and the whole of the evidence produced by the defendants, and Judgment. the main part of the argument before us, applies itself to that object alone. The third object proposed by the patentee was 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 filamentous material. The patentee afterwards describes the mode of effecting the third object to be, by introducing 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; that, by thus combining the strands of Indian rubber with yarns of cotton, flax, or other non-elastic material, the patentee was enabled to produce a cloth which should afford any degree of elastic pressure, according to the proportions of the elastic and non-elastic material. The patentee added, that the strands of Indian rubber were, in the first instance, stretched to their utmost tension, and rendered non-elastic, as described in a former specification to another patent, and being in that state introduced in the fabric, they acquire their elasticity by the application of heat after the fabric is made. Now the first objection made to the patent so described is, that the invention is not the subject-matter of a patent; that it is neither a new manufacture, nor an improvement of any old manufacture, but is merely the application of a known material in a known manner, to a purpose known before. The question, therefore, as to this point is, does it come under the description of "any manner of new manufacture," which are the terms employed in the statute of James. That it is a manufacture can admit of no doubt; it is a vendible article, produced by the art and hand of man, and of all the instances that would occur to the mind when inquiring into the meaning of the terms employed in the statute, perhaps the very readiest would be that of some fabric or texture of cloth. Whether it is new or not, or whether it is an improvement of an old manufacture, was one of the questions for the jury upon the evidence before them; but that it came within the description of a manufacture, and so far is an invention which may be protected by a patent, we feel no doubt whatever. The materials indeed are old, and have been used The particular before; but the combination is alleged to be, and if the jury are combination of right in their finding is, new; and the result or production is elastic strands equally so. The use of elastic threads or strands of Indian to constitute a cloth, is the subrubber, previously covered by filaments wound round them, was known before; the use of yarns of cotton, or other non-elastic material, was also known before; but the placing them alternately side by side together as a warp, and combining them by elastic and non ject-matter of letters patent. Judgment. the means of a weft when in extreme tension, and deprived of their elasticity, appears to be new; and the result, viz. a cloth in which the non-elastic threads form a limit, up to which the elastic threads may be stretched, but beyond which they cannot, and therefore cannot easily be broken, appears a production altogether new. It is a manufacture at once ingenious and simple. It is a web combining the two qualities of great elasticity and a limit thereto. The second objection to the verdict is, that it is against the evidence. The only issue to which this objection has applied itself in the course of the argument, is the issue, whether the invention was new as to the public use thereof in England. Now the evidence at the trial which applied itself to this question consisted of two perfectly distinct heads or classes; the documentary evidence of former patents and specifications, and the parole testimony of the witnesses. It was urged that the present invention was, in the whole, or a material part of it, already known to the public, by the specification to the patent obtained by Hancock, which was enrolled in Aug. 1820, and the specification to the former patent enrolled by Sievier in June, 1832 (s). As to Hancock's patent, it is manifest that, if it applied at all to the invention for which the patent now under discussion was taken out, it applied only to the first object stated in the specification, all contention as to which object was given up at the trial. But the description in Hancock's patent shows a material distinction between his discovery and that of Sievier. Hancock's patent was taken out for a discovery "of the application of a certain material to certain articles of dress, by means of which the same may be rendered more elastic," and the mode by which this was effected is described in the specification, to be that "of applying strips of Indian rubber into cases or pipes formed in the article after it was complete." The first object of Sievier's patent, is that of introducing the cords or strands of Indian rubber between the loops or stitches of the fabric, so as to form a constituent part of the fabric itself; and as to the former patent of Sievier, it was a patent taken out for the making of cables, ropes, whale fishing and other lines, lathe and rigging, bands, bags, and purses, of filaments or threads of Indian rubber, covered with cotton or other materials; the bands and bags were to be knitted, not woven, and there was no attempt to mix with them any non-elastic material to strengthen them, or to form a limit to their elasticity, or for any other purpose. These patents, therefore, do not by any means, as it appears to us, impeach the novelty of the present invention. As to the evidence of the various witnesses brought forward on each side (s) See the material parts of these specifications, ante 499. at the trial, it must be admitted that there was evidence on both Judgment. sides. The question raised for the jury was this: whether the various instances brought forward by the defendants amounted to proof, that before or at the time of taking out the patent, the manufacture was in public use in England; or whether it fell short of that point, and proved only that experiments had been made in various quarters and had been afterwards abandoned? This question is, from its nature, one of considerable delicacy; a The question of slight alteration in the effect of the evidence will establish either public use is entirely for the the one proposition or the other, and the only proper mode of jury. deciding it is by leaving it to the jury. On the present occasion they heard the evidence patiently, and appeared to apply it with intelligence, and we can see no reason to be dissatisfied with the conclusion at which they arrived. spe patent, enrolled With respect to the third ground upon which the rule to show cause was obtained in this case, viz. that since the trial the defendant has discovered a patent taken out by one Desgrand, the patent being sealed in November, 1832-without entering into the question, whether the invention for which the patent in dispute was taken out, was or was not described in the cification of Desgrand, we think it sufficient to observe, that this specification was not enrolled till May, 1833, whereas the article The specificamade under the plaintiff's patent was publicly made and sold on tion of a prior the London market, to a very large extent, in March and April after granting a of the same year, and although the specification of Sievier's subsequent