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The case for the defendant was this. It was proved (by the Motion for witnesses on both sides) that a person answering the description had sold fuzes; that some iron work had been supplied him for the purpose of making his fuzes; that he lived in a certain house in which there was some manufacture of fuzes, which were described; that some agreement took place at a public-house with Mr. Bickford on the subject of fuzes, described to be substantially the same as those for which a patent was afterwards taken out. There was no evidence of how Mr. Bickford made the first and the second fuzes, or of how he got the machines made; but the only evidence was, that witnesses said there was a time when the fuze was not known-afterwards, these are sold; and this is to be taken in connexion with the number of witnesses who saw something of the kind before. (Coleridge, J.: All that was put to the jury for you, I thought it a strong part of your case.] The only evidence against us was, the body of mining agents not having known of this public use.
Lord DENMAN, C. J.: I think there must be a rule to show cause why a nonsuit should not be entered on the point of law arising on the specification, or why the verdict should not be entered for the defendant on the fourth issue; but with regard to the verdict being against evidence, my brother Coleridge is of opinion, the jury exercised their judgment on the subject. I have not the least doubt it was left fully to them to exercise that judgment, because it is clear, otherwise, it would have been a mere absurdity to ask their opinion on the effect of the evidence at all.
The above rule having been argued, the judgment of the Judgment. court was delivered by
Lord DENMAN, C.J.: The invention, the subject of this patent, professes to be an instrument for igniting gunpowder when used in the operation of blasting rocks, and in mining, and denominated the Miners' Safety Fuze.
The fourth plea sets out the specification at length, and concludes by denying that the patentee had particularly described and ascertained the nature of the said invention, and in what manner the same was to be performed. The issue was joined upon this, and at the close of the plaintiffs' case, it was objected that the specification was defective in two respects, and that the judge ought to have directed the verdict for the defendant. He
the patent laws, since the history of our manufac- the manufacture established here, other countries tures presents many instances in which an inven have thenceforward been supplied from that bon, having been imported into this country, and source.
Judgment on thought that the question as to both was for the jury—he then rule for nonsuit.
explained to them the specification—drew their attention to the supposed defect, as said to appear on the evidence-and left it to them to say, whether they were made out, or either of them. We think he could not properly have pursued any other course.
The specification, so far as it is material to be now stated, was thus:-“ The instrument I manufacture, by the aid of machinery and otherwise, of flax, hemp, or cotton, or any other suitable materials, spun, twisted, and countered, and otherwise treated in the manner of twine-spinning and card-making, as by the several operations hereinafter and in and by the drawings hereunto annexed, mentioned and described, by means whereof I embrace in the centre of my fuze, in a continuous line throughout its whole length, a small portion or compressed cylinder or rod of gunpowder, or other proper combustible matter, prepared in the usual pyrotechnical manner of fire-works for the discharge of ordnance.”
Upon these words it was first objected, that the plaintiff had failed to show any other material but common gunpowder had ever been used in the fuze, or, if introduced, would answer the purpose desired, and the first part of this objection is true in
fact; but it seems to us immaterial if other materials, not speciAll the sub- fied (and it is certainly not necessary to specify all), but still stances which will answer
" within the description given, will answer the purpose; no ambineed not be guity is occasioned-nothing that can mislead the public, or stated, if the public are not increase the difficulty hereafter of making the instrument, by misled.
the introduction of terms which import the patentee has himBut if a whole self used them. The latter part of the objection, if true in fact, class of suba
would have been more material, because it does tend to mislead stated as suit- if it be stated that a whole class of substances may be used to able, and one of them will noto produce a given effect, when, in fact, only one is capable of succeed, this being so used successfully; but there was reasonable evidence, will mislead.
that other combustible substances, prepared in the manner described in the specification, would, if introduced, answer the purpose of the patent.
Colonel Pasley, a most competent witness, had no doubt one substance answering the description, namely, detonating powder, might be used; and the jury were at liberty to infer, that any similar substance, prepared as required by the description, would have the same effect. The other parts of the instrument necessarily limited the combustible substance to be used to such as are capable of being reduced to a fine powder, and introduced into a very thin continuous stream, or thread, into the
centre of the fuze. Some know
Some knowledge of pyrotechnics is and may probably be reledge is requi- quired in the person
inquired in the person who is to read the specification for the site in the person 1 reading the spe- purpose of making the instrument. The specification is ad
hich dressed, not to persons entirely ignorant of the subject matter,
t skill in
but to artists of competent skill in that branch of manufactures artists of comto which it relates; and such persons would be at no loss to pete
the particular select, if selection were at all necessary, the proper combustible manufacture. material from those prepared for the discharge of ordnance for his purpose.
But the jury probably thought, and on the evidence might well think, that the language of the specification was in this part literally true, and that no selection at all was necessary; and this brings us to the last objection, and the most relied upon, that there was a combustible substance prepared and used of the description in the specification, which would not answer the purpose, and this, if true, would be important; for then the specification would be substantially untrue, and would deceive. The substance relied on is called portfire, by the application of which to the firing of cannon it is well known that they were at one time very commonly discharged; but we think that there are two grounds on which we ought not to yield to the objection, in a case in which we see no reason to infer from the language used any fraudulent intention to mislead the public, or to make it unnecessarily difficult to understand or apply the invention. One substance, gunpowder, was the composition chiefly relied on as the most efficacious—the most obvious—the most easily procurable article for the purpose. At the same time, as, on principle, similar combustibles, prepared as fireworks are, would also have the same effect, words are introduced by the patentee, which enable him to include them, for the double purpose of making it an infringement of the patent to use them during its existence, and of directing the attention of the public to them after it had become public property. Language thus used ought not to be astutely construed, so as to overthrow a patent, yet we have a right to require the objector The attention should at the trial make his point clear, and clearly call the of the plaintiff attention of his opponent to it.
