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Sir W. Follett The act of parliament requiring the objections received the in support of royal assent at the close of the session of 1835, a considerable verdict for the time after the alterations in pleading, which came into full plaintiffs.
effect in Easter Term, 1834. Whatever, then, the original intention of the framers of that act, it was passed considerably after it had been established by law, that every defence of this nature shall be specially pleaded, and we can only construe the act as it appears in the statute book, without reference to the presumed intention of the parties who brought it in. It has been contended, on the authority of a case in the Common Pleas (ante 266), that application should have been made to the
court, to compel the party to state more precisely the nature of At the trial the the objections. But the question comes to this—when a party notice of objections must be has given notice of objections, and it appears at the trial, proved.
whether or not you are not then to see whether he has given that objection in the way required by the act of parliament, because the act of parliament otherwise throws the onus and the burthen upon him, and whether he has or has not established or proved that objection at the trial. In this case, the plaintiffs could not have applied for a summons to have better particulars of the objections, and for this reason—the defendants do not rely upon the statement that the specification is not enough, but they state the principal objection, upon which they mean to rely, to the specification; and, therefore, if we had taken out any summons before a judge, the judge would have said—what objections can you make ? The defendants have here stated, distinctly and precisely, the various objections to the specification. Then we go to trial upon those various objections to the specification, and there, at the trial, one particular objection is raised to the specification, and that particular objection is independent of those with regard to the making and description of the apparatus—and it is this, that one particular sentence in the specification is incorrect. At the trial, no observation had been made upon this in the opening of the plaintiffs' case, but the Attorney General, in his speech for the defendants, calling no witnesses, makes these observations on the specification. The learned judge thought that the objection, that the specification was calculated to deceive, was sufficient to let in the objection. I, therefore, requested the learned judge to leave it in terms to the jury, and the jury found that it was not calculated to deceive. The same question, as to the notice of objections, has arisen under the Bankrupt Act, since the alteration in pleading, and it has been held that notice must be given with the special pleas. And in all cases when an act of parliament requires a notice to be given, notice shall be given fairly to the party, and the objection is to be taken at the trial.
Suppose a party, in compliance with the proviso in the letters patent, enrol his specification, and in that specification he so
describes the nature of his invention, that a practical mechanic In the Exchequer can carry it into effect, and suppose there should be some particular part of that specification which, when minutely or philosophically examined, may turn out not to be a correct statement, and no part of the invention ; for be it observed in this case, it is not a question whether he has sufficiently or properly described the part invented, but it is supposed, in making a statement with reference to a matter well known at the time to every body, he has made a mistake in the statement of a matter well known, not only to persons of science, but to every practical person; every practical person would know that there was an error, if error there be; then does it follow from that, that the specification is void ? On what ground is the specifi- Should a miscation void? The public are not misled : the public have take in respect
of a matter received all the benefit which was intended by the proviso; foreign to the
invention, and nobody is misled. Then why is the specification void? Upon whi what ground do you say, that because I have made a mistake mislead, vitiate in a matter which every body would correct, the most common mechanic, and which would apply equally well whether it was an error in the copying, whether it was a mere error in writing, any error of any sort or kind in the specification? According to that, even the misuse of a word would vitiate the whole specification, although any person reading it of the commonest skill (because that the jury have found) could not be misled by it. Now, my lords, I want to know why that should make the specification void? You will observe that, in this case, it was no part of what he was communicating to the public; he was not telling the public of any means of heating air-he was not telling them the principle or the mode in which air could be heated—that was no part of his patent, nor was he bound to make any communication on the subject; it was no part of his invention or specification; and then, in describing the mode of heating air, it is supposed for a moment that he has misstated a fact-namely, that the shape of the vessel may be unimportant as to the heating the air which we and the jury say any body of the most ordinary skill would know was a mistake. I submit that a passage of this sort, assuming it to be inaccurate, does not vitiate the specification, if it be inaccurary of this description, well known to the most ordinary and common workman, and not any matter on which the patent was taken out. Assuming, then, the view of the learned judge at the trial to be correct, that the word 'effecť meant effect on the air, that would not make the specification void. [Parke, B. : The doubt I had was, whether any case had gone so far as to say you could correct a manifest error in a specification by the evidence of workmen acquainted with the subject, that they should disregard the error, and not act upon it, and correct the error; I
Sir W. Follett do not think you have found any case that has gone so far as
pontent that.] I believe you will find no case in which any specificarule to enter
tion was ever held invalid upon the ground of any misstatement plaintiffs.
