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& Richards

is this to construct an expanding table, that the sections which Sir F. Pollock compose the surface of the original or unexpanded table may against the rule. be caused to diverge from a common centre. At the trial there was a great deal of discussion about the term common centre, and a table in two pieces was said to diverge from a centre. This is an abuse of language. The intention of the party is to be ascertained. Mr. Baron Bolland will remember a case in which Lord Chief Justice Dallas told the jury, that a patent was not to be called in question because among imponderable substances an ignorant patentee had included air. It is sufficient if he expresses himself in such a way that the world at large could not misunderstand him.

The first question is, what is the spirit of this invention? The answer any man must give on reading the specification is this. The spirit of the invention is to construct a table, the surface of which shall consist of pieces, which pieces shall diverge from a common centre, using that expression in perhaps the loose and inaccurate, but still very intelligible sense, and then that there shall be filling pieces to fill up the interstices. That is the spirit of the invention. When you have got that, as Mr. Jupe says himself, "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." Does he lay any claim to the mode in which that is to be done? He must give you some mode of doing it, otherwise his patent would be for the principle. He must show you how to do it; but he says, I do not claim any thing as to the mode of doing it; exactly as if in the gas meter the inventor had said, my mode of doing it is on this principle— you collect the gas and water in two cells, you make them communicate with each other so that one point shall open and the other be locked in a certain section, which will create a rotary motion; the effect will be, you can measure by the number of rotations the quantity of gas that has passed in and has passed out. Suppose he had said, but I lay no claim to the particular mode of doing this, because when once you have the principle, you may do it in ten thousand various ways. If he Some mode had merely said that, without pointing out the way, so that a practical man taking the specification had a mode put before him by which he could do it, however brilliant the invention, however illustrative of the genius of the person who had discovered it, it would not have been sufficient. He says, there are various mechanical arrangements by which the invention may be performed. Is it possible for a patentee more distinctly to have stated what he claimed? He says, what I claim is my improvement in the making of a table, the surface of which shall be in sections, which sections shall diverge from a common centre, and which shall be made a large table by filling up the

must always be

given.

Argument on interstices, and as the details are in part mine, I will show you rule for a nonsuit, or new trial, how it can be done, and will give you a piece of mechanism my servant has given me, but I claim nothing about that (e): all I claim as the spirit of my invention is separating the table from this centre, and filling up certain spaces so left with intermediate parts. Then he gives a mere description of the drawings. Now, I will not occupy your lordships' time by reading this over; it does not appear to me any part of that throws the least light upon the invention. It was said, if that were all meant to be claimed, the specification might have been in a nutshell. Not so. However plain the principle may be, and however obvious when so given to the public, still the patentee must take care to lay it before the public in a practical shape, though he assumes to himself nothing in respect of that shape. [Alderson, B.: You put it very much on the same footing as Chief Justice Eyre in the case of Bull and Boulton.] That is shortly expressing the whole matter I am going upon, and I feel confident that your lordships will read this specification for the purpose of ascertaining what it was the party intended to claim. You will see he did not mean to claim the mechanical part in the remotest degree-nothing beyond the surface of the table. His invention was merely making a table expanding in that particular fashion, which, according to all the experience of persons who have seen tables, is perfectly novel; such a mode had never been seen as that which Mr. Jupe gave out to the world by this patent. The specification describes not only the mode by which he did it, but the mode he obtained from his foreman; but he makes no claim to that whatever. Is it to be said, if a man has discovered a principle, and goes to a mechanic and says "This is my view of an invention, just give me a little mechanical assistance in bringing that into effect ;" and the man says, “I think you might do it thus, and thus ;"-is it to be said that person, who had merely supplied, you might say, the tools or the materials, has a right to claim such invention?(ƒ) Suppose a man not skilled in mechanics were to perceive some obvious inconvenience in any of the common articles of life,— a carriage, a vessel, a ship used for particular purposes,—and he

(e) The following was the evidence on this point. Joseph Reid said: "I am a machinist, and was applied to by the plaintiff to make a model of a table for him. He brought me a pattern made in card board. There was no machinery underneath in the first model to make the parts diverge. Plaintiff's application to me was to adapt some machine to make the sections move simultaneously. His model only drew out by hand. He did not give me any model of machinery, but only a card divided into four pieces, and desired me to construct some machine to effect that mechanically instead of by the hand. The defendant's table acts on precisely the same principle as plaintiff's.

