Alderson, B. Suggests the principle is the true and first inventor. Mr. Minter's in Sutton's possession. He says, John Chapman was working for Sutton; neither is here. Sutton would be a most important witness, for this reason, that Mr. Minter and Sutton were together about the time the invention took place; The person who which of the two suggested the invention, and which carried it into effect, is a question for you to decide. If Sutton suggested the principle to Mr. Minter, then he would be the inventor. If on the other hand Mr. Minter suggested the principle to Sutton, and Sutton was assisting him, then Mr. Minter would be the first and true inventor, and Sutton would be a machine, so to speak, which Mr. Minter uses for the purpose of enabling him to carry his original conception into effect (e). You will judge which is the more probable of the two. Mr. Minter makes out his prima facie case; he is the person who takes out the patent. If Sutton has received a compensation, nothing would have been more simple and easy, that he should have taken out the patent, and still Mr. Minter might have the same benefit to-day; and there is no apparent reason why Sutton should not have taken out the patent which Mr. Minter has taken out, unless they were both desirous to ruin the invention: for, suppose two persons are engaged on an invention of this description, they know perfectly well between themselves who is the real inventor of it, and who is the workman to carry into effect the conception, but they would destroy the value of it to both if they did not take it out in the name of the right person. Whatever the probabilities of the case, therefore, are, you will not leave that entirely out of the question. Highley's evidence, the smith, is perfectly ambiguous; he says he knows Sutton; he was employed by him to manufacture some iron plates; he was employed in September 1830. It is probable, that in 1830, whether you take Mr. Minter to be the inventor, and Sutton the mechanic, whom Mr. Minter was employing to carry his conceptions into effect, it is very likely, in either view of the case, that Mr. Minter might have given the shape of these plates, and sent Sutton to order them of the smith; and we find, that about September 1830, must have been the period of time at which Mr. Minter would have been engaged upon the invention. The patent is taken out in the November following. One pair of plates only is ordered in September; that looks like an experiment; then the patent is taken (e) As to this, see ante 126. In the case of Bloxam v. Elsee, 1 C. & P. 567, it was objected, that several of the parts of the machine had been suggested by Mr. Donkin; and the circumstances of that invention furnish a good illustration of the kind of assistance which an inventor may receive from another person. The invention was of a machine to make paper in continuous sheets of an indefinite length; and the peculiar feature or principle of the invention was the receiving the pulp on an endless wire web, passing round cylinders and revolving with the same uniform velocity. The general idea of a machine on this principle having been conceived, the mechanical details and arrangements requisite for carrying the principle into practice, so as to realize the idea, were extremely numerous and complicated, and Mr. Donkin was employed professionally to assist in those arrangements. out in November, and then a dozen pairs are ordered-that looks A. D. 1834. like carrying into effect the plan when the invention is completed. He does not see any chairs with these plates upon them, until two or three months after, and it is quite clear that the patent had been taken out by that time. He says," he saw some chairs at Dean-street;" that was after the patent was taken out. He says, "he made a dozen plates in November, he cannot say the day precisely, it was after the date of the patent. Mr. Sutton moved into Dean-street in September; he had employed me before; I think Mr. Minter's name was on the door." Now, this was the place where Sutton was working, and, therefore, though we have no direct evidence between them, one way or the other, he might not be his servant, he might be assisting him to carry into effect this invention; Mr. Minter wanting an adroit hand to carry into effect the conceptions of his own original head. Then the baker, Charles Willson, says, "that some time in 1830, Sutton showed him, in the back shop, a chair which was very like this chair, and upon which he was working at the time; it acted by balances, and the action was according to the weight." "There was a person called Minter;" the probability is, that that was the plaintiff; "he used to come with Sutton on a Sunday into the back shop;" at that time, of course, the workmen would be away, and he would be left alone. If Mr. Minter was the person making the invention, and was probably consulting with Sutton for the purpose of getting this conception carried into effect, is it not probable he would come at those times when there was no other workmen about, that the invention might not get out to the trade, and some one precede him in claiming the patent, that the idea might not creep out? Because, it very often, at least not unfrequently, occurs, that some workman turns traitor, gives out the conception, which is the original or true invention; some other adroit workman carries on his proceedings in a more rapid way, and procures a patent before the person who made the first conception. That is the question. If you are of opinion that the plaintiff is the first and true inventor, that the invention is useful, and that the plaintiff has given such a description of it in his specification as would enable an experienced workman to make the chair from it, there seems no doubt that the defendants' chair is an infringement of that patent, because, undoubtedly, it is a colourable variation only. There is a celebrated case, which Mr. Justice Buller mentions, where a party produced a machine which at first sight appeared totally different from the machine which was the subject of the patent, but when you came to consider it, all the difference was that the head was where the tail should be, and the tail where the head should be, but they operated on the same principle; and so it is precisely here-the parts are turned. The whole case is now before you. You will consider, whether you are satisfied that the plaintiff has made out his case, that he is the inventor of the machine, that the