we put a paddle upon it; this paddle is suited for the sea, and A. D. 1839, not for fresh water; we put one fresh paddle on the wheel of the Endeavour;' the result was, the agitation of the water was quite removed, or scarcely perceptible: we continued the experiment (as he called it), for some weeks; we then restored the former wheel." It is afterwards explained, that the reason why this wheel was taken away, and the old one restored, according to the captain's account, was because the boiler was not large enough to make steam sufficiently fast for this, which had a quicker rotary motion. Then he goes on to say, that in 1835 a great many experiments were made. "I got this original knowledge in the year 1833." And when we are discussing whether he had brought that to any degree of perfection, at that time, so as to be a matter that was known, and capable of being applied to vessels at all, it is odd and singular enough (but that will be for your consideration), that he should go on in 1835 making a great many more experiments. He says, "In 1835, we made a great many experiments, of which the general character was to ascertain the various qualities of wheels, chiefly cycloidal wheels, and comparing those wheels with Morgan's wheel. I had a very extensive apparatus constructed for the purpose of these experiments; it stood in a very public part of the premises, no person was excluded, a great many saw it, it was in the thoroughfare of the manufactory. We had between 400 and 500 employed at that time in our manufactory." He says how the apparatus was constructed (which I think was not very material), but that apparatus they constructed merely for the purpose of deciding upon these experiments. Then he says, "These experiments were made between the 16th of April and the 12th of June, 1835. We had a person solely employed in these experiments; no secrecy whatever was observed; on the contrary, we invited people to come and see them. I first heard of the patent taken out by Mr. Galloway, on the 8th of September, 1835. I remember a model put up by him in the Adelaide Gallery." It appears, therefore, from the month of September, 1835, Mr. Field was fully conscious that there had been this patent granted to Mr. Galloway, and we do not hear of any opposition to it for a very considerable period afterwards. Indeed, these defendants, a year afterwards, so little are they informed, or so little do they know, that there had been a doubt as to the validity of the patent, that they pay for the use of these floats, for a vessel of theirs called the Calpe,' £40-having previously, in the years 1835 and 1836, just after the granting of the patent, had the same patent improvement applied at a much larger sum to other vessels. Then he says, "I have carefully examined the specification of Mr. Galloway; I have seen the models produced; the principle laid down in that specification is precisely the same as mine; I had the same object in view— up. The summing that of arranging the floats in a cycloidal curve; I have not been able to find in Mr. Galloway's specification any thing whatever different to what I had in view, except what I had before; the advantages mentioned in his specification, are the very same advantages that I contemplated and proposed." Gentlemen, then he is cross-examined as to this point, and he says, I have taken out patents myself, altogether three, one of them a little time ago; the idea crossed my mind for taking out a patent for this discovery. I entered a caveat for my discovery in 1833. I never did any thing upon it. It is now a very valuable wheel, it is now in general use; a valid patent for such a wheel would be very valuable to the patentees, it would be valuable to me; I continued making experiments till July, 1835." Certainly it is not an improper observation, one that you should bring before your own minds on this question, that is, whether it was the invention of Mr. Field before Mr. Galloway, and an invention carried so far to perfection, that the matter might be known and used in England?—that as he had entered a caveat at the office of the law officers of the crown, he must have had notice of this-the patent would not have passed without some notice given to him, that such patent was taken out; and yet you see, though he had put in his caveat in the year 1833, and made experiments from April to June, and goes on making experiments to 1835, he does not at all interpose, or set up his claim at that time to take out a patent. I do not mean to say he was bound to do it, or that his not doing it will decide this question at all; but when we are considering the course that men ordinarily pursue in looking after their own interest, the question is, whether he is perfectly to be depended on as to the exact identity of this discovery-that this, which is now the subject of a patent, was the very discovery which he himself had made? That is for you, and not for me, to determine. Then he goes on to say, "I continued making experiments till July, 1835. I never fitted up a vessel for a customer till the Dovor Castle,' that was the name of it; the wheels were afterwards altered from three boards to two, and so