Special verdict.

Rule nisi.

The learned judge left it to the jury to say, whether the invention was new and properly described in the specificationwhether the machine was capable of taking up cloth for any useful purpose-and whether the machines used by the defendant were infringements on the plaintiff's patent, or fair improvements on the original invention of Ainsworth & Fogg.

The finding of the jury was as follows:-The jury find that the invention is new, and useful upon the whole; and that the specification is sufficient for a mechanic, properly instructed, to make a machine, and that there has been an infringement of the patent; but they also find that the machine is not useful in some cases for taking up goods.

A verdict was thereupon entered for the plaintiff, leave being reserved to the defendant to move to set it aside, and enter a nonsuit.

Stephen, Sergt., accordingly obtained a rule nisi to enter a nonsuit on the grounds urged at the trial, and also on the ground that the finding of the jury in effect negatived the usefulness of the invention for which the patent was obtained, to the extent stated in the specification; and also for a new trial, on the grounds that the verdict was against evidence, and that the jury had been misdirected-contending that the jury should have been directed to consider whether Southworth's invention was new, regard being had to that of Ainsworth & Fogg; and whether the plaintiff's machine was adapted to the taking up of goods according to the specification, that being a material part of the improvement claimed (k).

Wilde and Coleridge, Sergts., showed cause against the above rule. The substance of the patent was an invention of machinery adapted to facilitate the drying of the goods mentioned in the specification; and the patent is not avoided, because the inventor has gone on to state that the machinery is also adapted to the taking up the cloths when dry. In the cases cited on the part of the defendant, the patents were held to be void, because the several machines, or the processes described in the specification, were utterly unadapted to the accomplishment of the purposes for which they were intended. Here the main object which the patentee professed to attain has been accomplished; as far as regards the letting down the cloths, it is admitted that the machine is faultless; and it is constructed. and worked precisely in the mode pointed out in the specification, with the exception of a flapper being substituted for the stop roller, which was found not to work well, where, in consequence of the staves or rails warping, an uneven surface was

(k) The learned counsel in moving for the rule cited the cases of Turner v. Winter, 1 T. R. 602, and ante, 77; Bloxam v. Elsee, 6 B. & C. 169;

Campion v. Benyon, 6 B. M. 71; Rex v. Wheeler,
4 B. & Ald. 541.
See ante, 83.

presented. Even suppose the taking up to be an essential part A.D. 1834. of the invention, the finding of the jury does not negative the general usefulness of the machine in this particular, though it states it not to be useful in some cases-evidently pointing to those cases adverted to by the witnesses, viz. where the goods. were fraudulently manufactured (1).

Stephen, Sergt. in reply, in addition to the points contended for on showing cause, objected that the patent was taken out for machinery, whereas the specification showed the invention to consist in the application of machinery, or in a method of using the apparatus. Cur. adv. vult.

TINDAL, C.J.: This case has been brought before us upon Judgment. a motion for a rule, either to enter a nonsuit upon leave given for that purpose by the judge at the trial, or for a new trial on the ground of misdirection of the learned judge who tried the cause, and also that the verdict of the jury had been given against the weight of the evidence. Upon the discussion which took place upon the original motion, the court were satisfied that the direction of the learned judge was right, and the rule was consequently granted upon the two remaining grounds. The motion for entering a nonsuit was grounded on two A finding of the points; first, that the jury had, by their special finding, nega- invention is usejury that the tived the usefulness of the invention to the full extent of what ful on the whole, but fails or is not

the patent and specification had held out to the public; se- useful in some condly, that the patentee had claimed in his specification the cases, is not a invention of the rails or staves over which the cloths were hung, suit. ground of nonor, at all events, the placing them in a tier at the upper part of the drying room. As to the finding of the jury, it was in these words: "The jury find the invention is new and useful upon the whole; and that the specification is sufficient for a mechanic, properly instructed, to make a machine, and that there has been an infringement of the patent; but they also find that the machine is not useful in some cases for taking off goods." The specification must be admitted, as it appears to us, to describe the invention to be adapted to perform the operation of removing the calicoes and other cloths from off the rails or staves after they have been sufficiently dried. But we think we are not warranted in drawing so strict a conclusion from this finding of the jury as to hold that they have intended to negative, or that they have thereby negatived, that the machine was useful in

(1) The case of Crossley v. Beverley, ante 110, was relied on as an authority to show that the omission to give directions in the specification, as to matters which are within the knowledge of every person capable of carrying out the invention, will not invalidate the patent. Also the

case of Lewis v. Marling, post 490, where it was expressly held, that the fact of one part of an invention not being useful, will not vitiate the grant. The same case was also cited on the question of novelty and user, as to which see ante 126, n.

