In Re Al-Fin Corporation's Patent
Chancery Division (1969)
Patentees, Al-Fin Corporation, the applicants, took out this originating summons in connection with an application for extension of their patent No. 689,129 for the determination of whether, on a true construction of section 24 of the Patents Act, 1949, the Democratic People's Republic of Korea in the events which happened was a foreign state within the meaning of subsection 1 of section 24 at the time of the Korean war. The application for an extension was filed on May 6, 1966, and in response thereto the patentees received a letter from the examiner which, so far as is material, was in the following terms:
Patent No. 689,129
With reference to the application for extension of term of the above numbered patent, I am able to inform you that no notice of opposition has been received within the prescribed period.
The evidence filed in support of the application has received careful consideration, but in the examiner's opinion, no extension of term is justified.
It appears that the sole ground relied on to establish loss or damage within the meaning of section 24 of the Act is the shortage of nickel in existence at January 1, 1951, and continuing until 1955. The general views of the comptroller on this question are set out in In re Harshaw Chemical Co.'s Patent  R.P.C. 97.
It will be seen from this decision that:
(a) the shortage of nickel from the onset of the Korean conflict was not due to shortfall of production, but due to stockpiling, i.e., the nickel was present and was not in fact put to military uses, but was not put upon the market.
(b) the shortage after the Korean conflict was not due to any aftermath of that conflict, in the sense which would permit exercise of the jurisdiction of section 24 of the Act, but was due to continued stockpiling under the threat of hostilities.
(c) the Korean conflict did not constitute hostilities within the meaning of section 24 of the Act.'
After an exchange of correspondence the patentees indicated their intention to apply to the High Court for a declaration, and the comptroller, the respondent, agreed to stay consideration of the application pending a resolution of the originating summons by the High Court. The parties jointly submitted to the Foreign office a question, the terms of which appear in the letter from the Foreign office which is set out below.
FOREIGN OFFICE S.W.1.
July 8, 1968
Al-Fin Corporation v. The Comptroller-General of Patents Designs and Trade Marks
I am directed by Mr. Secretary Stewart to reply to your letter dated April 22, 1968, in which you asked for a reply to certain questions concerning the status of North Korea agreed between the parties in the above proceedings.
2. The questions were in the following terms:
'What (a) States or (b) Governments or (c) Authorities, if any, were between June 25, 1950 and July 27, 1953, inclusive recognised by Her Majesty's Government as (a) entitled to exercise or (b) exercising governing authority in the area of Korea north of the 38th parallel? Has such recognition been de facto or de jure?'
3. I am to inform you that between June 25, 1950 and July 27, 1953, His/Her Majesty's Government did not recognise the existence of an independent sovereign state in the area of Korea north of the 38th parallel either de facto or de jure, and did not recognise any authority exercising control in that area as a Government either de facto or de jure.
4. So far as the existence of authorities is concerned, this is considered to be a question of fact but Her Majesty's Government are aware that between June 25, 1950 and July 27, 1953, there were certain authorities styling themselves ' The Government of the Democratic People's Republic of Korea' exercising control over the above-mentioned area.
5. I am to add that, in providing the above information the Foreign office is expressing no view as to whether there were 'hostilities between His Majesty and any foreign state ' within the meaning of section 24 of the Patents Act, 1949, which is regarded as a question for determination by the court on the basis of all the relevant evidence and in the light of the true interpretation of the Statute.'
An affidavit of Mr. Victor Frank dated April 24, 1968, set out a factual account of the history of Korea over the relevant period. By paragraphs 22 to 25:
'22. Elections for local People's Committees were held in November, 1946, only one list of candidates, all members of the National Democratic Front, was presented, and, it was announced, gained 97 per cent. of the votes cast. These local People's Committees appointed a Convention of People's Committees which met in 1947 in Pyongyang. This convention set up a further body, a ' Supreme People's Assembly,' which drafted and, in April 1948, approved a constitution based on that of the U.S.S.R. Elections for the new Assembly were held in August 1948 - 360 of the 572 seats being nominally for South Korea, where clandestine 'elections' were held by Communist canvassers. In September 1948, the formation of a 'People's Democratic Republic of Korea' was announced, and, in October, the Soviet Union accorded it diplomatic recognition, the other communist countries following suit. No other members of the United Nations accorded the Government diplomatic recognition. The Soviet Government announced that it had withdrawn all its forces from North Korea by January 1, 1949. Thus, two Governments had been established, one in the South, the other in the North. Both Governments claimed to be Governments of the whole of Korea, and each of them denied its rival any legal or constitutional validity.
