E. T., 1841.

tion are for the

for the court.

on the nature and objects of the specification. It is not a con- In the Exchequer tract, or a grant, or a libel which, subject to the right of the jury to put a construction upon particular words, is to be construed by the court. The specification is to describe what the invention is, and to point out the mode in which ordinary workmen are to carry it into effect. In truth, it is nothing better than an instruction given by the patentee to workmen, in the particular trade or business to which the patent may refer, to enable them to exercise the invention; it is generally addressed to scientific persons. [Alderson, B.: You are proposing to leave to the jury the construction of that which really limits the amount of the right of the patentee as regards all subsequent inventions. To what an extravagant length that goes.] [Lord Abinger, C. B.: The question, whether a patent is so worded as Some questions that a person of ordinary knowledge will understand it and work on the specificaby it, is for the jury. Then the jury find the meaning of the jury, and others words, and what persons may understand by them; but suppose a question to arise upon a specification, whether a man has taken out a patent for a principle or an invention-who is to construe that? The jury? Suppose a workman says, the moment I see what the invention is (a new one), I know how to apply it, but all the instructions I do not follow, still I understand perfectly how to do it; it would not deceive me, because I should know he had made a mistake in every sentence; it would not, therefore, be by following the instructions that he would make the invention, it would be his own knowledge, science, and experience, that would tell him what to do.] However that may be, there is a distinction between considering the whole specification, and taking any particular sentence, in order to determine the meaning of that sentence. Now, there may be some sentences in a specification which it might be proper for the court to construe; but surely there may also be some sentences in a specification which it would be peculiarly the province of a jury to construe; words-words of art, words of commerce, words which are used in some sense different from their ordinary sense; those are for the jury, and the jury only, to construe as matters of fact. The present case is something between the two-it is something between putting a legal construction upon the whole specification as one instrument, or even on any particular branch of the specification, and the putting by the jury a construction upon a particular expression. This is a sentence in the specification, and not a sentence in that part of the specification which proceeds to define the rights of the patentee or the extent of his invention, but it is a part of a mere direction to a workman to do the work; he may be supposed to be speaking to a workman not at all about the extent of his own rights under the patent, but merely to be informing the workman as to the size, the

Kelly, in support of rule to enter verdict for the plaintiffs.

shape, the metal of a vessel, which is to be made as part of the machinery. Now, I cannot say that I see any evidence, or any usurpation of the functions of the court in saying, that where a man is giving directions to a workman in a particular trade or manufacture to construct a particular vessel, and those directions relate to the material, that is the metal, and the size, and the form, and the shape, that it may be for a jury to give a meaning to those directions. Suppose a person had been examined as to whether certain directions given by an engineer to a manufacturer for the making of a boiler, or of a pipe, were sufficient to have enabled the manufacturer to have constructed a particular instrument, and those instructions as to the size, and the shape, and the material of which the boiler was to be composed. were set forth in special pleading, would it be a question for a jury what was the meaning of those instructions? I apprehend that it would. The court cannot be supposed to know any thing about the shape and size of boilers, or of the shape of vessels for heating air. The jury, by means of evidence, would know whether a particular direction for making a vessel to heat air had a particular meaning or not; therefore, my lords, this really does seem to me to range itself within the admitted principle, that the jury are to put a construction on words, and that which your lordships have laid down, of leaving the construction of written instruments to the court. Conceding that, this is something between the two: here is a direction given by an engineer, or a man of science, to an ordinary workman to construct a vessel for heating air-he tells him, first of all, something about the metal or material of which it may be made, and then he says, the form or shape of the vessel is immaterial to the object you have in view, and that it may be adapted to local circumstances. [Lord Abinger, C.B.: You think the meaning of the word "effect" there is to be construed by the jury. That is precisely a case in which the meaning of the words should be construed by the judge. If the words be ambiguous, in one sense to support, and the other to destroy it, I should say that this is to be contended in support of the patent; but the meaning of the word "effect" is for the judge to determine, and not the jury. Whether the word "effect" means the effect in the hot air, or the effect on the blast, is a matter of construction entirely.] [Parke, B.: Assuming the construction I inclined to at the trial to be correct, I wish for some information by cases, whether it is competent to arrest that by the evidence of scientific men, supposing there is an error.] I have not been able to find any authority in which it has been directly and distinctly held, that a clear and manifest inaccuracy would not vitiate the specification. Neither do I find any authority for saying, that an inaccuracy which would not mislead would vitiate the specification. I do not think that it would be safe to act

E. T., 1841.

upon extreme cases, because undoubtedly one may put a case of In the Exchequer some very valuable discovery, but which was to be carried into. effect by some known machinery, in which the machinery would be comparatively immaterial, and in which there might be such a series of blunders and inaccuracies in the specification as to contain, in fact, from the beginning to the end, an untrue statement of the modus operandi, and yet there might be workmen brought before the jury who would say, we understand this work so well that we should not be misled by it. But the question is, whether any inaccuracy of language-the inaccurate use of a single word, "effect"-it is here of the word effect-which will not mislead any body, which will not mislead the manufacturer of a blowing apparatus-[Lord Abinger, C.B.: Nobody says that a mere inaccurate use of words, which words are often used, if they are explained by the context, will necessarily avoid the patent.] I do not know what more this is. [Alderson, B.: There was a remarkable instance, which we mentioned in the former part of the argument, where the French word "vice” was used.] That was the case of Bloxam v. Elsee. The French word "vice" meaning a screw; the English word meaning something very different; yet the word "vice" was used, and in an English specification. [Lord Abinger, C. B.: Yes, and the context showed what it meant.] [Alderson, B.: I think that a picture, which was annexed to the patent, showed that it was a screw.] These cases go to this extent, to show that an inaccuracy in the use of an expression, or perhaps of several expressions, if looking at the whole instrument together would not mislead any ordinary competent workman, they would not avoid the specification. It seems to me, that if this construction is put on the word "effect," it could mislead nobody. But I rest this case mainly on the ground, that at least one meaning may be put on it-namely, that for which we contend, and that your lordships will give it that meaning which is calculated to sustain the patent. And I further contend, that this is not doubtful; that fairly and reasonably looking at the whole of the specification, the word "effect" means the object to be attained by the patent, and does not mean any particular effect, or any particular part of the operation. On these grounds I submit, that, looking to the specification itself, and taking the finding of the jury, there is no substantial objection to the specification, and that the plaintiff is entitled to enter a verdict on the issue in question. Cur. adv. vult.

