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Plaintif's evi- stone coal combined with the hot air blast until Mr. Crane’s dis
covery. So far as my knowledge goes, any attempt, both in America and England, to use any real quantity of anthracite in the making of iron has failed, any portion of it added in the working of the furnace requiring an increased quantity of coke in order to make iron at all.
Mr. George Cottam-I have been acquainted with the making of iron for thirty years. That which is set forth in the plaintiff's specification is new. I always make experiments on any new iron. I cast a bar or two of the plaintiff's iron, and found it very strong. According to my general experience, a bar of ordinary iron, an inch square and four feet long, supported at both ends and loaded in the middle, will break with from 140 to 445 lbs. A similar bar of the plaintiff's carried a weight of onethird more before it took a permanent set; it broke with 599 lbs. I made some very thin castings, less than a quarter of an inch, with it. I never met with any thing so tough and strong, except some Swedish pigs made with charcoal. I had some very tender Scotch hot blast, which broke at 403. I mixed some with plaintiff's iron, and it immediately raised it to 500 lbs; I think 518 lbs. was the breaking weight, and we used it all up for that purpose, but it was too dear to go on with. The iron is an exceedingly good iron, and much better than the other iron where strength or where hardness is required; it is tough and hard, which is an advantage. I have tried a great many experiments with stone coal. I tried it under my engine, and by putting a blast to it I found that I could not get a heat; I had a black
instead of a red surface. Sir F. Wilde, Sir T. Wilde, S. G., for the defendants.-Gentlemen of the defendunts.
jury: It is of great importance that due encouragement should be given to talent, genius, and industry, and the expenditure of capital in the endeavour to discover and produce useful inventions; but the fair course of trade and commerce must not be intercepted by persons seeking to appropriate to themselves that, in which, if there be any merit, it belongs to others, and which the whole public have just as much right to use as themselves. The plaintiff has no merit in bringing the hot blast before the public; he heard of it in common with the rest of the world : the use of stone coal in the manufacture of iron was an idea which the plaintiff had no pretence to the merit of having originated; its use, and the advantages to be derived therefrom for smelting iron, and a variety of other purposes, were known. The hot blast, when brought before the public, was not to be limited in its application to any particular purpose; and Mr. Neilson had a right to apply it to any of the purposes to which it could be made applicable. What is there in Neilson's patent to prevent his applying the hot blast to stone coal?
The dates are material. Did the plaintiff spend one sixpence, H. Vac., 1840. or make any experiments before the date of his patent? His patent is dated in September, 1836, and then he sends for Neilson's man, and the apparatus is not put to work until the December or January following. Neilson's patent is perfectly general, and the mode in which the hot blast is to be applied to every kind of furnace, burning any kind of fuel, is described. The plaintiff has done nothing but apply Neilson's patent to known articles, by known means, to effect a known object. Stone coal has been applied to the manufacture of iron; attention was drawn to it; there was no distinction whatever between the mode of manufacturing iron with that sort of coal and with any other sort of coal. [Sir N. C. Tindal, C.J.: Is it any thing but a question of law at the last?] I think not. [Sir N. C. Tindal, C.J.: I think it is not. I have been listening with great attention to it; it must come at last to what is the meaning of the word “manufacture” under the statute; whether the application of a known mode of working the blast, applying it to all purposes, when applied to a known purpose, is a manufacture; and then you come to the other—whether he is the true and first inventor. Then it is again a question of law, whether the applying this knowledge, which is a part at least of the invention, and a very important one, applying it to that which is also known, makes him or not the true and first inventor. I do not see any thing to leave to the jury. The better course will be a verdict here pro formá, subject to a motion, either for a nonsuit, or a special case, or a special verdict, the court to draw any inferences.]
Verdict for the plaintiff accordingly.
A rule having been obtained in pursuance of the leave re- H. T., 1842. served at the trial, it was arranged, at the suggestion of the court, that the case should come on as a special case, to be argued as nearly as possible as if moving on the judge's notes; the defendants' counsel to begin and to reply; and that the printed copy of the short-hand writer's notes of the evidence of the trial should be adopted, and, with the pleadings and the specifications of certain patents given in evidence at the trial, constitute the special case for the opinion of the court.
Bompas, Sergt., and Rotch, for the defendants. This was an action for the infringement of the plaintiff's patent, the facts connected with which are the following. The hot blast was well known, Neilson having published this to the world under the title of an improved application of air to furnaces. The plaintiff does not assign any particular proportions or mode of working, but says simply, you are to use anthracite or stone coal, and an ordinary quantity of mine, in the ordinary way, and to apply the well-known hot blast to the furnace in the ordinary way.
It will be important to consider the nature of this mineral, its position with respect to other minerals, and its applicability to the same purposes as the other sorts of coal (a).
Anthracite is a valuable fuel, has been used in various ways, and made the subject of several patents (6). It could be used advantageously only under particular circumstances, as in the small furnace at Abercrave (c); it could not be used so well in large furnaces, and it must be admitted that it could not be used with equal advantage with the ordinary coal—but still it was used in some manner.
The plaintiff had three furnaces, two large ones and a cupola furnace, at his works in the western part of the coal field; he sent for Neilson's man to put up a hot blast apparatus, which being completed, stone coal is burnt in the furnaces with the hot blast. There is no proof of any previous experiment or expenditure; and the specification itself admits the previous knowledge of stone coal as a fuel.
