the action, or the prosecutor in the case of scire facias, must deliver with his pleas or declaration respectively the particulars of the objections he is prepared to urge to the validity of the Patent. No evidence is admissible in these respects on the trial which is not contained in such particulars.

A plaintiff cannot be compelled to give particulars of Particulars of infringement. infringement, showing in effect on what grounds and principles he means to argue that the defendant has infringed his Patent. When the dates between which the instances of infringement are said to have taken place are given, and the defendant must know the articles made and sold by him within that time which can be said to be infringements of the Patent, the Plaintiff will not be compelled to give the particular instances of infringement.d

Similar remarks apply to the defendant's notice of Particulars of objections. If description of the invention in books and objection. writings is to be objected to the Patent, the notice of the particulars must give the names of the books. An objection that the Specification does not particularly describe the nature of the invention, is sufficiently precise; one to the effect that the Patentee has not caused any Specification to be enrolled, is insufficient, for ambiguity. That the Patentee has not stated the most beneficial method of practising his invention is sufficient, as also is the objection that he has not distinguished in his Specification between what is old and what is new. If any particular part of the invention is to be attacked for want of novelty it must be specified. A notice that the invention had been used by the plaintiff himself, by A., B., C. "and D., and by candlemakers generally

a Talbot v. Laroche (1854), C. B., talbotype, 23 L. T. 145.

e Per Tindal, C. J., Jones v. Berger (1843), C. B., rice starch, 5 M. & G. 208.

Betts v. Walker (1849), Q. B., 14 Jur. 647; Bodmer v. Butterworth (1844), Q. B., 2 L. T. 368.

T

"Place and manner."

Names of parties.

Object of the particulars.

in the vicinity," is sufficient, although the defendant is bound at the trial to prove a user by some one at least of the persons named, or a general user in London and its vicinity, in support of the particulars of objection. The plaintiff's particulars of infringement cannot be called in aid of the defective particulars of objection."

The stipulations in the Patent Law Amendment Act, with reference to these particulars, is,' that they shall state "the place or places at or in which and in what manner the invention is alleged to have been used or published prior to the date of the Letters-patent." The names of the parties using the invention are not required,* but the notice must, it appears, identify the street or factory where it has been used, either by name or by description. To state it has been used "at various places, and amongst other places at S. B. and London," is not sufficiently precise." Parke, B., is said on one occasion to have ordered the names of certain firms which had been dealing in the Patent article to be given. The words "elsewhere" and "others," &c., are frequently struck out, to reduce the notice to greater precision, their insertion tending often to mislead rather than assist. A summons for particulars and order thereupon may be obtained by a defendant before appearance, and may be made, if the judge think fit, without any affidavit."

The object of the particulars being not to limit the range of action in the party delivering them, but to limit the expense by confining the parties on trial to welldefined issues, the extent of the information to be afforded.

Per Alderson, B., Palmer v. Wagstaff (1853), Exch., candles, 1 C. L. Rep. 448.

Palmer v. Cooper (1854), candles, 9 Ex. 231.

Stat. 15 & 16 Vict. c. 83, s. 41.

R. v. Walton (1842), 2 Q. B. 969; see Fisher v. Dewick (1838),

4 Bing. N. C. 706; Web. P. R. 265—6; S. C. 593.

Holland v. Fox (1853), Q. B., umbrellas, 1 C. L. Rep. 440. * Hancock v. Moulton (1852), waterproof goods, 20 L. T. 102. General Rules, No. 20, Hilary Term, 1853.

by them should, it has been said, be that to which a plaintiff would be entitled on a bill in equity for disco

a

site.

very. It is difficult, as was observed by Mr. Justice Amount of preMaule, to define the exact degree of particularity which cision requi ought to be required in the notice. It should in general be more explicit than the pleas," although there is nothing to prevent matters being so fully expanded on the record (as is the practice in the Courts of Scotland), as to guard sufficiently against surprise. It should, however, not amount to a disclosure of the evidence on which either party relies. It ought, perhaps, not to exceed what the knowledge of the party objecting may be presumed to enable him to give. If, from previous proceedings, the party for whose benefit the particulars were to be furnished has had the means of adequate information with respect to the infringement, the Court will refuse the particulars. The notice should, it appears, specify the pleas to which the objections are intended to apply.

particulars.

If the particulars are insufficient, the party to whom Amendment of they are delivered may take out a summons, or move for a rule to show cause why better particulars should not be delivered. Either party may obtain leave, on appli

247.

See Attorney-General v. Corporation of London, 2 M'N. & G.

