October 22, 1915.

THE COLLIERY GUARDIAN

827

LAW INTELLIGENCE.

SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.—October 20.

Before the Master of the Rolls, Lord Justice Bankes, and
Lord Justice Warrington.

A Coal Conveyor Patent.

Diamond Coal Cutter Company v. Mining Appliances
Company.—This was an appeal on the part of the plain-
till's from a refusal of Mr. Justice Eve to grant an
injunction restraining the defendants from using threats,
under section 36 of the Patents Acts. Mr. Walter, K.C.,
said the patent was for a coal conveyor, described as a
single-stroke compressed air and driving motor, with
mechanical device for electrical power. A German residing
in Germany was the patentee of the English patent, and
the defendants were the exclusive licensees, for which they
paid a lump sum of £8,000. The course the defendants
had adopted was to issue threatening circulars to plaintiff’s
customers to the effect that they had reason to believe that
attempts were being made, especially since the commence-
ment of the war with Germany, to infringe the patent, and
that proceedings would be taken if need be. By that
circular, said counsel, the licensees practically claimed that
they had every right that the patentee held. The real issue
was : Did this circular represent that the defendants were
entitled to the benefit of the patent, or that they were
claiming, and intended those who received the circular to
believe, that they were only entitled to the benefit of an
exclusive licence. Counsel argued that the exclusive
licensee had no patent rights at all, and therefore he had
no rights to infringe.

In delivering judgment, the Master of the Rolls said
This is an action to assert and enforce not a common law
right, but a right conferred by statute, namely, by section 36
of the Patents and Designs Act, 1907. That section confers
upon a person aggrieved a right, where any person, claiming
to be a patentee of an invention, threatens him with legal
proceedings or liability in respect of an alleged infringement
of a patent to bring an action and obtain an injunction against
the continuance of such threats. “ Patentee” is defined in
section 93 as the person for the time being entitled to the
benefit of a patent. I think it is clear that a mere licensee is
not a patentee within the meaning of section 36. If he, not
being a patentee, claims to be a patentee, he may be within
section 36, but not otherwise. The question in the present
case is whether the defendants have, by reason of two letters,
brought themselves within section 36. This is a mere ques-
tion of construction of the two documents. Mr. Justice Eve
refused to grant an injunction. I agree with his decision.
The defendants are in fact not a patentee. A German subject
is the patentee. The defendants hold an exclusive licence
from the patentee for this country. On the fair construction
of the two. letters, I think the defendants told the truth,
namely, that they were not the patentee, but were exclusive
licensees, and that the proceedings referred to in the letter
were expressly stated to be under their licence. They did not
claim to be patentees. This being so, I think they are not
liable to an action under section 36, although, of course, they
may be liable at common law if, but only if, malice can be
proved. The appeal fails, and must be dismissed with costs.

Lord Justice Bankes said the only question was whether
the defendants in the circulars complained of did claim to
be patentees. In his opinion, a person who claimed to be an
exclusive licensee, and to have the benefits of such a licence,
was not claiming to be a patentee within the meaning of the
definition in the Patents Act, although his claim might
include many of the benefits of a patent, including the right
of indirectly, in the name of the patentee, excluding others
from manufacturing in a particular way or using a particular
invention which, according to Lord Herschell, in Steer v.
Rogers (10 Pat. Cas.), is the real essence of a patent. The
language of the circulars was not happily chosen. The posi-
tion of the defendants might have been made more clear.
There were many persons whom the circular might reach who
could not distinguish between a claim to be an exclusive
licensee and the claim to be a patentee. None, of these cir-
cumstances were, in his opinion, sufficient to entitle the
plaintiff to succeed upon the present statute. It might be
ground for an amendment of the law. Taking the circulars,
the language used was, in his opinion, more appropriate to
describe the position of a licensee than that of a patentee,
and in the very material paragraph relating to the taking of
proceedings, the language used was only appropriate to
describe the position of a licensee. Mr. Walter appeared
to think that it was sufficient to establish that many people,
on reading the circular, would not realise that the defendants
were claiming to be exclusive licensees only of the patent.
His lordship did not agree with this contention.

Lord Justice Warrington concurred. He said, on the
construction of the circulars, the case seemed to be near
the line, but on careful consideration he had come to the
conclusion that the clause as to proceedings showed that
the writer was not claiming to have a right to take pro-
ceedings on his own account, and in his own name, as the
owner of the patent, but by virtue of special power given to
him by his licence. He thereby sufficiently pointed out to
an ordinary person that he was not entitled to the entire
benefit of the patent, but only to certain special rights as
licensee, and therefore did not claim to be patentee.