of this sort or kind in it, where the jury have found that a common workman could carry the thing into effect; and I will undertake to say, that there is no such case to be found, and that no specification and no patent at any time was ever held invalid if the specification was sufficient for a common workman to carry the patent into effect, and that that is really the question in every specification of this kind, aye or no, does it give sufficient information to the public, and is a workman of ordinary skill capable of carrying it into effect? This sort of objection as to the wording of a particular passage in a specification, I am not aware ever to have seen ; it is not, my lords, an objection to a specification which I can trace in the books in any case. Where the specification is of itself sufficient to enable a common workman to construct the apparatus, I am not aware myself that your lordships, with your greater experience, can state whether there is a case in which the jury have so found, and the patent has, notwithstanding that, been held to be invalid on the ground of some mistake in one particular passage in the specification. I am certainly not aware of any such case, nor do I believe such a case is to be found, and I think I can
further venture to say, it is contrary to every principle which The proviso is has been decided ; because it appears on this, that the proviso fully complied
in the patent requiring a specification to be enrolled which shall standing such a give sufficient information to the public, upon which the whole mistake.
discovery can be used by the public at the expiration of the patent, without any experiments by the parties, has been complied with ; and if the specification is sufficient for that purpose the patent is good. That, in truth, is the issue ; then, if that be found by the jury, and after the public have had all the benefit, is that patent to be held bad, assuming the finding of the jury to be accurate, which must be done here, because in one passage, in the construction put on it according to strict philosophical principles, that particular passage may not be true, and that not any part of the invention at all, but relating to a matter which was perfectly well known before? [Rolfe, B.: You say you are entitled to import into this, that you are to use some of the ordinary shapes of heating vessels; and then you say, a person will not be misled, because it is said that the shape is immaterial. Must you not go further, and show that as to the shapes of vessels in ordinary use for heating, that between one shape and the other of those it was immaterial ?] So I apprehend it is. [Alderson, B.: This is the very point upon which the infringement takes place --the shape of the vessel : it is the very point in the cause. Therefore, if you are to take it in this sense, he is in effect
claiming every thing; he is claiming a principle, and there is no In the Exchequer particular machine, a machine of any size, or any shape, or any form.] That is the question upon the infringement; but I should answer it with great deference thus, I say we do claim every vessel, and every shape of vessel, closed vessel, in which air can be heated between the blowing apparatus and the furnace. (Alderson, B.: Then I think that is a principle, if you claim A claim to a every shape. If you claim a specific shape, and go to the jury and Pr
principle to be
"carried into say that which the other people have adopted is a colourable imi- effect in any tation, then I can understand it. If you claim every shape, you way.