The defendant's machinery is not the same in principle as my machinery. It is only adopted from Gillow's patent slides. The principle of the defendant's machinery is different from plaintiff's. His is only Gillow's principle- Gillow's being slides. The principle of expansion is the same in plaintiff's and defendant's table; looking at the plans of the table it is the same exactly. In both tables the pieces radiate from one common centre. I suggested the mode of making them move simultaneously. The table is quite perfect without that machinery."

(f) As to this, see ante 132, n. e,

Richards

against the rule.

were to go to a mechanical man, and say, "I have for some Sir F. Pollock & time had an idea of something that would be an improvement if such a matter could be achieved; I do not understand mechanics, but the invention is mine." Will any man tell me, that a man so applied to, and assisting the party in one mode of the hundreds, could be considered as preventing the inventor from taking out a patent with his perfect concurrence? The invention here is not the mode, but the thing itself. [Lord Abinger, C. B.: What is the thing itself?] The table that expands from a centre, that enlarges by diverging from a centre.

From the concluding part of the specification it is clear, that Mr. Jupe does not claim the mode, or any particular fashion of the table, or particular machinery. He distinctly disclaims every thing but separating the table into the parts in the manner described.

Now, the third plea sets out the specification, and avers, that the plaintiff did not describe the nature of his invention; and it is now plain, that the question is reduced to this, whether the plaintiff can have a patent for an invention merely consisting of that mode of dividing the surface, embodying one mode his own, another suggested to him and not his own, but which may be done in a variety of ways. That question is on the record. If that which the party claims is that for which he cannot have a patent, the defendants will have the benefit of the revision of a court of error. [Alderson, B.: The specification sets out a quantity of machinery which, unless you come to evidence, must be taken to be the invention of the party.] Whether the machanical parts are the invention or not, cannot depend on the evidence, but on what is stated in the specification. This is one of those questions so eminently within a jury's province, that the court will not grant a new trial when the defendant did not call any witnesses. The real question is, whether, on the evidence as it stands, the jury have found a wrong verdict on the issue of not guilty.

The specification is good. The spirit of the patent is for the separating and widening the surface of the table. That is unanswered. As to the mode of doing it, the plaintiff claims nothing in right of it. He added one of the modes as his invention, the other is not; but the other is doing that simultaneously, the mechanism of which he has nothing at all to do with. It is the invention of his servant. It is no improvement under his patent. It is said, if that be so, the defendant is entitled to a verdict on the third issue. The specification clearly describes what it was intended to take out a patent for, and all the witnesses say the object was dividing, diverging, and filling up. [Alderson, B.: If they had made it long one way, and diverging in another, and widening in another, so that the width is not equal to the length, then it is no infringement.] It is not quite

new

Abinger, C. B.:

Argument on so, because from the drawings your lordships would find, that rule for a nonsuit, or there are some oval tables. [Alderson, B.: It does not operate trial. on oval tables.] Yes; and that is what Mr. Jupe means in that part of his specification, "that sometimes they did not accurately diverge in a radial line"-some oval tables, some oblong, with the principle of diverging away from a centre. [Lord Do you apply the rule also to a sofa table?] Yes, certainly. [Alderson, B.: A square may be operated on in the same way.] That is a specimen of an oblong table. The principle is equally applicable-the title of the patent, and the statement of it. It is not for an expanding circular table—it is for an expanding table; expanding, not from the outside, but the inside. [Alderson, B.: You adapt it to figures that have no centre at all; I should have thought it must be circular.] Mechanics speak of a centre of a square or of an oblong. [Lord Abinger, C. B.: But then your pieces would not diverge from that centre.] They diverge from that which in common parlance would be called a centre; therefore, I say, in reading the specification, and seeing the spirit of the invention, your lordships would say, if on the face of it the thing cannot be that a person cannot have a patent for that sort of invention, then they would have the benefit of it upon the record; but upon the other part, namely, the piracy, the utmost the defendants could have, would be a new trial, upon the payment of costs; and I submit, that if a party obviously endeavoured to infringe, and he is called upon to establish his case, he has no right to take the chances of the day, and then ask for a new trial.

