Sir N.C. Tindul, ments in the making or manufacturing of elastic goods or C.J., to the jury. fabrics, applicable to various useful purposes. That is the title of the patent, and it must be substantially made out, of course, by the evidence, that such invention has been made and given to the public before the plaintiffs can succeed. However, the defendants have put upon the record and have raised various issues, which you are to decide between them, and I mention them to you in order that we may at once get rid of those that are in a manner of less consequence to the invention in the present instance, and which will require very little consideration, so that your attention may be limited strictly and entirely to the points that are really in dispute between the parties on the present occasion.

Tests of the sufficiency of the specification.

In the first place, the defendants have said that they are not guilty of an infringement of the patent with which they are charged. That is, they have neither sold from their own stock any of those articles, the exclusive making of which was intended to, granted and confined to, the plaintiff Sievier. Then they go on to say, that at the time of granting this patent, Mr. Sievier was not the first inventor of it; that raises another question for your determination. Then they go on to say, that the invention or discovery itself, at the time when the patent was granted, was not a new invention as to the public use and exercise thereof in England, which, I must tell you beforehand, will be the principal question you will have to try; and further to say, that it was not an improvement in the making or manufacturing of elastic goods or fabrics, applicable to useful purposes. That again is another question upon which evidence has been given on both sides, and which you must determine. And they lastly say, there was no sufficient specification, that is, that the party has not by a proper and apt description so stated the discovery upon the specification, which is enrolled in Chancery, that the public afterwards, when the time of the patent is expired, may reap the benefit of the discovery, by being able to manufacture the article by themselves.

Now, with respect to the first question, whether he has or not infringed the patent, supposing it to be a good patent, that depends upon the evidence of several of the witnesses, and who stated that they had purchased in the month of October, 1834, from the defendant Keene's warehouse, several articles which resembled No. 3. [Mr. Cresswell: I will not ask your lordship to put that question to the jury.] I think upon the last also, which is the specification, very little question arises, because not only persons of skill and science read it, and say that it is intelligible to them to make the manufacture from, but also two or three witnesses were called who actually made it without any instruction but the specification. No person was called, who, upon reading the specification, stated he could not understand

it, or had been misled by it, or incurred expense in endeavouring A. D. 1835, to copy or to imitate it, or stated that he was unable to ascertain what was meant by it. Men of science can understand it when read, and you yourselves can tell whether you understand it; and persons have been found in the humble walks of life, who have been able to make the fabric, without any other direction than that of the specification. Therefore, that will be a question not of very serious consideration when brought to your minds.

The next remaining question which I shall call your attention to is, whether this was or was not an improvement upon any manufacture of any fabric of the same kind, that was in general use. Upon that there is certainly contradictory evidence. You, however, will have to say (for that is a question made between the parties), whether that which is called No. 3, according to the specimens which have been exhibited to us, is or is not an improvement for the various purposes for which this patent was intended, over the manufactures which were known in the trade, namely, Nos. 1 and 2. I allude to them by the names Nos. 1, 2, 3, because we have had those terms so extremely familiar to our minds for the last three days, that it is a compendious mode of describing the fabric, and perhaps it brings it as clearly to your understanding as if I were to go through the more formal explanation of that which 1, 2, and 3, denote. Now, was this No. 3, which varies in its mode of attaining its object from either No. 1, which was entirely composed of elastic material, or from No. 2, which contains the elastic material in a kind of sheath or case, was this an improvement upon that No. 2, for the various purposes for which the patent was taken out? Because the plaintiff Sievier undoubtedly having taken out this patent for different objects, it is incumbent upon him to show that the various objects for which he took out his patent and discovery, are such as will improve the manufacture of the article in their various particulars; and for that purpose we must look at what his object was, and then briefly refer to the evidence of which you are to be the judges. The The objects of specification which he has put in, after stating what his inten- the invention. tion was in the terms to which I have referred, says he has three different objects in view in obtaining this patent, and he gives you an account of this first object which he proposes, which is to manufacture an article by the ordinary knitting frame, or similar kind of machinery, in which cords or strands of Indian rubber shall be introduced between the loops or stitches of the fabric, for the purpose of forming elastic cords or bands round the margins or other parts of stockings, socks, gloves, night-caps, drawers, and various other articles of clothing. That is one of his objects. Another is to manufacture with the ordinary loom an elastic woollen cloth by introducing

Sir N.C. Tindal, the Indian rubber, so as to make it elastic either latitudinally or C.J., to the jury. longitudinally, and to have a felt such as will nap, if that is

necessary; that is the second object. The third object, which I believe is the principal one which is contested between the parties-the other two, although mentioned very necessary to be proved to be useful, not being that for which the great value of the patent is probably esteemed-is this. He says the third object is to produce cloth from cotton, flax, or other suitable material, not capable of felting, in which shall be interwoven elastic cords or strands of Indian rubber, coated or wound round with a filamentous material.

