The infringe ment. Proof necessarily difficult. cussed. In the absence of fraud, the title, being larger than the Specification, will not invalidate the Patent. It is said that the question of fact, whether the Patent is infringed, is for the jury,f the legal question of what constitutes an infringement depending on the construction of the Specification by the Court; and the Court will say to a jury, "The question for your consideration is, whether the principle is the same: whether the effect obtained by stopping the apertures is the same means, whether the means differ in shape or not, is not material." The burden of proof on this issue rests with the plaintiff." The proof of infringement is necessarily difficult. Its detection is often no easy task; the ingenuity of the infringer in the variation of his machinery, or the disguise of his occupation, rivalling in many instances that displayed by the inventor himself. In Hall v. Jarvisk the infringer had obtained admission into the plaintiff's workroom through his servant,' had taken a plan of the e Nickels v. Haslam (1844), C. B., braid, 3 L. T. 76. f Bramah v. Hardcastle (1789), K. B., water-closet, 1 Carp. 168. Cochrane v. Braithwaite (1830), L. C., steaming in boilers, 1 Carp. 492. See also per Tindal, C. J., Walton v. Potter (1841), Web. P. R. 591. h Hindm. on Pat. 433. The ruses resorted to by the injured Patentee are frequently not inferior in refinement. The following account of the detection of an infringement on Morris's silk and cotton net Patent, 1764 (see Morris v. Bransom (1776), N. P., lace, 1 Carp. 30), is from Henson's History of Framework Knitters. The Patentee, "observing that the windows of Bransom's shop (at the top of the house) fronted the fields, he took notice that in the heat of the summer the workmen laboured with them open, and, on the Castle Hill, Morris and his witnesses took their station with a powerful telescope early in the morning, when Bransom usually worked the most diligently, lest his frames should be discovered by their noise. He by this means saw Bransom diligently employed in using the tickler machine, and immediately entered an action against him." k (1822) lacegassing machine, Web. P. R. 100. Piracy by such agency is visited in France with peculiar severity. machine and constructed one exactly similar. The difficulty was how to use it in the way of trade," the peculiarity of the work executed by the machine rendering its secret use impracticable. He proposed to enter into partnership with a bleacher, that, under cover of practising that trade, and sending some little lace to be gassed by the Patentee, he might render his machine profitably available in the lace trade. In his Patent for "improvements in the manufacture Evidence of infringement. of candles, and in apparatus for applying light," the Patentee in his first Specification claimed, first, the mode of manufacturing candles by the application of peculiarly formed plaited wicks; secondly, the mode of manufacturing candles by the application of two or more plaited wicks, so disposed that the ends always turned outwards; and, thirdly, the mode of applying lenses to lamps, in order to concentrate and conduct a portion or portions. of the rays of light to a distance." The plaintiff afterwards entered a disclaimer as to the first and third parts of his invention, and sued the defendant for an infringement of the second part. At the trial the plaintiff produced a candle purchased of the defendant, the wicks of which were so plaited that the ends always turned outwards. It was held, that the Patent was not for the candle itself, but for the mode of manufacturing it;o and that the mere production of a candle made by the defendant, in which the wicks were so plaited that the ends always turned outwards, was no evidence of an infringement of the plaintiff's Patent. By the Law of 5 July, 1844, Titre V., Art. 43, if the infringer be a workman or servant in the establishment of the Patentee, or have obtained the knowledge of the invention by means of such servant or workman, an imprisonment of from one to six months is added to the usual punishment by fine. m Sellers v. Dickinson (1845), power-loom, 5 Exch. 312; (1851) Evid. 1450. " Palmer v. Wagstaff (1854), 9 Exch. 94. 0 Compare Huddart v. Grimshaw (1803), K. B., cables, Carp. 200; and see supra, 138. Presumptive evidence. Mode of making. The similarity of an article manufactured by a defendant to that made under a Patent is presumptive evidence of infringement-in a case in which it was contended that, where a mode of manufacture was secret, it would be a hardship to compel parties deriving great advantage from it to come forward and divulge it.' This, however, can be most satisfactorily met. If the defendant had made a valuable discovery, entirely independent of the plaintiffs, he was entitled to a Patent for securing the profits of it. Improvements by the infringer in adopting the invention render it an infringement none the less." To prove the identity of principle in two contrivances, mechanics may be called as witnesses." In Heath v. Unwin it was held, that the modus operandi