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there had been a doubt as to the validity of the patent, that they pay for the use of these floats, for a vessel of theirs called the Calpe, £40, having previously, in the years 1835 and 1836, just after the granting of the patent, had the same patent improvement applied at a much larger sum to other vessels. Then he says, "I have carefully examined the specification of Mr. Galloway; I have seen the models produced; the principle laid down in that specification is precisely the same as mine; I had the same object in view -that of arranging the floats in a cycloidal curve; I have not been able to find in Mr. Galloway's specification anything whatever different to what I had in view, except what I had before; the advantages mentioned in his specification are the very same advantages that I contemplated and proposed." Gentlemen, then he is cross-examined as to this point, and he says, "I have taken out patents myself, altogether three, one of them a little time ago; the idea crossed my mind for taking out a patent for this discovery. I entered a caveat for my discovery in 1833. I never did anything upon it. It is now a very valuable wheel, it is now in general use; a valid patent for such a wheel would be very valuable to the patentees, it would be valuable to me; I continued making experiments till July, 1835." Certainly it is not an improper observation, one that you should bring before your own minds on this question-that is, whether it was the invention of Mr. Field before Mr. Galloway, and an invention carried so far to perfection that the matter might be known and used in England; that as he had entered a caveat at the office of the law officers of the Crown, he must have had notice of this; the patent would not have passed without some notice given to him that such patent was taken out; and yet you see, though he had put in his caveat in the year 1833, and made experiments from April to June, and goes on making experiments to 1835, he does not at all interpose or set up his claim at that time to take out a patent. I do not mean to say he was bound to do it, or that his not doing it will decide this question at all; but when we are considering the course that men ordinarily pursue in looking after their

own interest, the question is, whether he is perfectly to be depended on as to the exact identity of this discovery--that this, which is now the subject of a patent, was the very discovery which he himself had made. That is for you and not for me to determine. Then he goes on to say, "I continued making experiments till July, 1835. I never fitted up a vessel for a customer till the Dover Castle, that was the name of it; the wheels were afterward altered from three boards to two, and so they continued. That vessel did not go faster nor slower than before, but the vessel was better for the sea; she was always a slow vessel. The next vessel we fitted up with split boards was the African; that was in the summer of 1836"-that is, after the period when this patent is granted; therefore, anything that is done after that, if it is a wheel of the nature and description of that for which the patent is granted, that is not to be brought in evidence against the plaintiff as a prior discovery, except so far as that the party who gives the evidence says that it was upon his own principle, and not upon the principle of the patent. The mere fact of applying it so late as the year 1836, the year after the patent was granted, would not of itself, of course, show that the subject-matter had been known and used in England a year before. Then he says, "I am not quite positive that I fitted up any but the Dover Castle with wheels on this construction. I fitted up the Great Western with wheels of this construction in the year 1838; the wheel is now in great repute; I had no knowledge of the floats being divided in this way before I did so myself. I did nothing for the Admiralty before August, 1835." Then, in fact, he says, "I did not do it till the summer of 1836. I did take off the new wheel, after having satisfied myself with the experiment, and I put on the old boards again." He says, "We did nothing in 1833, 1834 and 1835; in 1835 we commenced our experiments, and we still continued to make comparative experiments." Then he goes on to say something more as to the specification, which is not material.

The point, as it seems to me, for your consideration is, whether you are satisfied or not that, at the time when

this patent was taken out, the invention for which the patent was obtained was a new invention, and not used publicly in England, which are the words of the plea. That there had been many experiments made upon the same line, and almost tending, if not entirely, to the same result, is clear from the testimony you have heard; and that these were experiments known to various persons; but if they rested in experiment only, and had not attained the object for which the patent was taken out, mere experiment, afterward supposed by the parties to be fruitless, and abandoned because they had not brought it to a complete result, that will not prevent a more successful competitor, who may avail himself as far as his predecessors have gone of their discoveries, and add the last link of improvements, in bringing it to perfection. If that is the case, the plaintiffs are entitled to your verdict. If it was then known, at the time when the plaintiff took it up, and was publicly known and used in England, then in that case the patent is invalid, and in that case you would find your verdict for the defendant. If you find it for the plaintiffs, it will be only nominal damages; the question is not here for any profits, but simply to decide the right between the parties.