23. When the Russian forces withdrew in 1949 they left behind them in North Korea a government which, though not wholly subject to the direction of the Kremlin, was nonetheless bound both economically and politically to the will of the Soviet Government. The North Korean military forces were built up with Russian arms (and arms captured from the Japanese), by Russian instructors, the members of the forces being conscripted from 1949 onwards by the effective Government of the country. It should be emphasised that between 1949 and 1950 the Government of North Korea exercised effective rule over the area of Korea defined already, that its rule was accepted by the population as being the sole source of civil and military authority in the said area, and that the Government entered into diplomatic relations with other sovereign states which recognised its existence.
24. On June 25, 1950, North Korean forces launched a large scale offensive against the territory of the Republic of Korea. On the same day, the Security Council held a meeting which, in the absence of the Soviet representative, passed a resolution describing the North Korean invasion as a breach of the peace and calling upon all U.N. member-states 'to render every assistance to the United Nations and to refrain from giving assistance to the North Korean authorities.' Two days later, in view of an imminent collapse of South Korean resistance, the Security Council adopted a resolution which recommended 'that the members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area.' on June 29, 1950, the North Korean authorities rejected the decisions of the U.N. Security Council as 'unlawful.' In this attitude North Korea was supported by the U.S.S.R. and all other Soviet-orbit states. An overwhelming majority of U.N. member-states, however, endorsed the Council's actions. Immediate and substantial naval and air support was furnished by the British Commonwealth. On June 28, the United Kingdom Prime Minister, Mr. Attlee, announced that ships of the Royal Navy then in Japanese waters would be sent to aid the Republic of Korea. In the succeeding months the majority of UN member-states including members of the British Commonwealth, gave further substantial military or economic support to the United Nations action.
25. The attack on the Republic of Korea was an act of war by the effective government of North Korea and was not in any sense comparable to a civil disturbance arising out of an insurrection against a lawful government, or an act of civil war within a single country. The Government of North Korea launched its offensive with the approval and consent of the Soviet Union. Indeed, so close were the political, military and economic ties then existing between North Korea and the Soviet Union, that it could not have made the attack other than with Soviet approval and consent.'
By notice of motion dated July 31, 1967, the applicants, the Al-Fin Corporation of 1 Paul Street, Bethel, Connecticut, in the United States of America, ask for the determination of the court of the question whether, on the true construction of section 24 of the Patents Act, 1949, the Democratic People's Republic of Korea in the events which happened was a foreign state within the meaning of section 24 (1) at the time of the Korean war. The Comptroller General of Patents Designs and Trade Marks is the respondent to the motion.
The applicants are the owners of British letters patent No. 689,129, which was applied for on November 9, 1950, and claims priority from an American application dated November 10, 1949. The British letters patent were granted in 1953 and on May 6, 1966, the applicants applied to the comptroller under section 24 for an extension of five years on the ground of war loss due to hostilities between His late Majesty and the government of the Democratic People's Republic of Korea during the period June 25, 1950, until July 27, 1953.
It is sufficient for present purposes to note that the letters patent relate to the use of ferrous metal incorporated in pistons of either a high nickel cast iron or gray cast iron and which require the use of quantities of nickel in their manufacture. It is alleged that by reason of the war in question nickel was in short supply in this country and that the applicants suffered loss because they were not able to manufacture and sell as many pistons as they would have been able to do had there been no such shortage.
