Argument to

continue the injunction.

used it, are, to a certain extent, combined together; so that the patent must be taken to be good for the present purpose, and nothing that has occurred has been of such a nature as to preclude the plaintiffs from the right to obtain an injunction. The defendant's affidavit is perfectly silent as to the user of the patent at the other works with which he is connected. There have been fifty-eight licenses taken in England, and a great number in Scotland; several actions and suits by the patentee against infringers have been conducted to a successful issue, and several injunctions have been submitted to: so that there has been a distinct user against the public. The contractors in the case of a patent are the public and the inventor, and the use of it against the public is evidence against every member of that public of the patent having been submitted to as valid.

The case of Harmar v. Playne, in which Lord Eldon recognised the previous case of Boulton & Watt v. Bull, and granted an injunction on the ground of long possession, notwithstanding the very great doubt which he entertained of the validity of the specification, very accurately represents the law and practice as it has been acted on from that time to the present. It is held that the patentee, through the medium of the crown, purchases publication to the world by means of an enrolled specification, the result of the patentee's ingenuity and diligence, and as a consideration for that communication, his invention is protected during a certain time. It is not for the general good, or for the encouragement of ingenuity and diligence, to displace or embarrass such rights on light and trivial grounds. When therefore a party has been in possession of such a right, not displaced by scire facias, acquiesced in by the public during a considerable period of time, the court says it will give credit to the validity of the patent until its invalidity is regularly established by a proper proceeding in a court of law, and it shall be protected in the mean time. The parties are perfectly ready to bring an action, and this is part of the order.

The court ought not now to entertain the question of validity; the unsuccessful experiments stated in the affidavit, and relied on by the opposite side, were made during the interval of six months allowed for specifying. It is quite immaterial whether these were successful or not; but has the invention been successful, supposing what the defendants are doing to be an infringement ?

It is said, Botfield had a patent previous to Neilson, for the application of hot air to a blast furnace; no one states having heard of his invention being applied; and the two inventions, as disclosed by the specifications, are quite distinct-Botfield's invention being purely mechanical to obtain a draught, and Neilson's purely chemical to obtain a blast of improved quality. It is clear, that no one at the time doubted the novelty of the

invention, but that all doubted its utility; there being a settled H. T., 1841. conviction that the furnaces did better in winter than in summer, because the air was colder. The question of utility is placed beyond all doubt, and the acquiescence of the trade to the extent which has been proved is evidence of the universal acknowledgment of the novelty of the invention, and of the sufficiency of the specification by men at once most interested and most competent to know the one, and to show the impropriety or insufficiency of the other. [Lord Cottenham, L. C. : There is this question, whether, supposing the advantage of hot air instead of cold to be a novelty, it is claimed. The public are entitled to know for what it is that the patentee claims the invention, that they may be saved inconvenience upon the subject; therefore the specification must tell the public for what it is that he claims protection. If it be for a principle, then if that be good it will apply to every mode in which that principle can be carried into operation. If for a machine for a particular mode of carrying into effect an old principle, that does not go beyond the machine. The question is, whether the specification does sufficiently inform the public in respect of what it is he claims the privilege.]

As to the infringement. The defendants use a number of air-tight vessels: it is not suggested that there is any other mode of communicating heated air to a furnace than by enclosing it in an air-tight vessel or vessels, and heating the exterior of that vessel or those vessels, so as to heat the air, and then transmitting the air direct, without contact with the exterior air, from the vessel or vessels into the furnace. It cannot then be said that this specification is clearly wrong. There was great doubt in Lord Eldon's mind in the case of Harmar v. Playne, but he saw that men of science, men most interested to contest the patent, and most competent to understand whether it could be contested or not, had been submitting to it, and that they had thus given evidence of the sufficiency of the specification, part of the conditions of the validity of the patent, by their conduct; and that it was unfit therefore, upon any difficulty which might present itself to his mind, to hesitate giving effect to the protection which the legislature designed for ingenious men, and unfit to refine away that protection, which can only have the effect of discouraging them from communicating the result of their skill and their diligence to the public. It is not necessary in a patent for an improved application or an improvement, for the patentee to describe and elucidate in what particular respect the improvement consists, to describe why it is better. He describes a plan by which he produces a certain effect, which he says is an improvement, and which in this case is a plan for heating the air whilst in transitu between the bellows and the furnace, and for heating it by passing it

Argument to

continue the injunction.

through some heated vessel. The shape of the vessel is important only with regard to the locality and the economy of fuel. With a round vessel a much larger quantity of fuel will be required to produce a given quantity of heat than with a flat vessel or a pipe. The patentee has a right to claim for heating in transitu without reference to the shape or form; any shape or form will answer the purpose, though some shapes and forms will be cheaper and more convenient for some purposes to which the invention may be applied than others.

Suppose the inventor of the steam engine to have taken out a general patent. If his description had been general enough, it might have included locomotive as well as stationary engines, and those used for the purposes of navigation; but if he had made it an essential part of his description, that it should be stationary, or fixed to a house, he would be excluded from some sorts of engines from which he would not have been excluded had he described it as a machine to be worked by the condensation of steam and steam power. And yet, concurrently with that steam engine patent, Boulton and Watt might have had their patent; and another person using the patent engine might perceive that a particular valve would be a great improvement in the patent engine, and might have a patent for that valve.

