Abbildungen der Seite
PDF
EPUB

ns must

Sir J. Cumpbell Pleas (a), that upon an application before trial, the court or against rule to enter verdict for judge has power to order a particular of the objections, which the plaintiffs. shall be more specific than the plea-it shall not be a mere echo

of the plea; but the question is not now what might have been done, if there had been any application as to the reforming or amending the particular of objections, but you are now considering the effect of the objections of which notice was given, no objection having been made to them, and whether the whole is not clearly open to us. The result of the decision in Bulnois

V. Mackenzie, where the objections were a mere echo of the The notice of pleas, is that the court, under their general jurisdiction, have a

must right, if they think fit, to order the notice to be more specific give more information than before trial, in analogy to what is done with regard to parthe plea.

ticulars of the causes of action, which the plaintiff means to give in evidence at the trial; or where there is a notice of set-off, or a plea of set-off, a particular of the grounds on which that plea or notice of set-off may be substantiated at the trial.

The result of the decision in Fisher v. Dewick is, that the court had jurisdiction to order a particular that should disclose more than was to be gathered merely from the pleas. But no case has occurred when, after trial, or at the trial, the objection arose that the notice was insufficient, and I apprehend that if the defendant gives us notice of objections in which he simply stated that he objected to the specification, that would enable him to make any objection to the specification at the trial, the plaintiff being contented with that, and not applying to the judge or the court for a better particular of the objection. [Lord Abinger, C.B.: You say the notice was large enough to embrace the objection made at the trial, and that if it did not comprehend that, if any thing more specific was required, they should have applied for it before the trial.] [Alderson, B.: The question at the trial is only, whether the words of the notice are sufficiently large to include the objection.] Yes; if they had wished to know in what respects we said the specification was void: then I do not dispute your lordships' authority to have ordered us to state in what respect, and then we might have gone to the dimensions, to the shape of the vessel, and so on. [Rolfe, B.: The statute is very strangely worded. If you prove the objections in the notice, the language of the statute would go to show that you may prove any others beside.] [Alderson, B.: Suppose it was simply, the specification is insufficient. If the plaintiff is contented to take that as notice, surely any objection may be made at the trial to show that the specification is insufficient.] The title is, “improved application of air to produce heat in fires, forges, and furnaces, where

(a) In Bulnois v. Mackenzie, ante 260; and Fisher v. Dewick, ante 264.

.. 1841.

bellows or other blowing apparatus are required.” Well, then, In the Escheque it is merely an improved application of air to produce heat. It E.T is not the heated air. [Lord Abinger, C.B.: It might just as well be air rendered colder.] Yes; because if the vulgar notion had turned out to be true, “that the colder the air the better," then this might have been a refrigerating apparatus, if it may be for a heating apparatus; and I submit that one objection which is open to me, and which was reserved at the trial, is, that under a title “improved application of air,” &c., he cannot specify an invention which is entirely confined to the temperature of the air when it is to be applied. Such of your lordships as have served the office of law officer to the crown, must be fully aware of the constant attempts that are made by those who apply for patents, to produce a title that may entirely misleadthat may give not the remotest notion of what they intend, and which may enable them for six months, or whatever period it may be, to gather together whatever they can collect, and to specify it at the end of that period. Great frauds have been committed on that subject; and it would be a most salutary decision, and most wholesome and beneficial, if your lordships were to lay down a rule, that the title of a patent should at least convey some idea of the invention for which the patent is supposed to be granted. Until there is a judicial decision on that subject, I am afraid that all the efforts that may be made to resist these attempts will be entirely ineffectual. [Lord Abinger, C.B.: I am afraid it is too late to agitate that. If the The title need specification is consistent with the title, that would be suf

la idea of the ficient. I have known persons who had great difficulty in invention; it is finding a name for their patent invention. I knew a very useful su

