In re Usines de Melle's Patent

This case concerned an application by Les Usines de Melle and Firmin Boinot for an extension of the term of an Australian patent. The patent had been granted in 1936 to a French company, Usines de Melle, and the individual applicant, Firmin Boinot. The French company had been dissolved in 1941, and by the time the application for extension was heard, the patent had expired. The application was heard in the High Court of Australia.

The primary legal issues before the court were: firstly, how the interest of the dissolved French company in the patent devolved under Australian law, and secondly, whether the court should order an extension of the existing patent or grant a new patent. The court was required to consider the application of the Patents Act 1903-1950, principles of private international law, and the common law regarding the property of dissolved corporations.

The court determined that Section 110A (2) of the Patents Act, which treated joint patentees as joint tenants for devolution purposes, could not be applied to a grant made jointly to a corporation and a natural person. This was because the section's provisions regarding death and personal representatives were inapplicable to corporations, and at common law, a corporation and a natural person could only hold property as tenants in common. Consequently, the devolution of the dissolved company's interest was not governed by the Act. The court then considered private international law, noting the general rule that movables are governed by the law of the owner's domicile. However, in the absence of evidence of French law regarding the succession to the property of a dissolved corporation, and drawing on the principle that the property of a dissolved English corporation vests in the Crown as bona vacantia, the court concluded that this rule was part of the common law of the Commonwealth. Nevertheless, the court found it could not definitively determine the devolution of the dissolved company's interest without further evidence of French law.

Given the uncertainty regarding the devolution of the dissolved company's interest, the court held that it could not order the grant of a new patent to specific parties. However, it found that Section 84 (5) of the Patents Act permitted an order extending the term of the original letters patent, even though they had expired. The court therefore ordered that the term of the letters patent be extended for seven years from their expiry date, subject to certain conditions, and that the applicant, Firmin Boinot, pay the Commissioner's costs. The proceedings were to be amended to reflect an application solely by Firmin Boinot.