cesses of reasoning differing from each other, in which different facts may be considered as proved by different jurymen, by which they may all arrive at the same endthat end being the issue of fact joined upon the record. Upon all these grounds I think the rule should be discharged.

Rule discharged.

See also Walton v. Bateman (post, May 13, 1842), where the same patent was in litigation and was sustained. Scire facias was, however, afterward brought and the patent annulled, but additional evidence was adduced upon that proceeding. See Queen v. Walton (post, Trin. V. 1842).

CARPENTER v. SMITH.

Exchequer, N. P., Mich. V., 1841.

(1 Web. P. C. 530.)

Improved Combination. Prior Public Use. Specification of Improvement. Novelty.

There may be a valid patent for a new and improved combination of mechanical parts which are already known in combination.

The public use and exercise of an invention which prevents it from being considered a novelty is a use in public, such as comes to the knowledge of others than the inventor, as contradistinguished from the use of it by himself in private, and does not mean a use by the public generally.

The specification must distinguish between what is claimed to be new in the invention and what is admitted to be old. Otherwise the presumption is that the patent extends to the whole and to every part.

The making of an article in England, though for exportation, will, as a rule, vitiate a subsequent patent therefor.

The use of a lock in such a situation that the public might see it, held a public use and exercise of the invention.

The manufacture and sale, without secrecy, by a workman, of seven and a half dozen of locks according to a model which was retained, held a public use and exercise of the invention.

Case for infringement.

The patent in suit was granted to J. Carpenter and J. Young, dated January 18, 1830, for improvements in

door-locks, etc. The declaration set forth the specification and disclaimer and assigned breeches after the entering of the disclaimer in respect of the part of the invention not disclaimed.

The defendant pleaded, 1. Not guilty. 2. That the plaintiff was not the true and first inventor of the part not disclaimed. 3. That the part not disclaimed was not a new invention as to the public use and exercise thereof. 4. The insufficiency of the specification. 5. That the invention not disclaimed was not a new manufacture within the proviso of the statute.

The following notice of objections was delivered with the pleas 1. That the plaintiff was not the first and true inventor of the said alleged invention or for which the said letters patent were granted. 2. That the said alleged invention was not a new invention as to the public use thereof in England at the time of the grant. 3. That the specification set forth in the declaration was insufficient, inasmuch as it did not set out what parts were old and what new of the lock; and also inasmuch as it disclaimed the separate parts of the lock without saying what was intended to be claimed, while the title of the patent was for improvements in locks only; at the same time that much was said in the said specification about box staples and latches which were no part of the locks as appurtenances in the said specification, which treated of them as distinct inventions from the locks and as distinct as the key is from the lock. 4. That the invention was not a new invention within the meaning of the statute 21 Jac. I., c. 3, there being, in fact, no invention pointed out in the specification as the improvements alluded to in the title of the patent.

Kelly, Smith and Webster were counsel for the plaintiff, and Pollock, Attorney-General, and Rotch, for the defendant. The alleged infringement of part of the invention was admitted; the combination of the sliding bolt and spring lever latch, with the peculiar form of striker and staple, was described as a great improvement, the door shutting more easily and with greater certainty than when the spring bolt, which has to be pushed back, is used. The evidence as

to the particular parts of the lock became immaterial, the learned judge being of opinion that the specification claimed generally the lever latch and bolt, however combined in the same frame, and without reference to the combination with the other parts shown and described in the specification. The facts of the case are fully stated in the summing up of the judge.