Bentley v. Keighley (1844), C. B., carding engine, 7 M. & G. 652. b Heath v. Unwin (cast steel), 10 M. & W. 684; Jones v. Berger (1843), C. B., starch, 5 M. & G. 215; 6 Sc. N. R. 210; Neilson v. Harford (1841), iron, 8 M. & W. 806; Web. P. R. 264; Russell v. Ledsam (1843), 11 M. & W. 647: see, however, Betts v. Walker (1849), Q. B., jars, &c., 14 Jur. 647.

e Leaf v. Topham (1845), Ex., elastic fabrics, 14 M. & W. 146, per Parke, B.; Russell v. Ledsam (1843), Ex., 11 M. & W. 649, per Alderson, B.

d Per Maule, J., Bentley v. Keighley, supra.

• Electric Telegraph Company v. Nott (1847), C. B., 4 M. G. & S.

462.

↑ Walton v. Bateman (1842), Web. P. R. 268, n., per Cresswell, J.

cation to any judge at chambers," to add to his objections at any time before the trial. Where the defendant had omitted to deliver his notice of his objections with his pleas, an order was made that the pleas should be considered as pleaded de novo, and the objections added, as if delivered with the pleas. A defendant is allowed the same time for pleading after the delivery of particulars under a judge's order which he had at the return of the summons, unless otherwise provided for by such order.P

The defendant is not bound to urge before the jury all the objections in his notice, that being merely intended to apprise him of the extent to which he must be prepared at the trial. Neither can he, on the other hand, avail himself of them at the trial to raise any defence on which issue is not joined in the pleadings." The objections, as before stated, form no part of the record."

The defence consists in endeavouring to rebut the averments in the declaration, either by denying the validity of the grant to the plaintiff, or by denying the acts laid as infringements. The defendant is allowed to plead several pleas, in order to raise the question of the validity of the Patent in every form. They must, however, be such as are necessary and issuable. On an application for leave to plead several matters" by way of traverse, an affidavit by the defendant's attorney that he

n Stat. 15 & 16 Vict. c. 83, s. 41. For practice under Stat. 5 & 6 Will. IV. c. 83, s. 5, see per Tindal, C. J., Bulnois v. Mackenzie (1837), cab, Web. P. R. 260.

• Losh v. Hague (1838), railway wheel, Web. P. R. 203.

P General Rules, Hilary Term (1853), No. 21.

Losh v. Hague (1838), railway wheel, Web. P. R. 203.

Gillett v. Wilby (1839), cab, 9 C. B. 334; Web. P. R. 270.

• R. v. Mill, 20 L. J. (N. S.), C. B. 16; 10 C. B. 379.

Hind. 280; Beddels v. Massey (1844), elastic fabrics, C. B., 2 D. & L. 322; Nickels v. Ross (1849), braid, 8 C. B., 679; Bunnett v. Smith (1844), Ex., 13 M. & W. 552.

As to pleading several pleas, see Chitty's Pleading, 24, n. (p).

is advised and believes that the defendant has just ground to traverse the several matters proposed to be traversed by the proposed plea, is sufficient.*

No formal defence is by the present practice required. Form of plea. Pleas are to commence as follows, or to the like

effect:

:

The defendant by

his attorney [or in person, as the

case may be], says that [ here state first defence].

And for a second [&c.] plea the defendant says [here state second, &c., defence].

Or if pleaded to part only, then as follows, or to the like effect:

And for a second [&c.] plea to [stating to what it is pleaded] the defendant says that, &c.

No formal conclusion is necessary.

Non concessit must be pleaded to compel the plaintiff Non concessit. to prove the grant of the Letters-patent. Non concessit and a traverse of the Specification may both be pleaded.* The plaintiff at trial, having put in the Letters patent and Specification, and having shown novelty, is entitled to a verdict on the issue joined by such plea."

new.

With respect to a Patent in which a Disclaimer as to Invention not part has been entered under 5 & 6 Will. IV. c. 83, the defendant will not be allowed to plead that the whole invention was not new, and also that the undisclaimed part was not new. A plea that the said invention was not at the time of making the said Letters-patent a new manufacture within this realm, is bad for duplicity.

x Platt v.

Elce (1853), apparatus for preparing cotton for spinning, 22 L. J. (N. S.), Ex., 192, and see cases there cited.

y 15 & 16 Vict. c. 76, s. 47.

* Platt v. Elce (1853), Ex., cotton spinning machinery, 20 L. T.

226.

a Nickels v. Ross (1849), braid, 8 C. B. 679.

• Clark v. Kenrick (1843), Ex., glazed cast iron hollow wire, 12 M. & W. 219.

с

Spilsbury v. Clough (1842), chloride of lime, 6 Jur. 579.