With respect to the issues :- The defendants are entitled to have the verdict entered for them on the first issue. There has been no infringement. The specification is for using all stone coal; the defendants are only proved to have used one-third stone coal with two-thirds coke (d); if a patent be taken out for using stone coal, the using any considerable portion of other coal, unless it be merely as a colourable evasion, is no infringement. It appears from the evidence, that a great number of persons II. T., 1842. , have used a considerable portion of stone coal before; and the plaintiff says, I have found out how all stone coal may be used: the defendants only use it in the above proportion, and the court will have to say, whether this is an infringement. It was agreed between the parties, that the evidence contained in the report should be referred to as part of the case, and that the court should be at liberty to draw the same inference from it as a jury might draw.
(a) The learned counsel relied much on the statement of Mr. Mushet, that anthracite and bituminous coal occasionally alternate with each other-but considerable doubt appears to exist on this head; ante 390, n. e. It was contended, that the bituminous and stone coal pass imperceptibly the one into the other in the South Wales coal basin, and that they are intermixed layer by layer, so that persons in some situations, and among others the defendants, would of necessity use a mixture of the two in the ordinary conduct of their works, and that the coal in some places might be called anthracitious. It appears that the bituminous coal overlays the anthracite, the latter being in some cases 200 fathoms below the other and that the coal is bituminous at the
eastern end of the coal basin, but an
thracite at the lower and western end. See Martin on the South Wales Coal Basin; also Foster on the same ; and Encyclo. Brit., Art. Coal Basin. The difference in the constitution, chemically and mechanically considered, is also matter of great uncertainty-what it is which, on fire being applied, occasions the two species of coal to exhibit such different properties. See analysis by Mr. Mushet, in his * Papers on Iron and Steel."
(6) The learned counsel commented on the use of anthracite disclosed in the several patents put in. Ante 376.
(c) See ante 389, as to the dimensions of this furnace.
(d) Ante 385.
Every species of coal had been used in furnaces. Neilson publishes to the world the use of the hot blast, which had been used to a very great extent when the plaintiff sends for Neilson's man, and sets a furnace to work, and then finds out that to be true which Mr. Neilson had said, that it would be of great use to apply the hot blast to blast furnaces. The plaintiff has claimed the use of anthracite coal, and in the same manner any other person might claim the use of any other coal or particular species of fuel.
Further, the so-called invention is not a new manufacture within the meaning of the statute. The stone coal was well known as a fuel for furnaces, the hot blast was well known for the manufacture of iron, the using them together in a known manner is not a new manufacture. In the case of Brunton v. Hawkes (4 B. & Ald. 541), it appeared that the method described of uniting the two parts of the anchor was the same as that by which the different parts of the common hammer and the pick-axe were united together, and Bailey, J., said, “A patent for a machine, each part of which was in use before, but in which the combination of the different parts is new, and a new result produced, is good, because there is novelty in the combination (e); but here the case is perfectly different; formerly three pieces were united together, the plaintiff only unites two, and if the union of those had been effected in a mode unknown before, as applied in any degree to similar purposes, I should have thought it a good ground for a patent, but unfortunately the mode was well known and long practised. I think that a man cannot be entitled to a patent for uniting two things instead of three, where that union is effected in a mode well known and long practised for similar purposes (f )."
In the present case it is quite clear the anthracite and the hot blast were put together in a way well known for purposes well
(e) It may be remarked that, on the test here proposed, the anthracite iron would be a new manufacture, since a new result is attained, the evidence showing — first, that iron was never before made from anthracite alone ; secondly, that such iron, or iron baving such qualities, was Tever known before.
() This dictum of the learned judge must evidently be limited, and interpreted according to the special circumstances of the case, since cases may be supposed in which the avoiding a joining might be of the greatest importance.
Argument for known before for the manufacture of iron. Every one knew that the defendants.
hot blast could be used for that purpose, and stone coal was and had been used, though not so advantageously. There cannot be a patent for using a thing for the same purpose, in a way which every body knows. In the case of Cornish v. Keene (3 Bing. N.C. 370) it was said that that was not the subject-matter of a patent, or a new manufacture, or an improvement of an old manufacture, which was merely the application of a known material in a known manner to a purpose known before, but the court thought the invention a new manufacture, and that the latter part of the description did not apply. In the case of Kay v. Marshall (5 Bing. N.C.), it appeared that flax had been spun at various distances, and that this was a fundamental principle of dry spinning ; that the machine was made with varying reaches to suit the length of the staple, and that cotton had been constantly spun at a distance of from two to six and a half inches. The court were of opinion that the spinning flax, at a given distance, as two and a half inches, or such other degree of shortness as would suit the continuity of the roving, was not a new manufacture. In the present case every thing is the same: the furnace is the same; coal of every shade, from the bituminous to the anthracite, had been used before; the effect of Mr. Neilson's patent is well known; can a person have a patent for applying that which every body knows is applicable to fuel, to one species? In Kay's case, every one knew that flax could be spun at various distances, and that the machines could be adapted to any distance; so every one knew that the blast could be applied to any furnace.
In Minter v. Mower (g) a patent was bad, because the specification included that which had been invented before, on the ground that it would have prevented the prior inventor from using his invention; so this includes that which had been used before, and would have prevented Neilson from applying his hot blast to furnaces and to a fuel, the use of which in such furnaces was well known (h). These cases clearly show, that the use of that which is well known for purposes that are well known and in a manner well known, is not the subject of a patent.
As to the fourth issue, the specification is defective in not stating the kind of furnace, since it is doubtful whether anthracite can be used beneficially in large furnaces; the objection is, therefore, that the specification should have described the difference between a small and a large furnace, or, at all events, have described the kind of furnace with greater particularity.
The issue on the fifth plea is, whether the hot air blast described by the plaintiff is the same as Neilson's, and the
(g) Ante 142; S. C. 6 A. & E. 735.
of Saunders v. Aston, 3 B. & Ad. 881, ante 75.