the same as the alleged infringement, to the defendant Rylands. In fact, the patentee intended that Rylands alone should use it, and should keep it secret. Rylands had two other similar tools made by permission of the patentee, and turned out, at least, 600 dozen bottles as samples :-Held, that this was all experimental, and that there was no publication. (Griff. 234; 2 O. R. 255.) (n) WINBY v. MANCHESTER STEAM TRAMWAYS. [1889] A model of an invention for improved points, similar to that patented by the plaintiff, had been made a year before the patent, by manufacturers at Stoke-upon-Trent, for a Mr. Ayton, and had been left for some time in the sheds of the North Staffordshire Tramways Company. Later, it got into the possession of the City Contract Corporation, who sent it to the defendants' solicitors. No points had ever been made from the model :-Held, that this was only experimental, and not publication. (6 0. R. 359.) Ordered, to go down for a new trial on the question of infringement. (7 O. R. 30.) Publication by Sale. (0) WOOD v. ZIMMER. N. P. [1815] Gibbs, C.J.: "The public sale of that, which is afterwards made the subject of a patent, though sold by the inventor only, made the patent void." (1 Holt, N. P. C. 60; 1 Web. P. C. 44; 1 Carp. P. C. 294.) (p) MORGAN v. SEAWARD. [1837] Parke, B., said: "It must be admitted, that if the patentee himself had, before his patent, constructed machines for sale as an article of commerce for gain to himself, and been in the practice of selling them publicly, that is, to any one of the public who would buy, the invention would not be new at the date of the patent. This was laid down in the case of Wood v. Zimmer, and appears to be founded on reason. For if the inventor could sell his invention, keeping the secret to himself, and when it was likely to be discovered by another take out a patent, he might have practically a monopoly for a much longer period than fourteen years. Nor are we prepared to say, that if such a sale was of articles that were only fit for a foreign market, or to be used abroad, it would make any difference; nor that a single instance of such a sale as an article of commerce, to any one who choose to buy, might not be deemed the commencement of such a practice, and a public use of the invention, so as to defeat the patent." (2 M. & W. 559; 1 Jur. 528; 1 Web. P. C. 194.) (1) LOSH v. HAGUE. N. P. [1838] The publicly making and selling an article to one individual, though there be no demand or use for it by the public, will vitiate a subsequent patent. (1 Web. P. C. 205.) (r) GIBSON v. BRAND. N. P. [1841] Tindal, C.J., said: "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 is not in your judgment a public using of the article, of the process, or of the invention, before the letters patent were granted." (1 Web. P. C. 628.) (8) CARPENTER v. SMITH. N. P. [1841] Action for the infringement of a patent for certain improvements in locks. It was proved that seven and a half dozen of the locks had been manufactured before the date of the patent, and exported to America. Abinger, C.B., said: "Here you have an article, manufactured by an English manufacturer, and sold, and, in my opinion, if it was sold even for the assumed purpose of being sent to America, I cannot but think that that would be destructive of the novelty of the plaintiff's invention. And here let me be clearly understood; I do not mean to say, that if a man in America employs an agent to see if he can get an article manufactured in England by a particular model, and chooses to take out a patent for it himself, but not with a view of making it public at all, I do not mean to say that that man is to be considered as not entitled to the invention afterwards, because he employs a workman to assist him in it, or, that if he had failed entirely, that some other man might make the invention in England; but where a model is sent to a workman, who sells seven and a half dozen, and sells them for a certain price, I must say I think the invention was used and publicly exercised." (1 Web. P. C. 536.) (t) HANCOCK v. SOMERVELL. N. P. [1851] An invention may come into public use by being handed about the country for the purpose of attracting customers, although no actual sale has taken place. (New. Lon. Jour., vol. 39, p. 158.) The prior deposit of articles, of novel manufacture, in a warehouse for sale, although no sale takes place, is a sufficient publication to defeat a patentee's claim to novelty in the invention of similar articles. (3 Car. & K. 297.) (v) HONIBALL v. BLOOMER. N. P. [1854] If an article, subsequently patented, be, even in a single instance, sold in the regular way of business, although it turns out a failure, the patent cannot be supported. (2 Web. P. C. 200.) (w) OXLEY v. HOLDEN. [1860] The manufacture of a patent article for the purpose of sale, and offering it for sale, although no sale is actually effected, is a user of the invention. And semble, per Byles, J., that it is equally a user, though the article is made merely as a sample. (8 C. B., N. S., 666.) (w) HOLLINS v. CAPPER & Co. [1888] The defendants proved that they had sold to three persons before the date of the patent teapots similar to those of which the plaintiff complained as infringements. The judge directed the jury that the defendants had proved anticipation. (5 O. R. 289.) Question for the Jury. (x) CORNISH v. KEENE. [1837] Tindal, C.J., in delivering the judgment of the Court, said: "The question raised for the jury was this: whether the various instances brought forward by the defendants amounted to proof that before or at the time of taking out the patent, the manufacture was in public use in England; or whether it fell short of that point, and proved only that experiments had been made in various quarters and had been afterwards abandoned? This question is, from its nature, one of considerable delicacy; a slight alteration