Abbildungen der Seite
PDF
EPUB
[ocr errors]

no doubt the patent would have been void. Therefore, sup- In the Exchequer posing he had described, for instance, a mode of heating the E.T.; ! air through these pipes, if he had not at the same time said, "I do not mean to claim that as part of my invention,” the patent would have been void for this reason. The mode for heating air through pipes was perfectly well known, therefore I have no right to claim it as part of my invention at all. I am not inventing a mode of heating air at all, every body knows it; but I do claim this I claim the principle; for I have a right to say, I claim the principle of applying hot air to a blast furnace, and I show the mode in which you can carry the principle into practical effect, and that mode is by heating the air in its passage from the blowing power to the furnace. Therefore, I say, whatever the form or shape of it, that would be a perfectly good patent.

I must now pray your lordships' attention for a moment to the meaning of the passage itself. It is stated, that “the form or shape of the vessel or receptacle is immaterial to the effect, and may be adapted to the local circumstances or situation." There is no question, my lord, that that is not strictly true, if the word “effect” means the effect on the air in the vessel. If it means, that the form or shape of the vessel for heating air is immaterial for the purpose of heating air, there is no doubt that that is inaccurate, because the form or shape of the vessel for heating air, like the form or shape of the vessel for heating water, is material to the effect produced on the water or the air; therefore, if it means that it is immaterial to the effect produced on the air in the furnace, there is no doubt that it is inaccurate. But is that the meaning of it? Does it mean that the form or shape is immaterial to the effect produced on the air in the vessel, or does it mean that you may use any vessel you like for the purpose of heating your air ? Now, I conceive that the view taken of it by my lord at the trial—who stated the way in which the jury were to look at it, was, that it had reference to the heating of the air in the vessel-cannot be said to be strictly or philosophically true, because the shape of the vessel for heating the air, or the way in which the air is heated, may very materially affect the air so heated. I apprehend that is not what was intended to be expressed by this passage, and that the patentee here meant to say nothing, and to give no directions whatever, with respect to the air. I mean, as to the principle of heating it, he intended to give no description upon that, as any part of his invention. But what is the meaning of this passage? It is that you, the proprietor of a blast furnace, may, if you please, select any form of vessel now used for heating air -you may use any form of it that you like-and it would be just the same as regards the effect upon the blast furnace, provided it be kept at a proper temperature; the effect of pouring

Sir W. Follett heated air into the furnace will be the same, no matter what be in support of the form or shape of the vessel which you use. The degree of rule to enter verdict for the heat to which you would raise the air may or may not be beneplaintiffs.

ficial, or may or may not be increased beneficially; but as to the effect-namely, the effect of passing heated air into the furnace, it is unimportant what be the form or shape of the vessel you use. I apprehend this was not intended to lay down as an axiom what was contrary to all ordinary principles of heating air-namely, that if you poured air into a vessel, it was immaterial whether the air was exposed to a larger or smaller quantity of heated surface. That was never intended to be said, but it was, that having heated your air properly, having used a proper vessel for heating your air, it is unimportant, as regards the effect produced upon the furnace, whether you use one description of vessel or whether you use another. You may adapt it to the local circumstances, you may use any thing you like, it will be immaterial to the effect produced.

The word “effect” occurs several times in the course of the specification, and in all cases it applies to the smelting furnaces or the forge, and it does not apply to the air in the furnaces; and what I apprehend it means is this, that the air will come into the furnace without any mischief arising from the nature of the metal you use, it will not alter the effect of the air on the furnace, nor the strength of the blast by its passing through a tube, nor the mode in which the air enters the furnace; you can do what you please as regards heating the air. If you can only communicate with a tube or pipe with the furnace, it will produce the desired effect on the furnace. (Lord Abinger, C.B.: You do not construe the word “effect" as effect on the air, but effect on the furnace.] Yes, my lord, and I say that is the fair meaning of it throughout; it makes no difference to the effect provided it be properly heated, which the whole thing assumes. [Alderson, B. : The difficulty about that is, that your view of the word “effect,” in that particular sentence, makes it almost nonsense, because it is utterly idle, surely, to say, if I have discovered that hot air produces an effect on blast furnaces, every body would agree that it would be immaterial, if heated to a proper temperature, what is the shape of the vessel.] Your lordship will find, that persons acquainted with this manufacture were of opinion that it produced a very different effect on the furnace, according to the mode in which it was passed through for the purpose of getting to the furnace; and as to the question, whether or not they would use pipes for heating the air, one of the witnesses stated that it was the opinion that by using the pipes the air passed too rapidly, and that the consequence of that was, that the effect produced on the furnace was not so beneficial; and therefore the way in which the air passes into the furnace may be very

0.