Verdict for the plaintiffs.

No application was made to the court to disturb the verdict, but a rule was obtained calling on the plaintiffs to show cause why judgment should not be arrested, on the ground that the declaration was defective, no right of action being shown against the defendant on the record; there being no allegation that he was the registered officer of the company, pursuant to the act of Parliament, 7 Will. IV. and 1 Vict., c. 73. On a subsequent day the plaintiffs obtained a rule calling on the defendant to show cause why the record should not be amended by inserting the proper allegation in the declaration. The court made the latter rule absolute on terms of the plaintiffs paying the costs of both rules, and foregoing the costs of the action. See Galloway v. Bleaden, November 30, 1839.

PARKIN v. HARRISON.

Chancery, V. C., Jan. 17, 1840.

(2 Carp. P. C. 677.)

Length of Time to establish Prima Facie Legal Right of Patentee. Accuracy of Specification Essential to establish Prima Facie Right. Prerequisites to Injunction. Admissions by Defendant's Affidavits.

Lapse of a few months only since the grant of a patent, with no evidence that the invention had been made use of, held, not sufficient to establish prima facie legal right in the patentee.

Specification in Parkin's patent for paving with blocks of wood "having the grain inclined to the horizon in some angle, varying from about forty-five degrees to about seventy degrees," held, not sufficiently accurate to establish prima facie claim.

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A claim for “ dowelling blocks of wood together in paving when slanting or leaning in opposite directions," held, not of itself to describe a patentable invention.

Where only a short time since the grant of a patent had elapsed, the invention had not been put to use, and the specification was somewhat vague, and there was no clear admission of infringement by the defendant, held, that the patentee seeking an injunction should first establish his right at law.

Suit for injunction.

Knight Bruce applied to the Vice-Chancellor for an injunction to restrain the defendants, their servants or agents, from paving Whitehall, or any other road or way for carriages, with blocks of wood formed with the grain inclined to the horizon and dowelled together as described and claimed in the specification of letters patent granted to the plaintiff, Thomas Parkin, on April 9, 1839. In support of the application it was declared by the plaintiff that, after many experiments and great expense, he invented "improvements in railroad and other carriages, and in wheels for such carriages, and in roads and ways on which they are to travel," among which improvements were several improved modes of forming and laying wooden blocks for pavements, which he described in his specification as follows: "My improvements in roads and ways consist according to

this, my first mode, of paving them with blocks of wood, having the grain inclined to the horizon in some angle varying from about forty-five degrees to about seventy degrees, the grain of all the blocks leaning in the same direction, or toward the same points of the compass. And according to my second mode of paving with similar blocks, as in my first mode, but the alternate rows of blocks leaning toward the opposite point of the compass, each pair of leaning blocks being sometimes held together by a dowel, passing through the middle of both blocks." That immediately after this declarant's patent was granted, he publicly advertised and exhibited his invention.

That on June 27, 1839, a patent was granted to Richard Hodgson for an invention communicated to him from abroad by Comte de Lisle, which invention does not differ in any material respect from the invention already patented by the plaintiff.

That on or about the beginning of July the defendants and others purchased Hodgson's patent, and advertised proposals for forming a company called the "Metropolitan Patent Wood Paving Company," to carry on the alleged invention of Comte de Lisle. That shortly before the date of such advertisement the plaintiff had entered into an agreement with Hunt Grubbe, for the sale to him of so much of his patent as relates to wood paving, upon the following terms: £1,000 to be paid down, £1,000 more on July 15, and £1,000 more in three months, on condition of parties being found by Hunt Grubbe, within that period, to furnish capital to carry out the invention; and in the event of either of these conditions not being complied with, then the agreement to be considered null and void. That on July 13 the said Hunt Grubbe informed him that he had assigned the said agreement to Richard Hodgson. That on July 15 Mr. Hodgson called on plaintiff, and gave him to understand that he had purchased the agreement of Hunt Grubbe on behalf of the company, and on paying the £1,000 due on that day, stated that he had no doubt the company would pay the £1,000 on September 28 as provided by the agreement. It further appeared by this declaration that

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