moncreiff at 137), 20 S.L.R. 92. Furthermore, the judge of first instance was final in England—Sec. 19 (2) of the 1907 Act ( sup. cit.). It would be anomalous to have different arrangements in Scotland.

Argued for reclaimers—The reclaimingnote was competent. The difficulty would not have arisen but for the clause of finality in the provision applying to England. So far as the sections applying to Scotland were concerned there was no express clause of finality. Where a well—known jurisdiction was invoked by the Legislature for a new purpose the presumption was that the ordinary form of procedure was applicable, and that the usual appeal was competent except when

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excluded by a clause of finality—Erskine, i, 2, 7; Magistrates of Edinburgh v. Magistrates of Portobello ( cit. sup.); Valuation of Lands (Scotland) Amendment Act 1857 (20 and 21 Vict. cap. 58), sec. 2; Valuation of Lands (Scotland) Amendment Act 1867 (30 and 31 Vict. cap. 80), sec. 8. It was no doubt anomalous that an appeal should be competent in Scotland and not in England. It was, however, to be observed that by section 14 ( c) of the second schedule of the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) the Court of Session was final as regards Scotch cases arising under that Act, while, there being no clause of finality as regards England, appeal was competent from the Court of Appeal to the House of Lords — M'Kinnon v. Barclay, Curie, & Company, March 20, 1901, 3 F. (H.L.) 1, 38 S.L.R. 611. It must be admitted in the present instance that, apart from the finality clause, an appeal would have been competent in England. If it were not so, the finality clause was superfluous.

At advising—