NOTES OF CASES
| Date | 01 November 1944 |
| Published date | 01 November 1944 |
| DOI | http://doi.org/10.1111/j.1468-2230.1944.tb00990.x |
230
MODERN
LAW
REVIEW Nov.,
1944
N0T:ES
OF
CASES
Patents-Invalidity
Caused
by
Linguistic
Errors
In
1895
(Cassel
v.
Cyanide,
12
R.P.C.
232)
the Court of Appeal, “with
reluctance
”
gave judgment for the defendants although they had infringed
the revolutionary MacArthur Forrest process for the extraction of gold
from ores by selective treatment with
a
cyanide solution. Claim
z
called
for the use of
a
dilute
cyanide solution in limited amount and
this
claim
was held valid for novelty, invention and utility. However, the plaintiffs
lost the case because they could not justify claim
I.
This claim was not
restricted to dilute solutions and was held invalid since the wording was
broad enough to cover concentrated solutions which would dissolve base
metals
as
well
as
gold and would not possess the novel selective properties.
The invalid claim made the whole document ineffective.
The decision was right but the law was clearly wrong. The
1919
Patents Act partially alleviated this monstrous state of affairs in which
a
patentee of
a
novel, inventive and useful claim could not restrain
a
proved
infringement of claim
2
because claim
I
was too wide.
Probably writers in
2000
will make
a
similar comment on the case
of
Unijloc
Reagents, Ltd.
v.
Newstead Colliery, Ltd.
(60
R.P.C.
(1943)~
p.
165).
After twenty-six days the
Court
decided that the claim was
novel, inventive and useful, and that
it
was infringed but that the patent
was invalid because the words “neutral
salt”
occurring
in
the claim
were ambiguous.
The claim covered the process
of
separating particles from dispersions
such
as
fine coal from coal washery water, by the addition
of
a
gel obtained
by adding an aqueous paste of any amylaceous material (starch) to
a
hot
aqueous solution of
a neutral hydrated metallic salt,
agitating and heating
till
a
thick and gummy paste
is
obtained.
Examples of suitable neutral salts were given, e.g.
a
mixture
of
calcium
chloride and zinc chloride.
The plaintiff contended that
a
“neutral” salt was one which did not
change the colour
of
litmus paper, which is red in acid solution and blue
in alkaline solution. There is
a
neutral range which
is
violet.
The defendant contended that there was no generally recognised
classification of metallic salts into acid, neutral and alkaline and that
neutrality must
be
judged by the
PH
value, i.e.
a
neutral
salt
is
one in
which the
pH
value
is
about
7,
and the hydrogen ion concentration
is
equal to the hydroxyl ion concentration.
Bennett, J., held that the effect of the evidence was clear
as
a
whole-
*‘
There is no classification of salts which has
as
one of
its
classes
a
class called neutral. The evidence of Dr. Cox does not prove that
amongst chemists the phrase
‘
neutral salt
’
would be understood to
be
a
salt which when dissolved in water and tested with
a
piece of
neutral litmus paper would produce no perceptible change in the
colour of the litmus paper.”
The Judge stressed “uncertainty” though the headnote uses the words
“insufficient or ambiguous.” Perhaps ambiguity can be regarded in general
as
the most dangerous pitfall of the patentee.
“
Having regard to the evidence,
a
specification which prescribes
the use of
a
neutral salt in the manufacture
of
the gel fails, by reason
of
the uncertainty of the meaning of the word ‘neutral’ to describe
NOTES
OF
CASES
23
I
and ascertain the manner in which the invention
is
to be performed.
A
specification in which the scope of the monopoly claimed
is
defined
by the use of the same word does not, in my judgment, clearly ascer-
tain the scope of the monopoly claimed, because of the uncertainty of
the meaning of that word. The specification leaves the public quite
uncertain what the patentees claim.
It
leaves them quite uncertain what
salts they may or may not use without infringing the patent in suit.”
Bennett,
J
.,
marked his disapproval
of
the unnecessary destructive
criticism of the defendants
on
other issues by making no order
as
to costs.
On the law
as
it
stands, the decision is not surprising. The present
position is that the danger of ambiguity has become a nightmare to
patentees. In spite of sympathetic statements by learned judges on the
difficulty of drafting patent specifications, these documents are submitted
to
such drastic linguistic and experimental criticism that it is remarkable
for any document
to
survive.
It
seems unfair that
a
patentee who has succeeded in substance all
along the line should fail because of
a
fault which is really irrelevant to
the issue between the parties. The reason for this draconian severity is
perhaps that for generations the common law ideal of certainty has
paralysed the judicial reader of specifications
so
that the doctrine of
benevolent interpretation has been of little avail to the patentee.
The remedy would appear to lie in an extension of the powers of
amendment and of judicial discretion with reasonable liberty to cure
ambiguity. Under such extended discretion, it
is
possible that the
ambiguity of the term “neutral salts” might have been cured by explana-
tion or disclaimer, possibly by applying the
ejusdem generis
rule to the
particular salts mentioned in the specification.
The present law provides (sect.
25
of the Patents Act) sixteen grounds
of revocation in addition to any other ground upon which a patent might
have been repealed by
scire
facias
before
1884.
It
is suggested that the handicap on the genuine inventor
is
too great,
and that the present witch-hunts for ambiguity should be deprecated. The
public interest would be better served
if
the Patent Office wgre given
greater powers of refusing illegitimate claims, and the Courts were then
empowered to construe these restricted patents more geiierously.
HAROLD
E.
POTTS.
Charitable
Trusts-Entails
A desultory perusal of recent Law Reports has given the impression
that
it
is
high time that the legislature took
in
hand the law relating
to
charitable trusts. This impression is finally confirmed by the decision of
&hen,
J.,
in
Re Compton,
[1g44]
2
All E.R.
255.
In that case,
a
testatrix had directed that certain moneys should be
“invested in trustee stocks under a trust for ever
. . .
for the education
of Compton and Powell and Montague children
.
. .
not over the age
of
26
years.” The children in question were subsequently defined as the
descendants of three named individuals, all of whom, if this is relevant,
would appear to have been very adequately blessed with this world’s
goods. At the date of the testatrix’s death there were twenty-eight
children who qualified.
It
need hardly be said that the will was a home-made one, and
it
is
thought that few lawyers would have ventured to advise the testatrix
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