is in this case clearly within the mischief intended to be provided against by this patent, and is also within the words. [Patteson, J.: If vend means "expose to sale," why did you not use the word "vend" in your count? You should use the very words of the instrument. Why use words which you suppose to be an equivalent?] The exposing to sale is also comprehended within. the terms "use and exercise, use and put in practice." A great part of the advantage derived by a tradesman from any ingenious invention that he has made, arises from the reputation acquired by exposing to sale; a person, therefore, who exposes to sale without a license, may be said to use the invention. A liberal construction must be put on the letters patent, in order to carry their intention completely into effect. According to the argument of the defendant, the article in question might be exhibited for sale with impunity, if it be only done by the agency of some other person, at least so long as no actual sale could be proved.

the letters pa

PATTESON, J.: In drawing declarations for the infringement of a patent, pleaders have always used the words of the patent, either those in the granting or prohibiting part of it. I cannot doubt for a moment that there is a clear distinction between vending and exposing to sale, notwithstanding the authority of the dictionaries referred to. The plaintiff should, in his decla- The words of ration, use the words either of the granting or prohibiting part tent should be of the patent. This is quite a new course of pleading, to put in used. a word which does not occur in the patent. If the word "vend," really does mean "to expose to sale," as well as to "sell," the count should have charged the defendant with vending; and the act of exposing to sale might have been proved in support of it. WILLIAMS, J.: I am of the same opinion. The granting part, and the prohibitory part, differ from each other. We are told, that grammatical authorities show, that "vend" and "expose to sale" necessarily mean the same thing; I cannot agree that it is so. There is a manifest distinction between them. Why was not the word "vend" introduced into the declaration? The reason was, that they could not prove a sale outright, and so they would not have the word "vend,” which the pleader was of opinion meant to sell. If we are required to abide by grammatical authorities, I am ready to do so; but I am certain that there are no authorities in English or Latin, which represent "to vend," and "expose to sale," as meaning the same thing.

COLERIDGE, J.: In the granting part of this patent, the words are," make, use, exercise, and vend;" and then in the prohibiting part the words are rather different, for an obvious purpose; they are "make, use, or put in practice." Now we are to see whether this count, either referring to the granting or the prohibiting part, necessarily imports an offence. The words of the count are, that the defendant did "wrongfully and unjustly expose to sale," &c.; and it is said that these words necessarily import a

T

vending, within the granting part of the patent. It is argued, that an exposing to sale is included within the meaning of the word "vending;" but even upon that construction the count would be defective, inasmuch as the evidence, instead of the words of the patent, is put upon the record. It seems to me, that "vending" imports the habit of selling, and "selling" the act of sale. If we read the word "vend" as expressly inserted in the prohibitory part of the patent, we ought only to give it there the meaning which would effectuate the purpose of the patent-the prevention of acts injurious to the patentee, with as little restraint on the public as possible. It must be taken here, that the defendant has only exposed to sale; that whatever may have been his original purpose in so doing, or whatever motive The exposing to has supervened, he has abstained from selling. Now, I cannot sarily prejudi- say that such a mere exposure to sale is necessarily injurious to cial. A using the patentee; it may, on the contrary, be very beneficial; it is and exercising which is not not, therefore, necessarily the vending, which is exclusively granted to him. As to "using and exercising," those words cannot be fairly resorted to, when we find with them the word "vending," and that is passed by. But, if they could, the argument would be the same; this might be an innocent using and exercising, and so not prohibited.

sale is not neces

prejudicial is

not prohibited.

Judgment for the defendant.

A. D. 1835.

MINTER V. MOWER.

Cor. Lord Denman, C. J. Trin. Vac. 1835.

In this action the defendant pleaded-1. Not guilty. 2. That the plaintiff was not the true and first inventor of the said invention, and that the said invention was not a new invention. 3. Setting out the specification, and averring that plaintiff did not enrol any other instrument, &c., and that the said instrument did not particularly describe and ascertain the nature of the said invention, and in what manner the same was to be performed.