shape, you a claim to the claim a principle (f). There is no difference between a principle principle. to be carried into effect in any way you will, and claiming the principle itself. You must detail some specific mode of doing it. Then the rest is a question for the jury.] Then the ques. tion comes, as to what you mean by a specific mode. Is it or is it not the subject-matter of a patent, that a person has discovered a valuable principle-namely, that heated air passing into a blast furnace is better than cold air, and that he points out a mode by which that principle can be carried into effect ? And, my lords, what is that mode? The mode is, that you shall heat the air in its passage from the blowing apparatus to the furnace--that you shall pass it into a closed vessel, under which a fire is to be placed, between the blowing apparatus and the furnace—and that, in that vessel so placed between the blowing apparatus and the furnace, the air is to be heated; and I say, with great deference to your lordships, that until this court decides otherwise, I shall venture respectfully to submit that there could not be a doubt that that was a good patent, that it was a good subject matter of a patent, and that the party had a right to complain of an infringement against any person who should heat the air in its passage between the blowing apparatus and the furnace by means of any vessel, whatever be its shape, provided that vessel was a closed vessel placed between the blowing apparatus and the furnace, subject to the heat there, and the air heated in its passage. That is precisely the same principle which is laid down in these other cases, and what, I venture to submit to your lordships, is the subjectmatter of this patent, and I say the form and shape of the vessel are entirely immaterial. Let me suppose for a moment that there was no such passage in the specification; would your lordships
. But may not such a claim, under certain circumstances, be a good claim? Wherein consists the difference between the claim to the principle of blowing a furnace with hot air instead of cold, and the claim to the principle of condensing in a separate vessel, as in Watt's case, and the claim to the principle of the self-adjusting leverage When applied to a chair, as in Minter's patent, ante 126? These cases are all distinguishable
from the class of cases to which the observation of the learned judge that a principle which is not the subject matter of a patent must be considered as having an independent existence, and to have been invented pro bono publico--would appear to be applicable (see ante 342, n.), since in the above cases the essence of the invention is the application of the principle to the specified purpose. See per Lord Abinger, C. B., post 356.
Sir W. Follett then say, that I, having taken out a patent to apply this valuable
principle for heating the air in the vessel between the blowing verdict for the apparatus and the furnace, was bound to specify some particular plaintiff's.
shaped vessel, or whether it was not sufficient for me to say, any vessel in which you can heat air ? [Lord Abinger, C.B.: I
understood you to say this—“My invention is to apply the In the applica- principle of heating air in its passage to the furnace, by introtion of a prin
pmode ducing it into an intermediate vessel between the bellows and need not be spe- the furnace, in which it is to be heated by fire, no matter what cified.
the shape or size of the vessel is, that must depend upon circumstances and the judgment of the party, I do not claim a patent for the particular vessel.” That brings the case to the same as Watt's patent for condensing in another vessel, without describing the shape or the size.] I say it is utterly impossible to distinguish the two cases. [Lord Abinger, C.B.: It appears to me, I own, at present, that a man might take out a patent for inventing a mode of heating air in a separate vessel without stating the size of it, but the question comes back to whether, in the description of the vessel, he does not mislead. Then you pray in aid the verdict of the jury, and say that he does not.] No doubt, my lord, and your lordship will observe that, in arguing the case, I assumed until this moment that we were fully at liberty to say the patent was perfectly good in the manner your lordship puts it-namely, here is a valuable principle, I tell you how to apply that principle; heat your air between the blowing apparatus and the furnace—you can heat it by passing it through a closed vessel ; place a fire under that closed vessel, heat it in its passage-you get it from the blowing power by means of a tube or pipe in that receptacle, and out of it by means of a pipe or aperture into the furnace. The form and shape are immaterial. I say that is a patent for applying a principle by a known and given method, and that any vessel by which air was heated in that place, for the purpose of passing air heated into the furnace, would be a violation of that patent. That was distinctly the opinion held by the judge, acquiesced in by my friend, and acted upon at the trial, that that was in truth the patent, and the simple question is, whether the specification is sufficient for the purpose. [Lord Abinger, C.B.: Suppose he had stated in the specification, that he recommended a particular vessel for the purpose of heating air, for which another man had a patent, but he says—“I do not take out my patent for that; the form and shape of the vessel are immaterial that appears to be the best.”] That would be good; and, I submit, that is in substance what he does say, and there is no question about this, that if he had done what it has been said so often he ought to have done—if he had pointed out a particular vessel for heating the air, and had not concluded with a disclaimer, that he did not claim that as part of his invention, there can be