20823.
PUBLIC RECORD OFFICE
Reference :-
SC.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 114A.
(GENERAL.)
LAW OFFICERS to WAR OFFICE.
The Attorney- and Solicitor-General are requested to advise on the following points:-
1. Do the words "Officers or authorities administering any department in the service "of the Crown" in section 27 of the Patents, &c., Act of 1883 apply to the Governments of—
(a.) India?
(b) Crown Colonies?
(c.) Self-governing Colonies?
2. If the reply to 1. be in the affirmative, are terms settled under section 27 (2) of the Act by the Secretary of State for War, for use of patents in the United Kingdom, applicable to stores supplied through the agency of the War Office for the use of the Governments above mentioned? Or
3. Must the terms for the use of patents in the Colonies be made by each of the
Governments concerned?
4. If the reply to any portion of 1 be in the negative, then (as regards that portion) where stores covered by patent are ordered to be made in ordnance factories, or by contract through the War Office, and no specific terms applicable to supplies for those Governments have been made, would patentees have grounds for action for infringement; and if so, against whom?
5. If so, and if against the contractor, could the contractor plead that he was acting
as an agent of the Secretary of State for War?
6. Have patentees claim for royalty on articles issued from store as in 2 (a) if terms have not been specially arranged in regard to supplies for India or the Colonies?
7. If so, against whom would such claimlie?
8. On any points which may occur to the Law Officers on the general question of arrangements with patentees in regard to supplies made through the War Office for the Governments of India or the Colonies.
PATENTS, &C. ACT, 1883. SUPPLY OF PATENTED ARTICLES TO INDIA AND THE COLONIES. Opinion of the Law Officers of the Crown.
1. We are of opinion that the words "officers or authorities administering any department in the service of the Crown" in section 27 of the Patents, &c. Act, 1883, apply only to departments of the Government in the United Kingdom, and have no application to the Governments of India, of Crown Colonies, or of self-governing Colonies. But we are of opinion that any department of the Government in the United Kingdom may use the invention. in the United Kingdom (to which alone the Patents, &c. Act applies) provided such use is for the service of the Crown, either within the United Kingdom or abroad.
Arms made to the order of the War Office for supplying the Government of India, or of a Colony, are made for the service of the Crown just as much as if they were made for the use of the Home Army, inasmuch as Government service is the service of Her Majesty in India and the Colonies as much as at home.
When, therefore, the War Office supplies goods out of store, or makes arms in the Government factories, or orders them to be made by contract for the purposes of the Indian or Colonial Governments, in our opinion, section 27 (2) applies. The invention is being used for the service of Her Majesty.
The fact that the terms are to be settled with the approval of the Treasury supports the view that the departments referred to in the sub-section are departments of the Home Government. But so long as the use of the invention in the United Kingdom is for the service of Her Majesty, it is immaterial whether such service is to be at home or abroad.
2. Terms settled under section 27 (2) by the Secretary of State for War for the use
of patents in the United Kingdom are applicable to the use of the invention in the United Kingdom for the supply of stores through the agency of the War Office to the Governments above mentioned.
(9J536.-9. 25.-10/98.