Motion to dis- presumption in favour of the patent; but when, as in the presolve the injuncsent case, the article is of uncommon use, easily sent about, and tion. for the supply of which one manufactory in the country is amply sufficient, so that it would not answer for any other person to set up the trade, the same kind of presumption cannot arise from long-continued enjoyment. Under such circumstances there will, in fact, be no acquiescence by the public, the parties interested being so extremely few. The bill leaves it in uncertainty whether the patent is for the fuze or for the machinery; if for the latter, it might have been supported; but as it now appears to be for the fuze, and the affidavits state that the inventor obtained the idea from another person, the patent is not to be supported for the purposes of the injunction. This point was not raised until the present period, and the court should hear the affidavits as to this point and dissolve the injunction in the interim, until the matter can be tried at law. If the injunction be continued until the trial, so as to stop the defendant from proceeding, and that turns out to have been wrong, no compensation, according to the ordinary rules of the court, can be given, unless the plaintiffs were put under an undertaking to make such compensation to the defendant for any injury done in stopping him (c). In all cases of injunction, on the presumption from long-continued possession, the objection to the patent is on some defect in the specification, which is, as it were, the title deed of the patentee; and having been published to the world for a considerable time, and thereby challenging all questions, if there has been, with the consent of all other persons, an exclusive enjoyment under the title deed, the court will give credit to its legal validity, and will not refuse to protect the party in the mean time until the trial; but the objection of want of novelty goes to show that the patent ought not to have been granted (d). [Sir L. Shadwell, V. C.: Suppose the specification clearly bad, is not the patent then in the same situation as in the cases put? Is not the principle this: that the court sets the fact of the enjoyment against the legal objection, either of the badness of the specification, or the fact of the patentee not being the inventor?] The bill in this case is not framed on exclusive possession, for the purpose of applying the principles of the court as to exclusive possession and long enjoyment. The court cannot say here, with reference to the nature of the defence, that there has been exclusive enjoyment, or that the period of enjoyment is such as, within the authorities, would warrant the continuing of the injunction. (c) A case of Protheroe v. Good was referred to, in which an injunction was applied for to restrain the defendant from stopping up a way-leave. The court thought there were sufficient grounds for granting the injunction until the hearing, but put the plaintiff under an undertaking to make compensation, if requisite. (d) The learned counsel cited the cases of Boulton v. Bull, 3 Ves. jun. 140; Harmar v. Playne, 14 Ves. jun. 130; and Hill v. Thompson, 3 Mer. 622; Kay v. Marshall, 1 Myl. & C. 373. looked to in Sir L. SHADWELL, V.C.: In the case of Kay v. Marshall (c), I certainly could not think it right in the first instance to allow the demurrer, but it struck me that sooner or later the question must be determined, and therefore, without allowing the demurrer, I directed that course of proceeding (d) to be adopted which would have the effect of determining the question at law; for determined at law, it was plain the question must be. But in that case I thought myself bound to oppose length of time, during which there had been the enjoyment of the patent, against any conclusion merely of law, which I myself might be inclined to draw from the specification, which in some measure appeared to me to be defective; and my Lord Chancellor, as far as the question was concerned, whether the demurrer Length of enshould be allowed or not, entirely agreed with me, namely, that joyment to be whatever may be the objection to the specification, this court is answer to a theoretical objec bound to look to the fact that there has been an enjoyment under the patent, as a sort of practical answer to the theoretical ob- tion. jection. My order went to direct, that there should be a trial immediately, before I gave a final opinion. Upon the argument of the demurrer, the Lord Chancellor said, that was no objection; and therefore he varied the order, but he did not disagree as to the view which was taken of the whole case, as presented by the bill. The Lord Chancellor all along recognised that sort of doctrine which the profession generally understood had been stated with sufficient clearness in Hill v. Thompson, and I understand in that particular case there is an objection of a given kind to the validity of the patent, namely, that the patentee was not the first inventor. Well, that was an objection of law, so if there was an objection to the validity of the specification, on the face of it, that would be an objection of law; but as I apprehend the circumstance, that there had been an exclusive enjoyment for a length of time under the patent, that would be, prima facie, such a circumstance as