This patent being for an organized principle, it has this advantage, that the patentee is entitled to claim any mode in which that principle shall be applied. Where the principle is of a scientific or a chemical nature, it matters nothing what may be the peculiar arrangement of the different apparatus, because the principle will necessarily be found, whatever may be the form of apparatus, or whatever may be the form of vessel. One apparatus may produce a greater heat than another, but still the principle of the patent is to be found, and the benefit which is to be derived from the peculiar form of apparatus still a benefit due to the patentee, who has discovered, not any particular mode of applying the hot air, but the applicability generally of hot air to furnaces.

It appears from the evidence on the other side, that one of the first modes in which Mr. Neilson applied his invention consisted of a cylinder, from 8 to 10 feet long, and 2 feet in diameter, and this was used at the Calder Works. This is nothing more in effect than a large pipe, and if instead of one pipe two should be used, there would still be the same principle necessarily involved. The pipes now used are not independent pipes, but a continued series.

The licenses are all in one form, and it appears that the plaintiff would not have called for payment before the expiration of a year, and Mr. Thompson was perfectly cognizant of this, having, as a partner in several other works, acquiesced in

this course, and paid rent for the use of the plaintiff's invention. H. T., 1841. [Lord Cottenham, L. C.: Suppose your whole case is true, that you were aware they had erected this machine which you said was not to be used without a license in the year 1839, and some communication took place, what we do not know, but you know it, and you were willing that they should use it on paying a rent; I do not see how that entitles you to an injunction to prevent them from using it. All that you could insist on is, that they should pay the rent. You could not, after having permitted them to erect their machinery, at an expense of £750 each machine, have said,-Now you have erected this with my knowledge, I will prevent you from using the boiler which you have so erected, without any understanding at all. This court might have given you the aid of an injunction to secure the rent, but you never could have come to the court and said, you shall not use it at all, and that is the injunction granted.] To refuse to entertain the suit would be to deprive the plaintiff of the benefit of his possession of ten years' duration in the face of the world, with the acquiescence of the trade, and after several successful actions. In Boulton & Watt v. Bull, Lord Rosslyn refused to dissolve an injunction, although the Court of Common Pleas had been equally divided upon the validity of the patent; there had been long possession in that case, but the right was at the time very doubtful, and Lord Rosslyn proceeded on the ground that he would not disturb the possession. In Harmar v. Playne, Lord Eldon acted on the same principle, and said, that when the public had permitted enjoyment under a patent for a reasonably long time, the court would give credit to the patent until the legal question could be tried, and he therefore granted the injunction, although he expressed great doubt as to the validity of the patent.

Lord COTTENHAM, L.C.: If you are willing to deal with the Judgment. shilling a ton as the court may direct, and to do that upon grounds quite unconnected with the merits of the case, I think I ought to deal with this question of the injunction, because this is not like the case referred to where the party had been in possession of a patent, and somebody else had done that which was an infringement, provided the patent be good, because here the plaintiff's own statement is, without raising any doubt as to how far that may be correct, assuming the whole statement to be true, that in the year 1839 he was aware that these defendants were at some considerable expense in preparing the apparatus for the purpose of using this hot blast, and he never interfered to stop them, but permitted them to go on, as he says, under the expectation that they would pay him a shilling a ton after a certain time. That is the position in which he has by his own act placed the defendants. Nothing that took place could preclude the defendants from the right of disputing

Judgment.

will not be granted where irreparable mischief

would ensue.

the plaintiff's right as a patentee, but they have, at very considerable expense, erected this machinery, and from that time to the present have been using it, the plaintiff being aware of it at least from some time in 1839 (the precise day is not stated), and stood by and permitted them to do this. If he is entitled as patentee, it would be extremely hard for the court to do any thing to prevent his receiving that which he is entitled to receive, and in expectation of which he permitted the defendants to go on with their works. But, on the other hand, it would be extremely hard indeed to tell the defendants that they shall not use the works which, with the plaintiff's knowledge, they have prepared at a very considerable expense; and as to telling them they may go on with the cold blast instead of the hot blast, I am told that the difference between the use of the one and of the other is an expense of nearly double, even if it were possible; at all events they may sustain that loss in the interval An injunction until the right is tried. It seems to me that stopping the works, by injunction, under these circumstances, is just inverting the purpose for which an injunction is used. An injunetion is used for the purpose of preventing mischief; this would be using the injunction for the purpose of creating mischief, because the plaintiff cannot possibly be injured. All that he asks, all that he demands, all that he ever expects from these defendants, is one shilling per ton. He has not a right to say to them, you shall not use this apparatus; he cannot do so after the course of conduct he has adopted; he may no doubt say with success, if he is right, you shall pay me that rent which the others pay, and in the expectation of which I permitted you to erect this machinery. Therefore, in no possible way can the plaintiff be prejudiced; but the prejudice to the defendants must be very great indeed, if they are for a short period prevented from using at their furnaces that apparatus which, with the consent of the plaintiff, they have erected. The object therefore is, pending the question, which I do not mean to prejudice one way or the other. by any thing I now say, to preserve to the parties the opportunity of trying the question, with the least possible injury to the one party or the other; and I think the injunction would be extremely prejudicial to the defendants, and do no possible good to the plaintiff, for the purpose for which it may be used. It may by operating as a pressure upon the defendants produce a benefit, but that is not the object of the court; the object of the court is to preserve to each party the benefit he is entitled to, until the question of right is tried, and that may be entirely secured by the defendants undertaking to keep an account, not only for the time to come, but from the time when the connexion first commenced, and undertaking to deal with that account in such a way as the court may direct; and if the plaintiff is entitled, the