CRANE V. PRICE & OTHERS.

Cor. Sir N. C. Tindal, C. J. Feb. 11 & 12, 1840.

The declaration assigned as breaches, that the defendants did Declaration. smelt, manufacture, and make iron, on the said improved plan, and in imitation of the said invention of the plaintiff, and did vend iron so smelted, manufactured, and made. That the defendants did use and put in practice the said invention, by smelting, manufacturing, and making iron, in imitation of the said invention. That the defendants did counterfeit, imitate, and resemble the said invention, and did make colourable additions thereto, and subtractions therefrom. That the defendants did smelt, manufacture, and make iron, with certain improvements in the process of such smelting, which were intended to imitate and resemble, and did imitate and resemble, the said improvement of the plaintiff.

The defendants pleaded-1. Not guilty. 2. That the plain- Pleas.

said invention, and the manner in which the same is to be performed, and the method I use to make stone coal and culm to stand the blast, as follows, that is to say:-To light the fire in the furnace finery or hearth, with free burning wood, and as soon as the wood is sufficiently ignited, then to put on small quantities of raw stone coal or culm, free of dust (broken into the size of a common hen's egg), to continue to feed the furnace finery or bearth with raw stone coal or culm, till it is quite full of vivid fire, before any blast is introduced, then (in making pig or cast iron) charge the furnace in the common way, with due proportions of raw stone coal or culm, clear of dust (instead of coke or charcoal), with iron stone, iron mine, or iron ore and limestone, then to introduce the blast in a very gentle manner for the first twelve hours, then to increase the blast gradually, day after day, for the first week of blowing, till the furnace is sufficiently hot and burthened, and then to blow to any extent the machinery or the furnace is capable of bearing, and by keeping the furnace regularly and properly fed with materials, and by keeping up a sufficient blast, the process will be completed. And in remelting, preparing, and refining, of pig and cast iron of every sort, and for making such pig and cast iron into wrought or bar iron, the foregoing method of lighting and feeding the hearth or finery, till it is full of vivid stone coal or culm, must be pursued before the finery or hearth is charged with metal, or the blast introduced; then by charging with metal, and feeding the finery or hearth with raw stone coal or culm (instead of coke or charcoal), and by introducing the blast in the common way, the wished-for success will be produced. In witness, &c.

Christie and Harpur's patent (A. D. 1824), “for an improved method of combining and applying certain kinds of fuel."

The specification, dated August 28, 1824, describes the invention to consist in combining and applying for the general purposes of fuel the common bituminous coal with stone coal, culm, or anthracite, in proportions varying from onefifth to one-third bituminous coal, and the remainder stone coal, culm, or anthracite; the object being to use only so much of the bituminous coal as may be found necessary to keep up fire suitable to the purpose required, without producing the nuisance of smoke. "Such proportions will be found to vary according to the qualities of the coals, which vary in different situations, and according as the stove grate or furnace in use has more or less capacity of draft or windage; but these will be easily ascertained by trial. We have generally found one-fourth bituminous coal to be a good proportion, where the bars of the grate are not more than an inch wide and half an inch asunder. The stone coal may be either applied in the usual form of such coal, or mixed with the small or culm thereof, in proportions which we recommend to be about one-half, such proportions, however, varying as before, according to the draft or windage. By this combination the heat and combustion of the fire are easily kept up, and the fires of steam engines and other large stoves and furnaces of almost every sort may be maintained."

Philip Taylor's (A. D. 1825), "for certain improvements in making iron." The invention, among other things, consisted in injecting carburetted hydrogen gas into the furnace in which stone coal was to be used, so as to supply artifi cially that gas, the absence of which appeared to constitute a material difference between anthracite and bituminous coal.

As to the patents of Botfield, Neilson, and De Vaux, also given in evidence, and referred to, see ante 274 & 275, n.

Replication and rejoinder.

Notice of objec

tions.

tiff was not the true and first inventor. 3. Setting out the specification, and averring that the said improvement was not a new manufacture, invented by the plaintiff, within the intent and meaning of the statute, as to the public use and exercise thereof. 4. That the nature of the said invention, and in what manner the same was to be performed, were not particularly described by the said specification. 5. After setting forth the specification by reference to the third plea, and the proviso in the plaintiff's letters patent against their interfering with any previous grant (b), the plea stated the grant of letters patent to J. B. Neilson, and averred that the hot blast was, before the plaintiff's patent, in public use with Neilson's license in the smelting of iron, and was the hot air blast in the specification mentioned and referred to. The plea then averred that Neilson's patent was in full force, and that the plaintiff could not use the said hot air blast without Neilson's license, and that he obtained such license before the grant of his patent; and averred further, that the using by the plaintiff of the said hot air blast, as in the specification mentioned, was a using and imitating of Neilson's invention, whereby plaintiff's patent was void.

