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Lord Chancellor COTTENHAM. The bill does not state such a case as to justify the granting of an injunction ; but the answer does state that which, if stated in the bill, would have entitled the plaintiffs to an injunction as regards their title. There are, however, other statements contained in the answer which throw doubt on the right of the plaintiffs to the injunction prayed by them; the answer disputes the validity of the letters patent, and states that the alleged invention is not new, and that the specification is imperfect ; on the other hand, the plaintiffs contend that there has been a long possession and enjoyment under the letters patent of 1825. This court gives credit, no doubt, to long enjoyment under letters patent, until it is proved that they are bad ; but then there must be not only enjoyment, but exclusive enjoyment under them (Hill v. Thompson, 1 ante, pp. 285, 299). The question is whether in this answer such a case is admitted. The answer states that the plaintiff Parr, when not interested in the letters patent, had made an engine or machine upon the principle claimed by the letters patent, and insists that the letters patent are not new; the defendant shows that the exercise by the plaintiff Parr, when not interested in the letters patent, of the right to make the machines, and by the defendant since, is inconsistent with the exclusive right of the plaintiff's, and not only negatives exclusive enjoyment by Dyer and the plaintiffs, but shows that the title of the plaintiffs was disputed by the very party who now sets up the exclusive enjoyment. If the difficulty had been only the generality of statement in the bill, I should have supported the letters patent; but the allegations in the answer negative the exclusive enjoyment claimed by the plaintiffs. I think the right course is not to restrain the defendant, but to give the plaintiffs the opportunity of trying the question at law; and they can make another application to the court on a different case if they choose ; for there is no doubt, from the admissions in the answer, that the defendant has made machines upon the principle comprised in the letters patent. The injunction must be dissolved, with liberty for the plaintiffs to bring an action. The order of the Vice-Chancellor
should be discharged, and the costs of the proceedings before his Honor, as also the present costs, must be costs in the cause.
Re ROBERTS'S PATENT.
Privy Council, Feb. 22, 1839.
(1 Web. P. C. 573.)
Grounds for Extension. Computation of Profits. The violent opposition to the introduction of a meritorious invention, which has prevented the patentee from realizing a profit, is a ground for granting an extension of the term of the patent.
A patentee is entitled to deduct the expenses of taking and defending a patent, and the value of his time devoted to the invention, in estimating the profits derived from the patent.
Petition for an extension.
This was an application by the patentee for an extension of several letters patent granted to Richard Roberts for “an improvement or certain improvements of, in, or applicable to, the mule, billy, jenny, stretching-frame, or any other machine or machines, however designated or named, used in spinning cotton, wool or other fibrous substances, and in which either the spindles recede from or approach to the rollers or other deliverers of the said fibrous substances, or in which such rollers or other deliverers recede from or approach to the spindles.” The letters patent for England were dated March 29, 1825; for Scotland, April 5, 1825; and for Ireland, October 1, 1825. The patent for England was numbered 5,138.
The petition described the dependence of the spinning, before the invention of the self-acting mules, on the head spinner, and the interruptions and inconveniences to which the masters were subjected by combinations among the head spinners. That the petitioner had been repeatedly and
earnestly solicited to turn his attention to the invention of a machine whereby all the motions and operations of the mule might be completed without manual labor; and after a year of incessant labor a machine was constructed and put to work early in 1825. That in July, 1825, the success of the invention being then known, the premises were destroyed by a fire, believed to have been the act of an incendiary ; that a loss of above £10,000 beyond the insurance was sustained, and the same office refused to insure the premises when restored. That from 1826 to 1831 the business of spinning was carried on without any disputes between the masters and head spinners, and few machines were ordered ; but in 1831 an extensive combination being formed among the head spinners, many machines were ordered. That the success of the invention led to many piracies, which interfered greatly with the orders for the invention while legal proceedings for stopping such infringements were pending ; that during the last few years orders were delayed in expectation of the invention being open to the public. The petition, after setting forth the various interruptions which had been occasioned in the enjoyment of the invention by the petitioner and his partner, and the amount of receipts and expenditure, stated that the profits on the whole did not exceed £7,000, a sum considerably less than the loss sustained by reason of the fire and the average profits on the capital employed in business.
