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Trial at luw.
a greater velocity than another part, and drags the parts of the tube at a different rate. There is a tendency, therefore, in proportion to the size of the grooves, to separate the parts unequally, that is, the fibres of the tube, which is drawn through only by friction or adhesion to the surface of the grooves (2).
At the close of the plaintiff's case, the learned judge recalled Mr. Brunel and Mr. Donkin, when the following questions were put, and answers given :
Lord Lyndhurst, C. B.: “When the upper roller is down, its lower edge lies upon the upper ledge of the under roller; and there is a hole between the rollers, and through that hole, by means of the revolution of the rollers, the heated tube is drawn. Now I wish to ask you, whether that (without the scorpion) which they say, by pressure, welds the heated tube--the sides of the hole, they say, weld the tube-is in your judgment similar; though not exactly the same, similar to the invention of the plaintiff; the plaintiff stating that his invention is of this description—“The principle of my invention is to heat the previously proposed tubes of iron to a welding heat, that is, nearly to the point of fusion, and then, after withdrawing them from the fire, to pass them between dies, or through holes, by which the edges of the heated iron may be pressed together, and the joint firmly welded;' I want to know, whether that effect is produced by the rollers, although not so perfectly as by the dies?" Mr. Brunel—“It is produced by the rollers."
“Then I want to know, whether the passing them through the rollers in that way alone is not similar, although not so perfect, as passing them through the dies or through the tongs?” Mr. Brunel-" It is my opinion that it is the same.”
“It is by the pressure of the sides of that hole that the edges of the heated iron are welded together? Mr. Brunel
" It is.”
“By passing through the holes of the dies, it is by the pressure of the sides of the hole that the edges of the heated iron are welded together?” Mr. Brunel—“Quite so."
“Then, I ask, whether, if it is a question of welding, the one is in your judgment similar to the other?” Mr. Brunel66 It is."
"Mr. Donkin, you have heard the questions I have put to Mr. Brunel,I wish to have your opinion upon the same point?" Mr. Donkin—"I think the holes, when closed one upon the other, produce a similar effect, and the method of welding is therefore the same.”
(8) Several other witnesses were examined as to the effect on the trade, the diminution in price, and the utility of the invention. Also to show that the rollers were useless, or not intended to be used; and that the tubes were drawn through the
scorpion at a welding heat-the plaintiff's case being that the tubes were in fact made by the scorpion, and that the rollers were but colourable. But this evidence became unimportant in the result. See per Sir J. Campbell, A.G., post 464.
“ Then you do think one invention in principle is similar to A.D. 1834. the other?” Mr. Donkin—"I do.”
Lord Lyndhurst, C. B. : I confess it appeared to me from reading the specification, that without the scorpion the one is an imitation of the other; because this party says, “I do not claim this particular apparatus only. I do it by the die, or I do it by the tongs; the principle of my invention is, to pass the heated tubes through the hole at a welding heat, and by pressure occasioned by that hole to unite together the heated edges by welding.” That may be done more or less perfectly whether it is by the rollers or by the tongs, it is not very material; the one is similar in principle to the other.
Sir J. Campbell, S. G., for the defendants. It is evident from the answers last given, that the plaintiff cannot sustain this patent. The patent granted to James & Jones is for welding by rollers, precisely upon the same principle, and in substance the same, as that granted to Whitehouse. The process is to be completed by means of pressure, by means of a circle through which the object passes; whether this be done by rollers, or draw-bench, or through a ring, signifies not, the principle is the same, to produce a welding by circular pressure. But not only was welding by rollers perfectly well known before Whitehouse's patent, but in 1808 Cook took out a patent for making tubes by drawing them through graduated holes. The tubes were first welded on a maundril, and then finished by drawing through a draw-plate, which is the same as the defendants' scorpion.
The learned counsel then proceeded to comment on the evi. dence adduced, and to state the nature of the case on the part of the defendants. At the close of his address, after some discussion, it was arranged that there should be a verdict for the plaintiff, with liberty to the defendants to move for a nonsuit.
In the Exchequer, E.T., 1834.
SirJ. Campbell, A.G., in pursuance of the leave reserved, moved Motion for for a rule to show cause why the verdict should not be set aside non and a nonsuit entered. The question will be, whether, on account of a prior patent, the plaintiff's patent is invalid, because of the specification claiming more than the novelty extends to. (Lord Lyndhurst, C.B.: The invention claimed seems to be this, that of bringing to a welding heat a long piece of iron of the proper quality after having turned up its edges, and then
Alution for nonsuit.
