Motion for non

suit.

May 5, 1837.

A claim, that the invention con

back and seat of

the seat acts as a

before, al

chinery. Semble, that a

In the ensuing term Talfourd, Serj., obtained a rule for a nonsuit, on the ground that the finding of the jury showed the plaintiff's invention to be an improvement on the application of the principle of the self-adjusting leverage; whereas the specification claims every application of the self-adjusting leverage (c).

Lord DENMAN, C.J.: (d) An action between the same parties has already been decided by the Court of Exchequer, in which the sists "in the ap- patent claimed by the plaintiff was deemed good and valid. plication of a self-adjusting ing But on the trial in this court an entirely new fact was given in leverage to the evidence, and affirmed by the verdict of the jury, namely, that a a chair, whereby chair very closely resembling that made by the plaintiff's patent the weight on had been made and sold before that patent was taken out. counterbalance The words of the jury were these: "We are of opinion that to the pressure Brown was the inventor of the machine, and found out the on the back," is bad, if it appear principle, but not the practical purpose to which it is now that a chair on applied; we think that Minter (the plaintiff) made that disthe same principle had been covery." This statement might not be fatal to the plaintiff's made and sold title if his invention were truly set forth in the specification, but though the ope- the issue in this cause being simply, whether the plaintiff did ration of it was thereby particularly describe and ascertain the nature of the encumbered by additional ma- said invention, we find it needful to examine the terms of it. Now the patent is taken out for "an improvement in the for an im- construction, making, or manufacturing of chairs;" the method provement on such application of making the machine, and the way in which it acts, are then would have been fully described, without any mention of any of the means emgood. ployed in Brown's chair. The specification thus concludes: "what I claim as my invention is, the application of a selfadjusting leverage to the back and seat of a chair, whereby the weight on the seat acts as a counterbalance to the pressure against the back of such chair as above described." Now it was perfectly clear upon the evidence that this description applies to Brown's chair, though that was encumbered with some additional machinery. The specification, therefore, claimed more than the plaintiff had invented, and would have actually precluded Brown from continuing to make the same chair that he had made before the patentee's discovery. We are far from thinking that the patentee might not have established his title by showing that a part of Brown's chair could have effected that for which the whole was designed. But his claim is not for an improvement upon Brown's leverage, but for a leverage so described that the description comprehended Brown's. We are, therefore, of opinion that the patent cannot be sustained, and a nonsuit must be entered.

Rule for nonsuit absolute.

(c) See ante, 134, in Minter v. Wells and Hart, as to the invention claimed.

(d) The case was argued in Hilary Term, 1837, before Lord Denman, C.J., Patteson & Williams, Js. The cases of Dollond's patent, ante 43, and Jones

v. Pearse, ante 126, were cited in support of the argument, that it is not the making a discovery, but the successful introduction of it, which constitutes such a user as will vitiate a subsequent patent. 6 Ad. & E. 741.

JUPE'S PATENT.

Letters patent to Robert Jupe, 11th March, 5 W. 4, for "An Title. improved expanding table."

im

The object of my invention or improvement is, so to construct Specification. an expanding table, that the sections which compose the surface of the original or unexpanded table may be caused to diverge from a common centre, so that the table may be enlarged or expanded by inserting leaves or pieces in the openings or spaces caused by the divergence of the sections from the common centre. Having thus generally stated the nature of the invention, and the object to be obtained, I would remark, that there are various mechanical arrangements by which the invention may be performed, depending partly on the taste of the individual for whom a table is to be constructed. I therefore propose to describe the different arrangements of parts which I have made, and find to answer, and which from experience I can state will give full effect to my invention or improvement. But my provement is applicable not only to the precise arrangements hereinafter shown and described, but to various other forms of the same table, provided the property of expanding the surface of the original table, by causing the sections to diverge from a common centre, be retained, and the table be enlarged or expanded by inserting leaves or filling pieces in the spaces caused by such divergence, in the manner hereinafter mentioned. These different forms or shapes must depend on taste, and so must also the details of the mechanical arrangements which govern and retain the sections of the surface of the table securely to the desired positions, and carry my improvement into effect. * * (a) Having thus described the nature of my invention, and the Claim. manner of carrying the same into effect, I would remark, that I do not claim the various parts separately of which the same is composed; nor do I confine myself to the precise manner of moving the sections (a a) of the surface of the table. But I do declare that my invention of an improved expanding table consists in constructing the same, so that the sections (a a) of which the original or unexpanded table is composed, may diverge from a common centre, and the table be enlarged or expanded by inserting leaves or pieces in the openings or spaces caused by the divergence as hereinbefore described.