in the effect of the evidence will establish either the one proposition or the other, and the only proper mode of deciding it is by leaving it to the jury." (1 Web. P. C. 519; 2 Hodg. 294; 3 Bing. N. Č. 588.) (y) ELLIOTT v. ASTON. N. P. [1840] The question of public use is for the jury; as, whether the instances adduced show a manufacture to have been in public (1 Web. P. C. 222.) use. (2) MUNTZ v. FOSTER. N. P. [1844] It is for the jury to say whether, on reading a prior specification and comparing it with the plaintiff's specification, the plaintiff has borrowed his invention from such prior specification. (2 Web. P. C. 107.) (a) SPENCER v. JACK. [1864] In a suit for an injunction to restrain the infringement of a patent, the Court directed four issues to be tried at law, one amongst them being "whether the invention was a new manufacture." The judge at common law, in the course of the trial of the issues, expressed his opinion that a question of law would arise, whether there was upon the facts a sufficiency of invention to warrant the granting of a patent. The judge, nevertheless, went on with the trial, and put two questions to the jury:“ Is the invention new?" and, "Is it a substantial improvement?" The jury found for the plaintiff in the affirmative upon both issues. Upon the cause coming back to equity, the Master of the Rolls took up the point of law reserved, without considering the verdict of the jury, and, on the motion of the defendants, granted a new trial:-Held, on appeal, that the judge in equity ought to have considered the verdict of the jury, and that, had he done so, the only point of law remaining would have been this, whether a combination of things previously well known, which combination could be rightfully denominated a substantial improvement, could be the subject of a patent?-the answer to which must have been in the affirmative. The order of the Master of the Rolls, directing a new trial, was consequently reversed. (11 L. T. Rep., N. S., 242.) Oath. Law Officers may examine witnesses on. sect. 38, p. 379. Objections, to grant of patent, pp. 38 to 51 to extension, pp. 128 to 130 notice of. See under Practice, pp. 299 to 317. See Patents Act, 1883, Obstructive patent cannot be supported, p. 429 (g). Offences, falsely representing that article sold is patented. Patents Act, 1883, sect. 105, p. 268 unauthorised use of Royal Arms. Patents Act, 1883, sect. 106, p. 268 article not to be marked "patent" before acceptance of complete specification, p. 268 (c). PATENTS ACT, 1883. 105. (1.) Any person who represents that any article sold by him is a patented article, when no patent has been granted for the same, shall be liable for every offence on summary conviction to a fine not exceeding five pounds. (2.) A person shall be deemed, for the purposes of this enactment, to represent that an article is patented, if he sells the article with the word patent," " ," "patented," or any word or words expressing or implying that a patent has been obtained for the article stamped, engraved, or impressed on, or otherwise applied to, the article. 106. Any person who, without the authority of Her Majesty, or any of the Royal family, or of any Government Department, assumes or uses in connection with any trade, business, calling, or profession, the Royal arms, or arms so nearly resembling the same as to be calculated to deceive, in such a manner as to be calculated to lead other persons to believe that he is carrying on his trade, business, calling, or profession by or under such authority as aforesaid, shall be liable on summary conviction to a fine not exceeding twenty pounds. (c) REG. v. WALLIS. [1886] The defendant was selling a lamp with "patent" on it when he had only lodged a provisional specification, which had been accepted:-Held, in the Mansion House Police Court, that sect. 14 of the Act of 1883 (see p. 396) did not justify this, and a penalty imposed under sect. 105. (3 O. R. 1.) (d) REG. v. CRAMPTON. [1886] The defendant sold several electric bells marked "patent" before the patent had been granted, and the magistrate followed Reg. v. Wallis, and imposed a penalty. (3 O. R. 367.) Officers. Appointment of. Sect. 83 of Patents Act, 1883, provides that the Board of Trade may appoint the comptroller, and examiners, and other officers. Old Machine. Application of, to new use. See pp. 522 to 532 Omission, in Specification, pp. 436 (g), 439 (n) of part of process. See pp. 513 (d), 514 (i), 515 (j). Opposition, to amendment. See under Amendment. to grant. See Application for Letters Patent, Opposition, pp. 38 to 51 to extension. See Extension, pp. 107, 140 (7), (†), 141, 142. Order, of performing process, change in, p. 514 (g) for injunction, form of, p. 351 (e) construction of, p. 352 (ƒ) of Privy Council, revocation of, p. 105 (i). Particulars of Breaches. See pp. 294 to 299 Parties, to action. See pp. 286 to 290. Partnership, what agreement creates, pp. 207 (i), (k), 208 (n) in prospective patents for particular object, p. 207 (j) right to use patent after dissolution of, p. 208 (0). Patent, definition of. Patents Acts, 1883, sect. 46, p. 269 extent of, sect. 16, p. 269 form of, schedule 1, p. 270 date of, sect. 13, p. 80, sect. 26 (8), p. 402 and sect. 103, p. 61 to be for one invention only, sect. 33, p. 269 test of unity of invention is common purpose, p. 271 (d), (e), (ƒ). Patents Act, 1883, sect. 46. In and for the purposes of this Act, "patent," means letters patent for an invention. Sect. 16. Every patent when sealed shall have effect throughout the United Kingdom and the Isle of Man. Sect. 33. Every patent may be in the form in the First Schedule to this Act, and shall be granted for one invention only, but may contain more than one claim; but it shall not be competent for any person in an action or other proceeding to take any objection to a patent on the ground that it comprises more than one invention. |