Gillette Industries Limited v Commissioner of Patents

This case concerned an application by Gillette Industries Limited for an extension of the term of its letters patent, which had expired. The application was brought under section 84(6) of the Patents Act 1903-1935, seeking an extension due to loss or damage suffered by the patentee as a result of hostilities. A preliminary issue arose as the originating summons was filed out of time, requiring an extension of the time to apply for the patent extension itself.

The court was required to determine two primary legal issues: first, whether to grant an extension of time for filing the application for patent extension, and second, whether to grant an extension of the patent term. In considering the patent extension, the court had to assess whether the patentee had suffered loss or damage due to hostilities and whether the patentee was a subject of an enemy state or controlled by such subjects. The court also considered whether the validity of the patent claims was so manifestly defective as to preclude an extension.

Williams J. found that the circumstances warranted an extension of time for filing the application. Regarding the patent extension, the court held that while matters outlined in subsections 1 to 5 of section 84 could be considered, the primary focus under section 84(6) was on loss or damage caused by hostilities and the patentee's nationality. The court determined that Gillette Industries Limited, a British company, met the criteria of not being an enemy subject. Although prior publications raised doubts about the novelty of some claims, the court found none to be "manifestly bad." The evidence demonstrated a reduction in the applicant's manufacturing output and sales in Australia due to the war, and importantly, there was no evidence of increased profits from connected foreign patents that would offset this loss.

Consequently, the court ordered an extension of the patent term by three years from its original expiry date. The regrant was made subject to conditions concerning infringements and the sale or use of articles made during the period between the original expiry and the regrant. The applicant was also ordered to pay the Commissioner's costs.