Odger's English Common Law

PATENT RIGHTS. 603
imported into England and sold here articles in imitation of
the patented article is evidence of infringement, whether the
defendant knew that they had been copied from the patented
article or not. 1
It will be open to the defendant to urge at the trial that
he never infringed the plaintiff's letters patent. He may
also contend that the patent is invalid on the following
grounds :—
(a) that the patent was obtained by fraud, c.ij., by false
suggestion or recital in the letters patent
(b) that the inventor has not by his complete specification
particularly described the nature of his invention, or that the
provisional specification did not describe its true nature, or
that the invention which it described is not the same as that
described in the complete specification ;
(c) that the said alleged invention is not new
(d) that the said alleged invention is not the proper subject-
matter of letters patent
;
3
(e) that the plaintiff is not the first and true inventor of
the said alleged invention ; or
(f) that the alleged invention is not useful.
He may also on the same grounds claim the revocation of
the plaintiff's patent or counterclaim for damages on the
ground that he holds a patent which the plaintiff has
infringed. 1
The procedure in an action for the infringement of a patent 5
minutely regulated by the Patents and Designs Act, 1907, and by Order
LIII.a of the Rules of the Supreme Court made thereunder. The plaintiff
usually claims damages as well as an injunction to restrain future infringe-
ment. If he succeeds, he may elect whether he will have a decree for an
inquiry as to the damage which he has sustained and payment of the
amount so assessed, or a decree for an account and payment of the profits
made out of the infringement of his patent. He cannot, however, get both
* Walton v. Lavdter (1860), 29 L. J. C. P. 275.
4 See Roll* v. Isaacs (1881), 19 Ch. D. 268; Anglo-American. 2[e., Co. v. King,
[1892] A. C. 367; Gillette Safety Razor Co. v. A. W. Oamage, Ltd. (1909), 25 Times
D [ UAfl
J
'»
Harwood v. 6. iV. Ry. Co. (1862), 2 B. & S. 222; Murray v. Clayton (1872), L R.
7 Ch. 570, 584.
* S 32.
s The action cannot be brought in the county court : R. v. County Court Judge
of Halifax, [1891] 2 Q. B. 269.
;
;
2
is