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place to heat the air to a still higher degree of temperature. A.D. 1841. Upon cross-examination, he says—" To some extent one form of vessel would be better than another, but every body could get some beneficial result so as to make it worth while to employ it.”
That, gentlemen, is the evidence, and will you have the goodness to answer me the questions in the form in which I put them? The jury found as follows:
Special verdict. We all agree that shape and form are material to the effect, simply, that is, to the extent of beneficial effect produced, not to producing some effect, for some beneficial result would be produced from any shape, and as to producing the extent of beneficial effect, the form and shape are material. Secondly, We think a man of common understanding, of ordinary skill and knowledge of the subject, that is, of the construction of the old blowing apparatus, would be enabled to construct, according to the specification alone, looking at it altogether, such an apparatus as would be an improvement, that is, would be productive of some beneficial result, sufficient to make it worth while, expense being taken into consideration, to adapt it to the ordinary machinery in all cases of forges, cupolas, and furnaces, where the blast is used. Thirdly-We think a person of competent understanding, and ordinary skill and knowledge of the subject of the construction of the air-heating process, would be enabled to construct, according to the specification alone, in the same way looking at it altogether, such an apparatus as would be an improvement, that is, would be productive of some beneficial result, sufficient to make it worth while, expense being taken into consideration, to adapt it to the ordinary machinery in all cases of forges, cupolas, and furnaces, where the blast is used. Fourthly-We think a person of common understanding, and ordinary skill and knowledge of the air-heating process, would not be misled by the description of the immateriality of the form and size of the vessel in producing the effect. Fifthly— No person, we think, nor a person of common understanding, and ordinary skill and knowledge of the blowing process, a fortiori, would be misled.
PARKE, B., then directed the verdict to be entered on the issues as follows :-On the first, second, and third, for the plaintiffs ; on the fourth, for the defendants, upon the construction of the specification, with liberty to move, thinking that, according to the grammatical construction of it, there was an averment that the form and shape were immaterial to the extent of the effect—that it was a misdirection; that there being a misdirection in the instrument itself, it could not be corrected by parol evidence, with liberty to move to enter that verdict for the plaintiffs on that issue; and for the defendants to
take the objection in answer contingently, that the patent is void for the bad title if it be open upon the issue, in answer to that application, and to move in arrest of judgment if the verdict is entered for the plaintiffs.
NEILSON AND OTHERS V. HARFORD AND OTHERS.
Cor. Lord Abinger, C.B., Parke, B., Alderson, B., and
Sir W. Follett: In this case I have to move to enter a verdict for the plaintiffs in pursuance of leave reserved, or, in case it should be supposed that there was any matter not submitted to the jury in the alternative, for a new trial. There were five pleas, four of which were found for the plaintiffs, and the other, as I submit, was also found for the plaintiffs, but the learned judge directed that the verdict should be entered for the defendants on that issue, with liberty to the plaintiffs to move to enter a verdict for them. I submit that this is emphatically and exclusively a question for the jury; that it was not a question of law but of fact, and the jury have distinctly found that the plaintiffs did describe the invention, and did point out the mode of its use.
The patent was substantially for a mode of heating the air between the blowing apparatus and the furnace in a closed vessel. It was contended, therefore, that every mode of heating the air in a closed vessel, between the blowing power and the blast furnace, was an infringement of the patent, and of that opinion was the learned judge, and no question arises upon that now. The defendants in this case use a vessel consisting of various pipes, and it has been since the patent was taken out discovered, by various experiments and improvements, that the higher the air is heated the more beneficial its effects on the furnace. That does not seem to have been in the contemplation of the inventor; in the pipes used by the defendants, there was greater surface exposed to the fire; it was more economical of fuel, and that vessel consequently produced a higher temperature than vessels of a different kind. The learned judge was clearly of opinion that it was an infringement-[Parke, B.: That it was an improvement, but an infringement.]—so long as the patent remained in force.
