using of the same a using of Neilson's invention, and in the event H. T., 1842. of this issue being found in favour of the defendants, leave has been given to move to enter a verdict for the plaintiff. It has been said, that if there be any hot air blast but Neilson's, the plaintiff is entitled to a verdict; but if Neilson's be a hot air blast in use in England, the defendants are entitled to the verdict ; because, if there are some hot air blasts which the plaintiff may, and some which he may not use, this should have been stated in the specification. If the plaintiff claims to use the combination of every hot air blast, then Neilson's is included. No other hot air blast than Neilson's is suggested, and the plaintiff worked under a license from him. It is said that the plaintiff would be entitled to judgment non obstante veredicto, notwithstanding the proviso in the patent against interfering with any previous patent. The object of the patent is, that the person obtaining it shall use the specific thing, and nobody else; if that which is granted includes a patent granted before, two would be entitled to an exclusive use of the same thing. If the crown has the right to grant this second patent, it grants the sole using to two in succession, and the two grants cannot be good, since the crown grants to Mr. Neilson the sole using of the hot air blast, and to the plaintiff the right of using it for a particular purpose. The crown says-I grant this patent, provided it does not interfere with any other-it does not say, provided you obtain a license; this second grant is void, and the plaintiff cannot be entitled to judgment non obstante veredicto. The letters patent restrain every one from using the invention without the license of the patentee; that is a protection and a privilege granted to the patentee; but the clause now alluded to is for the patentee expressly, and has no reference to the public (i). (i) The following is the proviso in question: -"Provided also, that these our letters patent, or any thing herein contained, shall not extend, or be construed to extend, to give privilege unto the said A. B., his executors, administrators, or assigns, or any of them, to use or imitate any invention or work whatsoever which hath heretofore been invented or found out by any other of our subjects whatsoever, and publicly used or exercised in that said part of our United Kingdom of Great Britain and Ireland, &c. aforesaid, unto whom our like letters patent or privileges have been already granted for the sole use, exercise, and benefit thereof; it being our will and pleasure that the said A. B., his executors, administrators, and assigns, and all and every other person and persons to whom like letters patent or privileges have been already granted as aforesaid, shall distinctly use and practise their several inventions by them invented and found out, according to the true intent and meaning of the same respective letters patent and of these presents." The above proviso existed in the earliest letters patent; not only in those before the clause re quiring a specification (11 Anne), but also in Argument for the plaintiff. Sir F. Pollock, A. G., R. V. Richards, Montague Smith, and Webster, for the plaintiff. The question of infringement is not now open to the defendants; that is not a question of law, but one of fact, which was conceded at the trial, or the opinion of the jury would have been taken upon it. It appears from Morgan's evidence (k), that the defendants were using a considerable proportion of stone coal, and for any thing that appears to the contrary, when Reece Davis was at their works, in April or May, 1837, they were using all stone coal and hot blast (); it further appears, that the defendants' colliery, purchased since the plaintiff's patent, is stone coal, and that the hot blast in use at the defendants' works was of a temperature to melt lead, which is known to take place about 600 degrees Fahrenheit (m). The plaintiff's invention is the beneficial use of anthracite. A partial use of anthracite is equally an infringement of the patent, which is for making iron by the combination of hot blast and anthracite. The evidence being, that the best iron is that made with all anthracite (n), the patent is not to be evaded by a party using a part of the invention, and being contented with a part of the advantage. Under the second issue, whether the plaintiff was the true and first inventor, it must be assumed that some invention has been made; the only question then is, whether the plaintiff was the person who first published this invention to the world? Now, it has not even been suggested that any person before the plaintiff made and published to the world the beneficial use of anthracite, in combination with the hot blast, in the manufacture of iron. The various patents put in (0), independent of the other evidence, show how many other persons had made attempts and experiments-but it is not suggested that the plaintiff learned his invention from these or any other sources; on the contrary, the plaintiff is recognised and hailed by a large body of his neighbours deeply interested in the prosperity of South manufacture in use before can be prohibited. The question then would appear to be one of fact; was the manufacture said to be prohibited in use before was it in actual use? not was it so included or involved in that which was done or published before, that its use