provide a bag with an inside surface of an absorbent description, and then to fill up that bag with powder in bulk. (Griff. 49.) (d) HARRISON v. Anderston FOUNDRY COMPANY. H. L. [1876]

Lord Cairns, L.C.: "If it is clear that the claim is for a combination, and nothing but a combination, there is no infringement unless the whole combination is used, and it is in that way immaterial whether any or which of the parts are new. If, indeed, it were left open on the specification to the patentee to claim, not merely the combination of all the parts as a whole, but also certain subordinate or subsidiary parts of the combination, on the ground that such subordinate and subsidiary parts are new and material, as it was held a patentee might do in Lister v. Leather (8 Ell. & B. 1004), then it might be necessary to see that the patentee had carefully distinguished those subordinate or subsidiary parts and had not left it in dubio what claim to parts, in addition to the claim for combination, he meant to assert. In the present case, however, no question of this kind appears to me to arise. The patentees claim, as I have said, for a combination under their first claim, calling it 'the construction and arrangements of the parts of mechanism herein distinguished, generally,' and in their second, third and fourth claims they have specified the subordinate or subsidiary parts to which they lay claim as novel, and the specification of these subordinate or subsidiary parts appear to me to exclude the possibility of a claim for any other parts as novel.” (L. R., 1 App. Cas. 578.)

Lord Chelmsford: "It is unnecessary for the determination of this appeal to consider the propriety of this decision (Lister v. Leather); but I cannot forbear expressing a doubt whether it can be supported. If a patent is solely for a combination nothing is protected by it, and consequently nothing can be infringed but the use of the entire combination." (Ib. 581.)

Lord Penzance: "The case of Lister v. Leather has been cited and commented upon as an authority for the proposition that a patent for a combination covers and protects all subordinate combinations, or parts, or at least such of them as are new and material. It is plain, however, that that case did not go this length. . . . It decided nothing more than this, that though the patent is for a combination, it does not follow that there can be no infringement of it unless every part of that combination, without exception, is pirated. What the Court said was, that the taking of a subordinate part or parts of the combination might be, not that it necessarily would be, an infringement of the patent; and that, whether it would be so or not depended, as the Court of Error said, upon what the parts taken were, how they contributed to the object of the invention, and what relation they bore to each other.' This only amounts to saying that on a question of infringement the essential nature of the invention will be regarded; and that there may be cases in which, though the patent is for an entire combination of numerous parts, a collusive imitation of that invention may be effected though some detail of the combination is omitted

or changed, which is a doctrine familiar enough in patent law." (Ib. 593.)

(e) CLARK v. ADIE (First App.) C. A. & H. L. [1875-7]

James, L.J., delivering the judgment of the Court, said: "Upon the authority of Smith v. London and North Western Railway Company (4 Ell. & B. 69), it has been strongly contended before us, that whenever there is a patent for a combination that patent gives protection, not, indeed, to every distinct thing that enters into the combination, but to every combination, arrangement and aggregate of two or more of those distinct things, even although such subordinate combination is not expressly or impliedly claimed in the specification.

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This, in our opinion, is so startling a violation of every principle of patent law, that we doubt whether we could follow any authority short of the House of Lords in applying such a doctrine. If a patent for a combination of several parts is in reality a patent, and gives really a monopoly for every combination of any two or more of those parts, then it follows, from the first principle of patent law, that if any conceivable combination of any two or more parts was old the patent would be bad. On the other hand, if the patentees say, 'No, we do not claim to protect every combination of those parts, but only those subordinate combinations or parts of the combination which are new and useful,' then such a claim would be entirely inconsistent with the leading case of Foxwell v. Bostock (12 W. R. 723), which, we may be permitted to say, is as good sense as it is sound and intelligible law. . . . . I will state what we conceive to be the real principle which underlies the case of Lister v. Leather (8 E. & B. 1004), and which reconciles it with the other cases and with general principles and common sense. A patent for a new combination or arrangement is to be entitled to the same protection, and on the same principles, as every other patent. In fact, every, or almost every, patent is a patent for a new combination. The patent is for the entire combination, but there is, or may be, an essence or substance of the invention underlying the mere accident of form; and that invention, like every other invention, may be pirated by a theft in a disguised or mutilated form, and it will be in every case a question of fact whether the alleged piracy is the same in substance and effect, or is a substantially new or different combination. . . If a man really wants to patent, not only the whole but something less than the whole of what he calls a new arrangement, construction and combination of parts,' he must clearly show that he claims that something less-of course periling his patent if that something less is not a novelty." (L. R., 10 Ch. 674.)