must be clearly
This was not done, and we are directed to the at this moment left in doubt on the evidence what the term nature of the portfire means, whether it is the whole instrument, including
objection. both the case and combustible within, or whether it means the latter only. If the former, it is clearly out of the question, and it was certainly so understood by the plaintiffs, for they called an officer of artillery to speak of it, in order to put it at once out of the case, by showing the portfire as used in the service is a totally different thing from the safety fuze, and therefore did not interfere with its claims to novelty. The counsel for the defendant then asked a question or two as to the mode of preparing and combining the combustible within the case, from which was ascertained the fact of destroying the case as it burnt, and on this the objection was afterwards raised. What the quantity of combustible was in the portfire—whether it would have the same effect of destroying the case, if introduced
into it in the very small proportion which the gunpowder in the fuze bears to the cylinder containing it, and many other matters necessary to the point, and establish the objection, were entirely
passed over. The finding of Upon the objection raised, it was proper indeed to take the objection to the opinion of the jury, but if they thought it not established satisdistinctness of factorily, we see no reason to disturb their conclusion; and it the specification is conclusive. may be also sustained on another ground. In one sense,
undoubtedly, the portfire may be said to be used in discharging ordnance, because it ignites the priming or train, which causes the powder in the chamber of the cannon to explode; but it may be well questioned, whether the term discharging ordnance ought to be understood in that sense in this specification. The portfire, so understood, is no more than a mere match, but the fuze is used to perform the operation of a train, the fuze in it being concealed, and the case unconsumed. It could not be used in discharging ordnance in the sense portfire is used for that purpose, as the portfire, whether we mean by that term the whole instrument, case and combustible, or combustible only, has not been shown to have been used or fitted for the discharge of ordnance in any other sense.
Whether we regard the imperfect manner in which this objection was presented, or its entire failure, in fact if the specification be understood in one, and by no means an unreasonable sense, we think the jury were not unwarranted in their finding on the fourth issue, and that this rule therefore must be discharged.
Letters patent, 14th December, 1837, to William Elliott, for “ improvements in the manufacture of covered buttons."
My invention relates to that description of covered buttons with flexible shanks which are made by the aid of dies and pressure, in contradistinction to the covered buttons made by sewing the external woven fabric on to shapes by the needle; my invention having for its object to produce buttons of a more elegant description, and of a more finished character, than have heretofore been manufactured, by the application of certain elegant fabrics not hitherto employed in the making of such buttons.
I woven object to pished charation of ce
(u) The specification proceeds to mention some of the several modes in use, as Saunders's patent, 13th October, 1825, Aston's mode, and Aing worth's patent, 30th August, 1832, and states the
present invention to be an improvement in and applicable to those modes, but to refer particularly to the covering of the face of the button, inasmuch as, according to those, the covers of the buttons
Having described the nature of my invention, and the best Claims. manner I am acquainted with for performing the same, I would remark that I do not confine myself to the mode described for making the internal parts and back of the buttons, though I believe the mode described is the best adapted for the purpose of my invention; nor do I claim the mode described when uncombined with a covering according to my invention; but what I claim as my invention is, First, the making of covered buttons with flexible shanks by the aid of dies and pressure when the face or front of the button is made of any description of fabric with raised surfaces producing a set pattern or ornamental figure by terry weaving for the centre of the button. Secondly, I claim the making of such covered buttons with flexible shanks, when covered with any fabric with ornamental set or central figures or patterns, produced thereon by a process called brocading, or brocade weaving. Thirdly, I claim the application of such figured woven fabrics to the covering of buttons (with Aexible shanks made by pressure in dies) as have the ground or the face of the ground woven with soft or organzine silk for the warp, when such fabrics have ornamental designs or figures for the centres of buttons, as herein described; but I do not claim the application of any figured patterns of woven fabrics, where the portions constituting the covers of buttons may be cut indiscriminately: this part of my invention relating only to such patterns as require centreing, in order to bring the pattern or ornamental figure or design in the centre on the face of the button. Fourthly, in the manufacture of covered buttons, with flexible shanks (made in dies or such like tools with pressure), I claim the application of such description of fabrics as are produced by weaving by the aid of draw wires, which when using silk is called terry velvet (though woollen threads may be employed), whether such fabrics be plain or ornamental. Fifthly, my invention relates to the application of figured velvet, in the manufacture of covered buttons with flexible shanks made by pressure in dies, whether the ornamental weaving be such as to be cut indifferently over the whole surface, or in set designs for the centres of buttons. And lastly, in the manufacture of covered buttons with flexible shanks, I claim the application of the modes and instruments described in figures 2, 3, 4, 5, 6, 7, 8, and 9, for ensuring correctness of cutting out of the portions of fabrics, in order to the pattern being in the centre thereof,
made by dies and pressure, cannot have marked and definite and central patterns, or be of terry velvet, or have patterns standing much above the ground, since the pressure on the face of the but. ton made in tbe dies then in use would injure the cover. Two things were essential to the successlal practice of this mode-one, that the definite designs woven in the fabric out of which the covers were to be made should be accurately cut out;
the other, that the dies and tools should centre the pattern truly, and not press on the surface of the button. The specification having fully described, by reference to drawings, the method of attaining these two requisites, and given various directions respecting the fabrics and the manufacture of the buttons, proceeds as in the text. See as to inven. tion, Sir F. Pollock, post, 222.