would bind the court to recognise the question of injunction, either in granting it or dissolving it. I admit that if you were to say six years are sufficient, you may, by cutting off successive portions, reduce the six years to nothing. But I have nothing to do with any other case than the case before me, and I find the patent sealed in September, 1831, an injunction granted by my Lord Chancellor in September, 1837, and no attempt made to dissolve it until February, 1839; and then the attempt, such as it was, has been allowed to continue a sort of meagre existence from month to month, while affidavits have been put on the file. It appears to me to be rather too much to say that I am not to treat this case in the () Myl. & C.373. (4) His Honour, in the case alluded to, directed the motion to stand over until an action was brought to try the validity of the patent. manner in which Kay and Marshall, and Hill and Thompson, An order for in- were treated. And it is admitted with respect to the order for demnity not usual. indemnity, that it is unusual to make such an order for the in- Proceedings at law. Declaration. Pleas. Objections. BICKFORD AND OTHERS v. SKEWES. The declaration having stated the grant of the letters patent, the enrolment of the specification, and the title of the plaintiffs, and the user and exercise of the said invention by Bickford and his partner, and the plaintiffs-assigned as a breach, the making and selling divers, to wit, &c. instruments for igniting gunpowder when used in the operation of blasting rocks, and in mining, in imitation of the said invention, in breach, &c. The defendant pleaded-1. Not guilty. 2. That the said Bickford was not the true and first inventor of the said instrument. 3. That the said invention was not at the time of the granting of the letters patent a new invention, but, on the contrary thereof, had been publicly used and exercised within England before, &c., to wit, on, &c., wherefore, &c. 4. Setting forth the specification, alleged to have been enrolled, and averring, that the said Bickford did not particularly describe and ascertain the nature of the said invention, and in what manner the same was to be performed, by an instrument, in writing, under his hand and seal, in pursuance of the said proviso in the said letters patent mentioned. The objections under the 2d and 3d pleas were an echo of the pleas, and under the 4th plea set forth several specific instances of alleged insufficiency, and uncertainty, and ambiguity. Amongst others, that the words "or any other suitable material," were calculated to mislead, none (e) Practice as to venue. The defendant's counsel suggested that it should be part of the terms of the order, that the action should be tried in Cornwall, as all the parties reside there, but the Vice Chancellor refused, observing, that much useful information might perhaps be given by persons who were never in Cornwall. The venue was laid in London, but changed by order of Mr. Justice Coleridge to Devon, the jury to be summoned from the district east of Exeter. An application was then made by motion in the suit to the Vice Chancellor for an order that the trial might take place at the ensuing assizes, which would be in a fortnight; this application was refused with costs, and an appeal to the Lord Chancellor was dismissed with costs. As to venue in actions, for the infringement of a patent, see Law & Practice, IND. tit. Venue. others being described, or any criteria given for ascertaining A. D. 1839. what was suitable; that the invention was impracticable, inasmuch as gunpowder cannot be used unless mixed with other materials, and that no other proper combustible matter than gunpowder is mentioned. At the trial before Coleridge, J., at the last Devonshire Verdict. assizes, the plaintiff had a verdict on all the issues. a Motion for non a Bompas, Serjt., in pursuance of leave reserved, moved for rule to show cause why a nonsuit should not be entered, or verdict for the defendant on the fourth issue; or why a new trial should not be had, on the ground of the verdict being against evidence. case. The specification, in describing the materials of which the fuze is to be composed, uses the words, "hemp, flax, cotton, or any other suitable material." No evidence was given at the trial of the inventor having tried any other material than flax, or that any other would do. That description is not sufficient; a party has no right to throw experiments upon the public. The specification also uses the words, " gunpowder, or other proper combustible matter." There was no evidence that any other substance than gunpowder would do. Colonel Pasley thought detonating powder might do, but he did not know. The insertion of this passage is mere speculation. The rules laid down in Turner v. Winter (f), are strictly applicable to the present [Lord Denman, C. J.: Was there any evidence that the other things which he said would produce the effect would not produce it?] None. This specification is not accidentally, but intentionally, uncertain, meaning to grasp at more than the inventor himself had discovered, so as to keep other persons from using it, or making other experiments. As to the plea whether it had been publicly used in England, the evidence was, that there was an Irishman-of his existence there was no doubt, though