an extensive sale, we are at liberty to ask ourselves how it ob- A. D. 1835. tained that; and although certainly the circumstance of its being considerably cheaper would go a great way to account for that, it would not go the whole way. Therefore, you must ask yourselves, whether in making braces, garters, and other articles, for which this web was originally intended, and before the improvement was applied by the public, this has made an improvement upon it before the patent was applied, and is more beneficial and useful to the public than the other was. That is one of the questions which you will have to determine.

We are now approaching nearer the real question in contest between these parties, that is, whether it is a new discovery, of which the present patentee Mr. Sievier was the first inventor, or whether it was known and practised in England before, and at the time of obtaining the patent in question. That question upon this record is resolved into two-They have said, that the manufacture itself is not in the language of the plea a new invention, as to the public use and exercise thereof in Englandthey go on to say, that Mr. Sievier is not the true and first inventor thereof; I don't know whether in this particular case, the second question will become very material upon the facts of the case, if you dispose of the first, because if the defendants establish for instance their case, that it was something known and practised in England generally at the time of the patent, why it is useless to inquire any further, whether the matter occurred to Sievier, whether he was the first inventor or not, because the answer would be, why did he not take out his patent sooner, so as to secure the right to himself; on the other hand, if you decide it was a new discovery, and therefore that the patent is a good one, that is, that it was not known and practised in the kingdom at the time the patent was granted, then, in this particular case, there is nothing to deprive Mr. Sievier of the merits of being the inventor of this improved manufacture—there is no particular evidence that points to him as having borrowed it from any body else, or from the public sources to which the public has the right of access. Sometimes it is a material ques- Two distinct istion to determine, whether the party who got the patent was velty; the one, the real and original inventor or not; because these patents are whether the ingranted as a reward, not only for the benefit that is conferred use the other, upon the public by the discovery, but also to the ingenuity of whether the the first inventor; and although it is proved that it is a new from another. party derived it discovery so far as the world is concerned, yet if any body is able to show that although that was new-that the party who got the patent was not the man whose ingenuity first discovered it, that he had borrowed it from A. or B., or taken it from a book that was printed in England, and which was open to all the world-then, although the public had the benefit of it, it

sues as to no

vention is in

If known pub

licly, and praetised openly, so that others might acquire the knowledge, the patent void.

There are cer

tain limits as to public use and operation.

Sir N.C. Tindal, would become an important question whether he was the first C.J., to the jury. and original inventor of it. The main question is, whether this No. 3, which is the principal subject of the patent, was or was not in use in England at the time of granting these letters patent. Was it or was it not, in the language of the act of parliament, such a manufacture (which has a very wide and extended meaning-you may call it almost invention), was it or was it not such an invention, at the time of making the letters patent, as was current in use. If this No. 3, calling it technically and compendiously by that title, was at the time these letters patent were granted in any degree of general use; if it was known at all to the world publicly and practised openly, so that any other person might have the means of acquiring the knowledge of it, as well as this person who obtained the patent-then the letters patent are void; on the other hand, if it were not known and used at the time in England, then as far as this. question is concerned the letters patent will stand. Now it will be a question for you, gentlemen, to say, whether upon the evidence which you have heard you are satisfied that the invention was or was not in use and operation, public use and operation, at the time the letters patent were granted? It is obvious that there are certain limits to that question; the bringing it within that precise description which I have just given must depend upon the particular facts that are brought before a jury. A man may make experiments in his own closet for the purpose of improving any art or manufacture in public use; if he makes these experiments and never communicates them to the world, and lays them by as forgotten things, another person, who has made the same experiments, or has gone a little further, or is satisfied with the experiments, may take out a patent, and protect himself in the privilege of the sole making of the article for fourteen years; and it will be no answer to him to say that another person before him made the same experiments, and therefore that he was not the first discoverer of it-because there may be many discoverers starting at the same time, many rivals that may be running on the same road at the same time, and the first which comes to the crown and takes out a patent, it not being generally known to the public, is the man who has a right to clothe himself with the authority of the patent, and enjoy its benefits. That would be an extreme case on one side; but if the evidence that is brought in any case, when properly considered, classes itself under the description of experiment only, and unsuccessful experiment, that would be no answer to the validity of the patent. On the other hand, the use of an article may be so general as to be almost universal. In a case like that, you can hardly suppose that any one would incur the expense and trouble of taking out a patent. That would be a case where all mankind would say "You have no right to

Unsuccessful experiment cannot vitiate.

step in and take that which is in almost universal use, for that A. D. 1835. is, in fact, to create a monopoly to yourself in this article, without either giving the benefit to the world of the new discovery, or the personal right to the value of the patent, to which you would be entitled from your ingenuity, and from your application." Therefore, it must be between those two (if I may so call it) limits that cases will range themselves in evidence, and it must be for a jury to say, whether, supposing those points to be out of the question, in any particular case, evidence which has been brought before them convinces them to their understandings that the subject of the patent was in public use and operation at that time at the time when the Public use at the patent itself was granted by the crown? If it was in public use time of the grant. and operation, then the patent is a void patent, and amounts to a monopoly; if it was not, the patent stands good. Now, gentlemen, you will have to apply your understanding to-day to the evidence in this case, which is in many parts contradictory, in order to see whether you bring the case within the one or the other of these two descriptions, and whether this patent is or not a new invention. On the part of the plaintiffs in this case (referring as I do, and all my other observations have been made simply on this part of the case), the evidence is, as it necessarily must be, of a negative character; the assertion. of the plaintiff Sievier is, "at the time I took out my patent No. 3, the subject of the patent was not generally known, it was a new invention by me, and was not known to the world." You The only evicannot prove a negative strictly-you can only do so by ex- dence which the plaintiff can hausting the affirmative instances of it, by calling persons who give on the issue have never heard of it or seen it, and the more those persons that of persons are in the way of hearing of it or seeing it, if it had existed, the who were in the stronger is that exhausting evidence, if I may so call it, in its way of hearing effect and value with the jury. From the nature of the case, not having it is very difficult to suppose such circumstances as that a party should distinctly and affirmatively prove that it was a new invention, that it was not known and practised at the time the patent was obtained; therefore he calls several witnesses to prove that part of the proposition, namely, that there were persons who had been in this trade for several years. Rodgers tells you, there were but a few of the larger manufacturers of this article in London, and that previous to obtaining this patent, from the intercourse he had had with the trade, he thinks it likely if there had been such an article in the market it would have been offered to him for sale, and none such was offered; the first he ever saw of it, I think, was in 1834; he became acquainted with No. 3, he says, in 1834, and first bought it in August; he became acquainted with it some three or four months before. Now Minton, who is the agent of the plaintiff, states, that since April or May, 1833, he had supplied the trade