Sir J. Campbell, A. G., Sir F. Pollock, and Evans, were for the plaintiff. Damages were asked for the second infringement. Talfourd, Serj., and Godson, for the defendant.

The plaintiff is Lord DENMAN, C. J.: I hardly think any damages can be not entitled to damages in a se- given, because there is no evidence at all of any extent of loss cond action as sustained, not even to speculate on. It does not appear of right. whether Mr. Mower has made more than a single chair, the subject of this action, or that he has gained any profit by it. I must own I think, although the patent has been established against other parties, probably you would not consider that this

was a case in which, if you find a verdict for the plaintiff, you A. D. 1835. would consider him entitled to more than nominal damages

establishing his right.

The question is, whether you are satisfied the defendant has made out his defence, because, in the first place, the plaintiff proves his patent. And then he gives, certainly, important evidence of its being a new invention; the evidence of Mr. Farey, who happens to have made use of the chair himself, and who probably may be known to you as a person very likely to have heard of any invention of this sort if it ever had been discovered before. The defendant's plea is, that the plaintiff was not the true and first inventor. Mr. Farey and some other gentlemen having given the same evidence on the part of the plaintiff, that there has been no such thing known before as this chair with self-adjusting leverage, the witnesses who are called on the part of the defendant all go to the same point to that extent, with the exception of this particular chair that was made by Mr. Brown for the defendant in the year 1829, and they say, although these chairs have not been in use, and although the principle has not generally been known, yet they undertake to satisfy you by direct evidence that this person Brown, in 1829, did make a chair so as to show the plaintiff was not the real inventor of the chair, the piracy of which is complained of; and if the defendant proves that to your satisfaction, although the plaintiff may actually have been the inventor, he would not in the sense of this patent be the first and true inventor, because another person in that case would have hit upon the same invention. You should be satisfied that the chairs which were made by Brown for Mower in 1829, were substantially the same as those for which the patent is claimed. If they were, then the patent has been taken out without proper foundation, because the discovery has been made before. But the defendant is to prove that, and the question is, has he proved it?

pursued, the presumption is

that it was not made in a use

Now the person who made these chairs, Brown, is not here as a witness; that should produce no prejudice either on one side or the other. I do not see any great addition he could have made to the defendant's case if he had been here, because that he made a chair of that description is perfectly clear. I cannot If an alleged conceive it would be very strong, even if he had said he had discovery be not discovered this principle of the self-adjusting leverage, when it does not appear he claimed it, took out any patent for it, or that his master did, or that there was any production of the ful form. article that could be beneficial to himself or Mr. Mower. It seems that is a very strong argument to show that in point of fact they had not made the discovery, at least how to make this principle available for general use, but the fact that he had made chairs of this description seems quite undoubted. There is a chair laid before you of Mr. Clark's, connected as it appears

C. J., to the

jury.

Lord Denman, with a model that has been produced before you, which to a certain degree adopts some of the machinery that is necessary for a self-adjusting leverage to a chair. But then the question is, whether the chair is the same as the chair that the plaintiff's patent protects.

Now I thought it would turn very much on this, whether, in the first place, you are satisfied, that supposing that machinery was away which the witness described, the pad, the stop, and the spring, which the witnesses for the defendant say, made it necessary that the hand should be applied to give some assistance to the body; whether, supposing that that machinery had been away from Mr. Clark's chair, you are satisfied that would have been a chair with a self-adjusting leverage. I confess it appears to me, that is a little left in doubt, because I do not find that it ever was put into operation so as to test that fact. But supposing, in the second place, it would have been a chair with a self-adjusting leverage, if that encumbering additional part had been away, then the question is, whether the principle of self-adjustment was at all discovered or thought of at that time. Because, it seems to me, if that principle might have been deduced from the machinery of the chair that was made, but that it was so encumbered and connected with other machinery that nobody did make that discovery, or ever found out that The user of a they could have a chair with a self-adjusting leverage, by reason method or prin- of that or any other defect in the chair actually made; I confess rance, will not it seems to me, that does not prevent this from being a new vitiate a subse-invention, when the plaintiff says, I have discovered, throwing aside every thing but this self-adjusting leverage itself, that will produce an effect, which I think a very beneficial one; and I cannot help thinking that must be a beneficial effect, because there are certain persons who are deprived of all strength, and who cannot help themselves at all, and who should not be called on to use a stop or spring, or to make any exertion whatever, who have, it seems, found very great comfort from the chair which applied this principle of self-adjusting leverage so as to make any exertion of their own unnecessary.

