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Kelly, in support mons before a judge, that this was too general, and called for of rule to enter verdict for the
more specific notice of objections—supposing on that the deplaintiff's. fendants had added twenty other different objections in addition
to the three or four they had made before, and we then go down to trial. Why, my lords, they may still reject every one of which they have given specific notice, and fall back on the expression that the specification is insufficient. Why, then, if the notice of an objection of this kind is to be held to mean this, you need not trouble yourself about the specific objections, they may be raised or not by the defendant at the trial as he thinks proper, but you must be prepared to support your whole specification and your whole patent, not on the specific objections of which notice has been given, but upon any other objection that can be possibly made, of what use is the statute? In every case a defendant, who has been clever enough to discover some nice and critical objection in point of law to a specification, or in point of fact, as it may be, will introduce into his notice of objections a general objection, that is, that the specification is void, and he may then follow it up by twenty, twenty-five, or thirty specific objections, to which, of course, the attention of the opposite party will be called, to which he will adapt his evidence when he comes to the trial; they are treated as of no consequence by the jury disaffirming them, and then he goes back to some specific objection, which ought to have been specified, under the general terms he has given, and I know of no escape for that.
The Court of Common Pleas (ante 263) have held, that it is not a sufficient compliance with the statute to give a notice, which is a mere echo, or a mere reiteration of the plea. Now, if that be once settled, I do think your lordships will find, that to hold that this notice is in the present case sufficient to admit the raising of this question, would be to render the statute entirely nugatory. There is a plea that the specification is insufficient, not stating in what it is insufficient. Here is a notice given of the objections on which the defendants mean to rely for proving that the specification is insufficient. They go on with the particular objections, and it is now to be contended that all those particular objections are perfectly immaterial, no evidence may be offered upon them, or the jury may negative them; they may fall back upon the original, notice; and upon that they may raise any objections they may think proper. [Parke, B.: It is not exactly so: they fall back on the objection, that the specification is calculated to mislead.] If they do that, the jury have negatived it-if that is what they rely on, I am perfectly content, and then I say, the jury have negatived that. [Parke, B.: That would be open to the question, whether it was competent to me to leave such a matter to the jury; whether the court is not to consider the instrument itself, and if they find it such as in their judgment would be likely to mislead, whether in the Exchequer the patent is not void, although the jury were of a different E. opinion.] That may perhaps embrace the general question. (Parke, B.: It is obvious if there is not some such control over juries, it would leave it to juries—I should rather say to skilful engineers and scientific men on the part of the plaintiff-to make any patent void, or not, according as they please.] I do not think there would be any great evil in that, if your lordships just consider—[Parke, B.: Whatever the terms of the specification may be, you may say it would be corrected by the evidence of practical men.] [Lord Abinger, C.B.: Your argument is this—that if you had taken out a summons to have better particulars, and they had given you more particulars, but still had left the general objection, that they might have abandoned all the objections at the trial, and given evidence under the general head of objections, which would have been a mere delusion.] [Parke, B.: The question is, whether this court is of opinion, comparing the specification with the fact, that there is a clear misrepresentation in any part of it. The question is, whether that can be corrected by the evidence of men acquainted with the subject, who say they would be themselves able to correct that error by their knowledge of the subjectwhether that is permitted.] That may be a question arising in the cause. [Parke, B.: That is the question which I reserved for the opinion of the court. First, what is the true construction of the specification, and if it was as it struck me at the trial, whether it was competent to correct such an error as that by the evidence of men acquainted with the subject; I do not find any case that has gone so far.] That is, of course, one important question for your lordships' consideration on the argument, but that is not the question which arises on this notice of objections; I am on that point only, which is a minor point, as to whether under this notice of objections, looking to the terms and the intent of the statute, it is competent to the Attorney General to raise the question on this particular passage containing the word “effect," in the specification. This expression, " that the said specification is calculated to deceive” must be taken with what precedes it. And what is that? 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 specification. That the said specification is calculated “to deceive.” It is almost a corollary or conclusion from that which has preceded it. He says this (and this is a mere question of fact for the jury)“Why your specification is such that no workman could make the machine in question from that specification alone, and so the said specification is calculated to deceive or to mislead.” Now that very question, in fact, was put by your lordship to
Kelly, in support the jury. The jury have found in every way in which it was of rule to enter verdict for the put, under every modification of language, that the specification plaintiff's. was sufficient to enable any workman to construct the machine
in question, and that it was not calculated to mislead or to deceive at all. So that, my lords, as a question of fact, and on these specific objections, I conceive that the jury have concluded the question; they have found that the specification is not calculated to mislead or to deceive. The question is, whether if the finding of the jury has at once defeated this objection, of which specific notice has been given, can the defendants fall back on the general notice, in the form in which it here appears, that is, that there has been no sufficient specification within the statute? If they can, it seems to me that the consequence will follow which I have suggested, and for this reason the answer given is, that you may take out a summons before a judge, and the judge will order them to specify; that is, to give you more specific objections. If we had done so, and they had given us more specific objections, they would only have multiplied the specific objections which they had already given; they might have given twenty instead of three. (Lord Abinger, C. B.: Suppose the judge made an order on that, that they should deliver particular objections and strike out the general ones.] If there be any power at all in the plaintiff to defeat such a general objection as this, it must be because the judge might have power to order that this should be struck out, for that is what it would come to, the judge must have power to order, not that the objection should be specified, but that the general form of objection should be struck out—and that, with
submission, I apprehend the judge has no power to do. A notice of ob- [Alderson, B. : I take it he has; he has a general power of regujections in the loting those matters terms of the plea
len lating those matters. Suppose you take the decision of the may be suf. Court of Common Pleas, that that means objections differing ficient.