M. D. Hill, Q. C., & Hoggins: The question is, what has the plaintiff invented? It appears that the plaintiff carries to his workman a piece of card cut into four pieces, and says, I want something done by which this card may be made into an expanding table. [Alderson, B.: The only issue on the third plea is, whether the specification truly describes the actual mode by which it is carried into effect; but leaves untouched the validity of the invention-that depends on the second issue.] It is clear, that if the specification be viewed according to common sense, the twenty-three figures were not given for the purpose of exemplifying a principle. Lord Chief Justice Eyre, in Boulton and Watt v. Bull, says that the commonest explanation by which a principle was announced would have been sufficient. [Alderson, B.: That would not have done without some actual contrivance by which it was effected.] Suppose Watt, instead of making the multitude of experiments, had said it would be better, instead of condensing steam in a cylinder, by introducing cold water, to let the condensing go on in a separate place. The bringing this to perfection was the labour and glory of a life. It is conceded that there cannot be a patent for a barren principle. [Alderson, B.: It all arose upon the question, whether the prin

port of the rule.

ciple is not a new manufacture. The moment it was given out M. D. Hill & Hoggins in supin the shape of a steam engine, the court held it was a new manufacture.] The cutting a card into four pieces, and saying, make it into a table, is not a new manufacture. [Alderson, B.: Is not an expanding table a new manufacture, although the table part is old?] The specification claims the machinery. [Lord Abinger, C. B.: There is sufficient doubt about that to make it questionable.] [Alderson, B.: Look at the last part of the specification. You had better consider before the new trial, whether you have got a plea to raise the question whether this goes to the principle; I doubt whether you have any such plea. The first plea merely raises the question of infringement. The fourth is for a new invention; it may be a new invention; you had better look into it. A great number of pleas which I see drawn will require great consideration. A great many say the invention is not useful; they ought to say it is prejudicial, as in Arkwright's case; whether that be a good patent or not, as specified-whether the patent is for a principle or not-is a question you do not raise by the plea.] [Lord Abinger, C. B.: Perhaps the way to look at it is this: he says, I have found out that you may divide a table into four sections or more, and make them expand from a common centre, and so make a large table; therefore, that is my invention; I find it may be done by several mechanical means; I thought it might be useful when done, and I have discovered it may be done; therefore no matter by whatever means you do it, provided you adopt the principle of making the divergence from a common centre by a radial line. Whether that be the construction does not arise upon these pleadings.] That is not his specification. It appears to me the specification does claim a physical mode. [Alderson, B.: Then that is raised by the issue whether it is new. I should entertain great doubt whether any thing more is claimed than an expanded table, and whether the contrivance is any part of the invention. The new rules make it very necessary to consider very accurately what pleas you should make, now you are confined by the pleadings. You will find a great number of dicta given by the judges, and it is probable that something may arise out of the provision that an invention, if prejudicial, is not to be the subject of a patent. I agree that if a patent is not useful, it may not be prejudicial; therefore you ought not to plead that it is not useful (g).]

Rule absolute for a new trial on payment of costs (h).

(g) It would appear from the opinion here expressed, that the invalidity of a patent in respect of its subject-matter, that is, as to whether the patent is for an abstract principle, so far as that question is matter of plea, is not raised by the plea denying the novelty of the invention. The proper plea to

raise this point was much discussed in the recent case of Walton v. Potter, but this, as well as the proper plea to raise the question of want of utility, has not been the subject of solemn decision. See Law & Practice, Pr. F. XXI, notes x and y.

(h) No further proceedings have taken place.

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