The material parts of section 24 are as follows:
(1) If upon application made by a patentee in accordance with this section the court or the comptroller is satisfied that the patentee as such has suffered loss or damage (including loss of opportunity of dealing in or developing the invention) by reason of hostilities between His Majesty and any foreign state, the court or comptroller may by order extend the term of the patent subject to such restrictions, conditions and provisions, if any, as may be specified in the order, for such period (not exceeding ten years) as may be so specified; and any such order may be made notwithstanding that the term of the patent has previously expired. (2) An application for an order under this section may be made at the option of the applicant to the court or to the comptroller: but, if the comptroller considers that an application made to him raises issues of a kind which would be more fittingly decided by the court, he may if he thinks fit refer the application for decision by the court. ... (8) No order shall be made under this section on the application of - (a) a person who is a subject of such a foreign state as is mentioned in subsection (1) of this section; or (b) a company the business of which is managed or controlled by such persons or is carried on wholly or mainly for the benefit of or on behalf of such persons, notwithstanding that the company may be registered within His Majesty's dominions; and for the purpose of this section no account shall be taken of any loss or damage suffered by any person during any period during which he was such a subject as aforesaid, or by any company during any period during which its business was managed or controlled by or carried on as aforesaid. (9) An appeal shall lie from any decision of the comptroller under this section.
It should also be noted that by section 84 (1) an application to the court under section 24 shall be dealt with by a judge selected by the Lord Chancellor, and that by section 87 (2) no appeal lies from the decision of such judge under section 24.
The applicant for extension is therefore given by section 24 an option to apply either to the comptroller or to the court. If he elects to apply to the comptroller, an appeal lies to the Appeal Tribunal from which there is no further appeal, though of course being an inferior tribunal it is in an appropriate case liable to correction by prerogative writ. If he elects to apply to the court, no appeal lies from any decision thereof.
In the present case the applicant elected to apply to the comptroller and at an early stage in the proceedings, as will be seen from the correspondence forming part of Exhibit M.P.S. 2 to Mr. Schreyer's affidavit, the examiner charged with the application indicated that the comptroller in a previous case, Harshaw Chemical Co.'s Patent  R.P.C. 97, had concluded that the Korean conflict did not constitute hostilities within the meaning of section 24 and that the shortage of nickel which occurred at the time in question was not due to such hostilities.
Further correspondence between the agents of the applicants and the comptroller followed in the course of which it was pointed out that the examiner was not a person authorised under section 62 (3) of the Patents and Designs Act, 1907, to give any relief in respect of war loss and that in fact the comptroller had so far given no decision on the matter. It was, however, a reasonable inference which the applicants were entitled to draw that, if they proceeded with the matter before the comptroller, they would be likely to obtain an adverse decision on both the points mentioned above, and they would be likely to have to go as far as the Appeal Tribunal before they had any real chance of obtaining an extension.
The applicants therefore began the present proceedings, asking the court in effect to give a ruling that the decision in the Harshaw case  R.P.C. 97was wrong and no doubt expecting that armed with such decision, if they obtained it, they would then be able to go back to the comptroller and persuade him to decide in their favour without the necessity of having to go to the Patents Appeal Tribunal.
It is obvious that this is a case where if nothing is done it is likely that there will be a multiplicity of proceedings before the court, as such, is in a position to review the Harshaw decision, if indeed it is ever able to do so in these proceedings. An appeal to the Patents Appeal Tribunal is not subject to any further appeal, and it is only if a prerogative writ such as certiorari for error of law on the face of the decision of such tribunal can be successfully instituted that any reversal is possible at all.
In these circumstances, at an early stage in the proceedings I suggested that the parties might well think that this was eminently a case where cost, trouble and expense would be saved if the matter was referred to the court for decision in accordance with the provisions of section 24 (2). There are some practical difficulties in such a course by reason of the necessity to follow the provisions of R.S.C., Ord. 103, r. 16, which governs the matter and in effect requires the co-operation of both parties. I am glad to say however that both parties agreed to this course and gave undertakings to put in motion the formal steps necessary for the transfer. In such circumstances I am prepared to treat the matter as having been referred to the court and to deal with the issues before me as will be seen hereafter on the basis of such a reference.