might be conceived to have been contemplated. The words of the proviso make this clear and distinct; it forbids to use or imitate any invention heretofore invented and found out." The proviso in effect says this the before-mentioned grant shall not extend to give you the exclusive use of any thing which was the common property of the public at the time of the grant, or of any thing in which another had already an exclusive privilege. And it is material to observe with respect to the above proviso, that it differs in form and in legal effect from the other provisos contained in the letters patent; it is not like them a condition upon which the grant is made, and which, if not strictly satisfied, the grant will be void or voidable, but it is a proviso for the protection of prior patentees and of the public, declaring that their rights shall not be interfered with under colour of the subsequent grant. This clause would in all probability be a good plea in confession and avoidance, or a ground for repealing letters patent which had been used in fact to the prejudice of prior patentees, but it would appear to differ very materially from the other provisos above referred to. In effect, it seems to amount to a declaration, that the said letters patent shall not be an answer to any action by a party for an infringement on his prior patent. (k) Ante 388. (1) Ibid. (m) Ante 391, in Mr. Brough's evidence. (n) Ante 390, in Mr. Mushett's evidence. (0) See the patents, ante 376-7, in notes, for the use of stone coal. Wales, as the discoverer of something which was a great benefit to the country, and to all connected with the anthracite district. And this was fully borne out by the evidence as to the sudden increase in the value of that species of property. The observation also of the defendant, Joseph Price, that they were all old hands, and would soon find it out (p), is an admission that the plaintiff was the inventor of something, for the discovery of which the expenditure of time and thought was necessary. The But it is contended under the third issue, that this something which the plaintiff has discovered is not a new manufacture within the statute of James. This involves two questionsfirst, whether the said invention is a manufacture? and, secondly, if a manufacture, whether it be new? On the latter of these two questions, a doubt can hardly be entertained. It appears from the evidence, and in fact it is admitted on the other side, that a great variety of attempts had been made to smelt iron with anthracite or stone coal, but that they had all failed and been abandoned. It is for the defendants to make out that the invention or manufacture was used before. plaintiff has shown certain general facts, from which the conviction of the novelty of the invention or manufacture almost irresistibly arises-as, for instance, the extent of the anthracite coal basin; the great desideratum of a method of using it; that at the time of the plaintiff's patent there was not a single furnace smelting iron from anthracite; hence, for the purpose of the manufacture of iron, the discovery of the beneficial use of anthracite was the discovery of a new fuel or ingredient in the smelting furnace. The defendants say it was used beforebut when, where, and to what extent? Was it in use at all at the time of the plaintiff's invention? Had it even been used in combination with the hot blast? There is no evidence whatever of its having been so used. The patents which have been put in, and which have been relied on in the argument on the other side, furnish the strongest evidence in support of the plaintiff's case, showing, as they do distinctly, the nature of the attempts which had been made. But it is said that iron was actually made in 1827, at Abercrave, with anthracite. What are the facts? That in a model furnace, three feet across the boshes, that is in the widest part, and fifteen feet high (an ordinary furnace being fifteen feet across the boshes and forty-five feet high), they succeeded in making iron with anthracite and cold blast. They then set to work with a larger furnace, but the yield of iron was small, the quality so indifferent-tender and cold short-that it could hardly be got rid of, even at a loss of from 21. to 41. a ton. After struggling on for about a twelvemonth, H. T., 1842. (p) Ante 388-9. the works were abandoned, although the company were under a sleeping rent of 400l. per annum. Contrast this with the state of things immediately after the publication of the plaintiff's invention. A sudden advance takes place in the value of all anthracite property; the iron is pronounced to be the best iron made; the plaintiff is hailed as a great discoverer; and, on the argument, the great value of the invention has been fully admitted. But it is said that the invention is not a manufacture for which a patent can be granted-that it is simply the use of anthracite, a known fuel, in a way well known before. Nothing is more fallacious than this mode of speaking of an invention; that it is only so and so; discoveries which have reflected the greatest honour and benefit on mankind have been but the application of some well-known substance, or some well-known laws and properties of matter; obvious and simple in the extreme when found out. The invention may be considered in any of the following ways; as the introduction of a new fuel in the smelting of iron; as a new mode of making iron; or as a