The appeal was dismissed, with costs.

RAILWAY AND CANAL COMMISSION.
October 13.

Before Mr. Justice Lush, the Hon. A. E. Gathorne-Hardy,
and Sir James Wodehouse.

Railway Rates for Coal.

Glenavon Garw Collieries Limited v. Rhondda and
Swansea Bay Railway Company and others.—This was an
action in which the Glenavon Garw Collieries Limited were
the applicants against the Rhondda and Swansea Bay Rail-
way Company, the Great Western Railway Company, and
the Barry Railway Company, for a declaration that certain
increased rates in respect of the carriage of coal were illegal
and unreasonable, and for an order granting through rates
for the conveyance of coal from their collieries to Barry Docks
vid, Cymmer and Peterston or Coity, at Is. 4-4d. per ton,
which was the original rate. This rate from January 1, 1914,
has been increased to Is. 6-4d. per ton. The coal was
originally carried on the Taff Vale route, but in 1906 the
Great Western Railway Company offered to deal with the
traffic vid Cymmer or Coity at the same rate. This proposal
the applicants accepted, but later the rate was increased.
The question of the increased rates came before the Court
during the last sittings, and judgment was then given in

favour of the applicants, the rate being fixed at Is. 4*4d. The
question as to the apportionment of the new rate stood over,
and now came up for argument.

Mr. Talbot, K.C., on behalf of the Great Western
Railway Company, said he was prepared to admit, for the
purposes of this case only, that the Great Western Railway
Company conveyed the coal traffic in question over so much
of the Rhondda and Swansea Bay railway as formed
part of the route between the applicants’ collieries and
Barry. The through rate for the carriage of the coal had
been fixed at Is. 4-4d., and the question was now as to
the apportionment of that rate as between the Rhondda and
Swansea Bay Railway and the Great Western Railway on
the one hand, and the Barry Railway on the other. What
his clients proposed was that vid Peterston the rate should
be divided in the proportion of Is. 0’4d to the Great Western
and Rhondda and Swansea Bay Railways, and 4d. to the
Barry Company; that by Coity the rate should be appor-
tioned in the proportion of 8’4d. to the Great Western and
Rhondda companies, and 8d. to the Barry Company. The
reason he would put forward for this allocation would, he
thought, go a long way to conclude the case. It was pro-
posed to allow the Barry Company out of this rate a sum
which the company had said over and over again they
were content to receive for the conveyance of this traffic.
Prima facie that ought to settle the matter. The Court
would recollect that when the rate of Is. 6’4d. was fixed, it
was, if not with the consent, at all events with the con-
currence of the Barry Company, and that rate was fixed
in order that the Barry Company should receive the two
sums of 4d. and 8d. As he understood it, the only quarrel
with, the Barry Company in respect of the proposed alloca-
tion was that the latter company claimed to receive a sum
sufficient to enable them to return 2d. to the traders by
way of rebate, and so be left with the net sum they were
willing to receive. The whole object of these proceedings
was to reduce the total rate from Is. 4'4d. to Is. 2‘4d. The
case of the Barry Company seemed to be that while the
rate would give them sufficient for themselves, it would
not give them enough to enable them to give 2d. back to
the coal traders. On the face of it, this seemed a startling
proposition on which to base an apportionment rate. The
position was that they wanted more than would pay them,
in order to give it back to some one else. What they were
trying to do was to satisfy an obligation which did not
exist, and to benefit the trader out of the pockets of the
Great Western. The only obligation binding on the com-
pany so far as the traders were concerned was that they
were not to charge more than ^d. per ton per mile for coal
carried over their railway. The obligation which he was
willing to assume existed was, not to give 2d. back on
all coal that passed by Coity and Peterston, but not to charge
more than |d. per ton per mile for the coal carried over
their railway. The contention of the Barry Company was,
he should submit, quite untenable, and their second con-
tention was equally fallacious. They said that adopting
the analogy of the other collieries which did give the benefit
of the 2d. rebate, they were justified and, indeed, compelled
to allow a similar rebate to the collieries on the Rhondda
and Swansea Valleys. The Is. 4d. had never been discussed
on the footing of a rebate. All this was an elaborate
manoeuvre in order to put the two collieries in a position
of undue favour. If this was done there would be pressure
from all the other collieries in South Wales.