heating it to a welding heat, and drawing it through a hole of • the proper size of the intended tube, so as to compress together
the edges, and give it a complete circular form.] To make it pass through a hollow cylinder. [Lord Lyndhurst, C.B.: I mean any circle, either a die, as described here (referring to the specification), or a pair of pincers, or in any other way in which a cylinder can be produced.] The defendants turn up the skelp and heat it in the furnace, and pass it through two rollers with grooves. Rotary motion being given to the rollers, and the skelp introduced into the groove, it passes through the hollow cylinder by means of that rotary motion; the compression takes place in the hollow cylinder, and the welding is accomplished. But besides these rollers there is what is called a scorpion, which in fact was a die, and very much resembled the die in the plaintiff's specification, and the great controversy during the first day's trial was, whether the process of welding by the defendants was consummated by the skelp passing through the rollers, or whether its passing through the rollers was not merely colourable, and that by the passage through the die, which the defendants call a scorpion, the welding was completed. But the defendants' case was, that the welding was accomplished by the rollers. It struck his lordship, that the defendants upon their own showing had infringed the plaintiff's patent, because, according to the evidence of Mr. Brunel and Mr. Donkin, the mode of welding by rollers and by dies was in reality and essentially the same. So that it may be assumed that the defendants have infringed the plaintiff's patent, though the scorpion had never been used at all, but the welding had been completed by the rollers alone, because it was clearly an adoption of the plaintiff's principle, though by a different method. The question will then be, whether the same principle is not disclosed in the specification of James & Jones's patent. They first describe the skelp, then the mode of welding by hammering, by introducing a maundril, and then hammering on the anvil ; and then a mode of welding by hollow rollers, which is an exact description of the mode in which the defendants' welding is accomplished. [Lord Lyndhurst, C.B.: As it struck me at the time, that is done on the maundril. It struck me, that the only difference between the two was, that the one was done with the maundril and the other without. They say it is of great importance dispensing with the maundril. If that be so, the patent should be for doing without the maundril. When it was said to be the same thing, it was contended on the part of the counsel for the plaintiff that it was not the same thing, for in that patent the maundril was used. Then, I think, I observed to Sir James Scarlett, “Then your patent should be for dispensing with the use of the maundril," and I was inclined to consider the objection as fatal. But I thought the better course, in consequence of the long inquiry, to go on. A.D. 1835. And then the Attorney General, after no inconsiderable consultation, said he would rest the case on that objection.]
Rule nisi granted.
Cor. Lord Lyndhurst, C.B.; Parke, B.; Alderson, B.; Gurney, B.
Sir James Scarlett, Rotch, and Follett, now showed cause Argument on against the above rule, and argued at considerable length the motion for question of infringement, but the judgment of the court did not turn upon that point. The matter for the consideration of the court is this, whether James & Jones's patent, upon mere inspection, without a single witness, or any evidence whatever tendered in explanation of it, necessarily shows that the invention claimed by the plaintiff is not new. It is contended, that the plaintiff's method of welding, by passing the tubes through a die, is the same as that of welding by rollers, described in James & Jones's specification :--.“ or instead of welding the barrels by hammers, as before described, they may be welded between a pair of rollers, grooved to fit the form of the barrel, the rollers having either an alternate or rotary motion, and worked by steam, water, or other mechanical power; but we consider the hammers to be the best method.” Shall the plaintiff's patent be defeated by what is a mere speculation as to the possibility of pipes being welded by passing them through a roller ? Suppose that in some old treatise on the manufacture of iron a suggestion were found that pipes might by possibility be welded by passing them through rollers, could it be contended that this would invalidate the patent?-and yet nothing more is done in James & Jones's specification. To substantiate the defence, the rollers themselves ought to have been produced at the trial, and shown to be the same in effect and power as the die. There is a great difference between the operation of the roller and the die. In using the roller, all parts of the tube have not an equal pressure at the same time; and the larger the tube the greater the imperfection in its manufacture. The use of the maundril also is another important distinction between the two methods. It was proved that the maundril could not be used in the manufacture of a tube of any length, and the reason is, that the instrument is obliged to be withdrawn while the tube is still very hot. It is impossible, consequently, to manufacture tubes with the maundril of greater length than a fowling piece. In another particular, also, the die differs from the roller. The dies have a conical or bell mouth, to admit the tube being of larger dimensions when it goes in than when it comes out.
ing the same
Argument on This cannot be effected by means of rollers. The pipe in passthe rule.
ing through the die assumes a diminished form. This is an essential part of the principle of the plaintiff's patent, and the
operation of the roller in revolution cannot embrace any part of A different that principle. [Lord Lyndhurst, C.B.: Suppose a patent had mode of attain. been taken out for welding tubes by means of rollers, could object, as weld- there not have been another for effecting that object by means ing by fixed dies instead
of fixed dies?] Certainly there could. [Parke, B.: The plainof rollers, or tiff's patent is for drawing tubes through fixed dies without the omission of a
he use of the maundril; if so, it is not the same as James & Jones's maundril pre- patent.] [Lord Lyndhurst, C.B.: It is the same as if the speviously in use, is a good sub.
cification had stated that the operation was to be effected ject-matter. without the assistance of a maundril. If the words, “ without
a maundril,” had been inserted in the specification, would not that have shown the invention to be perfectly new ?]
Sir J. Campbell, A.G., Platt, and Richards, contrà. The specification claims too much, and the plaintiff seeks to appropriate to himself what is not a new invention. The real question is this; is the invention claimed that of welding tubes by means of circular pressure? It is perfectly immaterial whether that pressure is applied by drawing an instrument through the tube, or the tube through an instrument. At the trial it was assumed that the two modes were the same in effect, and the question made was, whether there had been an infringement? The defendants' mode of welding was by means of rollers. That circular pressure in general is the principle claimed by the plaintiff, appears from the following part of the specification :"I do not confine myself to the employment of this precise construction of apparatus, as several variations may be made without deviating from the principle of my invention, which is to heat the previously prepared tubes of iron to a welding heat, that is, nearly to the point of fusion, and then, after withdrawing them from the fire, to pass them between dies, or through holes, by which the edges of the heated iron may be pressed together, and the joint firmly welded.” (Lord Lyndhurst, C.B.: “ Them," means the prepared tubes of iron, that is, tubes without a maundril.] The operation, as described, depends upon the drawing of the tube, whether there be a maundril or not. In the operation of the rollers it is the same as if the tube passed through a hole, and this specification in fact claims the system of the roller, which produces a hole through which the tube is passed. According to the specification, what is there to prevent the plaintiff from using the roller to effect the welding instead of the die?
The principle, then, claimed by the specification being that of welding by means of concentric pressure, is the same as that of James & Jones's patent. Their specification states that, “instead of welding the barrels by hammers, as before described,