given by the Patentee in his Specification was only one instance of how it might be used, and did not limit the Patent; that the defendant's process was only a neater and cheaper modus operandi, and that in that process he had used the carburet of manganese, and had directly infringed the Patent. In the absence of direct evidence also, especially where the manufacture of the article is studiously concealed, the jury may infer that a manufacture sold by a defendant is an infringement of a Patent, from any peculiar character common to the Patent and to the article made or sold by the defendant, coupled with other circumstances. "I should state," said Lord Ellenborough,' in Huddart v. Grimshaw," that this is certainly primâ facie evidence of its having been made by that method. When one sees it agree in all its qualities, when it is produced 1 Huddart v. Grimshaw. m Electric Telegraph Company v. Brett (1851), 10 C. B. 838; and see Heath v. Unwin, Exch. (1852), cast steel made with carburet of manganese, 19 L. T. 272. n Webster v. Uther (1824), Godson on Pat. 232. See per Story, J., in Odiorne v. Winkley, 2 Gallison, Rep. 51; Curtis on Pat. 263. (1852) Ex. Ch. (cast steel), 19 L. T. 272; (1845) 13 M. & W. with a rope actually made upon Mr. Huddart's plan, it is primâ facie evidence, until the contrary is shown, that it was made upon his method; and therefore, as against him, as it should seem, supposing this Patent in full force and a valid one, it is reasonably fair evidence, in the absence of contrary evidence, to presume that it was made in that way."P A Specification described the improvements effected by the Patentee as consisting in "the use of carburet of manganese in any process whereby iron is converted into cast steel." The course followed by the Patentee was "by introducing into a crucible bars of steel broken into fragments, mixtures of cast and malleable iron, or malleable iron and carbonaceous matter, along with from one to three per cent. of their weight of carburet of manganese." The defendant produced the same result, a superior and more valuable description of cast steel, as certainly and more cheaply by substituting for the carburet of manganese oxide of manganese and coal tar, which, being put into the crucible with the iron, according to the evidence of chemists would form "carburet of manganese" before the iron was in a state of fusion, and consequently before any combination therewith could take place. It was held, on a bill of exceptions, that the judge was wrong in telling the jury that there was no evidence of infringement. As a general rule, questions of Law, including the construction of written instruments, are for the judge, matters of fact for the jury, to decide. The meaning, however, attached to particular words in the Specification may, especially where it is of a local or customary character, be matter of fact for the jury. In Hill v. Thompson, Lord Eldon intimates that the intelligibility of the Specification is entirely for the jury. In Lowell P (1803) K. B., rope, 1 Carp. 231. • Heath v. Unwin (1854), Ex. Ch., 3 C. & K. 522. Judge's ruling Direction. Question for the jury. Judge's di. rection. v. Lewis it was ruled by Mr. Justice Story, that it was matter for the consideration of the Court whether the invention was described with reasonable certainty. In Hornblower v. Boulton, the sufficiency of the directions in the Specification as to the construction of the machine was said to be purely a question for the consideration of the latter, and one as to which the Court would not subsequently interfere with its decision. The following remarks made by the learned Chief Baron in a case frequently before referred to are well worthy of attention. The learned judge at the trial had directed the jury that, in order to find infringement, they must find that some part of the Patent, that is, some new and material part of it, had been used by the defendants. If a judge, when a Patent case is before him, is to read a lecture on the natural philosophy which belongs to the Patent, and to be strictly correct in every remark he makes, I am afraid few Patent cases would stand. No doubt he is to construe the Specification and tell the jury what the Patent is for, but it is for them to say whether the facts brought before them do or do not amount to an infringement. On a plea denying the novelty of an invention, it appeared, from the evidence of witnesses for the defendant, that for eight or ten years before the grant of the Patent three firms had manufactured steel in the manner described in the Patent, and had used and sold the steel so manufactured in the way of their trade and without concealment. The judge directed the jury that, if they believed the witnesses for the defendant, the Patent was void. Held, that there was no other question for the c (1817) pump, 1 Mason, 190. d (1799) Ex. Ch., steam engine, Watts', per Lawrence, J., Webster v. Uther (1824), gun lock, Godson, 232; Barton v. Hall (1827), ibid. Barber v. Grace (1848), Exch., hosiery, woollen, 1 Exch. 339; 17 L. J. Exch. 122. e Newton v. Grand Junction Railway (1847), iron axles, 5 Exch. |