Purex Corporation Ltd v Vanguard Trading Co

[1965] HCA 10

HIGH COURT OF AUSTRALIA

Kitto J.

PUREX CORPORATION LTD. v. VANGUARD TRADING CO.

(1965) 112 CLR 532

18 March 1965

Patents

Patents—Whether evidence of infringement—Presumption of continuity—Company—Proof of incorporation by proof of business activities—Proof of incorporation by proof of statement in Register—Patents Act 1952-1960 (Cth), ss. 21*, 29**.

Decision

March 18.
KITTO J. delivered the following written judgment:-
This is an action for infringement of a patent of which the plaintiff claims to be the registered assignee. One question arising on the pleadings is whether the plaintiff is proved to exist as a corporation. It appears from a certificate of the Assistant Commissioner of Patents, admissible in evidence by virtue of s. 29 of the Patents Act 1952-1960 (Cth) (see also the definition of "Commissioner" in s. 6), that on 1st February 1963, an assignment of the patent to Purex Corporation Limited dated 6th November 1962 was registered, and that in the entry of the assignment in the Register the assignee was described, presumably by quotation from the instrument of assignment, as "Purex Corporation Ltd., a corporation organized under the laws of the State of California, place of business at Lakewood, State of California, United States of America". The obvious inference is that an instrument of assignment, appearing to have been executed by a corporation called Purex Corporation Limited, and asserting that such a corporation had in fact been incorporated in California, had been produced to the Commissioner by someone who represented to the Commissioner that a corporation of that name existed and that he had its authority to apply on its behalf for registration of the instrument, and that the Commissioner had been satisfied to register the assignment on the faith of those representations. Under s. 29 (1) the Register is prima facie evidence of all matters required or authorized by the Act to be entered in the Register. By s. 21 the Commissioner is required, on receiving an application, to register the title by a person to a patent by assignment, and, on proof to his satisfaction of the title of the applicant, to cause the applicant to be entered in the Register as the proprietor of the patent. To cause an applicant to be entered in the Register is to cause an entry to be made which necessarily means that the applicant both exists and is entitled to the patent. In my opinion it follows that the Register affords prima facie evidence of the existence of the plaintiff as a corporation. Perhaps the Register is evidence as to the place of incorporation also, but I need not consider that. Even apart from the evidentiary effect of the Register, I think that some evidence of the plaintiff's existence as a corporate body is provided by the fact that acts of a business character have been done in Australia ostensibly by the corporation. I refer to the application to the Commissioner, including the presentation of the instrument of assignment, and the engagement of solicitors and counsel in this country:…