The question now turns mainly on the fact, whether or not the jury did not find the fourth issue in favour of the plaintiffsand two points were made. The objections to be delivered under the statute (5 and 6 W. 4, c. 83) must distinctly point the attention of the plaintiffs to the precise nature of the E. T., 1841. objection to be raised. The objection raised was not open to the defendants. The construction put on the plea was not a right construction, but the question is not open because it was for the jury. The finding of the jury that, upon the specification alone, a person of ordinary skill would construct the apparatus required, disposed of every other question. [Parke, B.: My doubt was, whether the evidence of a person of ordinary skill would do, or could be allowed to contradict the grammatical construction of one part of the specification.] The learned judge considered it unnecessary to leave to the jury, whether the particular passage, that the form or shape of the vessel or receptacle was immaterial to the effect, was inaccurate, but he left it to the jury whether it was calculated to mislead, and they found that it was not. The learned judge took that sentence alone from the rest of the specification, and stated his opinion to the jury, that in point of law that was a misstatement, and that it would affect the patent. [Parke, B.: Provided it was untrue in fact.] We have had no opportunity of presenting what has been the impression produced on other minds as to the meaning of the passage. This is not a patent taken out for heating air; that was perfectly well known; and every body knew, that for the purpose of increasing the temperature, the larger the surface that was extended to the fire, the greater the effect which would be produced on the air within it. The "passage does not profess to say that the form and shape of the vessel for heating air is not material as regards the air in those vessels, but that was the construction adopted by the learned judge; and it was in that view that he put it to the jury. I submit that is not the meaning of the passage at all, but that the meaning of the passage is this—I do not make any claim for vessels for heating air. Every body knows how to heat air, and every body knows the principle of it. There are various vessels for heating air, of different forms and different shapes, now in use; I say that, as regards the effect on my furnace, the form or shape is immaterial, and may be adapted to local circumstances; and so it is entirely immaterial. It is not immaterial to the heat of the air; and if, upon subsequent discovery, you have found out that by raising the temperature to a higher degree you may improve upon the patent, that is another question ; but this patent was never taken out for heating the air, nor has it any reference to the form or shape of the vessel for heating. It is, that when you have heated the air, and heated it for the purpose of raising a stream proper to convey it into the furnace, then the form and shape of the vessel is immaterial as far as regards the working of the blast furnace.
The question as to this passage is for the jury, not for the court; the specification is not one of those written instruments
to enter a ver
Motion for rule which it is the province of the court to decide on. It is stated
*. that the specification did not sufficiently describe the manner of dict for the plaintiffs. carrying the invention into practice. The jury have found that
the passage could not mislead, that the specification alone is sufficient, and that any person, upon the specification alone, might carry the patent into effect. The verdict should be entered for the plaintiffs, unless the court are to lay down that it is not a question for the jury at all, but for the court, and that the court have a right to say, upon our construction of it, that this is calculated to mislead. But this is matter of evidence; it is not for the court to construe a written instrument independent of parol evidence. I am not speaking of defects in the title, or of the patent claiming more than it ought to do; but of the intelligibility, to use Lord Eldon's words, when he says that every question of that sort is for the jury—the intelligibility of the specification, and the way in which the work is to be constructed, and whether ordinary persons would or not understand it (o).
Motion for rule Sir J. Campbell, A.G.: I move for a rule to show cause why
there ought not to be a new trial on account of the finding of the jury, as being not only without evidence, but entirely contrary to the evidence adduced. The plaintiffs' patent is for three things; for the smith's forge, the melting cupola, and the larger furnace for smelting iron. No evidence is given as to how the invention is to be applied to either of the two first, and the matter is discussed as if the plaintiff had made a great discovery of how iron was to be smelted in a superior manner by means of hot blast. The only mode in which the patent can be worked to advantage, is when the air is heated in a long succession of tubes; but Mr. Neilson was so ignorant of the manner in which his invention was to be used, that at first he tried a vessel of a cylindrical form, seven feet long, with partitions, for the purpose of obstructing the rapid passage of the air. The passage in the specification, as to increasing the dimensions of the air vessel, is an entire misrepresentation. No bad faith or concealment is imputed to the plaintiff, he states that which is untrue from ignorance. Another objection is open to us in showing cause, or in arrest of judgment—that the specification does not at all follow up the title of the patent.