On the following day Mr. Holman Gregory, K.C.,
addressed the court on behalf of the Barry Railway Company.
He said his clients suggested that the proper proportion of
the rate as now fixed would be that they should receive in
respect of the carriage of coal vid Peterston Junction 6d., and
in respect of Coity 10^d. In regard to the Peterston rule, his
clients urged that they should receive 6d. for three reasons.
The first reason was that wThen they were asked by the
Great Western Company to agree to the through rate of
Is. 4*4d., they were offered 6d. That offer was contained in
a letter. The rates suggested by the Great Western Company
in that letter were not fixed by mileage, because the two
collieries concerned were at the longest distance from Barry.
The reason why the Great Western Company fixed these rates
was that the rate was one charged by the Rhondda Company,
the Taff Vale Company, and the Barry Company when the
traffic went vid Taff Vale. As things now stood, the Great
Western Company were charging the lower rate for the
greatest distance. The next point was that in respect of all
the coal carried through Peterston Junction the Great Western
Company had paid the Barry Company 6d. from the time the
line was opened down to the present time, and it was diffi-
cult to see why a distinction should be drawn in respect of
the coal from the collieries in question. It had to be remem-
bered that this was traffic which the Great Western Company
had secured from the Barry Company, and the question of
terminals had to be taken into account. The terminal service
involved a large amount of extra work. For these and other
reasons the Barry Company contended that the rate should be
apportioned at 6d. The only answer of the Great Western
Company was that the Barry Company had agreed to take
4d. As to that, when the rate of Is. 4-4d. was being dis-
cussed, the Barry Company insisted upon a net 4d. His
clients were fighting this because if the Great Western Com-
pany succeeded all sorts of troubles were to be apprehended.
If the collieries now in question were to be denied the rebate
given to other collieries in the same neighbourhood, a ques-
tion of undue preference might arise.

•After some further argument, their lordships reserved
judgment until October 25.

Mr. William Fraser, of Glasgow, managing director of the
Pumpherston Oil Company, chairman and managing director
of the Tarbrax Oil Company, a director of the Great
Northern Coal Company, who died in June last, aged 62
years, left personal estate in the United Kingdom valued
at £82,378.

Mr. Joseph Ash, of Gaveston, Leamington Spa, and of
Birmingham, a director of the Birmingham Railway
Carriage and Wagon Company Limited and of Messrs. Ash
and Lacey Limited, zinc workers, and of Messrs. Joseph
Ash and Son, galvanised iron works, both in Birmingham,
has left estate the gross value of which is £165,503.

■ Messrs. R. White and Sons, of Widnes, have just executed
a smart piece of work for the War Office. They received
an order for two of their aerial wire ropeways for the use
of the troops, and, as the matter was urgent, they succeeded
in getting the whole of the two ropeways despatched within
three weeks of the receipt of the order, complete with all
the driving gear, engines, carriers, &c.

INDIAN AND COLONIAL NOTES.

India.

The directors of the Burrakur Coal Company, one of the 12
companies managed by Messrs. Bird and Company, are pro-
posing to found a new company, with a capital of nine lakhs
of rupees, for the erection of coke ovens and the recovery of
by-products. In this enterprise the Reliance and Nowaghur
coal companies will also be identified.

Export of Indian Coal.—The export of coal (other than
Welsh coal, which is already on the prohibition list) and coke
from British India will be prohibited except to the United
Kingdom, British Possessions and Protectorates, as from
October 1, 1915. Licences will, however, be granted freely
for export to allied countries. In the case of exports to
neutral countries, the following procedure will be observed :—
Firms desiring to export will be requested to communicate to
importing firms abroad with each consignment of coal
despatched the following stipulations : (1) That no coal of any
kind or origin is furnished directly or indirectly (a) to any
vessel belonging to the enemy countries, (6) to any vessel
known to trade with enemy countries, and (c) to any vessel
or firm the name of which is specially notified. (2) That no
coal is used in the production of goods or by products of
distillation of military value which are furnished directly
or indirectly to enemy countries. (3) That no coal is sold by
one importer to another without the express authority of the
Government of India, which will have to b^obtained through
the Collector of Customs at the port of shipment. Infringe-
ment of the conditions will involve refusal of further licences.
The above arrangements will apply to all neutral countries
other than the Philippines, Mexico, and Honolulu. In the
case of the last-mentioned countries export will be permitted
under licence only on the production of a certificate from the
British consul at the port of destination that the consignments
are bond fide.

Africa.