Now, with regard to the two first objects, but little evidence has been given; there has been some evidence, and that but little, and I am not aware that as to the two first there is any contradictory evidence brought on the part of the defendants: in fact, although it is necessary to leave this to you, it is impossible not to see that the great battle between these parties. has turned upon the third object. That is, making the webs for braces, which are applicable to so many purposes in life; the other two are smaller, both in the estimation of the patentee and the public. The first, however, you observe by the cotton articles which were brought into court—the nightcap, gloves, and other articles—is the interknitting this braided material, so as to form a part of the fabric, and at the same time to give the parts that require it a degree of tension that is necessary and useful to the purpose. Is or is not that a useful discovery after the other? The persons who were called, stated that in their opinion they thought it was. I am not aware, but if you wish to have your attention called to it I will refer to the evidence, but I am not aware that there was any evidence specifically denying the utility of that on the side of the defendants. The next is, the object of making a woollen cloth which shall have the texture either latitudinally or longitudinally extensible, according to the degree of force that is applied to it. Now it certainly does not appear, as I have stated, that that was an important part of the patent to the patentees, at least they never have brought it (as far as we have evidence) into a considerable degree of use. And I am not aware of any more evidence being given of the making of cloth than the two specimens which were exhibited to you in court; they were handed up to you, they were placed each way as you must have seen, and seemed to answer the description, and the witnesses who produced them said, they thought it would be extremely useful, that it would make coats for common people in the ordinary class of life, that it would yield to the pressure applied to it, and would last out many others. I am not aware on this head also that any great, or indeed any evidence, was brought to contradict that evidence, as to the utility of this part of the in

vention; in fact, it seems to me as if by a kind of consent, though A. D. 1835. I am not able to put it to you in that way, that the contest, whether this patent was valid or not, was reserved for the third and greater object, namely, the making the elastic web for making braces, garters, and other articles of that sort. You are bound, however, to say whether, with respect to one and all, the defendants or plaintiffs have succeeded on that plea, namely, whether the various objects are useful improvements upon the state of the manufacture as it was then practised. We come, therefore, to the third point, that is, the making these webs, which, where he comes to state more fully his mode of doing it, he states that the manufacture of elastic cloth, as he calls it (perhaps the word "web" would have been more familiar to a common comprehension), but the word "cloth" will cover it, it may be made of flax, though it more commonly applied to that which is made of wool: he says, "In manufacturing an elastic cloth from cotton, flax, or other material, which is not intended to be milled or fulled, I introduce into the fabric threads or strands of Indian rubber, which have been previously covered by winding filaments tightly round them through the agency of an ordinary covering machine, or otherwise; these strands of Indian rubber being applied as warp or weft, or as both, according to the direction of the elasticity required. By thus combining the strands of Indian rubber with yarns of cotton, flax, or other non-elastic material, I am enabled to produce a cloth which shall afford any degree of elastic pressure, according to the proportions of the elastic material." It was with reference particularly to this, the third object, that I stated the evidence on each side was contradictory, and that you must draw the balance between the parties. On the part of the plaintiffs, several of the witnesses, particularly Mr. Farey and Dr. Ure, stated the web and cloth, which was so made, was an improvement upon that which had preceded it; that it is lighter, more porous, and that it will yield more than the other that it will adapt itself to the human frame more easily than the formerand that it is much cheaper. Now I believe all sides agree upon this, that it is considerably cheaper, and indeed it stands to reason that that which is designated No. 3, would be much cheaper than No. 1, which is entirely made of longitudinal threads of Indian rubber, because the cotton that is combined with it in No. 3, is a much cheaper article to make the same quantity of fabric than the other. That is the account they give-that it is lighter, more porous, and in cases, they say, where pressure is required, it is admirable in its consequences, for without compressing the parts within it, it gives all that proper degree of pressure which may be required for the purposes for which it is used. And two gentlemen are called of the medical profession, Mr. Skey and Mr. Holt, and they tell you

Sir N.C. Tindal, that they think it is a very great improvement for use in surgical C.J., to the jury cases where bandages are required; that it is vastly superior

The invention must be an improvement for all purposes,

to No. 1-in which it is entirely composed of Indian rubbernot only as being more light, but also as being more porous, so as to allow of the possibility of perspiration passing from the patient a matter of very considerable consequence. It is a circumstance in the case that it is found useful for surgical purposes. The patent, however, is not taken out for that purpose, and it would not be sufficient in order to maintain the patent, on the ground of its being an improvement, to show that it was not for one only. an improvement in surgical cases for bandages only, because the patent is not only confined to that, but they must prove also that it is generally an improvement with respect to the general uses of that fabric or manufacture which was intended— that is, with respect to braces, garters, and other articles that Cheapness is an are made of it. The evidence on the part of the plaintiffs improvement, states that it is cheaper, and cheapness is an improvement, and be considered. not to be laid aside and thought nothing of, and you are to

but not alone to

consider it among other things; but that is not the only thing to be considered, because they may have a thing too cheap to be useful, and you must see whether it combines with it the other property of utility, which the former fabric when used for the same purpose possessed. The gentlemen who are called for the plaintiffs state that it does; several of the witnesses on the part of the defendants (I don't say all) speak very lightly of it. One of them, the first who was called, states that he thought it a production calculated to bring No. 1 into contempt; he had at one time made it, but had soon relinquished it, and had gone back to No. 1, which is made entirely of the extensible material (the Indian rubber); and so several of the others stated. One stated, that he thought it was not so good, "because," says the man, "though it is cheaper it is heavier." "I found it," says the first witness, "not an improvement, but quite the reverse, and calculated to bring the thing into contempt, and so I gave it up, and I afterwards continued the old principle, making it all elastic." The plaintiffs' second witness says, "it has an advantage over No. 1 and 2, that is, much cheaper; it is not a better article than No. 1, it is not so goodnot so good for braces only." Then he goes on to say, “that No. 3 has almost superseded No. 1, and we sell more of No. 3." Gentlemen, the evidence being of this nature, you are at liberty to consult your own judgment of the thing, the article having been exhibited before you. You will apply your own good sense and experience to them, and say which of these two sets of witnesses are speaking that which you must rely upon; and it is an observation not to be lost sight of, that the No. 3 extensive sale is article is one which, according to the testimony of this witness, as well as another, has had an extensive sale, and by having had

The fact of an

to be considered.