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that the quantity and proportions thereof, and of the limestone Specificatim. and raw mine rubbish to be made use of in the charge as afore. A. said, should be varied; and that, as a general rule of practice to be adopted and followed, I do declare that I do mix all, or any, or either of the said sorts of the said slags or cinders with raw mine rubbish, if required, or I do mix all, or any, or either of the said last-mentioned compounds with raw mine rubbish, if required, until the crude or pig iron contained in either of such aggregate mixtures shall amount to forty per cent., or less than forty per cent., if so wished; and then, in order to constitute a charge, I do take from either or both of such aggregate mixtures from 350 pounds to 550 pounds in the whole, and 18 cubic feet, by measure, or about 450 pounds, by weight, of coke; and I do flux the whole, by adding six parts, by weight, of limestone, for every five of such parts of the raw mine rubbish as may have been used for the purpose last before-mentioned; and I do add so much more lime or limestone, as may be known by assay or otherwise to be required to produce a fusible cinder. And further, that it will be advisable to reduce the said slags, or the said mixtures of the said slags or cinders, or the said compounds of the said slags or cinders with the said iron stones and ores, and the limestone and raw mine rubbish aforesaid, previous to their being put into the blast furnace, to about the size at which materials are commonly used in the blast furnace. And further, I do draw off from the blast furnace the crude or pig iron afforded by the said slags or cinders, or by the said last-mentioned mixtures or compounds. And I do make the several sorts of crude or pig iron, obtained from the said slags or cinders, or from the said last-mentioned mixtures or compounds, into bar iron, by puddling, reheating, and rolling, compressing, or hammering; or by refining, puddling, reheating, and rolling, compressing, or hammering, whether only one of the said several sorts of crude or pig iron be used, or whether all or any of the said several sorts of crude or pig iron be mixed and used together, or whether they, or any one or more, be mixed with any one or more sort or sorts of any other crude or pig iron, and used; or whether all, or any, or either of the aforesaid sorts of crude or pig iron be compounded and used with refined metal, obtained from the said slags or cinders, with iron stones or ores, or with the refined metal of any other iron, and used; or whether only one of the several sorts of refined metal obtained from the said slags or cinders, or from the said mixtures thereof, or from the said lastmentioned compounds, be used; or whether all or any of the said last-mentioned refined metals be mixed and used together; or whether they, or any one or more of them, be mixed with any one or more sort or sorts of refined metal from any other iron, and used; or whether only one of the several sorts of
Specification. puddled iron, obtained from the said slags or cinders, or from A.D. 1815.
the said mixtures thereof, or from the said last-mentioned compounds, be used; or whether all or any of the said lastmentioned puddled iron be mixed and used together; or whether they, or any one or more of them, be mixed with any
one or more sort or sorts of any other puddled iron, and used. Also, in the dis- And I do further declare, that I have discovered that the adcovery that lime alition of lime or lim
at the dition of lime or limestone, or other substances consisting quality of , chiefly of lime, and free or nearly free from any ingredient cold short.”
known to be hurtful to the quality of iron, will sufficiently prevent or remedy that quality in iron, from which the iron is called “cold short,” and will render such iron more tough when cold; and I do, for this purpose, if the iron, howsoever and from whatever substance the same may have been obtained, be expected to prove “cold short,” add a portion of lime or limestone, or of the other said substances, of which the quantity must be regulated by the quality of the iron to be operated upon, and by the quality of the iron wished to be produced; and further, that the said lime or limestone, or other aforesaid substances, may be added to the iron at any time subsequently to the reduction thereof, in the blast furnace, and prior to the iron becoming clotted, or coming into nature, whether the same be added to the iron while it is in the refining or in the puddling furnace, or in both of them, or previous to the said iron being put into either of the said furnaces. And further, that I do, in preference, add quick-lime instead of limestone, or the said other substances (either of which, as to quantity, whensoever and howsoever so used, may be considerably varied), to the iron in the refinery furnace, and in the puddling furnace. And I do further declare, that I do greatly prefer to mix or add, in the refinery furnace, about from one-fourth to onethird, by weight, of the crude or pig iron which has been obtained from the slags or cinders, with three-fourths or two-thirds of the crude or pig iron which has been obtained from the iron stones. And I do further declare, that, for the operation in the refinery furnace, I do add the lime as it is obtained from the kiln, in the proportion of one-sixtieth to one-fortieth part, by weight, of the whole weight of the crude or pig iron intended to be worked in the furnace; and I do apply about one-half of the said lime, together with the crude or pig iron, as it is thrown upon the refinery fire, and the remainder from time to time during the course of the refinery operation, taking care not to suffer the slag or cinder which is produced to get too thick, nor to endanger the stopping up of the furnace: and I do also declare, that in the puddling furnace I further add lime in the proportion of from one-hundredth part to one-eightieth part, by weight, of the whole weight of iron in the furnace, which lime I previously slake and wet to prevent
its being carried off by the draught of the furnace; and I do apply Specification. the same, in the course of that part of the operation, which
A.D. 1815. is known to workmen by the term of “ drying the iron;" and, moreover, I take care that the same shall be intimately mixed and minutely dispersed through the iron by the usual operations of puddling.
