IMPORTANT DECISION FOR INVENTORS

Manawatu Times, Volume LIII, Issue 6671, 26 July 1928, Page 4

IMPORTANT DECISION FOR INVENTORS

“KONK4’ PATENT EIGHTS UPHELD. i ; The Court of Appeal has delivered its judgment in the case of Maunder and Bcaven v. the Wanganui Sash and Door Factory and Timber Co., Ltd. The appeal was from a decision made by Mr. Justice Eced in July 1928, in which ho ruled that appellants’ patent for a building preparation known as “Konka’’ was invalid. Mr. Justice Kocd’s decision has now boon reversed by the Court of Appeal, which stated inter alia:— The appellants were the proprietors of letters, patent for an invention for an improved concrete tile for building purposes. They obtained their patent in 1914. The manufacture of these tiles was commenced, and they put them on the market under the trade name of “Konka.” The tiles were manufactured under license, the holder of the license at the prcs.eht time being Bassetts Ltd., who have granted sublicensee in Auckland, Christchurch, Timaru and: Gisborne. In May 1924 the respondent Company secured the services of the foreman in. charge of the manufacture of • the tiles at Bassetts Ltd,, and commenced the manu-, facturb of similar tiles, advertising them as the “board to conquer ‘conquer’ ’’ at a price to undersell the tiles manufactured by Bassetts Ltd. The appellants brought an action against the respondent Company claiming an injunction to restrain it from infringing their patent and for consequential relief. The grounds relied on to prove this were: (1) want of subject matter; (2) want of novelty; and (3) . anticipation. Substantially the points made by the respondent Company were that, having regard to the state of the public 'knowledge at the time the patent was granted there was not sufficient ingenuity or inventive faculty exorcised by the patentees to entitle them to a pateht, and that- ia any case it was anticipated by prior patent-. The respondent Company relied on oral evidence, and upon prior publications, including specifications or prior letters patent ana standard text books. ' , .

'Che learned Jud"e in his ’judgment found that in fact the article produced under the appellants’ patent was novel and useful. He’ also jfound that the

prior publications relied on were not a complete anticipation of thft patent, but he found that ono particular patent for what is known as Tyree’s patent was so near to being an intioipation, that in view of that and the state of the public knowledge ht the time the appellants’ patent was granted no exercise of invention was necessary to the first production of Klonka, and that the appellants’ patent -was therefore invalid. The appeal is against that decision.

In our opinion on a fair consideration of the above specification the nature of the appellants’ claim was an invention for the construction, of thin, light sheets of reinforced concrete which were tough enough to bo handled and to stand nails being driven through them without breaking, 'and with a surface which could bo treated with cement or plaster or rough cast. It was an improved substitute for laths which had bocu commonly Used for the cheaper rough-cast. houses, and it produced a cheap and convenient method of building the external walls of houses. It was what is known as a combination patent, the combination being of several known integers to produce a now result. i The Court then proceeds to. examine the paper publications-, relied on by tho respondent company *to prove anticipation of Konlca’s patent and after a lengthy excursus into the pros and cons of the various, allegedly anticipatory patents advanced,- finds that none of them may in law bo said to anticipate appellants’ patent. The judgment proceeds:— : Such ingenuity as there ,was consisted in taking known facts, and known substances and combining them'.so as to produce an article' which has, we think, been rightly, found iu the judgment in the Court below to have been both novel and useful.

It is a commonplace of patent law that tho proof of the utility of an article and of its having satiated ft. want of trade, is strong evidence that it required some inventive power to produce otherwise it would have been made before. In this case thord was proof on both those points. Tho learned'Judge in the Court below came to the conclusion that Tyree 'a patent was .not a complete anticipation of the patent for Konka. That being so, having found that tho latter patent was both novel and useful, in,our opinion ho should have found that it was not anticipated and there was subject matter for a patent. In our opinion

the principle applicable to. mere paper anticipations which wo have already quoted was not given sufficient weight in his judgment. i For the reasons stated wo are of the opinion that the appeal should be allowed, with tho same costs to the appellants in the Court below as were granted to the respondent > Company and with costs on the highest scale as from a distance in this Cottrt. The case must ho remitted to'the Supremo Court for tho determination ,of tha «*■*■ propriato remedy.