There are two such issues both of which depend on the proper construction of section 24. (1) Has the court any jurisdiction to make the declaration asked for at all? If it has not, then no declaration can be made. If on the other hand it has such jurisdiction, then it is a matter for the court's discretion whether in all the circumstances such a declaration should be made. (2) If the court comes to the conclusion that it has no such jurisdiction, then, treating the application for extension as having been referred to the court, it is convenient to decide the question of law 'is North Korea a foreign state within section 24' as a preliminary point in the application for extension so referred.
. Mr. Dillon for the applicants argued that it is a fundamental rule that the subject's recourse to the courts, including recourse for the decision of questions of construction, is not to be excluded except by clear words. Does, he says, the wording of section 24, once an application has been made to the comptroller totally and necessarily exclude any application to the court for a declaration? If it does not, then the court has jurisdiction to entertain such an application and it is a question of discretion in every case whether the declaration is made or not. Further, here section 24 recognises the court's jurisdiction by giving the right, as one alternative, of asking the court rather than the comptroller for an extension.
He relied on Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government  A.C. 260, and in particular on the words of Lord Simonds, at pp. 285 to 287, and of Lord Goddard at pp. 289 to 290, the effect of which, he argued, is that the court clearly has jurisdiction to make such a declaration unless the statute makes it clear that it has not, and that there is only no jurisdiction where it is clear that the statutory remedy is the only remedy given. He also strongly relied on the judgment of Denning L.J., in Barnard v. National Dock Labour Board  2 Q.B. 18, 41.
'I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impose upon itself; and he court should not, I think, tie its hands in this matter of statutory tribunals. It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why then should not the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law, which is a thing no one can do in this country.'
He distinguishes the present case from such cases, for example, as Barraclough v. Brown  A.C. 615, on the basis that the applicants are not here seeking to enforce the statutory rights by methods other than those granted by the Act creating them. His clients have, he says, by the statute itself been given the right inter alia to go to the court. He did, however, make a clear and explicit concession that, if section 24 had been limited so that the application for an extension could only be made to the comptroller, then Barraclough v. Brown would have been directly in point.
It is then said that Lord Simonds in the Pyx Granite case  A.C. 260pointed out that it is proper to exercise the discretion in a case where a difficult question of law is involved and that the question whether North Korea is a 'state' within section 24 is such a question. There is no need to construe section 24 so strictly that once the election to go to the comptroller has been made no recourse at all can be had to the court. The power so to do has not been expressly taken away, and in the circumstances of this case everything is in favour of exercising the discretion in favour of the applicants. Mr. MacCrindle on the other hand for the comptroller argues that section 24 is a statutory enabling section giving a right to apply for an extension in one of two alternative ways. The option is to go to the comptroller with limited right of appeal to the Patents Appeal Tribunal, or to the court with no right of appeal at all. The right of appeal is thus limited in both cases.
It would, in these circumstances, at least be very odd if an applicant could by adopting the procedure in this case obtain an unlimited right of appeal contrary to the obvious intention of the legislature.
He submits that a correct statement of the law is not as broad as the proposition for which Mr. Dillon contends - the true position being that the court will not entertain a claim to determine any issue relating to entitlement to a right conferred only by statute where the statute itself uno flatu provides that another tribunal shall in the circumstances be empowered to determine such entitlement.
This proposition he says is, of course, subject to the qualifications (1) that the court can and in proper cases will grant a declaration that a decision of such statutory tribunal is a nullity, if for example it has acted without jurisdiction, and (2) that in appropriate cases a prerogative writ may lie against such tribunal to bring up its decision for review and possible quashing.
There is, he says, a steady stream of authority in support of his proposition and he referred to Barraclough v. Brown  A.C. 615 as governing this case once the election to apply to the comptroller has been made. He distinguished Barnard v. National Dock Labour Board  2 Q.B. 18on the ground that the basis of that case was an attack on the decision of the inferior tribunal on the ground that it was a nullity, see pp. 23 and 24. It is clear, he says, from Denning L.J.'s words, on p. 42, that the principles of the case do not conflict with his proposition, and that the port manager's decision in that case was made without jurisdiction and was therefore a complete nullity.
