Gibson & Campbell's Improvements in the Manufacture of Silk, &c.

granting of our Patent, well known or in use for the same purposes; but we restrict our claims to the eight five several heads of Invention mentioned in the early part of this Specification, all of which we believe to be new and of great public utility.

In witness whereof, I, the said John Gibson, have hereunto set my hand and seal, this Seventeenth day of May, in the year of our Lord One thousand eight hundred and thirty-seven.

bell November 19, 1836, numbered 7,228, for "a new or improved process or manufacture of silk and silk in combination with certain other fibrous substances."

The specification was as follows:

"The nature of our said invention consists, 1. In a part of our process by which we discharge the gum from that peculiar kind of silk denominated silk waste, when the same is in the state of the sliver or rove. 2. In a part of our process by which we dye silk waste when in the state of sliver or rove. 3. In a part of our process by which we spin yarn from dressed or heckled silk waste of long fibres, either in the gum or discharged. 4. In a part of our process by which yarn from silk waste with long fibres may be spun in combination with flax of a similar length of fibre. 5. In a part of our process by which yarn from silk waste with long fibre is spun in combination with wool. 6. In the application of our improved process to the throstle machine, on the principle of the long ratch, for the new and useful purpose of spinning silk waste. 7. In certain improvements effected by us in the throstle machine by which its utility in spinning silk waste is greatly augmented. 8. In the application of water to silk waste with long fibres in the process of spinning with the long ratch.

66 Having thus described the nature or leading characteristics of our invention, it is desirable, before we enter into the practical details of them, to give a brief outline of the methods heretofore adopted for spinning silk wastes. . .

"Having now given the necessary details of the manner in which our invention is to be performed, we desire it to be understood that we disclaim those parts of the process or mechanism which were or may have been, previous to the granting of our patent, well known or in use for the same purposes, but we restrict our claims to the eight several heads of invention mentioned in the early part of this specification, all of which we believe to be new and of great public utility."

The declaration, after the usual averments, assigned as a breach "that the defendant directly or indirectly made,

used and put in practice the said invention, and every part thereof, and therein counterfeited, imitated and resembled the same, and every part thereof."

The defendant pleaded, 1. Not guilty. 2. That the plaintiffs were not the true and first inventors of the alleged invention. 3. That the said invention was not a new invention. 4. That the said invention was and is of no use, benefit and advantage to the public. 5. That the said instrument in writing was and is as follows (setting it out); that no other was enrolled; and averring that the said instrument in writing does not particularly describe and ascertain the nature of the said invention, and in what manner the same is to be performed. Upon these pleas issues were joined, the replication to the fifth plea being that the said instrument in writing, in that plea set forth, does particularly describe and ascertain the nature of the said invention, and in what manner the same was and is to be performed. No question turned upon the notice of objections.

Pollock, Bompas, Hill, Hoggins and Corrie were counsel for the plaintiffs; Follett, Kelly, Channell and Henderson, for the defendant. The following portion of the summing up of the learned judge will sufficiently explain the principal features of the case.

TINDAL, C. J., to the jury. This is an action for the infringement of letters patent granted to the plaintiffs, and the defendant first says that he has not been guilty of any infringement, and that before he can be called upon for answer the plaintiffs must satisfy you that the defendant has in some mode or other infringed this patent. The defendant next says that these letters patent have not been granted to the true and first inventors, which you are aware is a condition required by the statute. Now, a man may publish to the world that which is perfectly new in all its use and has not before been enjoyed, and yet he may not be the first and true inventor; he may have borrowed it from some other person, he may have taken it from a book, he may have learnt it from a specification; and then the legislature never intended that a person who had taken all

his knowledge from the act of another, from the labors and assiduity or ingenuity of another, should be the man who was to receive the benefit of another's skill. There is some distinction, although perhaps not a very broad one, between the plea which alleges the plaintiffs were not the first and true inventors, and that on which I conceive the principal question between the parties will turn, the third in order, viz., whether the subject-matter of this patent was known in England at the time the letters patent were granted. It is quite clear, if on the evidence you have heard you are satisfied that this which is alleged to be a discovery by the plaintiffs had been publicly known and practised in England, there is an end to the validity of the patent. It would not be sufficient to destroy the patent to show that learned persons in their studies had foreseen or had found out this discovery that is afterward made public, or that a man in his private warehouse had by various experiments endeavored to discover it and failed, and had given it up. But if you perceive on the evidence that the thing which is now sought to be protected by the patent has been used, and for a considerable period, and used so far to the benefit of the public as to be sold to anybody that thought proper to purchase it of those who made it, then it becomes a material question whether such mode of user was not in your judgment a public using of the article, of the process or of the invention, before the letters patent were granted, and therefore you will apply the evidence when you come to it, subject to such an explanation, not giving a force or efficacy to any attempts that have been made toward the discovery which the plaintiffs set up, but which have failed and been abandoned, and rested indeed only in experiment, but at the same time giving full effect to such evidence as has been brought before you that tends to show that, by other persons on various occasions, the article has been made and the process been pursued which is now sought to be protected, and has been sold to such of the public as have thought proper to come forward and purchase.

Then the defendant says the invention is of no utility; but it does not appear to me that can, on the present occa

sion, afford you any considerable trouble. No doubt there is evidence enough to show that the result of this process does produce an article that is of considerable beauty and value; the demand that is made for it, indeed, would seem to establish that.

Then the defendant objects to the specification. I should tell you, as far as there are any objections in point of law to the specification, I do not propose to trouble you with them on this occasion; all that I mean to leave to you is the question of fact that is raised for your determination— namely, whether it is so worded and such explanations are given in it that a person of a sufficient degree of understanding on the particular subject could carry the provisions of the specification into effect and obtain the proposed result. The specification ought to be so clearly worded as to lead without any doubt or difficulty to that result, because it is the price that the man who takes out his patent pays to the public for their being so long kept out of the enjoy ment of the commodity or manufacture that is protected; the price he pays is that he will lodge such an account of his own discovery and invention as will enable the public at the expiration of the fourteen years to have as free and unreserved use of the invention as he himself. Therefore every man who is an honest man is bound to pay that price justly and fairly, and to word his specification, which he is obliged by the terms of the patent to enroll in the Court of Chancery, in such a way as to be clear from all doubt. Now, I cannot say that I think this a very clear specification; I cannot read through these eight different heads, which I understand to be the eight different points that are sought to be protected by the patent, without thinking there has been a mixture rather of object and purpose or design, to which the party means to apply his patent, with that which is more strictly and properly the process by which the object is meant to be obtained; the mixing them together and not keeping them separate and distinct tends very much to obscurity in the document itself.

The only person who proves the invasion of the patent is Rolleston, who says, "I bought the silk from the defend