6, sufficient if the

10 W a very useius specification be invention set aside because an ingenious person at the bar had consistent suggested to a gentleman to take as a title to his patent, “a tapering brush;" it did not taper, it expanded] (6). I never would suggest that it should be necessary at all to disclose the mode in which the invention is to be carried into effect. For if you required that the title of the patent, which immediately becomes public, should at all disclose the invention, fraudulent persons who have patents in progress would specify those inventions ; but still that there should be some general notion given of that for which a patent is sought, would be most salutary and highly desirable. [Parke, B.: It would be for the crown to adopt that by requiring the specification to be enrolled within a less time than six months.] I may mention, that to guard against that the practice now generally adopted is, to require that there shall be de bene esse a specification lodged with the

hit.

(b) The case alluded to is R. v. Metcalfe, where Lord Ellenborough held that the grammatical construction could not be corrected, unless

the term had by the usage of the trade acquired a perverted sense. Ante 141.

to the tempordinary temperature mode of applyir

Sir J. Campbell Attorney and Solicitor General, which certainly guards against against rule to foda thot micht other enter verdict for

or frauds that might otherwise be practised to a certain degree. tke pluintiffs. [Alderson, B.: You interpret the word “air,” as air in its

natural state, and the application is merely the mode in which it is brought to the furnace. This title would apply to a tube coming perpendicularly down on the furnace, or a tube coming perpendicularly up.] Any change in the blowing apparatus. It certainly tends to mislead; because, suppose that a person had a patent for a blowing apparatus, he would suppose that this might be an infringement upon that patent, and I dare say there were attendances before the law officer of the crown by persons who had a blowing apparatus, for which a patent was granted, or who had it in contemplation to solicit a patent for a blowing apparatus. But this excludes the notion of its being at all a mode of cooking the air, of dealing with the air before it is applied; it is not a dealing with the air, but it is the application of the air. [Lord Abinger, C.B.: It certainly does not suggest heated air any more than cold air.] It has no reference to the temperature of the air. It is supposed to be atmospheric air of the ordinary temperature. [Lord Abinger, C. B.: You see, if he had put “an improved mode of applying air," that might have involved a process he did not mean. It is an “improved application of air.”] I submit that under this title for which the patent is granted, there is no specification of the invention for which the patent is granted, for the patent is granted for an “improved application of air to produce heat,” and what is specified is not an improved application of air, but an alteration in the quality of the air, not in the application of it. (Rolfe, B.: The application of improved air instead of an improved application.] It is not an improvement of the application, but it is an improvement of the air. The title is for an improved mode of applying, but the specification is not an improved mode of applying, but it is for an improvement of that which is to be applied ; and although you may say that hot air is air, and that cold air is air, still this not only does not contemplate any alteration in the air to be applied, but I say that it excludes it. It is a mode of applying; it is not a mode of dealing with the air ; it is not what the air shall be—whether the air shall be hot or cold, whether it shall be a mixture of some other gas, or what it shall be; but it is merely for the application of it, which properly looks to some improvement on the blowing apparatus, and does not at all contemplate any improvement by which the temperature of the air shall be altered, either by heating or cooling. [Lord Abinger, C.B. : It is to a certain extent an improvement in the application, and it proposes to apply the air by making it pass through some medium by which it will acquire heat before it enters the furnace. A particular form, or shape, or medium, is

no part of the patent, but it is that air shall pass through a In the Eschequer heating process before it enters the furnace. Would it not be E. T., 1841. hypercriticism to say, that it was not an improved mode of heating air? The mere discovery of hot air or cold air would be nothing. Suppose it was a patent in these words—"A patent for an invention by which air shall be heated before it enters the furnace. I do not claim a patent either for the material or for the shape, but the air must pass through a process of heating before it enters the furnace.”] If the patent had been in those words, it certainly would not have been liable to this objection, because that would have been a mode of heating the air before it enters the furnace, and then he might have specified the mode in which the air is to be heated—but this is not for a mode of heating the air before it enters the furnace, but a mode of applying the air. [Lord Abinger, C.B.: No, it is that the air shall be heated. “The particular mode in which it is to be heated I leave to you,” he says. “My discovery is, that it shall be heated by passing through a heating process before it comes to the furnace.”]