On appeal to the House of Lords, Lord Blackburn said: “I incline to agree with what was said by the Exchequer Chamber in the case of Lister v. Leather, that you cannot decide in the abstract whether the using of two parts, A and B, of a combination of A, B and C, is or is not using part of that invention, nor can you decide in the abstract the other question which was somewhat

discussed in the case of the sewing-machine (Foxwell v. Bostock), whether or no the specification shows that A or B is sufficiently claimed as a part of the invention or not." (L. R., 2 App. C. 335.) (e) HENDERSON v. CLIPPENS OIL COMPANY. H. L. [1883]

The specification described an improved apparatus for distillation of shale so as to utilise the spent shale as fuel :-Held, that assuming that the use of a common fire chamber was involved in the second claim, yet that it did not form an essential part of the first claim, and that therefore an arrangement of apparatus, which was substantially the same as that patented, except that no common fire chamber was used, was an infringement. (20 Scott. Law Reporter, 423.)

(f) YOUNG v. ROSENTHAL. [1883-4]

Infringement and novelty are two quite distinct issues; but you must administer the same measure against the plaintiff on the issue of novelty as you do in his favour on that of infringement. Thus, if the patentee alleges that the defendant has "substantially infringed his patent by using slightly curved instead of straight lines in seams for corsets, then slightly curved lines made and used before the patent would be an anticipation of the invention. (Griff. 249, 1 O. R. 29.)

(g) DAVIS v. FELDMAN. C. A. [1884]

In an action for infringement, if the Court finds that the process which is alleged to be an infringement is substantially similar to a process described in a prior publication, which is alleged to be an anticipation of the plaintiff's patent, the plaintiff is in a dilemma, for if he shows that his patent is wide enough to include the alleged infringement, then the anticipation is established. (Griff. 75, 1 O. R. 13, 193.)

(h) DOWNES v. FALCON ENGINE AND CAR WORKS. C. A.

[1886]

In an action for infringement of a patent for improvements in steam engines the patent contained three claims. The first claim might be made to claim the mode of condensing steam by passing it through water in a tank, and if so the patent was held to be invalid for want of novelty, or it might only claim what was in the second and third claims, in which case it was found that there was no infringement. (Griff. 77, 2 O. R. 197, 3 O. R. 70.)

(i) UNITED TELEPHONE COMPANY v. NELSON. [1887]

The putting in of new carbons in a tension regulator, which formed an essential part of the combination protected by the plaintiff's patent, is an infringement of the patent. (W. N. 1887, 193.) (j) ELLINGTON v. CLARK. C. A. [1888]

In an action for infringement of a hydraulic balance lift, consisting of a combination partly old, but in which the counterbalance was effected in a new way by water pressure, it appeared that the defendants used a similar combination, but the counterbalance was effected, as previously, by gravity:-Held, that the

defendants had infringed by taking the essential part of the invention with the mechanical equivalents of the remainder, but on appeal held that there had been no infringement. (5 O. R. 319.) (k) HOCKING AND COMP v. HOCKING. H. L. [1888]

The House of Lords approves the principle that a grantee should not defeat his own grant, but that consideration should not be allowed to alter the construction of the specification. In an action for infringement by assignee against assignor of a patent for an improved apparatus for heating liquids applicable as a condenser: -Held, as the patentee disclaimed the annularity of the steam and water spaces, and also their arrangement in an alternate and concentric series; and as it was shown that the opposite motion of steam and water was old, and the original claim so far as relating to it had been deleted, that the invention must be confined to the particular forms shown in the drawings:-Held, further, that one of the characteristic features of the patented form was the relative proportions between the cubic areas of the steam and water spaces which enabled the action of the machines to be reversed, and that as that feature was not to be found in the defendant's apparatus there was no infringement. (6 O. R. 69.)

