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improvement in steam engines, the mode of obtaining a rotary motion from an alternate motion of the piston, by means of the lever d, the mortice n, and the pin or bearing i, or by means of the mechanism or combination of levers shown at figure 4; and, secondly, as regards my improvements on machinery for propelling vessels, the mode hereinbefore described of giving the required angle to the paddles by means of the rods g, h, i, j, and k, the bent stems marked f, the disc A, and the crank b.
In witness, &c.
The improvements in the machinery for propelling vessels, consisted in a mode of constructing the paddle wheels, so that the floats might enter and quit the water at any required angle; the specification does not profess to give any directions as to the best angle, but only to point out the mechanical means by which the selected angle may be adopted in practice. See per Alderson, B., past.
In the common wheel, the paddle or float-board strikes the surface obliquely, the consequence of which is, a shock on entering, and a lifting of the back or tail water on quitting, the water ; whence a considerable loss of power, and an unpleasant tremulous motion in the vessel. It has been at. tempted to obviate these inconveniences bv imi. laung in the paddles or floats the feathering of the boatman's oar, and to give to the floats a certain angle of position.
R. Buchanan (18 October, 1813) had a patent for this object, which the specification announced in the following terms:-“And moreover in such cases as may require that the position of all the paddles should be changed at the same time with regard to surrounding fixed objects, by a motion equivalent to that of feathering or changing their obliquity; I do produce such and the said change by any well-known means of construction."
This contains a distinct communication of the principle of giving different angles to the paddles, and subsequent invention must, therefore, be confined to the means for carrying out the principle into practice, or for producing the same effect.
The method described by Buchanan consisted in making the float-boards turn on horizontal spindles, by means of cranks with arms or spokes connected to a collar revolving upon a hollow drum, fixed to the side of the vessel, so that the floats should enter and leave the water at right angles to the surface.
The object of this, and all subsequent inventions, is to make the floats enter and leave the water at an angle differing from the angle in the common paddle wheel, that is, at some angle different from the radial angle; the avoiding the radial angle seems to have been the great object, and has been the subject of a great variety of patents. These moveable floats have not generally been successful in practice, and Galloway had a subsequent patent for improvements in paddle wheels, the invention in which consists in a divided float-board, the several parts of which are fixed and arranged according to an assigned law. This patent was litigated in Galloway v. Bleador.
MORGAN AND ANOTHER v. SEAWARD AND OTHERS.
Cor. Sir L. Shadwell, V. C., Trin. Vac. 1835.
In Chancery. This was a motion to dissolve an ex parte injunction obtained to restrain the defendants from infringing the preceding patent, which had been assigned to the plaintiffs.
The Vice CHANCELLOR.—The question in the case is simply, whether the eccentric motion is produced by the adoption of the same combination of machinery by the defendants as the plaintiffs are entitled exclusively to use. Upon reading the specification, it appears that a particular combination, insisted on, is described under the items rods, bent stems, disc, and crank. If Mr. Galloway had been asked at the time he gave this description, whether he meant the disc should revolve on a crank only, or that it should be made to revolve by any other suitable
Sir L. Shadwell, means, his reply might have been general; but as he has thought V.C.