Rule granted (p).
(0) See Hill v. Thompson, ante 237.
(P) When this rule came on for argument, the court, after the notes of the learned judge had been read, called on Sir F. Pollock to support the defendants' rule, intimating a strong opinion that the evidence was all one way, and that the defendants' rule for a new trial, on the
ground of the verdict being against evidence, could not be at all supported, and that as to any ground in respect to the specification, it had already been disposed of by the discussion on the plaintiffs' rule.
Sir F. Pollock, A. G., pressed on the court the position in which the defendants were placed;
NEILSON & OTHERS V. HARFORD & OTHERS.
June 9, 1841.
Cor. Lord Abinger, C.B., Parke, B., Alderson, B., and Rolfe, B.
Sir J. Campbell, A.G. (Sir F. Pollock, Monteith, and Hugh Hill, with him.) My learned friend Sir W. Follett has obtained a rule to show cause why the verdict entered for the defendants upon the fourth issue should not be entered for the plaintiffs, raising the question upon the answers returned by the jury to the five questions submitted to them upon that fourth issue. In point of law, the verdict ought to be for the plaintiffs or for the defendants; those five findings all respect the fourth issuethe fourth being, “ that there was not a sufficient specification." The specification is directed to three things—to common furnaces, smelting cupolas, and blast furnaces—and may be sufficient with regard to common fires or furnaces, and to cupolas; but if it is not sufficient with regard to blast furnaces, the patent is void.
It is first objected that we have not complied with the fifth section of 5 & 6 W. 4, c. 83 (), and that we are not entitled to make the objection on which we rely. That act was framed with a view to the former mode of pleading in such an action, according to which the defendant was at liberty to give every thing in evidence. He might say that it was not new, that it was not useful, that there had been no infraction, that the specification was defective. That was a great hardship on patentees, for they did not know exactly what objections to be prepared to meet. To remedy this, the fifth section of the act was passed. Now, I admit that it has been held by the Court of Common
the point on the construction of the specification not having been reserved at nisi prius in such a manner as to enable the defendants to bring a writ of error on the decision of the Court of Exchequer; and the defendants, in order that they might be in a position to do this, were ready to pay all the costs, to undertake to call no wit. nesses, and to leave the question of fact, and the inding of the jury, to be taken as they were, if the court would mould its rules and practice so as to enable the defendants to take the matter to a court of error. But
Lord Abinger, C. B.: In order to do that, we must remould our general rules. You are now in this situation-you made an application for a new trial, having made the application upon the point reserved by the judge, viz. the legality or the sufficiency of this specification, to which was added also, that the verdict of the jury was against the evidence; and the court then, without bearing the evidence, granted a rule upon both grounds. You selected the ground of the specification, and discussed that separately. If the
court had been with you upon that, there would have been no necessity to discuss the other. The court were against you upon that. Now you come and discuss the other; and the court feeling, and you probably feeling, that upon that taken separately you could not have a new trial, you now ask of the court to introduce altogether a new precedent, in order to give you the benefit of a new trial, as if they had determined in your favour.
Alderson, B.: If you make out to the Court of Chancery that you wish to take it to a court of error, then the Lord Chancellor will say, take it to a court of error. Suppose the Lord Chancellor should agree with the construction which this court has put upon the specification, then he would not do so.
The learned counsel cited some cases in which this course had been adopted, but they are distinguished by the court from the present.
See further post in the Lord Chancellor's judgment on the motion to revive the injunction.
(9) Ante 260, n. a.