and he might not have obtained a grant as the inventor of it. We have already considered that patents for improvements must be taken out accordingly (a). In Hornblower v. Boulton (b), the patent was obtained "for a method of lessening the consumption of steam and fuel in fire engines." This was effected by improvements of an old machine, and the patent was held good. Grose J. observed, "I consider the patent and specification so connected together as to make a part of each other; and that to learn what the patent is I may read the specification, and consider it as incorporated in the patent. Whether the patent call the manufacture by its name, or style it an invention, a mode, or method, or in any other manner, it signifies nothing; for the specification describing the thing as required by the patent must be resorted to, and may fairly be deemed a part of the patent itself." But in a subsequent case, a patent" for an improved mode of lighting cities, towns, and villages," was held not to be supported by a specification describing an improved lamp. The patent should have been obtained "for an improved lamp (c)." And a patent for a "tapering brush" will not support a patent for a brush, differing from a common brush in no other respect, than in the circumstance that the hair or bristles are purposely made of unequal lengths (d). Nor will a patent "for a new or improved method of drying and preparing malt" be sustained by a specification for heating, &c. ready made malt (e).

Particular care should be taken that the specification is acknowledged and lodged in the inrollment office before the expiration of the specified time, as the legislature only can give relief afterwards (ƒ). A proviso that a specification shall be enrolled within one calendar month then next after the date, which is the 10th of May, is satisfied by an inrolment on the 10th of June (g).

Fourthly. How a patent is obtained.

To obtain a patent, a petition for it must be prepared, together with an affidavit of the inventor in support of the petition. These are then taken to the office of the Secretary

(a) Ante, 184.

(4) 8 T. R. 95. 2 Barnew and Ald. 350.

(c) 1 Stark. 205.

(d) 2 Stark. Rep. 249.

(e) 2 Barnew and Ald. 350.

(f) 6 Ves. Jun. 599.

(g) 2 Campb. 294.

of State for the Home Department, where they are lodged. A few days after, the answer to the petition may commonly be had, containing a reference of it to the attorney or solicitorgeneral, which must be taken to either of their chambers for the report thereon; and in a few days afterwards the clerk will deliver it out. The report is then to be taken to the Secretary of State's office for the King's warrant, and the clerk will inform the person leaving it when it may be called for. The warrant is directed to the attorney or solicitor-general, and is to be taken to their patent office for the bill. When the bill is prepared, it is taken to the Secretary of State's office, for the King's sign manual to the bill. As soon as this is obtained, it is carried to the signet office to be passed there, when the clerk prepares a warrant for the Lord Keeper of the privy seal, whereupon the clerk of the privy seal prepares his warrant to the Lord Chancellor. This warrant is then to be taken to the Lord Chancellor's patent office, where the patent itself is prepared and will be delivered out as soon as it is sealed. The specification should then be prepared, acknowledged, and lodged at the enrollment office, to have the usual certificate of the enrollment indorsed on it; this is commonly done in about a week or fortnight afterwards, and then the patent is in every respect complete. For Ireland and Scotland there must be distinct patents (a).

With respect to a caveat, Mr. Davies in his work on this subject makes the following useful remarks: "It now only remains that we should say a few words upon the nature and effect of a caveat, which during our practice we have frequently found to be very much misunderstood. It has been thought by many inventors, that upon entering a caveat they secured the right to themselves of obtaining a patent, notwithstanding the invention might be brought into use prior to their having done so; in short, that it was a kind of minor patent, giving them every privilege for one year which the patent itself would do for fourteen, or that it would operate as a proof of their being the first and true inventors, and that upon their afterwards obtaining a patent, they would be able to maintain it against any person, who, in the mean time, might have made

(a) See Hands, 12, &c.

use

use of the invention. In order to obviate such erroneous ideas, it is necessary to explain the nature and effect of a caveat.

"A caveat is merely a desire that if any person should apply for a patent for any particular invention, notice of such application should be given to the party. This caveat is usually entered at the offices of the attorney and solicitor-general, and upon an application to either of them for his report upon a petition to the King for a patent for any discovery of the same nature as that described in the caveat, notice is given to the person who has taken this precaution, which gives him an opportunity, if he thinks the inventions interfere with each other, of opposing the application. If it is meant to oppose, the attorney or solicitor-general before he makes his report will give a separate audience to each party, and examine the nature of the two inventions, and according to his opinion of their similarity, will make his report or not: if he is of opinion that there is a material coincidence, he will not report in favour of the application; but if otherwise, he makes his report, and the patent proceeds in its regular course. If however the party entering the caveat is not satisfied with the decision of the attorney or solicitor-general, he has another opportunity of opposing, by entering a caveat at the great seal, when the LordChancellor will himself give a similar audience and examine the pretensions of the parties. This practice is not often recurred to, as it is attended with much expense, and the Chancellor usually orders all costs to be paid by the party opposing, if he does not succeed, as he is averse to the caveat in so late a stage of the business, after great part of the expense of the patent has been incurred (a).