(a) Here followed a description of the drawings, which showed, by twenty-two figures, various kinds of expanded and unexpanded tables, and the apparatus by which the expansion was to be effected.

In witness, &c.

The specification, with a plate of the drawings, is published in the Repertory of Patent Inventions for Feb. 1837.

Pleas.

JUPE v. PRATT AND ANOTHER.

Cor. Lord Abinger, C. B. Mich. Vac. 1836.

This was an action for the infringement of the preceding patent, and the declaration assigned the following breaches:- Made and sold tables in which they the defendants did use and put in practice the said invention of the plaintiff; and tables in which they the defendants did use and put in practice a part of the said invention of the plaintiff; and tables imitating and resembling the said invention of the plaintiff; and tables with certain subtractions from, and additions to, the said invention of the plaintiff, whereby to pretend themselves the inventors and devisors thereof.

The defendants pleaded, 1st. Not guilty. 2d. That the plaintiff was not the true and first inventor of the said improved expanding table. 3d. Setting forth the specification, and averring, that the plaintiff did not by the said instrument particularly describe and ascertain the nature of the said invention, and in what manner the same was to be performed according to the true intent and meaning of the said letters patent and proviso. 4th. That the said invention was not a new invention as to the public use and exercise thereof within England.

At the trial, the defendants called no witnesses, and the following points were left to the jury. First; Whether the invention was a new invention. Secondly; Whether the defendant had infringed the plaintiff's patent, the evidence being, that the defendants had applied the principle of Gillow's table (b); and that the imitation of the plaintiff's patent by the defendants consisted in cutting the table into four parts, and applying the principle of Gillow's table in the separation of all the parts, without using any of the mechanical means suggested by the plaintiff in the specification. The verdict was entered for the plaintiff (c).

In the ensuing term, leave having been reserved to move on the specification, a rule nisi for a nonsuit, or a new trial, was granted on the grounds, 1stly, That the specification embraces the mechanical contrivance. 2dly, That the claim is too large, it appearing by the evidence that Gillow had already divided the table into two sections, receding from a common line. And, 3dly, That if both these points are in the plaintiff's favour, the defendants' table is not a piracy, being followed on Gillow's patent.

(b) Gillow had a patent, expired for twenty years, for cutting a table in half, and drawing each portion apart by slides fitting into grooves under the table, and filling up the intermediate space

with a leaf or leaves, called the telescope table.

(c) See a full report of the trial in the Repertor of Patent Inventions, vol. 8, N. S.

Cor. Lord Abinger, C. B., Bolland and Alderson, Bs.

Instead of the

Sir F. Pollock and Richards showed cause. word nonsuit in the rule, there ought to be, show cause why the verdict should not be entered for the defendants upon one or more issues. Since the new rules (c), a nonsuit can rarely occur; and Lord Brougham's Act, in the spirit of the new rules, provides, that whether there is an issue or not in the case of a patent, the judge should certify what were the points raised at the trial, although they did not distinctly appear on the pleadings; and that the plaintiff should have the costs on those points, as to which the judge should certify that he had sustained not merely the issue but the points raised at the trial. The statute is in the spirit of the new rules, but goes further, so that if a point arises in the course of an issue, and that point is found for the plaintiff, although the issue is found against him, the judge has authority to certify that point to have been so found if left to the jury, and on that costs are to be given to the plaintiff or defendant, as the case may be (d). The defendants cannot ask to have the verdict entered on the issue not guilty; or that it was not the plaintiff's invention; or that the invention was not new; those points having been distinctly left to the jury.