Pyx Granite  A.C. 260 he says was a different type of case. There the applicants had land on which they wanted to quarry and a perfect right at common law to do so. The only question was, could their common law right be cut down by the legislation in question so as to prevent them doing so. The applicants there were not claiming a right conferred on them by any statute, but wished merely to establish whether or not their common law rights had been affected by the legislation. This, he says, is clear from pp. 285 and 287. In the present case, by contrast, the applicants are claiming to exercise their rights given them by the legislation to go to an inferior tribunal for decision, but are at the same time endeavouring to come to the court to try to compel such tribunal to decide in a particular way in accordance with the decision of the court by way of declaration. He referred to the words of Lord Goddard, at p. 290, and says that the applicants here ought only to be permitted after election to exercise the right to go to the comptroller, given to them by the statute, by proceeding in accordance with the code laid down by the statute.
Mr. MacCrindle also relied on the Punton cases: Punton v. Ministry of Pensions and National Insurance  1 W.L.R. 186 and Punton v. Ministry of Pensions and National Insurance (No. 2)  1 W.L.R. 226, and in particular on Argosam Finance Co. Ltd. v. Oxby  Ch. 390, which he submitted was very parallel in many respects to the present case since question (a) - see pp. 393 and 394 - which was held to be one exclusively for the commissioners, was only one element in the whole claim, in the same way as in the present case the question whether North Korea is a state within section 24 is also only one element in the applicants' claim here.
In reply Mr. Lunzer endeavoured to qualify Mr. MacCrindle's proposition by limiting it to cases where the legislation in question makes it clear that the right to go to the particular tribunal is exclusive in the sense that it is the only right given. He then argued that there was no such exclusivity in the present case by reason of the alternative remedy given of going to the court.
In my judgment Mr. MacCrindle's argument is correct. It can be put, as he put it, on the basis that once the option to go to the comptroller has been exercised, this is really a Barraclough v. Browncase and that is the end of the matter. I think it can be put also on a slightly broader basis that, if it is clear from the section as a matter of construction that the legislature intended to give a limited right whether to go to one tribunal alone or a right in the alternative to go either to such tribunal or to the court, with no right of appeal from the latter, then the subject must proceed by way of the course and in accordance with the procedure laid down. This will of course be subject, if an inferior tribunal is involved, to the usual remedies by way of declaration or prerogative writ in the case of that tribunal, but it does not include the right to elect to go to the tribunal and at the same time to go to the court by way of declaration to get one element involved in the claim established by the court rather than by the tribunal.
In my judgment the section here is clear. The right given is a limited right, as I have stated, and the court has no power to make the declaration asked for. I should only add that, if I am wrong and it is held hereafter that the court has jurisdiction to entertain the present application, I would as a matter of discretion think it right to make the declaration asked for if satisfied also on the point that North Korea is a state within section 24, as to which see later. In exercising my discretion in this way I would have regard particularly to the fact that the point is a difficult one of construction eminently suitable for decision by the court, and to the fact that the making of a declaration would be likely to save time and expense and might well obviate the case being appealed from the Comptroller General to the Patents Appeal Tribunal in the event of the former following in this case the decision he previously made in the Harshaw case  R.P.C. 97.
The position of North Korea
. I will now deal with the question whether North Korea is a 'state' within the meaning of section 24 as a preliminary point in the hearing of the application for extension by the court, which I will treat as before the court in accordance with the undertaking to refer previously mentioned.
The question depends primarily on the proper construction of section 24, and the difference between the parties may be succinctly stated as follows: Must the section be read as if the words 'recognised as such by Her Majesty' were included after the words 'any foreign state' in subsection (1), or is it correct to read the section in a broader sense without the necessity for the qualification of recognition?
