R v Commissioner of Patents; ex parte Weiss

This case concerned an application for a writ of prohibition sought by Adolph Weiss, the applicant for two patents relating to rotary intaglio printing, against the Commissioner of Patents and the purported opponents, Ernst Lufft and Stanley Lufft trading as E. Lufft and Son. The dispute arose from a notice of opposition filed in the firm-name "E. Lufft & Son" within an extended time limit. Weiss objected that the notice was invalid because a firm is not a "person" under the Patents Act 1903-1935, and that the opponents lacked sufficient interest (locus standi) to oppose the grant. The Commissioner, however, allowed an amendment to substitute the names of the individual partners for the firm-name and determined that the opponents had sufficient locus standi, prompting Weiss to seek prohibition.

The legal issues before the court were whether the Commissioner had the jurisdiction to amend the notice of opposition after the statutory time limit had expired, whether a firm could be considered a "person" capable of lodging a valid notice of opposition, and whether the Commissioner had the authority to determine the locus standi of an opponent. The court was also required to consider whether prohibition was the appropriate remedy for challenging the Commissioner's decisions on these matters.

The court reasoned that the Commissioner's power to hear and decide opposition proceedings under section 57 of the Patents Act encompassed the determination of preliminary questions, including the validity of the notice of opposition and the locus standi of the opponent. Therefore, these were matters within his jurisdiction, not conditions precedent to his jurisdiction. While a firm is not a legal entity in itself, the court found that a notice given in a firm-name, though irregular, was not a nullity and could be amended to substitute the names of the individual partners, provided the original notice was lodged within the prescribed time. The court held that the Commissioner had the power to amend the notice under regulation 147 of the Patents Regulations, and his decision on locus standi was also within his jurisdiction.

The court concluded that prohibition was not an appropriate remedy because the Commissioner had acted within his jurisdiction in determining the questions of amendment and locus standi. Any errors in his decisions were matters for appeal under section 57 of the Act, not grounds for prohibition. Accordingly, the order nisi for prohibition was discharged.