In re Al-Fin Corporation’s Patent

On May 6, 1966, Al-Fin Corporation (Al-Fin) (plaintiff) applied for a five-year extension with the comptroller (defendant) on its British letters patent under Section 24 of the Patents Act of 1949. The application cited business loss as the reason for the extension. The loss was attributed to shortages of nickel, a necessary component of the patented product, between 1950 and 1953 caused by the Korean War. In a determination letter, the patent examiner recommended against extension because the Korean conflict did not constitute hostilities under the meaning of Section 24 and indicated that nickel shortages were due to hoarding, not the Korean conflict. The parties jointly submitted a letter to the Foreign Office for a determination of whether the British government recognized North Korea as a foreign state within the meaning of Section 24 during the Korean War. In its reply, the Foreign Office noted that there were officials operating as the Government of the Democratic People’s Republic of Korea between 1950 and 1953, but that the British government did not recognize it as a sovereign government. The letter also indicated that English troops were sent to Korea in 1950 to join a group of United Nations-member forces fighting against an attack launched by North Korea on South Korea. The British government considered this attack to be an act of war by North Korea, not an insurrection or civil war. Al-Fin later sought a declaration in the high court on whether North Korea was a foreign state within the meaning of Section 24.