Statutes
| DOI | http://doi.org/10.1111/j.1468-2230.1944.tb00988.x |
| Published date | 01 November 1944 |
| Date | 01 November 1944 |
222
MODERN LAW REVIEW
Nov.,
1944
Act, the Family Provisions Act and the Frustration Act. The relevant
provisions in these modern Acts are, however, not based on
a
theory of
“judicial defeatism” which assumes that
it
is
too difficult for the Judge
to draw borderlines. On the contrary, these Acts greatly extend the
discretionary powers of the Judge and entrust him with the solution of
problems which older statutes attempted to solve in the body
of
the Act.
The modern Acts, however, also expect the Judge first to make up his mind
whether the facts
fit
into the legal category visualised by the Act. For
example, under the Frustration Act the Judge must
first
examine whether
there is a frustrated contract and whether a party has, by reason of any
thing done by the other party, obtained a valuable benefit
;
having drawn
the borderline and ascertained that the plaintiff
is
on the right side of
it,
the Judge is then free to fix
at
his discretion the extent of the sum recover-
able by the plaintiff. In the same way, according
to
my suggestion, and
in fact also according to Mr. Potts’ proposal, the Court has
first
to ascertain
that there is a patent covering an invention which
is
more than
a
mere
improvement but does not involve sufficient ingenuity to deserve a mono-
poly; having drawn the borderline and ascertained the category, the
Judge is then free to
fix
at
his discretion the extent of the royalty. Just
in the same way
as
the Frustration Act does not relieve the Court of the
difficult task of deciding whether or not there is a frustrated contract,
Mr. Potts’ and my suggestions do not relieve the Court of deciding whether
or not there is an invention deserving
a
monopoly; in many cases this
is the crucial question for the patentee, while the amount of the royalty
which may be due to him is of secondary importance.
A true example of partial relief in
a
borderline case can
be
found in
Section
32~
of the Patent Act which provides that the Court in
its
discretion
may give partial relief to the patentee
if
some claims of the patent are
invalid but othcrs are valid. However,
as
the law stands at present, the
patent is considered invalid and the patentee can obtain no relief
if
each
claim of the patent contains matter which is partially new and partially
old.
I
should like to suggest that in the case of
a
claim containing old
as
well as new elements the Judge, at his discretion, should be in a position
to
make a partial award
in
favour of the patentee in respect of the new
elements contained in the claim. Such a clause would remedy the hardship
now suffered by
a
patentee who is deprived of all protection even for
a
very
useful invention if he has “opened his mouth too wide” by including
partially old matter in the claim.
STATUTES
The
Finance
Act,
1944
This Act is of particular interest since there
is
implicit in
it
the
statutory recognition of the fact that, with taxation
at
its
present high
level, the State is in effect a partner with industry. In the realm
of
applied
science this country has lagged well behind the USA. and Germany,
though it is, perhaps, unsurpassed in discoveries in the field
of
natural
science.
To
encourage industry to undertake the research necessary to
enable this country to compete on equal terms with the rest of the worlfl,
special provision
is
made in Part
VI
of the Act
for
an allowance in the
computations of business profits of expenditure on
‘‘
Scientific Research.”
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