papatent was not enrolled till July, 1833, we think the mere fact taining part of of the enrolment of Desgrand's specification after the plaintiff's patent was sealed, and his discovery known upon the market, subsequent padoes not of itself alone afford any proof whatever of the want of tent, is not connovelty in the manufacture made under the plaintiff's patent (t). its validity. We therefore think there is no ground for disturbing the verdict, and that the rule for a new trial must be discharged. Rule discharged (z). () The specification relating back to the date of the letters patent, the invention disclosed in the specification is to be referred to such date; the consequence of which is a temptation to fraud, by inserting in the specification of a patent inventions borrowed from others, and for which letters patent of a subsequent date have been obtained. The above decision is an authority, that the date of the letters patent is not conclusive evidence of the priority of invention as to its public use and exercise. tent, and con the invention claimed by such clusive against (2) A writ of error was brought on this judgment, the error assigned being, that it did not appear by the declaration (ante 501) that the assignment to Cornish was by deed, by which alone an interest in letters patent could be conveyed; and consequently, that it was not shown that any joint damage had been sustained. The Exchequer Chamber held the declaration sufficient after verdict. Title. Specification. GALLOWAY'S PATENT. Letters patent, 18th August, 1835, to E. Galloway, for "certain improvements in paddle wheels for propelling vessels." My invention relates to the methods of affixing the floats or paddles of paddle wheels, whereby I am enabled more advantageously to apply the power of the engines, and at the same time in a great measure prevent concussions with the floats or paddles in entering, and avoiding lifting so much water on leaving it, by which means the swell, heretofore so prejudicial, is in a great degree avoided. But in order that my invention may be most fully described and readily applied to the varied circumstances of different vessels, I will first explain the diagram, having, however, first stated, that in constructing wheels to new vessels it will be necessary to make the calculations precisely in the same way as if ordinary fixed radial floats or paddles were to be used, in order to ascertain the quantity of surface for the floats or paddles with reference to the number of strokes of the engine, its power, and the desired velocity to be obtained to the vessel; but in place of having the whole depth of the float of one unbroken area, the floats as used by me are in divided portions, and it is the method of arranging such divided floats according to the principle hereafter described, which constitutes the invention secured by the present letters patent. *(a). It should be remarked that since the sealing of my said letters patent, I have been informed that Joshua Field, Esq., engineer, of Lambeth, some years before the date of my said patent, made an experiment of a paddle wheel on a small vessel belonging to him or his partners, called the 'Endeavour,' the floats of which were divided into portions-but they are not fixed according to the principle, the application of which constitutes the object of my invention and which experiment I have been informed, and from the nature of the construction of the wheel I verily believe, was declared by him to be a failure; and I have only thus (a) The specification then proceeds to describe, by reference to drawings, the method of affixing the divided floats. The following explanation may be useful. There are two circles, an outer aa, and an inner bb, about the same centre. The circumference a a represents the course of the outer edge of the floats as the wheel revolves. The circle bb is supposed to be of such a radius that its circumference will represent the measured distance through which the vessel moves each revolution of the paddle wheel. The circle bb being supposed to roll on the water line, any point din its circumference in such circle will describe a cycloid, and the portion dg of the cy cloidal curve intercepted between the imaginary circle b b and the circle a a through the outer edge of the floats, that is, the circumference of the wheel, is the curve upon which the centres of the portions of the divided float boards are to be fixed as radial floats, the plane of each divided float board coinciding with a radius of the wheel. Each set of floats arranged in this manner will enter the water nearly at the same point, and the shock occasioned by a float board with one continuous surface entering the water be almost en tirely avoided, and the float boards act nearly as a solid float board. noticed this experiment in order to state that I do not claim the Specification. exclusive use of divided floats or paddles, unless they be applied to paddle wheels according to the principle herein described; and in order to point out more accurately the difference of a wheel constructed according to my invention and that experimented on by the said Joshua Field, I have annexed a drawing of a portion of the said wheel so used in the Endeavour,' sufficient to show the principle thereof, but on inspecting the same drawing, it will be evident that the portions of the floats are not affixed according to the method described and claimed by me (b). I would in conclusion wish it to be understood, that I lay no claim to the various parts of paddle wheels herein described and generally well known, when the same are not combined according to the method of affixing the portions of floats as herein explained; and I do declare that my invention consists in affixing the portions of floats or paddles according to the arrangements herein described. In witness, &c. GALLOWAY & ANOTHER v. BLEADEN, Secretary of the Cor. Sir N. Tindal, C.J. 29th and 30th November, 1839. The declaration, after stating the grant of the letters patent, Declaration. and the enrolment of the specification, and the assignment of a half-part or share to Routledge, assigned as breaches, that the said company (c) made paddle wheels for propelling vessels on the said improved plan or principle, and in imitation of the said invention; used and put in practice paddle wheels in imitation of the said invention; counterfeited, imitated, and resembled the said invention; made paddle wheels, with other improvements in the construction thereof, intended to imitate and resemble, and which did imitate and resemble, the said invention. The defendant pleaded-1. That the said company were not Pleas. guilty. 2. That the plaintiff Galloway was not the true and first inventor. 3. That the said invention, &c., was not particularly described, &c., by the specification. 4. That the said invention (b) In the subsequent legal proceedings on this patent, there was contradictory evidence on the question of the similarity of the arrangement of the divided floats in the two wheels; but the question left to the jury was, whether the wheel of the 'Endeavour' was an experiment, which had failed and been abandoned, or a complete and perfect invention. (c) See post 529, as to the amendment of the declaration. |