mode of making a new iron, i.e. as a new article, a new combination of matter. Had anthracite been recently discovered as a fuel, can it be doubted for an instant that its application to the manufacture of iron would have been the subject-matter of letters patent? Wherein consists the difference between that and the present case? It was known and used as a fuel for some purposes, but practically useless for the manufacture of iron. The plaintiff has published to the world in what manner it may be rendered useful. There are many cases in which the application of a well-known article, in a manner well known before, in the manufacture of an article well known before, has been held to be the subject-matter of a patent. In Derosne's case (9), the invention was the application of charcoal as the filtering medium for syrups of sugar. Charcoal was well known, and had been used as a filtering medium for almost every liquid, but before the patent had not been applied to the manufacture of sugar. In Hall's patent (r), the invention was the application of the flame of gas to singe off the superfluous fibres of lace, and other similar fabrics, having holes and interstices. In Dudley's patent (s), excepted in the statute of monopolies, the invention was the use of pit coal instead of wood in the manufacture of iron. In all these cases the result attained was old, but the novelty or invention consisted in the manner of See also Hartley's patent, ante (q) Ante 152. 54, and end note. (r) Ante 97 & 99, n. (s) Ante 14. It appears, ante 16, n., that a great variety of patents for the same object had been granted, but failed. See also Buck's invention for melting iron, &c., with stone coal, ante 35; and Mansell's patent, ante 17, for substituting coal for wood in the manufacture of glass. The similarity between the subject-matter of these and the plaintiff's patent is remarkable. attaining the result; the novelty of a manufacture may consist H. T., 1842. either in a new mode of attaining an old result, or in a new result attained by old modes. Suppose the iron in the present case to be old, that is, to be substantially the same material as was obtained before. Then the novelty consists either in the process of making, or in its being composed of certain materials. Suppose the invention a mere process, then any change in the order of the process, or generally in the modus operandi, constitutes a new manufacture (t). The inventor may fail in the specification of the invention, and in all the cases cited in the argument for the defendants, with the exception of Brunton's case, the defect has been of this nature. In Saunders v. Aston (u), the real invention was an improved button, in which the old flexible shank was substituted for the old metal shank by the special aid of a collet, but this was not so claimed or pointed out by the specification as the invention. In Kay's case there was the same kind of defect. The immediate result of Kay's invention was to put flax spinning on the same footing as cotton spinning, and to increase the manufacture of that article many thousand fold. No one who is aware of what Kay did for that department of our manufactures can doubt for an instant that an invention existed, in fact, which if properly specified was the subject of a valid patent. But the court on the construction of the specification separated the invention into two distinct parts, in respect of either of which, taken independently, the patent could not be supported (a). The position of the plaintiff resembles that of Mr. Kay, in respect of the extraordinary nature of the result produced. The large coal basin of South Wales, before comparatively valueless, has now become most valuable property. In the case of Brunton v. Hawkes (y) the objection was that the anchor was not new, the adze or mushroom anchor, having the parts united in the manner described in the specification, being in use before the patent; so that a part of the invention specified and claimed in that case was old. Further, the observations in that case respecting the amount of the invention, or its sufficiency to support letters patent, cannot be relied on, and reasoning of that kind, as has been already remarked, is (t) A remarkable instance of the kind has recently occupied the attention of the Court of Queen's Bench, in the case of Helliwell v. Dearman. The object of the plaintiff's invention was the rendering fabrics waterproof, but at the same time leaving such fabrics pervious to air. It appeared, that before the plaintiff's patent a solution of alum and soap was made, and the fabric to be rendered waterproof was immersed therein. By this means a waterproof surface was produced on the fabric, but it was not of a lasting nature-it wore off. According to the plaintiff's invention, the fabric is immersed first in a mixture of a solution of alum with some carbonate of lime, and then in a solution of soap. The effect is, that by the first immersion every fibre becomes impregnated with the alum, the sulphuric acid of the alum being neutralized by the carbonate of lime, and by the second immersion the oily quality rendering it repellant of water is given to every fibre, so that each fibre is rendered waterproof instead of the surface only; but the whole fabric continued pervious to air. (u) 3 B. & Ad. 881, and ante 75, n. (x) Kayv. Marshall, 5 Bing. N. C. 492, & post. (y) 4 B. & Ald. 450. See note on this case, post 409, n. e, |