Argument for petitioner. of a patent granted to two persons of the name of Fussell and Douglas, in the year 1799, which had turned out to be a useless patent, and that although Mr. Cutler's patent bore no sort of resemblance to Mr. Haines's, it was the same thing as the patent granted in 1799 to Fussell and Douglas; and he then produced or made certain drawings, in which he informed the Attorney General of what Fussell and Douglas's invention was, and what their patent was for. The Attorney General, on the inspection and comparison of these drawings with Mr. Cutler's invention, was still of opinion that Mr. Cutler's invention was new, and useful, and original, and that a patent ought to be granted for it, and there was a report actually prepared by the Attorney General to your lordship in favour of Mr. Cutler's patent. This took place on the 27th of March, and the parties went away conceiving the case was closed. It appeared that Mr. Farey afterwards went to the patent office, and upon the inspection of the specification of Messrs. Fussell and Douglas, he wrote to the Attorney General informing him he had done so, and that upon a more close inspection and examination of the case than he had been able to give it before, it appeared to him that Cutler's invention was the same as Fussell and Douglas's, although it had not appeared to be so from that drawing on the 27th. That having been stated to the Attorney General, the parties met again by appointment before the Attorney General, but it happened then most unfortunately that Mr. Cutler, supposing all concluded, had gone away; but his solicitor and Mr. Carpmael attended for him, and endeavoured to satisfy the Attorney General that the two, in point of fact, were different, and that prima facie upon comparison the difference appeared to be perfectly clear. The report made by the Attorney General, therefore, as it now stands, is in these words: he reports on the 2d of April, "That he was of opinion that this petitioner's patent ought not to issue, on the ground that the alleged inventions of the petitioner are not new and useful." That wholly depends on the comparison of the two chains; and he further certifies, that "this was a different ground from that upon which the caveat was lodged against the said patent, and that it was not until a second meeting before him that the party objecting to the said patent was prepared to substantiate the said grounds of objection thereto." There are several affidavits of scientific men, and it will appear that the Attorney General fell into the mistake by a comparison of the drawings, the two models of the two inventions showing them to be most essentially distinct from each other, and further that the invention is obviously one of a very ingenious kind, and likely to be of great public utility; at all events, where an invention is new, and there is the strong opinion of scientific men that it will be useful, and be found of great use in practice, the seal will not be refused to a patent because some one is found to say that it will not turn A. D. 1839. out to be useful, though it is new. *(a) * The attention of the Attorney General could not have been sufficiently called to that part of the case; he considered there was nothing in that part of the case which had not been examined before, and therefore that he might at once dispose of the whole case. If a person obtains a patent that is too large, and in part is not new, then the patent is void; but if any application be made to the crown for a patent for an invention of which part is only new, there is nothing to prevent the crown from saying, that it will grant a patent for that part which is new. This is not a case of a patent granted, but to be granted. The Attorney General required to be produced before him a sort of a description of the two things, and a description was sent him beforehand by a very eminent counsel, and the Attorney General wrote at the foot of the paper, that the party was entitled to the patent as soon as the order of reference was brought him; the Attorney General afterwards unfortunately changed his opinion, and the case now comes before the court on the point, as to whether the Attorney General was right or not in making such a report. [Lord Cottenham, L.C.: For what do you claim the invention ?] We state that in the specification. [Lord Cottenham, L. C.: That is the way in which you describe it, but you must show your title by showing what the invention is.] The application for a patent is on two grounds-first, for an improved method of constructing chains; and, secondly, for an improved method of making the bars, links, and bolts, of which the chains are constructed; and to state in one word what is the improvement we claim in the construction of chains, it is the combination of what is termed the pummel and socket, with the pin passing through the whole substance of the chain, so as to give the additional strength that is given by the combination of the two parts of the chain. The combination of the pummel and socket, we say, in all chains manufactured before these has not been that combination; the pummel and socket are altogether new in themselves, and there has never been in the making of them that which gives the strength and benefit resulting from the combination; moreover, we claim this as altogether new, the whole chain being constructed of wrought iron, instead of being constructed partly of wrought and partly of cast iron. With respect to the improved method of constructing the bars, links, and bolts, what we claim there is a method by which we make those links and bolts in moulds and frames different from any which have ever before (a) It is unnecessary here to advert to the peculiar features of the invention, or to the points in which it differed from the invention of Fussell and Douglas. These will sufficiently appear in the judgment of the Lord Chancellor. Post 426. Argument in support of caveat. been invented on that subject; our models and frames have not been produced, and no question having been raised before the Attorney General on that part of the application, it was not considered necessary to produce them. Sir R. M. Rolfe, S. G.: Before proceeding to any observations on the nature of this invention, it will be necessary to call attention to a circumstance which will require your lordship's judgment before the party shall be called upon to go into the points of resisting the proposition that this is a new invention-namely, whether your lordship has any