proper to specify a crank, the question to determine is, whether the eccentric axis with a collar in the defendants' contrivance, is the same as a crank in that of the plaintiffs'. The term crank is a relative term, and might have reference to some particular piece of machinery. The arrangement adopted by the defendants is a most important variation from the invention, for instead of weakening the action of the paddle wheel, that is preserved entire, unbroken, and unencumbered. That perpetual vibration, or destroying power, as it might be termed, on the outer part of the frame work that supports the wheel, is entirely avoided, and the vibration at the centre of the disc within the wheel is transferred from a part of the machinery least able to bear it to the side of the vessel, that is made strong for the purpose; and although it might be said the action of the rods on one side of the float-boards might distort them a little, that inconvenience might be more than counterbalanced by other advantages. The alteration is, therefore, not merely colourable, but prima facie a decided improvement by the introduction into
a combination of three things of that which is not noticed at all The question of in the specification. That is, however, the proper question for the identity of a jury to consider: the court had merely to decide what was to two mechanical contrivances, is be done in the mean time. Now, it was possible a jury might for a jury. find there had been no invasion of the patent. If that were so,
and the injunction should be continued, where was the justice? If there has There is no power in the court to make the plaintiffs pay the been no in- defendants damages, on the ground that the injunction has been fringement, the
continued too long. On the other hand, if the jury should power to make declare there had been an infringement of the patent, the court for the injunc. had a power over the defendants, and the proper measure of
damages would be the amount of the engines sold, and the profit derived therefrom. If the defendants are permitted to complete their present contract, or to enter into new ones, ample justice may be done to the plaintiffs, by taking an account of the profits the defendants may have realized. There could be no difficulty in this, because there were such things as books, papers, and witnesses. These machines could not be secretly made, and the notoriety attached to every thing connected with them is a sufficient security to the plaintiffs that they may obtain every necessary account. I shall, therefore, direct the injunction to be dissolved, and an action to be brought by the plaintiffs, to try the question of infringement. An account to be taken of the profits arising from the present and any contracts effected in the mean time, to be rendered hereafter to the parties declared entitled at law.
court has no
The following was the order in pursuance of the above judgment:
This court doth order that the plaintiffs, or either of them, be at Order. liberty to bring such action as they or he may be advised against The plaintiff to the defendants, and their partner, James Durnford Capel; the bring an action. defendants, and the said J. D. Capel by their counsel, undertaking to admit on the trial that all the right and interest of The defendants Elijah Galloway, in and under the letters patent, are vested in tiffs' title to the the plaintiffs or plaintiff in the action; and it is ordered, that patent, and 10 the injunction granted in this cause be dissolved, the defendants, count.
keep an acand the said J. D. Capel, by their counsel, undertaking to keep an account of the cost and expense of the paddle wheels made or to be made pursuant to the contract entered into by them with the Mediterranean and Levant Steam Packet Company, and of all moneys received and to be received in respect of such paddle wheels; and also an account of any other paddle wheels or machinery connected with or relating to paddle wheels to be made by the defendants and the said J. D. Capel, or any of them, either alone or jointly with any other person or persons, upon a principle the same as or similar to that of the paddle wheels made and fitted by the said defendants and J. D. Ca pel to the Levant Steam vessel in the pleadings mentioned, before this matter comes on again in this court, and the cost and expense of all such paddle wheels and machinery so to be made, and of all moneys to be received in respect of the same; and to submit to such order as this court shall think fit to make in this cause, respecting the paddle wheels made or to be made in performance of the said contract, and all such future paddle wheels and machinery connected with or relating to paddle wheels as aforesaid, or the other matters in question in this cause. And it is ordered, that the plaintiffs be at liberty to amend their bill by making the said J. D. Capel a party thereto; the said J. D. Capel appearing by his counsel, and undertaking to be bound in the same way as if he were now a party to the said bill. And The plaintiffs
and their witit is ordered, that the plaintiffs and their witnesses be at liberty nesses to have to inspect at all seasonable times, giving reasonable notice, the inspection. paddle wheels or machinery connected with or relating to paddle wheels made or to be made pursuant to the said contract, or which before this matter comes on again in this court shall be made by the defendants and the said J. D. Capel, or any of them, either alone or jointly with any other person or persons as aforesaid; and when the same respectively shall be either finished or in progress of being made. And it is ordered, that Parties to proall parties do produce at the trial of the action all books, papers, all papers, &c. and writings, in their respective custody or power, relating to the matters in question. And any of the parties are to be at liberty to apply to this court as there shall be occasion. And this court doth reserve the consideration of costs till after the trial of the said action.
duce at the trial
MORGAN AND ANOTHER v. SEAWARD AND OTHERS.
Proceedings at law.
Cor. Alderson, B., Trin. Vac. 1836. The declaration assigned as breaches—making and selling divers pieces of machinery in imitation of that part of the said invention for propelling vessels, and the using and putting in practice divers pieces of machinery made on the plan of the said improvement for propelling vessels, and in imitation of the last mentioned part of the said invention ; and the imitating certain parts of, and making certain additions to and alterations in, that part of the said invention for propelling vessels.
