Odger's English Common Law

604 INFRINGEMENT OF PATENTS, COPYRIGHTS, &C.
against the same defendant. 1
If the defendant can show that he was not
aware, and had not reasonable means of making himself aware, of the
existence of the patent he will not be liable to pay damages for the
infringement, although the patentee can obtain an injunction restraining
him from any further infringement. 2 But the plaintiff will not be entitled
to an injunction if the Court is satisfied that no danger of future infringement
exists. 3
If, however, an infringement be threatened by the defen-
dant, the Court will grant an injunction although no actual infringement
has yet taken place. 4
Besides obtaining an injunction to prevent the defendant from further
infringing his patent, the plaintiff may, in the discretion of the Court,
obtain an order that the infringing articles be destroyed or delivered up to
him, or be otherwise so treated as to prevent future infringements. 5 The
mere fact that the defendant is in possession of articles which are an
infringement of a patent, though it entitles the plaintiff to an injunction,
does not entitle him to an order for their destruction or delivery up. 6 The
plaintiff may also in the same action sue for the recovery of royalties from
any person alleged to be a licensee on making -him a defendant. 7
II. COPYPJGHT.
Every man, who wrote a book, poem or any other original
composition, had at common law the exclusive right to
multiply copies of it, so long as it remained unpublished
and this common law right is now recognised by statute. 8
A statute of Anne gave to authors a further right, viz., the
exclusive right of multiplying copies of their works for
fourteen years after publication. 9 The Copyright Act, I842, 10
extended the period of copyright to the author's natural life
and seven years after his death, or forty-two years from the
date of publication, whichever period was the longer. The
period of copyright for any work, whether published or
unpublished, has now been enlarged to the life of the author
1 De Vitre v. Betts (1873), L. R. 6 H. L. 319.
2 S. 33. Marking the article " patented," &c, is not sufficient notice, unless the
year and number of the patent be also given : s. 33.
8 Proctor v. Bayley (1889), 42 Ch. D. 390.
* Frearson v. Loe (1878), 9 Ch. D. 48.
5 Betts v. De Vitre (1864), 34 L. J. Oh. 289, 291 ; Tangye v. Scott (1865), 14
W. R. 386 ; Edison Bell Co. v. Smith (1894), 11 R. P. C. 389 ; Mabe v. Connor,
[1909] 1 %.. B. 616.
6 United Telephone Co. V. London and Globe Telephone Co. (1884), 26 Ch. T>. 766.
' Wilson v. Union Oil Mills Co. (1892), 9 R. P. C. 67.
1 & 2 Geo. V. c. 46, s. 31 ; but "nothing in this section shall be construed as
abrogating any right or jurisdiction to restrain a breach of trust or confidence," as to
which see Perceval v. Phipps (1813), 2 Ves. & B. 19, 29; Gee v. Pritchard- (1818),
2 Swans. 402.
8 8 Anne, c.19.
10 5 & 6 Vict. c. 45, s. 3.
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