Griffith v Neilson

Arthur Griffith, the appellant and Secretary for Public Works of New South Wales, appealed to the High Court against a decision of the Commissioner of Patents. The Commissioner had dismissed an opposition to an application for a patent by Mathew Montgomerie Neilson for an invention titled "Non-Septic treatment of sewage and other organic liquid." The opposition was based on the ground of want of novelty.

The legal issues before the High Court were whether the claims made in the patent application were novel, and if not, whether the specification could be amended to render them patentable. Specifically, the court had to consider the novelty of the claims relating to "translating chambers" for supplying effluent with oxygen, the addition of micro-organic and grub life, the application of a biological filter with automatic appliances, the construction of a percolating filter, and the use of a submerged aerobic filter supplied with oxygen.

The High Court, per Griffith C.J., found that several of the claims lacked novelty. The first claim, concerning "translating chambers," was deemed too broad as it did not sufficiently distinguish from prior art, specifically the "translation" process described by Wanklyn and Cooper. The fourth claim regarding the addition of micro-organic and grub life was found to lack novelty, as the addition of micro-organisms was a known practice, and "grub life" was insufficiently explained. The sixth claim for the construction of a percolating filter was found to be substantially identical to a filter described in existing literature. The seventh claim for a submerged aerobic filter was also found to lack novelty in its construction, with the novelty potentially lying only in the supply of oxygen, which was not adequately claimed as a combination.

Consequently, the High Court ordered that a patent should not be granted for certain claims as they stood. However, for other claims, a patent would not be granted unless the applicant applied for and obtained leave to amend the specification within one month. The time for sealing the patent was extended until one week after the expiration of the time for appealing from the Commissioner's final decision on the amendment application or the final patent application, or after the determination of any such appeal.