fact shall be done, which said justices of the peace have hereby power, and are upon complaint required to administer, that then such vessels and works shall be broken and pulled down by warrant of such justices of the peace; and the said George Manby, his executors, administrators and assigns, shall and may bring in his or their action of debt against any person or persons, bodies politique or corporate, offending herein, within any Court of Record, for the penalty of ten pounds lawful English money for setting up of such works, and twenty shillings for every day's using or continuing any vessel or work by the said George Manby invented as aforesaid." action for Until very recently the remedy of the Patentee in case Remedy of of infringement was dilatory and expensive, involving the Patentee by double procedure of an action at Law for the damages damages. sustained from the invasion, and a suit in Equity for an injunction to restrain the illegal use of the invention and an account of the profits already made by the infringer from such use. Even so the redress afforded seldom proved equal to the injury sustained by the Patentee.j It formed, however, his only means of protection, and could not with any degree of safety be dispensed with if the fact of infringement were brought to his notice.* The improvements introduced by the recent enactments in Law and Equity are, it will be seen, very considerable. An action for damages in general will lie, although no Damage. i Chitty, P. C. ch. x. § 2; Mitford's Chan. Pleadings, 124. J On the occasion of his introducing the Patent Law Amendment Bill, 1835, in the House of Lords, Lord Brougham observed, that of his own knowledge, "stock purses were not unfrequently made by those who pirated an invention of the kind, to harass the inventor with actions in Courts of Law and Equity, and driving him to despair, to carry off the fruits of his skill and labour." (28 Hansard, 475.) The cost of defending Muntz' (ship-sheathing) Patent is stated to have exceeded 10,000l. As to the loss from irresponsible infringers, see supra, p. 82. See supra, p. 217, Hindm. Intention. Parties to the action. Plaintiff. m specific damage is alleged, and although the infringement has not been intentional on the part of the defendant, if any damage have been sustained by the plaintiff. In Heath v. Unwin, the Court seemed to think it material to inquire into the intention of the defendant. The evidence in that case, however, negatived any such intention. The party whose legal interest has been affected is the proper Plaintiff in an action for infringement. The right of action, however, not being assignable, an assignee can sue only for infringements committed subsequently to the assignment. A proprietor under the Patent may sue solely for the injury done to his interest under it. The assignees of Letters-patent, in respect of which a Disclaimer has been enrolled by a grantee not at the time possessing the entire interest in the Patent, may maintain an action for infringement.P A Patentee and Licencee may be co-plaintiffs, as having an entire joint damage, although their interests are several. A mere Licencee, however, not being able, covenants should be in the deed of licence enabling him to sue in the inserted name of the Patentee for the damages he has sustained. Rochdale Canal Company v. King (1849), Ex. Ch., 18 L. J., Q. B., 293; Rodgers v. Nowill (1847), C. B., cutlery, 17 L. J. (N. S.), C. B., 52; 5 C. B. 109; 6 Hare, 325; Sykes v. Sykes (1824), K. B., shot-belt, &c., 3 B. & C. 541. m See Turner on Patents, 73, 108; Heath v. Unwin (steel), 13 M. & W. 593; 14 L. J. (N. S.), Ex., 153 (1847), 15 Sim. 552; 16 Jur. 996; 22 L. J. (N. S.), C. P., 7. n Per Wilde, C. J., Stead v. Anderson (1847), wood-paving, 16 L. J. (N. S.), C. P., 251. • Brown on Parties to Actions, 213. As to misjoinder or nonjoinder of plaintiffs, see Stat. 15 & 16 Vict. c. 76, ss. 34-36; Archb. N. Pr. 23; 1 Saund. 291 f, g. P Spilsbury v. Clough (1842), chloride of lime, 2 Gale & Dav. 17; 6 Jur. 579; Web. P. R. 255; Bovill v. Moore (1816), C. B., bobbin net, Dav. Pat. Ca. 361; 2 Marsh. 211. Coryton v. Lithebye, 22 Car. II. (1670), 2 Saun. 115. See 2 Vin. 55, pl. 46. The defendant must be the person infringing the Pa- Defendant. tent. Foreigners in this country infringing on Patents Foreigners in granted by the Crown according to the Law of this this country. country are equally liable with British subjects to actions for such infringement. If several persons commit a joint infringement, the plaintiff may sue all or any of them at his election. The person physically using the invention, and not the person giving instructions and plans which include its use, is the party to be sued,—the contractor, for instance, and not the architect, in the case of a contrivance employed in housebuilding. No objection can be taken on the score of misjoinder or nonjoinder of defendants. In the former case the party misjoined will of course be entitled to a verdict. An ap- Security for plication to compel the plaintiff to give security for costs must, in ordinary cases, be made before issue joined." costs. tiffs or defend ants. If there be two or more plaintiffs or defendants, and Death of plainone or more of them should die, if the cause of action survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the action does not thereby become abated; but such death being suggested on the record, the action may proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.