Mr. MacCrindle argued that the court is not here construing a contract between parties but ascertaining the intention of the legislature which is an arm of state. The words hostilities 'between His Majesty and any foreign state' demonstrate that it is not sufficient to point to any hostilities - they must be hostilities against a 'state,' and he took the example of the Eoka disturbances in Cyprus which he submitted would clearly not qualify under these words. Section 8, he says. makes it clear that the foreign state is one which has 'subjects.' Subjects have their counterpart in their sovereign and the former owe allegience to the latter and it is not enough that those called subjects merely carry out the orders of some government exercising practical authority over them. In English law a person cannot be a national or subject of a foreign state unless by the laws of that state such person is recognised as a subject of that state. So, if a person is alleged to be a subject of North Korea, the approach of the English court would involve the inquiry whether under the system of law which the English courts would regard as valid in North Korea that individual is a subject of North Korea. In establishing the law prevailing in North Korea, the English courts must look and see if the government which has made the law in question is entitled so to do. The court must therefore first inquire which government is recognised as being in authority in the territory of that foreign state and it can consider only laws passed by that government, and on the question of recognition the Foreign office certificate is conclusive. The corollary follows that, if there is no formal recognition, there is no government and no state whose laws can be inquired into for the purpose of establishing whether a person is the subject of such a state. To apply section 8 you must be able to examine the relevant law as to status and you are not entitled to regard as a competent law giver a foreign body not recognised by Her Majesty as Sovereign. There are insoluble problems, says Mr. MacCrindle, unless you can establish that the person in question is a subject or national of the state in question, since, once the strict legal meaning of 'subject' in that sense is abandoned, how far can one go in considering the question of status.
He cited inter alia in support of his proposition In re Mangold's Patent (1950) 68 R.P.C. 1, Dicey's Conflict of Laws, rule 16, p. 123, and rule 113, p. 644, Carl Zeiss Stiftung v. Rayner & Keeler Ltd.  1 A.C. 853, 907 and 954 and Aksionairnoye Obschestvo A. M. Luther v. James Sagor & Co.  1 K.B. 456, 473 to 476. He also, of course, relied on the decision in the Harshaw case  R.P.C. 97, which he contended was sound and decided on correct principles.
Mr. Dillon, on the other hand, for the applicants argued that the obvious intention of the section was to give a right to an extension for loss where the applicant could show that hostilities between this country and another country had occasioned such loss, and that the definition of 'state' should certainly not be limited in such a way that it depended on the technical fact of recognition. He said the matter must be looked at from a practical point of view and that, if the facts were sufficient to show that there was a government in effective control over a defined area of territory, then this should qualify as a state within the section whether in fact recognition by the Foreign Office had been made or not. In recent times it has frequently been the case that governments for political or other reasons are not prepared to give de facto or de jure recognition to other governments sometimes for short and sometimes for long periods of time after the stability of such other governments has in fact been clearly established. To this the Foreign Office is no exception and the present certificate is interesting in this respect, since, though recognition has not been made, it is clear on the face of the certificate, paragraph 4, that there was a government exercising control over North Korea during the relevant period, and, secondly, from the point of view of the Foreign office the question in issue here is regarded as one for the court.
As regards the meaning of 'subject' in subsection (8), Mr. Dillon argued that the word should be construed in a general sense as meaning a person who was in fact under the control of an established foreign government whether recognised or not, and should be tested by such matters as the fact of such control, the place of his birth, the place of his father's birth, his residence and generally having regard to all the facts relating to his status and freedom of action.
In support of his argument he cited the authority of Luigi Monta of Genoa v. Cechofracht Co. Ltd.  2 Q.B. 552. In that case the question was whether the ship had complied with 'any orders or directions ... given by the government of the nation under whose flag the vessel sails ... or by any other government ... and compliance with any such orders or directions shall not be deemed to be a variation, and delivery in accordance with such orders or directions shall be a fulfilment of the contract voyage and the freight shall be paid accordingly.'