In witness, &c.
From the subsequent legal proceedings on this patent, it is extremely doubtful whether any invention, in fact, existed in this case, which could be considered as new. That the invention professed to be set forth in the specification, whether in the bore extended sense of a discovery, or in the more limited sense of an improvement only, is the subject-matter of letters patent, is never doubted, hot on the contrary assumed throughout the elaborate judgment of the Court of Common Pless; and the dictum of Lord Eldon, post 237, in the proceedings before him, “that there may be a valid patent for a new combination of materials previously in use for the same purpose, or for a Rew method of applying such materials; but the specification must clearly express, that it is in respect of such new combination or application;" has been recognised and acted on by all the courts from that time to the present.
Inventions of the class of the preceding are sometimes designated by the term chemical;' but they would appear to be more appropriately described as, the use and application of a known substance for a specific purpose ; which general description is in practice limited and defined by the condition of novelty, which is essential to, and implied in, the term invention. The substance itself may be old and well known; the manner in which it is used and applied also old and well known; the specific result or purpose, old and well known; the novelty or invention will then consist in the simple use and application of that substance. Of this class are, Dudley's, for the use of pit or sea coal, instead of charcoal, in the mamufacture of iron, ante 14; Mansell's, for the use of coal instead of wood, in the manufacture of glass, ante 17; Hall's, for the use of gas in singeing lace, unte 98; Derosne's, for the use of char
coal in filtering sugar, ante 152; Crane's, for the use of anthracite in the manufacture of iron with hot blast, instead of other coal or coke, post; to all which inventions the words of the judgment by the Court of Common Pleas in the case of Crane v. Price & Others are applicable, namely, that “if the result produced was either a new article, or a better article, or a cheaper article, to the public, than that produced before, it might well become the subject of a patent.” Post. The following patents also belong to the same class : Hartley's, for the use of iron plates to prevent fire, ante 54; Forsyth's, for the application of detonating powder in the discharge of fire-arms, &c. ante 96; Neilson's, for the hot blast, post; but the same test of validity does not so directly apply. Buck's, for melting down iron and other metals with stone coal and other coals, without charking, ante 35, may also be mentioned in this class. In none of these is any particular and precise proportions of parts, or method of operating, of the essence of the invention; some proportions must always exist, and must generally be given, and some means or method of carrying the invention into practice must always be described; but there is a marked distinction between the above class of cases, and that in which the invention, in the words of Lord Eldon, is a new combination of materials, previously in use, for the same purpose. To this latter class Hill's invention (if any) would belong; the patent medicines; most paints and cements; all instruments and machines, and other combinations and arrangements of parts already existing.
The above specification furnishes an instructive example of the kind of defects which frequently occur in the specifications of inventions of the class to which it more peculiarly belongs.
Hill v. THOMPSON AND FORMAN.
[3 Mer. 622.]
cording to the plaintiff's said invention and improvements; and from in any manner using the said invention and improvements in the smelting and working of iron, and from otherwise infringing the plaintiff's patent, in the bill also mentioned."