PARKE, B.: In this case of Neilson and Harford, at the Judgment. request of my Lord Abinger, I proceed to deliver his lordship's June 26, 1841. judgment, and that of the rest of the court on this question.

We have, after much consideration, and not without some doubt and hesitation, arrived at the conclusion that the present

Judgment.

The notice of objections intended to give the plaintiff more information than the

rule, obtained by Sir William Follett, for entering the verdict for the plaintiff on the fourth issue, should be made absolute.

Several points were made at the time of the argument, to which we propose very shortly to advert. In the first place, it was contended that the objection to the specification on which I proceeded at the trial, was not sufficiently raised by the notice given under the provisions of Lord Brougham's act, but we all think it was. We concur in the opinion of the Court of Common Pleas, in the cases cited by Sir William Follett, that the act must be construed to mean that a mere copy of the pleas will not be a sufficient compliance with its provisions. It was passed after the new rules had required the several defences to be pleaded, and must, therefore, be considered as having intended to give to a plaintiff some additional advantage beyond the information which the record would give him. But that plea; so that in did not mean to say, nor do we think the Common Pleas meant general a notice in the terms of to decide, that it would not be sufficient in some cases to give the plea will notice in the terms of the plea itself; the objection may be so completely and so fully expanded on the record, that a mere transcript of the plea itself may be sufficient; in other cases the plea may be so general in its language as to be insufficient as a notice, if transcribed from the plea merely. Each case must At nisi prius the depend on its peculiar circumstances. But at nisi prius we only question, think the only question for the judge is, whether the language of the notice fairly includes the objection taken. If the notice be too general, a previous application must be made to the court or a judge at chambers for redress. Here the language of the notice was very general, and we think it included the objection relied upon.

not be sufficient.

whether the terms of the

notice fairly include the objection taken.

The construction of all writ

ten instruments

Then we come to the question itself, which depends on the proper construction to be put on the specification itself. It was contended, that of this construction the jury were to judge. We are clearly of a different opinion. The construction of all written instruments belongs to the court alone, whose duty it is is for the court, to construe all written instruments, as soon as the true meaning the meaning of of the words in which they are couched, and the surrounding the words and surrounding cir- circumstances, if any, have been ascertained by the jury; and it having been as- is the duty of the jury to take the construction from the court, certained by the either absolutely, if there be no words to be construed as words jury.

cumstances

of art, or phrases used in commerce, and the surrounding circumstances to be ascertained, or conditionally, where those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law, for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error, but a misconstruction by the jury cannot be set right at all effectually. Then, taking the construction of this specification upon ourselves, as we are bound to do, it becomes necessary to examine what the

nature of the invention is which the plaintiff has disclosed by In the Exchequer this instrument. It is very difficult to distinguish it from the A.D. 1841." specification of a patent for a principle, and this at first created in the minds of some of the court much difficulty; but after full consideration, we think that the plaintiff does not merely claim a principle, but a machine embodying a principle, and a very valuable one. We think the case must be considered as if the principle being well known, the plaintiff had first invented a mode of applying it by a mechanical apparatus to furnaces; and his invention then consists in this-by interposing a receptacle for heated air between the blowing apparatus and the furnace. In this receptacle he directs the air to be heated by the application of heat externally to the receptacle, and thus he accomplishes the object of applying the blast, which was before of cold air, in a heated state to the furnace.

Now, in the specification, after stating that the air heated up to red heat may be used, but that it is not necessary to go so far to produce a beneficial effect, he proceeds to state that the size of the receptacle will depend on the blast necessary for the furnace, and gives directions as to that. And then he adds"the shape of the receptacle is immaterial to the effect, and may be adapted to local circumstances." It is this part of the specification which has raised the difficulty. At the trial I construed this passage as meaning, that the shape was immaterial to the degree of effect in heating the blast, and if this were so, the jury having, by their finding, negatived the truth and accuracy of this statement, the specification would be bad, as containing a false statement in a material circumstance, of a nature that, if literally acted upon by a competent workman, would mislead him, and cause the experiment to fail.

Nor do we think that the point contended for by Sir William Follett, that if a man acquainted well with the process of heating air were employed, this misstatement would not mislead him, would at all relieve the plaintiffs from the difficulty; for this would be to support the specification by a fresh invention and correction by a scientific person; and no authority can be found that in such a case a specification would be good. To be valid, we think it should be such as, if fairly followed out by a competent workman, without invention or addition, would produce the machine for which the patent is taken out, and that such machine so constructed must be one beneficial to the public. If therefore we had thought, on consideration, that the construction which I put on this clause of the specification was the true one, we should have concluded that the patent was bad, and we should have thought that the verdict should remain as found by the jury on the fourth issue.

But my lord and my brothers, after considerable hesitation, are of opinion, that a construction may reasonably be put upon