The ship was intercepted and ordered by a general who said he came from 'the government of Formosa' to discharge her cargo in that country, and did so. On a case stated by the umpire it was held by Sellers J., see pp. 564, 565 and 566, that the question to be decided was very different from a decision on a question of immunity or other question dependent on recognition, and that there was no such rule of law restricting the evidence to be considered to that provided by the Foreign office, or which precluded the umpire from finding that there was a government in Formosa on all the evidence which was adduced. He held, on p. 564, that 'the qualities or character required by the body giving the order or on whose behalf it was given or purported to be given must, therefore, include essentially the exercise of full executive and legislative power over an established territory.'
Mr. Dillon also referred to the Foreign Enlistment Act, 1870, sections 4 and 30, which makes it clear that the legislature was well aware that for the purposes of that Act a 'foreign state' was not dependent on recognition. A similar intention was to be found in the Reinstatement in Civil Employment Act, 1950, an Act in some respects in pari materia with section 24 since it is an Act giving certain rights to persons who had been on war service. Sections 1 and 3 of this Act expressly recognised that service in Korea was war service entitling the person in question to demand reinstatement.
Although it is true that the Luigi Monta case is one dealing with the construction of a clause in a charterparty and Mr. MacCrindle is entitled to draw some distinction between the construction of such a document and of a statute, nevertheless the general principle must be that the true intention of the document, whether it be a commercial document or a statute, is to be ascertained.
In re Mangold's Patent (1950) 68 R.P.C. 1 is to my mind not of any assistance in deciding the point before me, since in that case there was no question that the annexation of Austria, of which state Mr. Mangold was a subject prior to its annexation, was recognised by His Majesty's Government. That onus was upon him to establish that he was not a subject of a foreign state within section 24 and no evidence was given that German law up to the outbreak of hostilities with this country provided that persons who were the subjects of Austria at the time of the annexation remained so thereafter.
In the absence of such evidence it was held that upon such annexation Mr. Mangold became a German subject and therefore an enemy for the purposes of section 24 (8) at the outbreak of hostilities with Germany. This case is of no assistance in deciding whether a state which has not been recognised by His Majesty's Government is or is not a foreign state within section 24 (1). The two statutes cited above make it clear that there is no general rule as to the act of an arm of state in the sense in which Mr. MacCrindle uses the expression which compels a statute referring to a state to be read in a rigid and narrow sense. In my judgment, the correct principle is that the word must be construed in its context and given the meaning which it is considered was intended by the legislature.
Applying these principles to section 24, I have no hesitation in holding that the phrase 'any foreign state,' although of course it includes a foreign state which has been given Foreign office recognition, is not limited thereto. It must at any rate include a sufficiently defined area of territory over which a foreign government has effective control. Whether or not the state in question satisfies these conditions is a matter primarily of fact in each case and no doubt there will be difficult cases for decision from time to time, but difficult cases of fact do not prevent the court from coming to a conclusion when the relevant facts are proved before it.
In the present case, apart from paragraph 4 of the Foreign Office Certificate, there is the evidence of Mr. Frank in his affidavit of April 24, 1968, which satisfies me, see paragraphs 22 to 25 in particular, that at the relevant time North Korea had a defined territory over which a government had effective control and that His late Majesty was engaged in hostilities with this state albeit his troops were under the command and formed part of the United Nation's forces fighting in the area.
I hold therefore that North Korea was a foreign state within the meaning of section 24 and that the applicants are entitled to proceed with the application for extension on that basis.
In so saying it is clear that I consider that the Harshaw case  R.P.C. 97was on this point wrongly decided for the reasons which I have given above. It is not necessary to analyse the decision in detail, since in my judgment the question is one of Construction and the conclusion of the superintending examiner was wrong. I would only wish to add that he did not have the advantage of hearing the very full and able arguments of Mr. Dillon and Mr. MacCrindle on this point and, if he had, his decision might well have been otherwise. I say nothing as to his decision on the point as to the availability of nickel in the period in question, since this is a question of fact which must depend on the evidence which is put before the court when it arises. In the present case the applicants will of course also have to establish this further point in their favour before they can qualify themselves for some extension of their patent.