3.10.2.6 Equitable Interests

Date Published

There is no problem with registering legal interests, but equitable interests present a problem.  The distinction that needs to be drawn is between a document which deals with the patent, and in doing so creates a trust, and a document which simply declares the existence of a trust (e.g. a declaration of trust).  The former is registrable and the latter is not.  

Stewart v Casey 9 RPC 9:

"you must draw a distinction between agreements and other things which do affect the proprietorship and simple notices of trust ... notice of trust is not to be put on, documents which affect the proprietorship, whether by creating trusts or otherwise, are not to be excluded" (at page 11)

"equitable assignments for a patent, or of a share in a patent, may be entered on the register" (at page 13)

"The rights of proprietorship are purely legal rights; but any other rights – any right that may appear on the register - must therefore be, if not a legal right to proprietorship, either a legal right of some lesser description or an equitable right, and, therefore, it seems to me to be plain that the legislature contemplated the prescription by the Rules of a power to enter on the register, rights which are not rights of proprietorship, including equitable rights." (at page 16)

"it is impossible to say that the fact that this equitable assignment may create a trust prevents it from creating an interest within the meaning of the word used in the Rule or a right within the meaning of the 87th Section which would preclude its being put on the register." (at page 16)

Haslett v Hutchinson 8 RPC 457

"unless the plaintiffs are in a position to obtain specific performance, they are not a shadow of interest, legal or equitable" (at page 466)