material in the notion of some persons; it was because, as the In the Exchequer witnesses distinctly stated, the air may be materially affected by L. the mode of constructing the vessel through which you passed it. It was without reference to heat. The question was, whether parties in applying this principle would use the pipes for the purpose of heating the air, and it was with reference to that—[Parke, B. : There was a prejudice against the use of stops in the pipe, because they thought it might destroy the proper force with which the blast came.] There was an impression of that sort in the iron manufacturers beyond all question, which rendered it necessary for the parties drawing the specification to point out to them that it was unfounded, and that the effect produced on the air in the furnace would be exactly the same, whether you passed it through one form or another. That was distinctly stated in the evidence. There was that feeling, and that was one reason why they did not use the pipes to heat the air. Then, I say, thiş statement in the specification is--no matter how you heat your air ; heat it if you please with iron; heat it with copper ; heat it with any other metal you like, it will not make any difference in the effect on the furnace; heat it in any vessel you like ; that is, pass it through pipes with rapidity, pass it if you please into a reservoir, as one of your lordships has stated; use any mode you like, still the effect on the furnace will be the same, therefore it is unimportant what metal you use for heating it; it is unimportant what shaped vessel you pass it through, and I apprehend, beyond all question, that is the meaning of it. Keep your air at the temperature you require for the furnace in which you mean to use it, and then it is utterly unimportant what metal, or what form or shape, you use for the purpose. If that be so, there is an end of any question as to the effect of the finding of the jury. Surely, giving the other construction is a mere absurdity, because that is a statement of a matter which it was unnecessary to make a statement upon at all, because it was a matter having no reference to the subject-matter of the patent, and it was a statement notoriously untrue to every person acquainted with the ordinary principle of heating air; therefore I cannot conceive why, in a patent taken out evidently for a great chemical discovery, by a person well acquainted with chemistry, and the way in which that could be applied, why your lordships are to assume that the sentence in the specification necessarily meant what was an absurdity, and untrue in point of philosophical and chemical knowledge. Therefore, I submit, upon the face of this specification, the point does not arise as to what the effect of the finding of the jury is, for there is nothing inaccurate, and there is nothing untrue in the statement of the specification from beginning to end. I believe that is the only passage in the specification upon which anv question or doubt

Sir W. Follett could have been entertained at any time. Then we come simply in su Tule to enter

and entirely to this, is that one passage inaccurate? That is the verdict for the first question which your lordships have to decide ; and then, if plaintiffs.

it be inaccurate, has not the finding of the jury cured it? I first of all submit, that it is clearly not inaccurate; I do not know why the court, where there are two constructions, should lean to that construction which will vitiate the patent, and, above all, should lean to a construction which is evidently absurd and false on the face of it. There are two constructions which at least it will bear, and I do hope and venture to submit, that the court will adopt that construction which will support this patent. This is a patent on the eve of expiring, to which no objection has been raised, which the patentee has had the benefit of, which will expire in one year from this time, namely, in 1842, and now the patentee is likely to derive the greatest benefit and the greatest profit from that discovery, which, as your lordships have heard from the other side, is one of the most valuable discoveries of modern times. This is surely not a case in which the court would be astute to be construing words of the English language in a sense which may vitiate the patent, when it is plain they may bear a meaning which will support the patent to the fullest extent. Upon that first ground, I submit that no question arises; but if it did, here is the finding of the jurythe point on the objections has been distinctly put, and found that no one could be misled, no one could mistake it; I cannot conceive how, after that finding of the jury, your lordships can hold this patent void. The patentee has given to the public all that he was required to do-namely, a mode by which this most valuable principle and discovery could be carried into effect—that he has pointed out minutely. Therefore, I do submit to your lordships, that the verdict of the jury ought to

be entered for the plaintiffs. Kelly, in support Kelly, in support of plaintiffs' rule. I feel bound to call the of plaintiff's'

attention of the court to the preliminary question, whether it is open to the defendants to make the objection which is the subject of the present argument; and I think your lordships will find, that if upon the notice which the defendant has given in, it is competent to him to raise that objection, the provisions of the statute to which reference has been made will be found to be wholly nugatory. Here is an act of parliament passed after the rules of court, requiring all defences to be specially pleaded, under which act the defendant in an action of this nature is bound to give notice of all objections to the patent or specification on which he means to rely, and he is at liberty (that is an advantage given to him), even after he has delivered in a notice of his objections, to apply to a court, or a judge, to be at liberty to add further objections, and to deliver a further notice of otjections. What has he done in this case? He has delivered

rule.

in a notice of objections which contains at the commencement in the Eachequer an objection in this form : “The defendants further contend E. T., 1841. that the said patent is void, because no sufficient specification has been enrolled in conformity with the said letters patent in that behalf.” Then follow several particular and specific objections; that “the description of the apparatus to be employed is so defective, that no workman of ordinary skill would be able to manufacture the said apparatus merely by reading the said specification ;” and then, that “the said specification is calculated to deceive;" and further on, that “the specification is invalid on account of its general vagueness.” Now with regard to all these specific objections, on which reliance was made at the trial, the jury have disaffirmed them. They have found against the defendants on all these specific objections. But then it is said, "I will point out a particular passage in the specification, which being inaccurate in point of fact renders the specification insufficient, and so renders the patent void, and when it is objected that I have given no notice of that particular objection, I say, that I have. And why?-because I have said at the head of the objections, that I make this general objection—that no sufficient specification of the said invention has been enrolled in conformity with the provisions of the said letters patent in that behalf; and under that I may give every objection to the specification in evidence, which counsel can raise at the trial.” Now let us see what the effect of that is, when we contend that the construction to be put upon this notice is, that all the particular objections which are enumerated, are those on which alone the defendants are at liberty to rely; that in truth, the notice ought to be read as if it were in this form---“I shall object that the specification is insufficient in this, to wit, that it is not sufficient to enable a workman to construct a machine; that it is calculated to deceive;" with other objections: we contending that he says—“No; I have a right at the trial to reject all the particular objections of which I have given notice, and to insist on any other objection which will come within the general form, that the specification itself is insufficient;" and when we contend that the objections would only tend to mislead the plaintiffs, the answer is this,-that if the plaintiffs find the notice of objections too general, or insufficient, they may call on the defendants before a judge, on summons, to deliver further notice of objections; and that is an answer which I apprehend seemed to weigh with your lordships when you were addressed by the Attorney General. It seemed to be considered for a moment by the court, that it is too late at the trial to object to the generality of this notice of objections--that the plaintiffs ought to have taken out a summons for a more specific notice. Now let us see practically, whether that is an answer to the objection which we made. Suppose we had taken out a sum

« ZurückWeiter »