The affidavits in support of the injunction (which was moved for and obtained upon the filing of the bill, until answer or further order) stated the letters patent, dated the 26th of July, 1814, for the plaintiff's invention, which was alleged to consist in the use and application of the slags or cinders thrown off by the operation of smelting (which had previously been considered as useless) to the production of good and serviceable metal, by the admixture of mine rubbish and otherwise, accord
ing to principles of the plaintiff's own discovering Motion to dis. The defendants moved, on the coming in of their answer, to solve injunction.
dissolve the injunction; and upon this occasion a variety of affidavits were produced on both sides, tending respectively to impeach and to assert the validity of the patent, and of the injunction to restrain the breach of it. An affidavit made by the plaintiff referred to the specification of his invention, lodged in the patent office, alleging that he verily believed he was the inventor of the several improvements in smelting and working iron, which were therein mentioned; and the specification referred to contained an explanation of the principles of the alleged invention, which was extremely diffuse, and objected to on the other side as either wholly unintelligible, or so confused and intricate, as not to be capable of being reduced to practice. It was further objected, that except by reference to this obscure specification, neither the plaintiff nor any of his witnesses had stated in what the alleged invention and improvements consisted, nor whether he claimed in respect of invention, or of improvements merely; and that a patent, to be good, must not be more extensive than the invention. The defendants' afidavits also went to deny the originality of the invention altogether. R. v. Else (a), Boulton v. Bull (6), Hornblower v. Boulton (c), and Harmar v. Playne (d), were cited on the part of the plaintiff in answer to the objection to the specification.
The case was argued on several occasions and at considerable length, by
Sir S. Romilly, Bell, and Phillimore, for the defendants, in
support of the motion to dissolve the injunction; Trower, On motion for Wetherell, and Raithby, contra. an injunction, Lord Eldon, L.C., said, he doubted whether the injunction the affidavits should state the ought to have been granted in the first instance, unless the alleged inven- affidavits had stated more particularly in what the alleged intion with particularity. fringement of the patent consisted; and that it should have
time of making it on the state the party's
belief at that
me duration nder them. is
ent but o
been shown to be by working in the precise proportions mentioned in the specification, as being of the essence of the invention. That when, in future, an injunction is applied for ex parte On application on the ground of violation of a right to an invention secured by en part
Y injunction, the patent, it must be understood, that it is incumbent on the party affidavits must making the application to swear, at the time of making it, as to his belief that he is the original inventor; for although when he time that he was
the true and obtained his patent he might very honestly have sworn as to the his belief of such being the fact, yet circumstances may have subsequently intervened, or information been communicated, sufficient to convince him that it was not his own original invention, and that he was under a mistake when he made his previous declaration to that effect.
The principle upon which the court acts in cases of this de- The grant of seription is the following: Where a patent has been granted, hem
sudo and exclusive and an exclusive possession of some duration under it, the possession of court will interpose its injunction, without putting the party so previously to establish the validity of his patent by an action at a ground for inlaw. But where the patent is but of yesterday, and, upon an
all out previous application being made for an injunction, it is endeavoured to trial at law;
aliter if the pabe shown in opposition to it, that there is no good specification, a or otherwise that the patent ought not to have been granted, terday, and the the court will not, from its own notions respecting the matter patent be des
validity of the in dispute, act upon the presumed validity or invalidity of the nied. patent, without the right having been ascertained by a previous trial, but will send the patentee to law, and oblige him to establish the validity of his patent in a court of law, before it will grant him the benefit of an injunction.
In the present case, I shall say nothing as to my opinion of the validity or invalidity of the patent. The affidavits in sapport of the injunction represent that the defendants have made iron in the way mentioned in the specification. But whether it is to be considered as a patent for extracting iron from slags or cinders, by working and smelting, and by the admixture of certain materials to reduce the per centage to forty per cent., or for mixing cinders, limestone, and mine rubbish, in certain proportions, it should, before any injunction was Before injuncgranted, have been pointed out that the patent was actually in-tion is granted, fringed by so mixing the ingredients, or so reducing the per the infringecentage. Here I cannot but entertain a doubt, whether the me improvement as to the lime destroying the “cold short” is, or ticularity. is not, a new invention, but that is not for me to decide ; and if on the trial of an action, the witnesses should prove the use of lime for the same purpose previously to the grant of this patent, still another question will remain, admitting that a patent may be good for a mere method of producing a more beneficial and effectual result, from the adhibition of the same materials. .
But it is enough in the present case to resort to the principle
ment mus stated with