* In the case of the death of a sole plaintiff, the suit may be continued by his legal representative; in that of a sole defendant, where the action survives, by service on the executor or administrator of a copy of the writ, and suggestion of the death of such defendant." The death of either Caldwell v. Vanvlissingen (1851), V. C. T., screw-propeller, 9 Hare, 415. Denley v. Blore (1851), N. P., Jervis, C. J., fireplace flues, 38 Lond. Journ. 224. Archb. N. Pr. 27. "General Rules, Hil. Term, 1853, No. 22. * Stat. 15 & 16 Vict. c. 76, s. 136; Archb. New Pr. 303. Stat. 15 & 16 Vict. c. 76, s. 137. 2 Ibid. s. 138. Proceedings on the part of the defendant. Declaration. party between verdict and judgment is not to be alleged for error," so as such judgment be entered within two terms after such verdict. In the event of the death of any party between interlocutory and final judgment, the suit may be continued by the personal representatives by a writ of revivor. Marriage of a feme sole does not cause the action to abate. The bankruptcy or insolvency of the Plaintiff is not pleadable in bar to the action, unless the assignees shall decline to continue and give security of costs upon a judge's order to be obtained for that purpose, within such reasonable time as a judge may order, but the proceedings may be stayed until such election is made; and in case the assignees neglect or refuse to continue the action and give such security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the bankruptcy. the suit The defendant or person against whom be may so continued may apply by summons to compel the plaintiff or his representative to proceed with the action within such time as the judge shall order; and in default of such proceeding may enter a suggestion of such default and of the representative character of the person by or against whom the action may be proceeded with, and have judgment for the costs of the action and suggestion." The Declaration is in case. It recites the grant of the Letters-patent, the filing of the Specification, the acquisition of the plaintiff's title, and the infringement of the Patent right by the defendant. It is not necessary to aver that any conditions imposed by the Judicial Com u Stat. 15 & 16 Vict. c. 76, s. 139. Ibid. s. 140. z Ibid. s. 142. a Stat. 17 & 18 Vict. c. 125, s. 92. b 3 Stephen's Com. 524. Ibid. ss. 141, 142. c Muntz v. Foster (1843), Exch., ship sheathing, 7 Scott, N. R. mittee of the Privy Council have been complied with.d The breaches should be alleged in the words of the Letters-patent. Where a Specification claimed nine several improvements, and the Declaration alleged that the defendant had counterfeited the said 'invention,' it was held that that amounted to charging the using or counterfeiting of the said nine improvements. No venue The venue. is to be changed without a special order of the Court, unless by consent of the parties. By the Common Law Procedure Act, 15 & 16 Vict. c. 76, the form of declaration, in case of infringement of a Patent, is prescribed" to " commence as follows, or to the like effect": [Venue.] A. B. by E. F. his attorney [or in person, as the case may be], sues C. D. for [ here state the cause of action]. The statement of cause of action prescribed in the Statement of schedule of the Act, c. 76, is as follows: : That the plaintiff was the first and true inventor of a certain new manufacture, that is to say, of " certain improvements in the manufacture of sulphuric acid," and thereupon her majesty Queen Victoria, by Letters-patent under the Great Seal of England, granted the plaintiff the sole privilege to make, use, exercise and vend the said invention within England for the term of fourteen years from the day of d Ledsam v. Russell (1848), gas tubes, 1 H. of L. Cas. 687. e Minter v. Williams (1834), K. B., 4 A. & E. 251. As to declaration on an extended Patent, see Russell v. Ledsam (1843), Exch., 11 M. & W. 647. Electric Telegraph Company v. Brett (1851), 10 C. B. 838. No. 18, Rules of Practice, Hilary Term (1853). See Cameron v. Gray (1795), 6 T. R. 363; 1 Carp. 173, where a rule was refused to change the venue to Northampton; and R. v. Haine (1789), L. C., 2 Cox, 235; Brunton v. White (1825), 7 D. & R. 103; Chitty's Forms, 170. h Sect. 59. cause of action. |