machine is new, that it is a useful one, and that he has delivered such a specification as would enable a workman to make it, and that that which the defendants have brought out is an imitation of it. Verdict for the plaintiff. In the Exchequer, Motion for non suit. as a counterba pressure against described," is certain means. Cor. Lord Lyndhurst, C. B., J. A. Parke, Alderson, B., Godson, in pursuance of leave reserved, moved for a nonsuit, on the ground that the specification is for a principle, the plainA claim, " my invention is the tiff having summed up the whole of his patent in his claim to application of a the principle, and not to any particular means. Either the self-adjusting leverage to the plaintiff claims a principle, or he does not; to the former he is back and seat of not entitled; and as to the latter, the defendant has not used a chair, whereby the weight the mechanical means of the plaintiff. [Lord Lyndhurst, C. B.: on the seat acts He says, "what I claim as my invention is the application of a lance to the self-adjusting leverage to the back and seat of a chair, whereby the back of such the weight on the seat acts as a counterbalance to the pressure chair, as above against the back of such chair, as above described." That is what not a claim to a he claims, a self-adjusting leverage acting in that way. Then he principle, but to points out the particular mode in which that is effected. The an application to a certain pur- question, therefore, is, whether you have infringed that particupose, and by lar method.] [Alderson, B.: All the witnesses proved that there never had been a self-adjusting leverage in a chair before.] That I admit, and contend that this case is nearly the same as K. v. Cutler (f). [Lord Lyndhurst, C. B.: He says, "I claim the application of a self-adjusting leverage to the back and seat of a chair," so as to produce such an effect.] Yes, my Lord, that effect being nothing more than the motion of a lever backwards and forwards, producing such an effect. [Lord Lyndhurst, C. B. : It is the application of a self-adjusting leverage to the back and seat of a chair, he having described what that self-adjusting leverage was before. Any application of a self-adjusting leverage to the back and seat of a chair producing this effect, that the one acts as a counterbalance to the pressure against the other, would be an infringement of this patent, but nothing short of that.] [Alderson, B.: The difference between this chair and all others, as it appeared in evidence, was very well described by Mr. Brunton; he says, this chair acts (looking at the one you produced), this chair acts, but not by a self-adjusting leverage. By pressing (f) 1 Stark. 354, and ante, 76, n. on the back the seat rises, and, vice versa, by pressing on the MINTER v. WILLIAMS (a). The fourth count in the declaration in this action assigned as Letters patent a breach that the defendant, without the consent of the plain granted to the (a) This case is reported 5 Nev. & M. 647; 4 Ad. & El. 251; 1 Har. & W. 585. plaintiff to "make, use, exercise and tiff, &c., did wrongfully and unjustly expose to sale, divers, &c., chairs which were intended to imitate and resemble, and did vend" his said imitate and resemble, the said invention of the plaintiff. To this invention, and there was a general demurrer and joinder. prohibited that any others should "make use, or put in same; held, that demurrer. Channel, in support of the demurrer. The mere exposure to sale of chairs resembling those invented by the plaintiff, is not a practice" the breach of the privilege granted to him. The fourth count does a count for ex- not charge that the defendant made the chairs which he exposed posing to sale is to sale, and it is quite consistent with the allegations in that bad on general count, that the chairs may have been placed in the defendant's shop by a person duly authorised. Certainly it is consistent with these allegations that the defendant may never have completed the sale of any chair; that he may have withdrawn them immediately upon discovering that by selling them he should infringe the plaintiff's patent. Construing this patent with reference to the statute of monopolies, (21 Jac. I. c. 3,) and it cannot be carried further than that statute warrants, there is no ground for saying that a mere exposure to sale can be an infringement of the patent (b). By the patent, the plaintiff is to have the exclusive right to "make, use, exercise and vend," his invention. An exposing to sale does not come within any of these terms. It is not a vending, for to "vend" signifies to "sell," and is so treated in many statutes of this sort, in which the expression" expose to sale" is commonly superadded to the word "sale." Thus in the Game act (1 & 2 Will. 4, c. 32), by which it was intended to prohibit an exposing to sale, as well as a vending, without a license, the words "sell or offer for sale" are used. So in the statute of 8 Anne, c. 19, (the first Copyright act,) the words "sell, publish, or expose to sale," are used (c). Nothing can be deemed an infringement of a patent, or a copyright, which does not come aptly within the meaning of the words of the statute (d). J. Evans, contra. The word "sell" is not found in the patent, but vend; and vend means to sell or expose for sale. In Johnson's Dictionary, vend is rendered to sell, to offer for sale. In Ainsworth's Dictionary, vendo is derived from venum and do, and is explained to "sell or set to sale, to offer or proffer for sale." In the Dictionary of the French Academy, some of the interpretations of vendeur apply to an offering for sale. The question, therefore, cannot receive any illustrations from statutes in which the word vend is not used. The act of exposing to sale (b) The statute having declared all grants of monopolies void, as contrary to common law, provides that such declaration shall not extend to any letters patent and grants of privilege of the sole working or making of any manner of new manufacture within the realm," (ante 29, 30); it is important to observe the particular terms of the letters patent, both before and since the statute, in order to ascertain the legal effect of the privileges conferred thereby. Ante 7-8, n. (c) Similar words are found in the subsequent acts, for giving copyright in various things, as casts, engravings, patterns, and designs. (4) See Coleman v. Wathen, 5T. R. 245; Murray v. Elliston, 1 Dow. & Ryl. 299; S. C. 5 B. & Ald. 657; and ante 7-8, n. |