C. J., in Cornish v. Keene," who directed them to say whether the invention was or was not in public use and· operation at the time the Patent was granted? The evidence as to the novelty and utility of the invention being fully before the jury, they are perfectly capable of deciding the general question whether or not it be a proper subject for a monopoly. Whether what has been before done was mere experiment or perfected invention is a question for the exercise of common sense.

new law.

made for Patentee.

The publication of an invention by user previous to its Danger of user protection by Letters-patent is one of the dangers almost diminished by removed from the inventor by the recent amendments in the Law, which confers immediate protection on application of the Patentee. Considerable allowance for the Allowance unavoidable promulgation of a discovery during the experiments necessary for its development has been made in recent cases. In Bentley v. Fleming, the inventor of a card machine lent it to another person for the purpose of having its qualities tested, and for that purpose it was for some weeks in use in a public workroom. This was however held not to be such publication as to deprive the inventor of his right to obtain Letters-patent. In this case however it is to be remarked, that the machine was one of considerable complexity.

fact.

The question of "user" is almost entirely one of fact, Question of to be dealt with according to the circumstances of each user one of particular case. In Hartley v. Howland the latitude given to the Patentee was very great. The manufacture was glass, and the publication contended for the open use of the plaintiff's invention by the predecessor of the defendant during the period of three months (March to

n Web. P. R. 44; Househill Co. v. Neilson (1843), 9 Cl. & Fin. 788.

° (1844) 1 C. & K. 587, per Cresswell, J.

P (1852) London Journal, Minter v. Wells, Web. P. R. 132; Forsyth v. Rivière, Web. P. R. 97. In Tennant's case (bleaching), Dav. P. C. 429, the invention had been used five or six years before the Patent, but as a secret.

User.

Unprosecuted inventions.

May, 1835) in a factory employing seventy men. The question put to the jury by the learned Chief Baron was whether that constituted a sufficient publication to the trade and the world to deprive the plaintiff of the right to take out a Patent. The jury found a verdict for the plaintiff.

The distinction between use and exercise in public and by the public taken by the Court in Carpenter v. Smith is one of which it seems impossible to introduce into general application..

On the trial of Lewis v. Marling it was proved that a model of a machine similar to that for which the Patent had been obtained had been brought to England from America before the date of the Patent; but as it appeared that the model was not put to any use or made known to the public, nor any machine made after it, Lord Tenterden thought it ought not to affect the Patent.

In Househill Company v. Neilson' it was held that the notorious use of an invention, though subsequently abandoned, will vitiate a Patent subsequently obtained. It appeared however that if the public could be deemed to have wholly lost sight of it, a subsequent Patent could be maintained. The fact of its abandonment is important, as determining that what took place was only an experiment which failed and which never attained to a perfected and complete invention. The lapse of time between the successive attempts must necessarily form an essential element in the consideration. "Although," says Cresswell, J. (1844), "a person may have hit upon a thing and tried an experiment in reference to it, yet if that afterwards is laid by and abandoned, so that the

a (1842) 9 M. & W. 303, per Abinger, C. B. (door-locks).

1829 (shearing machine) Tenterden, Lord C. J., 3 C. & P. 502. r Web. P. R. 692, n. (p).

Newton v. Grand Junction Railway Co. (1846), 27 London Journ. 223.

public never gets the use of it, the person who afterwards invents and brings it into notice and use may still have a Patent for it.

The circumstances of the case, with reference to the object of the Law, it is evident must form in every instance the grounds of the decision. The effects, as we have seen in the case of apparently trifling alterations in processes or machines, are so disproportionate to the cause, and so many variable elements are necessary to concur in the success of experiments, that an invention may be approached within an almost indefinite distance without giving indications of its being attained. Success is the only proof of its attainment, and abandonment ought, in fairness to others, to be considered constructive failure. Mr. Slaughter, in his evidence before the committee (1851), stated that he had tried nine screw propellers of various diameters, but of constant pitch. Being dissatisfied with the results he tried an increasing pitch, and thus unconsciously stumbled upon Mr. Woodcroft's invention, and finding that, took a licence from him.