from the plea itself, then any objection delivered in the words of the plea itself would not be an objection delivered under the statute. I do not know that I go that length, because I think that if the objection in the pleading is sufficiently specific, as stated in the words of the plea, I am not prepared to say that you need give a more specific objection. I do not know that you must necessarily. It may be that the plea itself is quite sufficiently explicit, therefore it would be enough that it should be the words of the plea. It may be that the words of the plea are not sufficiently explicit, in that case they must be more specific. I am not aware that the Court of Common Pleas have laid that down.] I look on it that it really comes round to this question, whether upon the notice given, beginning certainly in the general form, and then being followed up by a number of very specific objections, whether the fair construction of that notice is not that it is the specific objections, and those alone, that are to be relied on; because, my lords, certainly one does not see in the Exchequer how, if that be not the fair construction of a notice of objections E. T., 18 of this kind, the statute can be of any use to a plaintiff: on the contrary, one would be led to infer that the statute would be mischievous, because it directed the attention of parties to some specific objections, leaving those perhaps on which the party means to rely entirely unnoticed, so that they are brought upon him by surprise.
With regard to the great question which is raised here, assuming that it is the province of the court to put a construction on the specification, it really turns on the meaning of the word “effect,” and the meaning is this. We propose to attain a certain end, to bring about a certain effect by our patent, that is, beneficially to use hot instead of cold air in feeding furnaces, and we are giving you a description of apparatus and the means by which this may be done. One part of the apparatus is a vessel intermediate between the blowing apparatus and the furnace, in which air is to be heated, and we say, in order to attain the end sought by our patent, the form and shape of the vessel are immaterial. [Alderson, B.: The end of the patent, as you say, I suppose is the application of heated air to the furnace.] That is the end and object, and I would take the very words appearing in the specification. The effect sought by the patent is the introduction of a sufficient quantity of heated air, and heated to a sufficient degree, into the furnace, to produce a beneficial effect in the smelting of iron. And therefore I conceive, now, that even if your lordships have, as a matter of law, to put a construction on this sentence, or in other words on the meaning of the word “effect," that bearing in mind the nature of the patent, and the object of the patent – bearing in mind also the object and use of the specification—that you will say the word “effecť here means the effect contemplated by the patent, and that it does not mean any particular effect, such as the degree of heat to be produced on any thing else that imagination may suggest, and that if it be taken to mean the effect contemplated by the patent, namely, supplying a sufficient quantity of heated air beneficially to heat the furnace, and to effect a considerable improvement, that then for that purpose the form or the shape of the vessel is entirely immaterial. And, my lords, before I quit that subject, I cannot help asking you what would be the case if the converse had been stated. It is said that this is untrue. If it be untrue, supposing what they meant to contend to be the truth had been stated-supposing they had said “the form and shape of the vessel or receptacle are material to the effect, and cannot be adapted (for it is all one sentence) to local circumstances or situation.” Why, then, if we had said that the form or shape of the vessel was material to the effect, we must have stated what the form or shape was to be. Sup
Kelly, in sup- posing the patentee had done so, what form or shape must they
to have stated ? Must they have stated this, which happened to enter verdict for naves the plaintiffs. be the one the defendants use? The specification would have
been void if he had done so, and void on two grounds; first, it
I have submitted these observations on the assumption that