Regina v Commissioner of Patents, ex parte Martin: 1953

(Australia) The applicant sought registration of a patent. In his application, he accidentally described himself as the originator of the idea, whereas in fact he was the assignee.
Held: The court construed the provision of patent law: ‘The Commissioner may on the request in writing accopmanied by the prescribed fee correct any clerical error in the Registrar of Patents or in any proceedings under the Act ‘
Williams ACJ: ‘A clerical error, I would think, occurs if a person either of his own volition or under the instructions of another intends to write something and by inadvertence either omits to write it or writes something different.’
Fullagar J: ‘But the characteristic of a clerical error is not that it is in itself trivial or unimportant, but that it arises in the mechanical process of writing or transcribing. There is no evidence that a mistake so arose in the present case, and it is very difficult to see how it could so have arisen. The mistake, however innocently made, consists of a simple mis-statement of fact, and that is the whole of the matter.’


Williams ACJ, Fullagar J


(1953) 89 CLR 381


CitedSharp’s Patent, re, ex parte Wordsworth CA 1840
The court considered what counted as a clerical error: ‘And in every case which has occurred, it has plainly been intended to do no more than to amend mere slips or clerical errors made by the parties, or the agents of the parties, who intending to . .

Cited by:

CitedWordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 01 May 2022; Ref: scu.242601