Lord ABINGER, C. B. Admissions have been made in order to reduce the question to the least possible number of points. The plaintiff had taken out a patent in the year 1830 for a new lock. It appears when he first took out the patent he embraced in his patent a great deal of matter, which would have made the whole patent void-that he certainly embraced in it a claim for an invention whichturned out to be useless, and for another invention which turned out to be old and not to be useful; and, therefore, he took advantage of the statute that has been made within the last few years for the benefit of patentees, and by entering at the proper office a disclaimer of certain portions of his former specification, he made that good as far as he could make it good, by striking out the objectionable parts. of the specification. But the objection to his specification originally is plain on the face of it, and it was this: it is required as a condition of every patent that the patentee shall set forth in his specification a true account and description of his patent or invention, and it is necessary in that specification that he should state what his invention is, what he claims to be new, and what he admits to be old; for if the specification states simply the whole machinery which he uses and which he wishes to introduce into use, and claims the whole of that as new, and does not state that he claims either any particular part or the combination of the whole as new, why then his patent must be taken to be a patent for the whole and for each particular part, and his patent will be void if any particular partturns out to be old or the combination itself not new. Now, as the patent stood originally, he neither claimed the combination nor the specific parts, but when he comes to make

the disclaimer, in the year 1839, he disclaims the particular parts; but I will not call your attention to them, because they are not material, but he retains his claim to Fig. 2, and disclaims the particular parts; he says, "The latch is not new, the bolt is not new"-but it is plain that he claims the rest. Now, the rest either means the combination or it means a combination within a combination, such as it was that he claimed as his patent. Now, that combination, as it is set forth in his figure, as well as in his patent, consists of a certain brass plate, which is marked with the letter E, and which serves to confine the movements of the two bolts; that is, of the latch and the bolt latch together, if the party chooses so to use them. But he certainly states that he may use them separately, without the plate E, in which case it is admitted that the brass plate marked with the letter E would not be required. But then his counsel says that the claim is sufficiently large to entitle him to the combination independent of that. Now, that is a question upon which I entertain very considerable doubt, that is a question open for future discussion; but we assume, for the purpose of trying the question before you, that he may claim a patent for a combination independent of that brass plate marked with the letter E, which it is admitted the defendant has not used. What, then, is the combination he claims? He does not say that he claims (at least, he does not say in terms that he claims) the combination of the box and the sliding inclined plane in the box; he does not say he claims that as a part of his combination; but you are to collect that in the specification from his figures. But, as I understand it, he certainly claims the combination of the two bolts in one frame, and I do not deny that according to the evidence he has given he has proved that there is more advantage in having them in one frame than in two ; we must take that for granted that the advantage here is not questionable. But, then, does he claim the combination in that precise and particular form and no other? Because, unless he goes on in his specification and says, "I claim the combination in the precise form I have stated, but I do not claim the combination in any other form whatever,"

his claim in general is for the combination of the two bolts in one frame-the one the bolt and the other the latch. Now, on that subject the counsel for the defendant says, "I deny that that combination is new; I deny that it is new in its parts, and I deny that it is new in the combination." That is the plea. The pleas are changed in two or three different ways, but that is the substance of the pleas. The plaintiff has certainly given evidence to show that the witnesses who have been called had never seen the combination before; but their evidence goes further than that; for Mr. Carpmael and Mr. Bramah both distinctly say, not only that they have never seen the combination before of the two bolts in one frame, but they both say that they never before saw a lifting latch that was raised up by an inclined plane on the box, and by a bearing off of the edge of the latch so as to accommodate the inclined plane and to make it rise more easily and get into the box, and hold it fast. Mr. Carpmael says, in terms, that he had never seen that before; Mr. Bramah says the same thing, that he had never seen that before. Now, I desire you to dwell with some attention on that, because a great deal of argument has been urged here, and a very ingenious reply has been addressed to you by the plaintiff's counsel, and witnesses have been called, some of them persons of great science and extensive knowledge, and these witnesses have been called to prove that they never knew this before; from which you are desired to infer that it could not have been known before to any purpose or effect whatever. Why, the same persons who tell you they never knew the combination before also tell you that they never knew the particular part in its present form before—that is, the latch; when you find from other evidence that that form was well known, that that form was known to other persons, who had introduced it into practice, at least it is an argument to show that the knowledge of these gentlemen, however intelligent they may be, is not to be altogether relied on. Mr. Carpmael was evidently surprised to see the lock put into his hand from the Martello Towers, and admitted that he had never seen anything like it before. I think there are sev