The plaintiff in his replication took issue on the first, second, third, and fourth pleas; and to the fifth plea replied, setting forth Neilson's specification, and averring that the said invention, as described and ascertained in the said specification of the said Neilson, was not and is not the same as the said hot air blast, and the machinery and apparatus adapted for the application thereof, mentioned and referred to in the plaintiff's said specification, as then being well understood and extensively applied in, &c.; nor was nor is the using by the plaintiff of the said invention, as described in his said specification, a using or imitating of the invention of the said Neilson, as described in his said specification, contrary to the form and effect of the said proviso; which averment was traversed by the defendants in their rejoinder (c).

The following notice of objections was delivered with the pleas-1. That the alleged invention mentioned in the declaration which the plaintiff in his specification claims, and alleges to consist in the application of anthracite or stone coal and culm, combined with the using of hot air blast in the smelting and manufacture of iron, from iron stone, mine, or ore, is not a new

(b) See Law and Practice. Pr. F., XIII., n. m., and post 397, n. i.

(c) The plaintiff having replied to the fifth plea instead of demurring, the real issue was, whether the hot air blast used by the plaintiff was the hot air blast protected by Neilson's patent. The pleadings admit that the plaintiff had a license from Neilson, but that circumstance does not affect the real question, whether the improved apparatus for applying the hot blast, then

in use by the plaintiff and others, was an infringement on Neilson's patent, assuming the fact that the apparatus described in his specification could not produce the degree of effect, or amount of temperature, necessary for the plaintiff's invention. These pleadings and the trial were prior to the decision on Neilson's patent, which decided such improved apparatus to be protected by his patent. Ante 369.

manufacture within the meaning of the statute of 21 James 1, H. Vac., 1840. c. 3, s. 6, for which a patent can be granted, but only using at the same time of a well-known article-namely, anthracite, or stone coal or culm-and of the hot air blast (the latter admitted in the plaintiff's specification to be then well known), each separately in use for smelting and manufacturing iron before the date of the said letters patent. 2. That anthracite, or stone coal or culm, had been publicly used as the only fuel in the smelting and manufacture of iron by Mr. Thomas Harper, at his furnace at Abercrave, in the county of Brecon, and had been so used, mixed with other fuel, by the British Iron Company, at their works at Abercrave aforesaid, and at the Yniscedwin Iron Works, the Landore Iron Works, the Millbrook Iron Works, and the Neath Abbey Iron Works, in the county of Glamorgan, before the date of the said letters patent; and the alleged invention of the plaintiff is only the use of anthracite, or stone coal or culm, with hot air blast. 3. That the using of hot air blast in the smelting or manufacture of iron was not the invention of the plaintiff, but was well known and in use before the grant of the said letters patent to the said plaintiff, as admitted in the specification thereof; and the alleged invention of the plaintiff is only the use of the said hot air blast with the wellknown anthracite stone coal or culm; and that the hot air blast was used in the smelting and manufacture of iron prior to the said letters patent, at the works of the said plaintiff, called the Yniscedwin Iron Works, at the, &c. (specifying a great number of other works and places), and also at a great many iron works in the kingdom, too numerous to be individually specified. 4. That the alleged invention of the plaintiff necessarily involves the use of another invention, which was patented before the date of the plaintiff's letters patent-namely, the hot air blast of J. B. Neilson; and that the application thereof to anthracite or stone coal, which was a well-known fuel, was an application all persons were and are at liberty to make, who had permission to use the said invention of the said J. B. Neilson. 5. That the exclusive use of the hot air blast having been previously granted to J. B. Neilson by letters patent, the subsequent patent granted to the plaintiff for the same invention is void. 6. The anthracite, or stone coal or culm, having been well known and in use as a fuel prior to the said plaintiff's patent, the application of such fuel to the smelting or manufacture of iron by wellknown methods, is not a new manufacture within the meaning of the statute. 7. That the use of the hot air blast, described in the said specification, produces substantially only the same effect when the anthracite, or stone coal or culm, is used as fuel in the smelting and manufacture of iron, as when any other kind of coal or coke is used for the same purposes. 8. That the specification is defective, inasmuch as it does not describe

Sir F. Pollock

the kind of furnace to which the alleged invention is applicable, and it is not applicable to all kinds of furnaces. 9. That the said specification does not clearly state whether or not it is intended to apply to the use of anthracite, or stone coal and culm, as the only fuel, or whether it is intended to include the use of anthracite, or stone coal and culm, together with other fuel.