jurisdiction on the subject? I cannot say there is no jurisdiction, but I have in vain endeavoured to call to my recollection any case in which a party came to the great seal, as Mr. Cutler does, applying for a patent in the first instance-it is just the same thing as if he had never been before the Attorney General-nay, it is worse, because he has been before the Attorney General, and the Attorney General represents that there ought not to be a patent, and the same case now comes before your lordship by way of appeal from that decision. I can see no principle which can entitle this party to ask your lordship to decide against the Attorney General, that will not in every case where a patent is rejected by the Attorney General entitle the party to come and say the Attorney General has decided wrong. [Lord Cottenham, L. C.: I have all the authority here, as if it had come before me originally without objection. At the last moment the Lord Chancellor may refuse to affix the great seal. I sent it to the Attorney General before for my own information. I have all the authority for affixing the great seal.] In fact it is now substantially before your lordship in the same way, in point of substance, as if the Attorney General had said there ought to be a patent granted. [Lord Cottenham, L. C.: The question now before me is, whether it appears to me that there is sufficient reason for not obeying the direction I received from the crown for affixing the great seal to this patent? Do not let it be understood I exercise original jurisdiction over the matter.] The difficulty is this-the matter has once come before your lordship. You have a jurisdiction on the subject by virtue of an erroneous report of the Attorney General, that is, because the matter was not brought under his consideration. [Lord Cottenham, L. C.: I do not act on the Attorney General's report at all. That report is for the Secretary of State.] Your lordship acted on the seal bill of course. The question then is, as to what your lordship, as holding the great seal, should do on the facts of the case as they are now disclosed. Now, how does this matter come on? It came before your lordship on a petition that you should obey the privy seal, and affix the great seal to a patent. Your lordship has reason to doubt whether that course should be taken-whether, in fact, the crown has not been ill advised-and therefore refers it to the Attorney A. D. 1839. General, just in the same way as if the great seal had been affixed, and some party had then applied by scire facias to have these letters patent repealed. Your lordship refers it to the Attorney General to see whether the patent ought to issue. That was the reference. The party opposing the issuing of the letters patent goes before the Attorney General, and contends that they ought not to issue because the invention is not new, and because it interferes, as he supposes (not knowing exactly what it is), with an invention of his own, and consequently, of course, cannot be new. He goes before the Attorney General and produces his invention, and Mr. Cutler produces his invention, and there is this advantage, which does not arise in the ordinary cases, that the parties go, and each one discloses his own invention-because Mr. Haines, not asking for a patent for his own invention, does not care about making it public, and Mr. Cutler, having got the matter in such a state that his patent will bear date on an anterior day, will not be prejudiced by producing his invention-so that both parties produced their inventions. Mr. Haines produces his invention, which is not now in question, which it is necessary I should draw your lordship's attention to, just to show what that is. The Attorney General was of opinion that the inventions were substantially different, and that there was sufficient novelty, and that he would report in favour of the invention. The opponents at this time were but ill informed of the real nature of Fussell's invention; afterwards, in consequence of further information, another meeting was appointed, a scientific person attended on both sides, and the matter went on till the Attorney General came to the opinion, on looking more minutely into the matter, that there was no novelty or sufficient novelty in the invention of Mr. Cutler. I mention this in order to get rid of the impression that seems to have been created, that there had been some sort of mala fides on our part, because it was referred to the Attorney General to report what were the real merits of the invention. Suppose Mr. Farey's notion was right, and suppose Mr. Cutler's was not, would it not have been monstrous to have let the Attorney General report to your lordship, that it was fit that a patent should issue only to put the parties to the expense of coming the next day for a scire facias to repeal it? It was the duty of the party, if he means to question it, not only his obvious interest, but his duty towards the other party, to question it on that stage which would give rise to the least expense and inconvenience. The matter was brought before the Attorney General, and he came to the conclusion that he did not think Mr. Haines's invention interfered in point of novelty with Cutler's, yet that Fussell and Douglas's did, and therefore he reported to your lordship that no Argument in support of caveat. Judgment. patent ought to issue. It was further discussed before the Lord COTTENHAM, L. C.: The first proposition on this case was on the supposition, that those who now appear to resist the patent were the discoverers of an alleged invention similar to that for which a patent is now applied for; that, upon investigation, turns out to be not well founded, and is not now persevered in. In the course of discussing that matter between the parties, an objection is raised of a general nature, not growing out of the patent right, but a general objection to the patent, on two grounds-first, it does not exhibit any invention of any thing new; and, secondly, that what is proposed to be done would not be useful if introduced in practice. With It is not always regard to the second, it is not very easy sitting here to form tertain the ques- any very conclusive opinion as to the usefulness, nor is it very tion of utility. necessary to inquire into that (particularly considering from whom the objection emanates), because if it be so perfectly useless as is represented, it will interfere with no man's rights, and it will be a mere dead letter, which no man would wish to necessary to en |