Output of Coal.—In June the 58 collieries producing coal
in the South African Union mined 907,989 tons of coal, of
which 752,749 tons were sold, the total value at pit head
being £191,621. Of the total sales, 484,301 tons were sold
in the Transvaal (4s. 5T3d. per ton); 4,408 tons in the Cape
Province (Ils. l’12d.); 67,988 tons in the Orange Free
State (5s. 2’54d.); and 196,052 tons in Natal (6s. 6’64d.).
Progressive totals for the last six months in the case of
the Transvaal and Natal are as follow :—

	1 ransvaal.			Natal.		
Month.	‘ Tons	Value		Tons	Value	
	sold.	per ton.		sold.	per ton.	
		s.	d.		s.	d.
January. .	368,295	... 4	4'58 ...	187,606	... 6	7'79
February.	319,670	... 4	5'31 ...	153,419	... 6	7'89
March ...	414,687	... 4	4'67 ...	161,607	... 6	6'05
April 		427,413	... 4	4'46 ...	169,547	... 6	6'41
May		449,205	... 4	5'41 ...	197,155	... 6	6'21
J une 		484,301	... 4	5'13 ...	196,052	... 6	6'64

In July, 967,963 tons of coal were mined, of which 788,853
tons were sold, the aggregate value being £202,445. The
sales in the various provinces was as follows :—Transvaal,
506,463 tons (4s. 5'56d.); Cape, 4,394 tons (Ils. 6’90d.);
Orange Free State, 69,635 (5s. 2’51d.); Natal, 208,361 tons
6s. 7-17d. During August 930,203 tons of coal were mined,
and 761,985 tons sold, the value at mine being £195,739.
The sales in the different provinces was as follow :—Trans-
vaal, 493,424 tons (4s. 5T6d.); Cape, 4,354 tons (Ils. 7*9d.);
Orange Free State, 61,426 tons (5s. 2-55d.); Natal, 202,781
tons (6s. 8’36d.).

Coal Exports and Imports.—During the first six months
of 1915 only 9,382 short tons of coal, valued at £7,579, were
imported into the South African Union, as against 28,201
tons, valued at £20,416, in the first half of 1914. On the
other hand, 11,754 tons of coke and patent fuel, valued at
£12,219, were imported, as against 10,956 tons, valued at
£14,262, last year. Exports of South African coal also fell
away, 755,134 tons, valued at £503,268, being sent abroad,
as against 1,057,007 tons, valued at £630,484. In addition,

I,	870 tons of imported coal were re-exported, as against

II,	059 tons in the first half of 1914. Of the native exports,
110,917 tons were shipped vid Cape Town, 502,035 tons vid
Durban, and 142,164 tons vid Delagoa Bay.

Australia.

New Permitted Explosives.—With a view of obviating the
difficulty experienced in New South Wales in procuring explo-
sives for mining purposes, the Secretary for Mines has
authorised additions being made to the list of permitted explo-
sives, which now include Neonal No. 1, Viking PowTder No. 1
and No. 2. A quantity of explosive similar in composition to
Monobel No. 1 has been purchased from America, and is
expected to arrive at the end of next month, when it will be
available for purchase by colliery proprietors.

A New Colliery.—There is a marked expansion of the coal
and coke industries on the south coast. At the new Coalcliff
Colliery, when the mine is fully manned, the management
anticipate a daily output of over 2,000 tons, which will be the
largest in Ulawarra.

Queensland Coal Trade,—In Queensland the output of coal
during the first five months of the present year was as
follows:—Ipswich, 273,887 tons; Darling Downs, 41,987;
Maryborough, 42,450; Central, 45,641; Northern, 1,750.

Australian Coal in South America.—The Consul for Chili
has been interviewed in regard to the alteration in the coal
trade restrictions. He said that it was impracticable to obtain
the tonnage at a moderate rate to transport Australian coal to
South America, and. considering that the United States mer-
chants have obtained a grip of the trade, it will be only after
a very hard fight for Australia to dislodge them from their
present standing. There has been a heavy importation into
Chili of Alabama coal, and the starting of a regular line of
steamers to run between the two countries will make it still
more difficult to place Australian coal in Chili.

State Coal Mine for New South Wales.—New South
Wales is to have a State coal mine at last, the Minister for
Mines having chosen a site near Lithgow, on the line of the
Oakey Park seam, which is about 260 ft. below the surface.
The Cabinet is to be consulted regarding the expediency of
starting operations at the mine at an early date.

Improvements at Port Kembla.—Great improvements are
being effected at Port Kembla. in the Ulawarra district. A
new railway line is being constructed from Wollongong.
Steamers of 8,000 tons burthen call regularly for full cargoes,