no one knew his name--who went about selling fuzes, exactly the same as the present fuze; that he exhibited it in a blacksmith's shop, before those men who were there; that he let it off in the mine, and put it in water in the presence of every body, and gave it to the workmen, who took it down, examined it, and tried it-fired it off, and found it answer. This was in the street of Redruth, in the very centre of all the mining population. Many persons took it in their hands-they examined it -opened it, and saw there was powder in it, and that it was in the shape of a cord, and of so simple a description, that if you put it into the hands of any workman, he could, from simply (ƒ) Ante, 77, and cases there cited. seeing it, immediately make another that would answer the purpose. It is nothing more than gunpowder in the middle of a piece of twine. Not that such an invention ought to be precluded from a patent; the best improvements are the most simple the mere fact of showing such an article is a publication. Although a patent, supposing it to be good, is not less good because it is for the most simple invention that ever was heard of, still if you make publication of so simple a thing, it is known to every body the moment they see it. [Coleridge, J.: I thought all this was for the jury; there was a great deal of negative evidence on the part of the plaintiffs; they called a great number of experienced miners, who said, until this invention they had never known of any thing like it.] Supposing this to have been used in this way, I submit it is a public user; had this been repeated fifty times, can any one doubt that would have been a public user (g)? The true principle is this: in order to insure that when a person takes out a patent he shall be really the inventor, some precaution is necessary that he should not have had the means of learning it from other sources; and therefore it is said, if it has been publicly used, it is too late for a person to have a monopoly. What is there to prove that Mr. Bickford did not learn this from individuals who had seen it publicly? That is what the rule is to guard against; and the learned judge should have told the jury, that there had been a publication of the invention (h). (g) This argument would seem to show, that a question of this nature must be for the jury. (h) The following was the evidence as to the point at the trial : Trengrove : "I saw an Irishman ten or eleven years ago in the western part of the mine. He had some safety rods with him, which he offered to the men who were going under ground. He set one on fire-touched the end with a fuze-the powder took it burned all through, from end to end-he threw it in water-stamped on it, and threw it about-there was no putting it out. Outside it was hemp, bound round just the same as we are using now; too much tar or rosin about its outside. Ï saw no difference between it and the safety." William Clemens : 66 I am a miner at Camborne; reared there, and worked in the mines in the neighbourhood twenty years; worked at North Roskier; began about thirteen years since; at first they used quills. Whilst working at North Roskier, there was a man came round there; they said he was an Irishman; about ten or a dozen years ago; saw him with a thing for blasting mines; it was made of hemp or twine, just the same as what the safety is made of now. I do not know particularly what part of the mine I was in when I saw him there-near the shop, but I cannot say exactly where it was; I had two of them in my hand, about eighteen or twenty inches long; we carried two under ground, put it into a hole, opened the end of it, lighted it; it went off very well; he had several more pieces, but I did not see him do any thing with it. Some time after I saw Bick ford. I know no difference between the two; they burn in the same way. Mr. Thomas Davies worked there when I had this from the Irishman; we were talking to one another about it; he said there could be a little improvement. I saw the Irishman in the public-house the same evening; he had plenty of these things with him there; they were tied round in a bundle." Whether the facts above stated do or do not amount to a public use and exercise of the invention, such as would vitiate the subsequent letters patent of an independent inventor, is a question left in considerable doubt, on the result of this case. It is, however, an authority in favour of the manner of viewing this question adopted by Tindal, C. J., in Cornish v. Keene, and by the Court of Common Pleas. Ante 44, n. The facts of the preceding case furnish a good illustration of the ambiguity which there is in the phrase, "the use of an invention." These terms may import, the simply using the fuze, in perfect ignorance of its constitution, or of any mode of manufacturing it; and they may also import, the exercising and putting in practice the art of making the fuze for sale, as an article of commerce. Suppose the mines to have been supplied with fuzes of this kind, imported from abroad, and that Bickford had learnt the method of making them from abroad, and had obtained a patent, and established a manufactory for them in this country, would such a patent be good? See the smalt patents, ante 12. The protection of an invention so imported, is clearly within the policy and spirit of |