"The caveat remains upon the books for one year, and may be renewed from year to year as long as may be considered requisite.

"If it is thought necessary to enter a caveat, it is proper to use general expressions, rather than to express the precise invention, as by that means the inventor would receive notice of any application for a patent, connected with the subject of the invention mentioned in the caveat, which might not be the case if the particular invention or improvement should be ex

(a) In ex parte Fox, 1 Ves. and B. 67. the Lord Chancellor held that no costs

shall be allowed where the caveat is not unreasonable.

6

actly

actly identified. Another reason for general expressions is, to guard against the opposite party obtaining a knowledge of the invention, as he might be able to affect the validity of the patent, by publishing the invention before the patent is sealed, which would have the effect of throwing the invention open to the public. But it will sometimes happen, that two ingenious persons may, without any improper communication, make a discovery of a similar invention, in which case, upon the similarity of the invention appearing to the attorney or solicitorgeneral, it is usually recommended that the parties should unite interests, and take out a patent in their joint names, which seems to be the most prudent plan for both parties, as priority of invention would be of no avail, if the other party should be inclined to publish the invention, so as to affect the patent. We cannot, however, too much reprobate a practice, which has of late grown into use by some speculative persons, of keeping a list of caveats upon general principles entered in the books, without any idea of obtaining patents themselves, but with the sole view of being acquainted with every improvement that is going on, whereby they gain an opportunity of coming to a compromise with the real inventors, and sometimes have obtained large sums of money from them, to withdraw their opposition."

It will have been collected from the cases cited before (a), that great care must be observed in stating for what the patent is taken out, and that an error in this respect may be fatal.

By provisoes in the patent, the grant becomes void if the patent right become vested in five different persons at the same time, or if the specification be not enrolled within the time.

The term for which the patent is granted can only be prolonged by Act of Parliament.

Fifthly, Of the remedies for the infraction of the patent right.

The exclusive right of the patentee" to work and make” the subject-matter of the grant, is infringed by any other person copying any part of the invention. And though the machine, &c. made by the defendant be in form difierent from the

(a) Ante, 184, 188.

patentee's,

patentee's, still, if the defendant has availed himself substanti ally of the new idea of the plaintiff, however ingeniously the exterior of the production may have been worked up into a different shape, the remedy seems clear (a). The law will not suffer an individual to do indirectly that which it directly forbids. And in ex-parte Fox (b), the Lord Chancellor observed, "If the petitioners have invented certain improvements upon an engine for which a patent had been granted, and those improvements could not be used without the original engine, at the end of fourteen years the petitioners could make use of a patent taken out upon their improvements, though, before that period expired, they would have no right to make use of the others' substratum."

The remedies are by action at law for damages, or by proceedings in Chancery. Perhaps it is in general advisable as a matter of course to commence proceedings in Chancery with all possible expedition, for an account of the profits made from the illegal use of the invention. An injunction may thereby also be obtained to restrain the party from the further use of the patent right (c); but there must be separate bills upon every distinct invasion of the patent (d). An action at law to try the validity of the patent is almost invariably directed by the Lord Chancellor.

On the trial of the action, the plaintiff must give some general or slight evidence, shewing the nature of the invention and that it produced the effect specified. It is in strictness incumbent on the defendant to falsify the specification (e); but it is advisable that the plaintiff should be prepared with the strongest possible evidence in support of the merits of the discovery, and the sufficiency of the specification. Letters patent being under the great seal are matters of record (f), and are therefore read without proof: and by statutes 3 and 4 Ed. 6. c. 4. and 13 El. c. 6. patentees and all claiming under them, may make title by shewing the exemplification or constat of the roll. These statutes have been held to extend to all the

(a) See per Rooke, J. in Boulton v. Bull, 2 H. B. 477. Sir V. Gibbs, C. J. Bovill v. Moore, Davies, 405.

(b) 1 Ves. and B. 67.

(c) See Mitf. Chancery Pleadings, 124.

(d) 2 Ves. Jun. 486.
(e) 1 Term R. 602.

(f) 2 Bla. Com. 346. Dr. and Student, book 1. dial. 8. Phillips's Evid. 173, 4. See Bull. N. P. 227.