Pollock having opened the case on the part of the petitioner
Campbell, Attorney-General, stated that, the facts being made out to their lordships' satisfaction, he saw no objectien on the part of the public to the prayer of the petition being granted.
B. Fothergill, manager of the works of Sharp & Roberts. Formerly the head spinner had to regulate the tension of the yarn by pressing his hand upon it, and also to move the carriage toward the rollers and to regulate by his hand the form of the cop; the consequence was, that if he did not by one hand regulate the uniform motion of the machine to what was required for the full tension of the yarn, he would
either break it or leave what are called " snarls" in the yarn, so that it required considerable tact to perform the operation correctly. The machine performs the operations perfectly ; the yarn is decidedly superior to that produced by the old process; it is more uniform in the twist and less waste is made. About 600,000 spindles have been sold. The fire broke out on a Sunday afternoon in several unconnected parts of the premises. The crowd used violent language against the machine. There were marks on a wall of persons having been on the premises. The loss was about £13,000; one office refused to insure again.
D. Cheetham, a cotton-spinner. We have used 230,000 spindles on the self-acting mules ; they answer perfectly well; the first outlay is recovered in from two to three years ; they will last from fifteen to twenty years, or as long as the average of machinery. There was a great prejudice against them at first, and we have had mischief at one of our manufactories in consequence of our own managers being opposed to them. The men were jealous of them ; we find this occur in all cases. The self-acting machines are more accurate than hands, and there is less loss of yarn. In 1824 I applied with other cotton-spinners to Mr. Roberts, requesting him to make a machine which should supersede manual labor.
W. H. Forster, book-keeper to Messrs. Sharp & Roberts. I produce a statement from the books of the expenditure and receipts in connection with the patents. The expenditure includes remuneration to Mr. Roberts and his partners, according to the time which they respectively devoted to the invention ; the payments to pattern-makers, wages and cost of materials, from the commencement of Mr. Roberts's experiments to December 31, 1838; the cost of the letters patent and specifications, law and travelling expenses, and interest at five per cent. every year on the capital employed up to the end of the preceding year. The receipts include the actual returns, interest at five per cent. on the receipts being added yearly. The account shows £35,988 on one side and £29,044 on the other, leaving a profit of £6,944 ;, against which is a loss of £10,154, above the in
surance, from the fire, according to the accompanying statement.
Lord BROUGHAM. The actual expenses should be taken, but deducting the value of Mr. Roberts's time, the expenses of taking and defending the patents ; if the interest is taken off on one side it must also be taken off the other.
Pollock. The receipts during the last three or four years have been £5,000 a year; that is a fair test of what the inventor ought to have received during the whole fourteen years. During the first seven years he got nothing, and was under a great outlay. The invention is so useful that, though it has had to struggle with the prejudices of the men and the fears of the masters, £5,000 a year has been received during the last three years.
Bower, solicitor to the petitioner. I produce the papers containing the advertisements, the letters patent and the specification. No caveat has been entered at any time.
The LORD PRESIDENT. [Lord LYNDHURST, Lord BROUGHAM and Sir H. JENNER also sat.] It is the opinion of the committee that this patent should be prolonged for the term of seven years, as prayed, partly in consequence of the ingenuity of the invention and partly in consequence of the peculiar character of the resistance which has been opposed to it.
Re WRIGHT'S PATENT.
Privy Council, Feb. 28, 1839.
(1 Web. P. C. 575.)
Extension of Term. User. The fact of the invention not having been brought into use, unless explained, is an objection to the extension of the term.
Being explained by the pecuniary difficulties and embarrassments of the patentee, extension recommended.
Petition for extension.