Next, as to the directions which are given. He first merely describes the common blowing apparatus, &c. Now, I may observe, that there can be no doubt that some directions must be given as to the size and shape. It would not do merely to give an idea that the air shall be hot instead of cold. I think one of the witnesses said that he would dismiss the specification ; another, that he would make experiments; some, that they would begin with a cubical form ; others, that they would begin with a tubular form. But I apprehend that this specification would be bad, unless it gave some directions with regard to the size and the shape of the vessel in which this process of heating is to be conducted. You cannot have a specification for a mere notion ; you cannot have a patent for a notion or a principle ; you must show, according to the terms of the conditions, you must describe and ascertain the nature of the invention, and in what manner the same is to be performed. Is not this a most material part of the specification? The whole novelty consists in this heating vessel, and he is to tell you how the process of heating is to be conducted. Then, after stating with regard to size what is clearly incorrect, he tells you, in the most absolute and unqualified manner, that the form or shape of the vessel which is to be so employed is immaterial to the effect. It is said there are different meanings which may be ascribed to the word effect; that it is the result of the operation, the beneficial effect of making the iron. You are told in the most express manner, that you may adapt the form of the vessel according to circumstances, and that the shape is wholly immaterial, be it sphere, cube, or cylinder, whether a series of spaces, or a perfect cube, or cylinder, long or short. But the fact turns

Sir J. Campbell out just the contrary, and the jury have found it so. One against rule to witness soid there wou

' for witness said, there would be some good effect produced even the plaintiffs. from a cube, but it was quite clear that until the tubular form

was adopted it did no good at all. [Alderson, B.: The word “ effect" may mean one of two things. It may either mean the effect which hot air will produce on the blast furnace, or it may mean the effect which fire applied to the vessel would have in heating the air; which of those does it mean?] So that your air is heated, it is very immaterial how it is heated, whether it be heated in a sphere or in a cylinder. It will not do for a person to say you are to introduce hot air into the blast furnace, he must show the modus operandi. [Alderson, B.: It will come very close upon Boulton and Watt v. Bull, the only modus operandi of which was the condensing in a separate vessel; so here it is the application of heated air, the air being heated in an intermediate separate vessel. That is a modus operandi sufficient to save the patent.] But he tells you what that intermediate vessel is to be, and he professes to do that. (Alderson, B.: He says, no matter how you do it, provided in an intermediate vessel you bring it to a certain temperature. Then the effect will be the same on the blast furnace. My invention is hot instead of cold air.] He professes to tell you what is to be the size of the heating vessel, and he tells you that the form is immaterial. Every thing depends on the degree of heat. Then what is the effect? It is to heat. These various shapes of vessels are all material with regard to the degree of heat, the effect depending entirely on the degree of heat, and therefore the effect is the degree of heat. It was admitted at the trial that this must be erroneous and false, unless you can engraft upon the assertion two conditions—that you have a sufficient degree of heat, and that there shall be a sufficient current of air to propel the air from the regulator to the blast furnace. (Lord Abinger, C. B.: I suppose, in making the specification, he considered that it was proper to propose some mechanical illustration of his principle. But suppose he had said this—my invention consists in the application of heated air to the furnace by means of any of the methods by which air is now heated, or any other method, and allowing air so heated to pass through a tube or aperture to the furnace. Probably he apprehended, that if he stated specifically any form of heating air, he might then have infringed on some other patent; therefore, suppose he had said simply, my invention consists in the application of heated air by making the air pass through a heating process before it arrives at the furnace, but I do not intend to describe the form of the receptacle, I leave that to the local circumstances, and judgment of the parties to deal with such matter, stating only that the hotter you get the air the better.] If at the time he knew what was

« ZurückWeiter »