The fair mode of looking at a patent and the specification is, to inquire what is the spirit of the invention, or the principle; and this must be embodied in some mode or method, because it is admitted on all hands you cannot take out a patent for a principle. But although the law says, undoubtedly and correctly enough, that you cannot take out a patent for a principle, that is, for a barren principle, when you have clothed it with a form, and given it body and substance, in which the principle may live and produce the benefit which you claim to result from it, why then in many cases (and it is a consolation to every just and honest feeling one has on the subject of invention), although you Cannot have a patent for a principle in substance, you can have a patent for the spirit of your invention; for if any other person comes and clothes the spirit of your invention with a different body, and puts that principle in use in any other shape or fashion, it is always a question for a jury, whether, however different in appearance, in shape, in form, in method-whether the article or the practice, if it be matter connected with the arts and manufactures, be or be not substantially an adaptation of the

(e) The new rules came into operation Easter Term, 1834, and Lord Brougham's Act (5 & 6 W. 4, c. 83) received the royal assent 10th September, 1835.

U

In the Exchequer.

A

E. T. 1837.

principle, to

be the subjectmatter of a pa

tent, must be

embodied.

(d) As to the practice under this, see Losh v. Hague, post, and notes to 5 & 6 W. 4, c. 83, s. 6, in Law & Practice, Statutes.

Argument on rule for a nonsuit, or new

trial.

principle, applied with the same view, to answer the same end, and merely imitated in substance, whatever difference there may be in point of form.

I cannot give a better illustration of this than by referring to a case in which the Lord Chief Baron led; it was about a machine that was called a gas meter. (Ante 106.) [Alderson, B.: It was for measuring the quantity of gas that was supplied to every individual, in order that they might not take it without its being known. There never was a more instructive case than that; I remember very well the argument put by the Lord Chief Baron who led that case for the plaintiff, and succeeded. There never were two things to the eye more different than the plaintiff's invention and what the defendant had done in contravention of his patent right. The plaintiff's invention was different in formdifferent in construction; it agreed with it only in one thing, and that was, by moving in the water, a certain point was made to open, either before or after, so as to shut up another, and the gas was made to pass through this opening; passing through it, it was made to revolve it; the scientific men, all of them, said, the moment a practical scientific man has got that principle in his head he can multiply without end the forms in which that principle can be made to operate. The difficulty which will press on you, and to which your attention will be called in the present case, is this: you cannot take out a patent for a principle; you may take out a patent for a principle coupled with the mode of carrying the principle into effect, provided you have not only discovered the principle, but invented some mode of carrying it into effect. But then you must start with having invented some mode of carrying the principle into effect; if you have done that, then you are entitled to protect yourself from all other modes of carrying the same principle into effect, that being treated by the jury as piracy of your original invention. But then the difficulty that will press on you here is, that on the evidence there does not appear to have been any mode of carryThe adoption of ing the principle into effect at all invented by you.] I was cita principle, ing the case of the gas meter only to get at a principle with racy, a question which to start. I take it, therefore, I may assume from the aufor the jury. thority of that case, on your lordship's authority now, that if a man invents, adapts a principle, and embodies that principle in a mode, it is then a question for the jury, whether any other mode of doing the same thing is or is not a piracy of that which he has invented.

whether a pi

The title of the patent is merely "an improved expanding table," and I say that that is a very correct title, whatever was the object of the invention, whether to secure to himself the mere surface, or the mode, or any thing else. The object of the invention, properly speaking, was to improve the construction of a dining table; that is the large object; but the special object