Mr.

of novelty, is

of the invention,

heard of it.

Sir N. C. Tindal, with it, and he says, what he supplied them with was, the alterC.J., to the jury. nate web, and he saw nothing like No. 3, except that of the

plaintiffs, until October, 1834, when No. 4, that is what is called the imitation by the defendants, was first sent out to the public. Then again Hickling states pretty much to the same effect; he became acquainted with No. 3 in 1834, and had not seen or heard of it before that: Lindsay speaks to the fact, that before April, 1833, he never saw any thing of the sort; and he gives you this fact, which you will have to consider and contrast with the evidence afterwards called, that he had lived as a servant of the defendants from October, 1832, to April, 1833, and then he went from the defendants to the plaintiffs; therefore he gives you something more than negative evidence, for he says, that while he was at the defendants', No. 3 was not made there. He undertakes to say that; therefore you will have to compare that evidence with the evidence of Walter, Hall, and the other witnesses, upon whom so much observation was made. Lindsay is sure that was so, because there was only one loom at the defendants which could make it, and he took it with him when he went, and brought it away when he left the defendants' employ. That is the negative account, which is a prima facie account, and sufficient to show there was no such article till the affirmative was proved. Now the defendants, on the other side, have undertaken to convince you, that at the time when the patent was granted, the public were in possession of this-that it was an operation known and used; they undertook to show you, by affirmative evidence, that it was actually known and used, and that it was so known and used as that it is impossible to have any doubt upon the fact. They say, and show you, not only that various persons were making this before the time, and dealing with it as an article of trade, but that the defendants themselves say they had actually used it a year before very nearly, or a considerable time before the date of these letters patent. In order to establish this affirmative, they give you three distinct lines of evidence: first of all, they put in the specification of a former patent, which had been obtained by the plaintiff on the 1st of December, 1831, and they say that this specification, if you look at it, is in effect a declaration to all the world of this so-called new discovery, which is the subject of the patent of As to the disclo- January, 1833. Undoubtedly, if you could show under the sure of the in- hand of the plaintiff, or any body's hand, that the secret had been publicly communicated to the world which was intended a prior patent. to be covered by the subsequent patent, there is an end of that patent; if the world at large had been informed by this specification of the colour, fabric, and manufacture, which is intended to be effected by the subsequent patent, the subsequent patent must fall to the ground, otherwise a man would have nothing

vention in the

specification of

to do but to take out patent after patent when the former has A. D. 1835. nearly expired, and so afterwards procure to himself an unlimited privilege; therefore the question is, does it or not, when you look at it, carry with it the discovery or invention, as it is contended it does, of the new patent? When I first saw it I was considerably struck by the observation made by the counsel at the bar for the defendants, but upon looking further at it, I was not prepared to tell you, nor would it be proper to tell you, because it is a matter of fact for your consideration, that this does embody in it a discovery of the subsequent patent. Reading it as a common man, I should rather think it applies to the case In the one pawhere the elastic material is combined at each end, and bound tent the elastic up in one mass or strand with non-elastic materials, and not bound together where they each act separately and independently by them- at the ends in a selves. If you by looking at this can find out the other, and other each can see that in this the other is contained, there is an end of the strand acts independently. second patent—if not, we must pass it by, and go to the other evidence in the case.

strands are

mass, in the

be restrained in what they were

The other evidence in the case is of two sorts, that is, the other evidence is that which applies to the making of this fabric by other persons than the defendants, and then comes a body of evidence to show that it was actually made by the defendants so far back as June, 1832-between June and November, 1832. If either of those is proved- that is, that it was generally known General use and and practised, and not merely as a matter of experiment and experiment to be distinguished. trial kept secret by the party, and thrown away as the result of that which was of no use to the public-the patent is gone; or if the defendants have shown that they practised it and pro- Parties cannot duced the same result in their factory before the time the patent was obtained, they cannot be prevented by the subsequent doing before. patent from going on with that which they have done. But that is a mere question of fact, which you are to judge of; I am not to judge of it at all between the conflicting evidence which has been brought forward on both sides. Having now endeavoured as far as I am able to simplify the case by bringing your attention to the true point, I shall now proceed to read the evidence to you as far as you wish it, and you will then make up your minds upon it. You best know whether you have that recollection of it to make it necessary or not, but I shall have great satisfaction in doing it if you wish it to be done. [The Foreman of the jury intimated that the jury had a full recollection of the evidence, and they merely wished to have their attention drawn to the particular points which had borne upon his lordship's mind.] Then, gentlemen, I certainly shall not take up your time unnecessarily by reading the evidence, but I will briefly conclude what I have to say, by calling your attention again to the several points which you have to determine. You must say, whether the defendants have infringed the patent at