Looking to the nature of modern inventions," it is Progressive imhardly possible to over-estimate the importance of the provements. decisions, originating with that of Ex parte Fox,* with reference to the progressive improvements in machinery. Our present carding machinery consists of no less than sixty, and cotton spinning machinery of upwards of eight hundred Patents, mainly in a regular course of improvement. As to an improvement on a machine or

(1829) Lewis v. Marling, Web. P. R. 490; (1835) Minter v. Mower, Web. P. R. 139; (1843) Househill Co. v. Neilson, H. of Lords, Web. P. R. 692, n. (p).

The great mass of useful inventions is made up and must be, not of what is altogether new, but of improvements on what is already practised. (Westm. Rev. (1835), January.)

Stead v. Carey.

process protected by Patent being matter for Patent, his lordship said: "If the Patentees have invented improvements upon an engine for which a Patent has been granted, and those improvements could not be used without the original engine, at the end of fourteen years the Patentees could make use of a Patent taken out upon their improvement, though before that period expired they would have no right to make use of the others substratum."

In Boulton v. Bulla it had been laid down by Buller, J.," that a Patent for an addition was good; but then it must be for the addition only," and such Patent conferred no right to the use of the substratum.

In Stead v. Carey' the question of substratum was the material issue in the cause. The plaintiff's Letterspatent contained a clause of avoidance in the event of the Specification not being enrolled within four calendar months from the date of the grant (19 May, 1835). The Specification was enrolled within six, but not within four, months from the date. On the 29th July, 1839, the defendant, having improved on the plaintiff's invention, obtained Letters-patent. In 1841, an act (local and personal, but to be judicially taken notice of as a public Act) was passed, confirming the plaintiff's Patent.

The point mentioned by Mr. Justice Erle is very important. "The Legislature," he says, "has pointed out the mode in which void Patents may be rendered valid, and no exception is made in favour of parties who have taken out Patents in the intermediate time. If the defendant's Patent included the plaintiff's invention it would be void; if it was for an improvement only he is not injured; at all events he is not in a worse position than the rest of the public."

a Dav. Pat. Ca. 203 (1795). See Morris v. Bransom, cited in Boulton v. Bull (1795); Dav. Pat. Ca. 202; Web. P. R. 51.

b 1 C. B. 496 (1845).

d Page 523.

c 4 & 5 Vict. c. xci. § 31.

Patents.

The metaphor before employed, of an adventurer into Obstructive the unexplored regions of inventions, is one that serves well to explain, in this respect, the position of the Patentee. Some, in the ardour of scientific research, push forward actively in the van of civilization, while others lead the way only to block it up. From the latter it is clear Society derives no advantage, and any concession of the position gained by the adventurer would be an obstruction, without a corresponding advantage to the public. In a recent case, a Patentee claimed the application of electro-chemical decomposition to electric telegraph purposes; and though the mode of applying it was very slow, and not at all available for the rapid transmission now required, yet that claim would have effectually obstructed, during the continuance of the monopoly, the use of the quickest mode of telegraphic communication now known. Similar instances might be stated in the history of most other important inventions, as every Patentee endeavours, by the multiplicity of his claims, to prevent further improvements in his own branch of manufactures.

trade.

With regard to the reservation in the Statute of James, Not hurtful to "that the new manufacture be not "hurtful to trade, nor generally inconvenient," we have seen that Patents, when granted on the principles at present proposed by Patent Law, are highly conducive to the progress of manufactures. The grant of a monopoly, however, for an invention which is incomplete, and which, it must be remembered, our Law at present allows-(see post," Amendment," "Disclaimer") is simply an obstruction to the general progress of that branch of trade, and may, indeed, be considered as "mischievous to the State, to the hurt

• Instances cited in which the obstructive Patent had not been used; Evid. (1851), p. 368. See also Mech. Mag. (1852), p. 9.

f 3 Inst. 184.

Stat. 23 Jac. I. c. 3.

H