ciple in igno

quent patent.

The evidence runs into considerable length, but the facts are pretty simple on the whole, and I will recapitulate their general nature. A chair is made by Mr. Mower's workman in 1829; that chair has the principle of the reclining back to a certain extent raising the seat in front; it is connected with what is called a rack below, which makes it necessary that a spring should be touched in front to detach it from the catch of the rack; that is the first thing necessary to its going back; and in order to its coming forward, it is necessary the party should extend his hand and take hold of the pad, and should draw himself to a certain degree forward. All the witnesses concur in that to a certain degree: Mr. Newton says, without that pad, the self-adjusting leverage would have operated in

this chair, but it certainly does not appear that that leverage A. D. 1835. was so applied to it, or that any chair was ever made without some additional matter which prevented the self-adjusting leverage from having that operation. So that you will have to say on that general description of the case, whether you are satisfied that the self-adjusting leverage was in that chair at all, and if it was, whether you are satisfied that it could not act by reason of what was otherwise connected with it, and then, whether you think that any person discovered that self-adjusting principle from the chair that was formed at that time. It is quite The inaccurate indifferent whether the word 'self-adjusting is the correct de- what is intended scription of the thing. It seems to describe it so that no man be clear, is imcan doubt what it is, namely, that one part of the body is to counterbalance the effect of the other part on the two different parts of the chair (a).

* (b)

Now, the questions that I have to leave to you are:-Would it have been a chair with a self-adjusting leverage if those encumbrances had been away?-did those encumbrances prevent its being so, and was this principle of self-adjusting leverage discovered at the time that chair was made, or is it entirely a new discovery made by the plaintiff ?

material.

The jury found as follows:-That the chair made by Brown Special verdict. would have acted so as to produce the equilibrium by a selfadjusting leverage, if the spring and the other things had not been attached to the chair, that is, if it had not been for the encumbering of bad machinery. That Mr. Brown was the inventor, but that Mr. Brown was ignorant of the practical use it might be turned to, and that Mr. Minter was the author of the practical purposes of the thing, although Mr. Brown was the original inventor, but was ignorant of the principle of the machine; in fact, that the other machinery attached to Brown's chair prevented the self-adjusting leverage from producing equilibrium.

The learned judge directed a verdict for the plaintiff; with liberty for the defendant to move to enter a nonsuit.

(a) The test here proposed, and the recognition of the same principle in Derosne v. Fairie, post 157, qualify the doctrine as laid down and upheld by the court, in

R. v. Metcalf.

In that case the letters patent were for a "tapering brush," and it appeared from the specification, that the brush differed from the common brush only in having the bristles left of an unequal length, instead of being cut down so that the surface of the brush should be level, all the bristles being as nearly as possible of the same length.

Lord Ellenborough, C.J.: Tapering means gradually converging to a point. According to the specification, the bristles would be of unequal length, but there would be no tapering to a point,

which the description assumes. If the word tapering be used in its general sense, the description is defective, there is no converging to a point. If the term has had a different meaning annexed to it by the usage of the trade, it may be received in its perverted sense."

The defendant being unable to supply any such evidence, there was a verdict for the crown. 2 Stark. 249.

It is, however, material to observe, that in this case, the inaccurate term being recited in the letters patent, might be considered as leading directly to a false suggestion. See ante, 42, n.

(b) The learned judge commented at considerable length on the evidence with respect to Brown's chair.