Re AL-FIN Corporation’s patent [1970] Ch 160 Chancery Division

Patents Act 1949 allows a patentee an extension of his patent if he has suffered loss ‘by reason of hostilities between His Majesty and any foreign State’ The applicants sought an extension under such law in respect of loss suffered during the Korean War, 1950-53, the Comptroller General rejected the application partly on the ground that the Korean War did not come under the Act, since North Korea was not a ‘foreign State’ as never been recognised by the UK. On Reel v Holder 1981 the court of appeal was asked if Taiwan was a state [held it was] for the purposes of the International Amateur Athletic Federation, it was held that the case did not concern with the ‘international sphere of statehood or sovereignty’ and the Foreign Office statement was not considered in the point.

The phrase ‘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. In the present case, apart from paragraph 4 of the foreign office Certificate there is an affidavit which satisfies me, that at the relevant time North Korea had a defined territory over which a government had effective control and His Majesty was engaged in hostilities with this state.