(1) GARRARD v. EDGE. C. A. [1889]

The plaintiff's invention, which was for improvements in presses for pressing roof tiles, consisted roughly of three items--the reversibility of the top plate of the press, the reversibility of the bottom plate, and the reversibility of the box. The defendant had manufactured dies with boxes which were reversible, and had also diminished the size of the carrier of the bottom plate for the same purpose and reason as the plaintiff had :-Held, that there was not a taking of such a substantial portion of the combination as would amount to an infringement. (6 O. R. 372, 563.)

Colourable Imitation-Equivalent—Evasion.

(m) BOVILL v. MOORE. N. P. [1816]

A person who uses the same means in substance as a patentee of a machine, though the form of the machine be different, commits an infringement. It will be the same in substance if the principle be the same in effect. Referring to this, Gibb, C.J., said: “I remember that that was the expedient used by a man in Cornwall, who endeavoured to pirate the steam-engine. He produced an engine, which, on the first view of it, had not the least resemblance to Boulton and Watts' :-where you looked for the head, you found the feet, and where you looked for the feet, you found the head; but it turned out that he had taken the principle of Boulton and Watts' engine." (Dav. P. C. 405.)

(n) HILL v. THOMPSON. [1818]

Dallas, J., delivering the judgment of the Court of Common Pleas, said: "A slight departure from the specification for the

purpose of evasion only, would, of course, be a fraud upon the patent; and, therefore, the question will be, whether the mode of working by the defendant has, or has not, been essentially or substantially different." (1 Web. P. C. 242; 8 Taunt. 391; 2 B. Moore, 448.)

(0) FORSYTH v. RIVIERE. N. P. [1819]

Action for the infringement of a patent for the application of detonating powder to the discharge of firearms. Drawings were annexed to the specification "exhibiting several constructions (of locks) which may be made and adopted, in conformity to the foregoing plan and principles, out of an endless variety which the subject admits of." The defendant applied the principle of the invention by using a lock of a different construction from any shown in the annexed drawings. Verdict for the plaintiff. (1 Web. P. C. 97; 1 Carp. P. C. 401.)

(P) WEBSTER v. UTHER. [1824]

Action for the infringement of a patent for an improvement on the patent percussion gun-lock, by the addition of a bolt, sliding or moving in a groove, by which the roller magazine was then fixed, that had formerly been fastened by a screw and washer ; the defendant's lock had a spring in the bolt, and the jury, upon the evidence of mechanics that a spring in a bolt was the same thing as a bolt sliding in a groove, found that there had been an infringement. (Gods. Pat. Law, 232.)

(q) R. v. LISTER. [1826]

The application of steam to heat iron rollers is an infringement of a patent in which hot irons were inserted into hollow rollers, the final process in both being the same, viz., the applying heat to the fibres of wool during the operation of spinning it, by making the slivers pass between the rollers so heated. (Web. P. L. 80.) (r) COCHRANE v. BRAITHWAITE. N. P. [1830]

The essential part of an invention being that a necessary degree of compression should be produced in a quantity of air:-Held, that if this could be effected by narrowing the outlet as well as by a weighted valve, both were covered by the words "any other known means of producing the required resistance." (3 Lond. Jour., C. S. 42.)

(8) MINTER v. WELLS. N. P. [1834]

The invention claimed being the application of the self-adjusting leverage to the back and seat of a chair, any application of that to the same subject is an infringement. (1 Web. P. C. 130.)

(t) RUSSELL v. COWLEY. N. P. [1834]

The specification having described the invention to consist in welding iron in the manufacture of tubes by circular pressure through dies or holes, the welding produced by passing the iron through grooved rollers, though not so perfect, is an infringement. (1 Web. P. C. 463.)