Judgment.

intend to claim

the generality of the cases which occur for that purpose. After stating that the machine was useful on the whole, the expression, that 'in some cases it is not useful to take up the cloths,' appears to us to lead rather to the inference that in the generality of cases it is found useful. And if the jury think it useful in the general, because some cases occur in which it does not answer, we think it would be much too strong a conclusion to hold the patent void. How many cases occur, what proportion they bear to those in which the machine is useful, whether the instances in which it is found not to answer are to be referred to the species of cloth hung out, to the mode of dressing the cloths, to the thickness of them, or to any other cause distinct and different from the defective structure or want of power in the machine, this finding of the jury gives us no information whatever. Upon such a finding, therefore, in a case where the jury have given their general verdict for the plaintiff, we think that we should act with great hazard and precipitation if we were to hold that the plaintiff ought to be nonsuited upon the ground that his machine was altogether useless for one of the purposes described in his specification (m).

A patentee to be As to the second ground upon which the motion for a nonpresumed not to suit proceeded, we think, upon the fair construction of the things which he specification itself, the patentee does not claim as part of his must know to be invention, either the rails or staves over which the calicoes and

in use.

other cloths are to be hung, or the placing them at the upper part of the building. The use of rails and staves for this purpose was proved to have been so general before the granting of this patent, that it would be almost impossible à priori to suppose that the patentee intended to claim what he could not but know would have avoided his patent, and the express statement that he makes, "that he constructs the stove or drying house in a manner nearly similar to those which are at present in use, and that he arranges the rails or staves on which the cloth or fabric is intended to be hung or suspended, near to the upper part of the said stove or drying house," shows clearly that he is speaking of those rails or staves as of things then known and in common use, for he begins with describing the drying house as nearly

(m) The above decision is in strict conformity with a preceding decision of the Court of Queen's Bench in the case of Lewis v. Marling, where it was held not to be essential that all the parts of an invention should be useful, post 490; and with a subsequent decision of the Court of Exchequer in Morgan v. Seaward, where it was said the court does not mean to intimate any doubt as to the validity of a patent for an entire machine or subject, which is, taken altogether, useful, though a part or parts may be useless, always supposing no false suggestion: ante 197. See also in Crossley v. Beverley, ante 110. The above cases are clearly

distinguishable from those in which the purpose wholly fails; that is, those in which the invention as described is useless, as in the case of Manton v. Parker, where it appeared that the object of the invention-viz. the construction of a hammer for fowling pieces and small arms, which should let out the air from the barrel, and cause a communication between the powder in the pan and the powder in the barrel, without at the same time letting out the powder-wholly failed, the fact being that the powder and air passed through the same hole. Ante 192.

tion should be read so, as, con

similar to those in common use; he gives no dimensions of the A.D. 1834. rails or staves, no exact position of them, nor any particular description by reference, as he invariably does when he comes to that part of the machinery which is peculiarly his own invention. There can be no rule of law which requires the court to The specificamake any forced construction of the specification, so as to extend the claim of the patentee to a wider range than the facts sistently with the fair import would warrant; on the contrary, such construction ought to be of language, made as will, consistently with the fair import of the language will make the used, make the claim of invention co-extensive with the new sive with the acdiscovery of the grantee of the patent. And we see no reason tual discovery. to believe that he intended under this specification to claim either the staves, or the position of the staves as to their height in the drying house, as a part of his own invention.

claim co-exten

pending, is a

As to that part of the rule which relates to the granting of a new trial on the ground of the former verdict being against. evidence, this case comes before us under such peculiar circumstances, that unless we were thoroughly satisfied that the verdict was wrong, we hold that we ought not to interfere. The trial took place before a special jury, it occupied two days of close and laborious investigation; the questions, whether the invention was new, and whether there was any infringement, were specifically and pointedly left to the jury; the jury found their verdict for the plaintiff, which verdict, we are authorised to say, was entirely to the satisfaction of the learned judge who presided at the trial. These circumstances alone would be sufficient in ordinary cases to induce the court to refuse to interfere. But in addition to these strong grounds for the course we take The fact of a on this occasion, it should be observed that this is the case of a scire facias patent granted in the year 1823, having therefore now only ground for rethree years longer to remain in force; and further, the defendant fusing a nonsuit on an objection or some other persons have, since this action has been tried, to the patent. procured a scire facias to avoid the patent. As this is a mode of trial in which the precise objections to the patent may be raised by the pleadings, and the questions made on the former trial may be carried by writ of error to a higher tribunal, we do not feel ourselves called upon, unless upon a much stronger case than the present, to take away from the plaintiff the benefit of the verdict which the jury have given him. If this further proceeding by scire facias had not been instituted, and now pending, we might have felt ourselves called upon to discuss and consider one objection advanced by the learned counsel for the defendant, viz. that the patent is taken out for machinery, whereas the specification is made for the application of machinery, or for a method only. But as this objection as well as the others can receive a more solemn decision upon the occasion to which we have adverted, we shall offer no opinion on it now, which we think we are the less called upon to do on

this occasion, as it was not an objection taken upon the trial of the cause before the jury, but for the first time raised when the defendant was heard in support of his rule.

IN THE PRIVY COUNCIL.

SOUTHWORTH'S PATENT.

This was an application, by the assignees of the patentee and of certain persons claiming under an original license from the patentee, for an extension of the term of the above patent.

Stephen, Sergt., appeared in support of the petition, and in reply to a question from the court said, that all the parties having licenses under the letters patent had been seen, and arrangements made with them.

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