The defendants pleaded; 1st. Not guilty. 2d. That the said E. Galloway did not by an instrument in writing particularly describe and ascertain the nature of the said invention. 3rd. That the said invention is not an improvement in steam engines. 4th. That the said invention is not an improvement in machinery for propelling vessels. 5th. That the said invention was not, at the time of granting the said letters patent, new; and that the said E. Galloway was not the true and first inventor thereof. 6th. That the said invention was and is of no use, benefit, or advantage, to the public whatsoever.
On these pleas issue was joined, and the notice of objections (a) pointed, amongst others, to the following particulars :That the specification does not show whether the patentee claims in respect of a new combination of things previously known, or the separate parts, rods, bent stem, disc, and crank. That no particular angle or dimensions, lengths, sizes, and proportions, are given, and no directions by which the required angle or any definite angle can be ascertained or produced. That there were various mechanical objections to the mode described. That all wheels made according to the specification have failed entirely; and those now made by plaintiff are substantially different from those described. That the said improvements in steam engines are applicable, if at all, to but one sort of steam engines; and that the description given is insufficient, setting forth various particulars.
Sir F. Pollock, Sir W. Follett, and Butt, were for the plaintiffs; Sir J. Campbell, A. G., Alexander, Q. C., and Jervis, for the defendants.
ALDERSON, B.: Gentlemen of the jury. The plaintiffs complain of the defendants for infringing their patent. The defendants make several defences. The first defence is, that they did
The summing up.
(a) By the statute 5 & 6 W. 4, c. 83, commonly called Lord Brougham's Act, which received the sanction of the legislature 10th Sept., 1835, in any action for infringing a patent, the
defendant is required, on pleading, to deliver a notice of the objections on which he means to rely at the trial. As to the requisites of such notice, see Law and Practice, Ind. tit. Objections.
and not the mere form, are
not infringe the patent. That is a question of fact with regard Alderson, B. to which I do not think it is at all material to recapitulate the
to the jury. evidence, for I understand from an intimation you have thrown out, that you entertain no doubt about it, that is, that the one is an infringement of the other. Upon that subject the ques. The substitution tion would be simply, whether the defendants' machine was only equivalents, is colourably different, that is, whether it differed merely in the but a coloursubstitution of what are called mechanical equivalents for the contrivances which are resorted to by the patentee. I think, when you are told what the invention of the plaintiffs really is, and what the machine of the defendants really is, you will see that those differences which Mr. Donkin and others point out as existing between the one machine and the other, are in truth differences which do not affect the principle of the invention. Therefore the two machines are alike in principle, one man was the first inventor of the principle, and the other has adopted it, and though he may have carried it into effect by substituting The substance one mechanical equivalent for another, still you are to look to and principle of the substance and not to the mere form, and if it is in substance the machine, an infringement, you ought to find that it is so. If in principle it is not the same, but really different, then the defendants can- to be looked 10. not be said to have infringed the patent. You will, however, when you are considering that subject, remember, that when the model of Mr. Stevens's paddles was put into the hands of Mr. Donkin, he said at first sight that it was exactly like the plaintiffs', and so like was it as to induce him to say that it was precisely the same in principle, till I pointed out to him a material difference in it, and then it appeared, that though there was a similarity of execution, there was a real difference in principle, therefore it was not similar to the plaintiffs' wheel, though at first sight it had the appearance of being similar. So you see you ought to look always to the substance, and not to the form.
Then, gentlemen, the next point is, whether the specification which Mr. E. Galloway enrolled at the time he obtained this patent, is, or is not, a valid specification. That turns on a matter which it is very proper should be submitted to your consideration. I will waive it for the present, for I would rather dispose of the more clear parts of the case first. Then the third ground of defence is, that the invention of the steam engine is not an improvement in steam engines. And the fourth, that the invention of the paddle wheel is not an improvement in propelling vessels. As to that, surely there can be no doubt that it is an improvement in propelling vessels, when you are told by evidence, which has not been effectually contradicted on the other side, that the effect of this improvement in the arrangement of the paddles of these wheels has been to increase the speed of the steam boats fitted with them, by from one to one and a half knots an hour, and to make them more manage