Sir F. Pollock stated the plaintiff's case. Gentlemen of the for the plaintiff. jury: The plaintiff has been engaged during the whole of his life in the manufacture of iron, by smelting it from the ore. His works are at Yniscedwin, in South Wales, at no great distance from the works of the defendants at Neath Abbey, who are also manufacturers of iron. The plaintiff is the discoverer of one of the most important, valuable, and useful discoveries that, perhaps, (as I think I should not use an expression too strong if I said) has shed lustre on modern times, and modern improvements, and modern intelligence and enterprise. And, perhaps, in the whole history of the manufactures of this country, future days will present the name of Mr. Crane on the same level with those persons who have advanced the prosperity of their country in the most eminent degree.

I dare say, gentlemen, you are all of you aware, in a general way, of the nature of the smelting of iron. The ore of the iron is first roasted, which reduces it to the state nearly of an oxide of iron, mixed with earth. It is then smelted, an operation which consists of exposing it to the action of some carbonic or charcoal principle at a very high temperature. The charcoal unites with the oxygen, which makes the metal an oxide; and that restores the metal, or rather brings it into what is called its natural state, or rather its pure state, as the regulus of the metal, and in this state flows down to the lower part of the furnace; when this is tapped or opened it flows away, constituting that sort of iron, in its first state, called pig iron or cast iron, in some of the states in which we find it. Sometimes it flows out at once, to be applied to useful purposes, by running into moulds, and is immediately employed for the useful purposes of life. At other times, it flows into the shape of pig iron, which is afterwards submitted to other processes, in order to bring it into the character of wrought iron.

This was a process that, in former times, as you may readily suppose, was performed chiefly by wood; that is, by charcoal, or charred wood. The volatile parts of the wood were driven off by great heat; charcoal was formed, and then the charcoal and the iron ore were exposed to heat in the furnace, an operation which is called smelting. As far back as the reign of James the First, the woods of this country having been exhausted, it became of great importance to apply, if possible, the immense quantities of coal that were ascertained to be in various parts of this kingdom, and to apply that fuel instead of charcoal, which by that

time had become very dear. The Lord Dudley, whose invention Sir F. Pollock constitutes an exception to the statute of monopolies, passed in for the plaintiff. the reign of James I., under which all patent rights that are claimed in modern times are claimed, first discovered that iron could be manufactured from pit coal or bituminous coal. Now, I do not propose to occupy you in any detail of the process which he adopted. It was chiefly by the application of a blast, in consequence of which he was able to make pit coal applicable to the purpose of manufacturing iron. For many years the process was comparatively imperfect, but it was very important. Iron was made in this country in great abundance, and as the process of Lord Dudley came to be better understood, and when the vast power of the steam engine was applied to increase the blast that worked the furnaces, greater results followed. For many years the iron was not so good as the Swedish iron, made, from the abundance of wood in that country, chiefly or altogether from charcoal.

It was discovered that the manufacture could be considerably improved in various ways. The practice of coking the coal was suggested; that was a great improvement. Some other improvements were introduced, by which it was supposed that, for many purposes, we had at length an iron which was equal to Swedish iron. However, some years ago it was ascertained, I may say a great many years ago, that there were large fields (I hardly know how to use a term capacious enough to give you a notion of the immense tracts of country), which in South Wales produce a particular species of coal, called stone coal, or anthracite. This is a substance, though called by the name of coal, that differs very much from the ordinary or bituminous coal that you are accustomed to see blazing in your grates. The common coal, from whatever place derived, blazes away in a cheerful fire, and breaks up readily; but the anthracite, or stone coal, differs both in appearance, structure, and character, from common coal. It has a lustre which is vitreous and almost metallic: it does not break up easily into pieces, and for many purposes of combustion is wholly and entirely useless. If a piece be put into a common fire, an ordinary kitchen fire, for a considerable time it would give the impression that a stone had been put in; it would remain dark and cold apparently, not at all contributing to the combustion, but rather impeding the fire. At length, if the heat were considerable, it would itself ignite, and burn very slowly, with no flame; and if, after having obtained by great care and artifice a fire, well burnt up, composed chiefly of this coal, the blast of a pair of bellows be applied by way of making it burn brighter, which of course you would do with an ordinary fire, the fire would be blown out. This coal has been known to exist for centuries; it was known to be of no use for domestic purposes; it had never been applied to any of the