they continued. That vessel did not go faster nor slower than before, but the vessel was better for the sea; she was always a slow vessel. The next vessel we fitted up with split boards was the African; that was in the summer of 1836." That is, after the period when this patent is granted; therefore, any thing that is done after that, if it is a wheel of the nature and description of that for which the patent is granted, that is not to be brought in evidence against the plaintiff, as a prior discovery, except so far as that the party who gives the evidence says that it was upon his own principle, and not upon the principle of the patent. The mere fact of applying it so late as the year 1836, the year after the patent was granted, would not of itself, of course, show that the subject-matter had been known and A. D. 1839. used in England a year before. Then he says, "I am not quite positive that I fitted up any but the Dovor Castle' with wheels on this construction. I fitted up the Great Western' with wheels of this construction in the year 1838; the wheel is now in great repute; I had no knowledge of the floats being divided in this way before I did so myself. I did nothing for the Admiralty before August, 1835." Then, in fact, he says, "I did not do it till the summer of 1836. I did take off the new wheel, after having satisfied myself with the experiment, and I put on the old boards again.' He says, "We did nothing in 1833, 1834, and 1835; in 1835 we commenced our experiments, and we still continued to make comparative experiments." Then he goes on to say something more as to the specification, which is not material (d). not conducted The point, as it seems to me, for your consideration is, whether you are satisfied or not, that, at the time when this patent was taken out, the invention for which the patent was obtained was a new invention, and not used publicly in England, which are the words of the plea? That there had been Experiment many experiments made upon the same line, and almost tending, abandoned or if not entirely, to the same result, is clear from the testimony to a successful you have heard; and that these were experiments known to issue, will not prejudice a various persons; but if they rested in experiment only, and had more fortunate not attained the object for which the patent was taken out, competitor, who adds the last or mere experiment, afterwards supposed by the parties to be required link. fruitless, and abandoned because they had not brought it to a complete result, that will not prevent a more successful competitor, who may avail himself as far as his predecessors have gone of their discoveries, and add the last link of improvements, in bringing it to perfection. If that is the case, the plaintiffs are entitled to your verdict. If it was then known, at the time when the plaintiff took it up, and was publicly known and used in England, then in that case the patent is invalid, and in that case you would find your verdict for the defendant. If you find it for the plaintiffs, it will be only nominal damages; the question is not here for any profits, but simply to decide the right between the parties. Verdict for the plaintiffs (e). (d) His lordship read the evidence of the other witnesses who had been called as to some of the matters spoken to by Mr. Field, but this evidence is not material to be stated. (e) No application was made to the court to disturb the verdict; but a rule was obtained calling on the plaintiffs to show cause why judgment should not be arrested, on the ground that the declaration was defective, no right of action being shown against the defendant on the record; there being no allegation that he was the registered officer of the Company, pursuant to the act of parliament, 7 W. 4, & 1 Vict. c. 73. On a subsequent day the plaintiffs obtained a rule, calling on the defendant to show cause why the record should not be amended by inserting the proper allegation in the declaration. The court made the latter rule absolute on terms of the plaintiffs paying the costs of both rules, and foregoing the costs of the action. Sce Galloway v. Bleaden, 1 M. & G. 247. Title. Specification CARPENTER'S PATENT. Letters patent, 18th January, 1830, to J. Carpenter and J. Young, for "certain improvements in locks and other securities applicable to doors and other purposes." The invention described in the specification consisted of two and disclaimer. kinds of improvements in locks, and of improvements in hinges. By disclaimer and memorandum of alteration, enrolled 15th of July, 1839, one class of improvements in locks and the improvements in hinges were disclaimed, and the words "other securities" in the title were also disclaimed; the remaining improvement consisted of a combination of a sliding bolt and lever latch; the latch having one side of its face sloped off and moving up an inclined plane on the striking part of the staple, and then falling suddenly into the box of the staple. One feature of the improvement was the use of a piece of metal (marked E), by which the latch could be lifted, and the bolt of the lock unlocked, from the outside. M. V., 1841. Declaration. Pleas. Objections. CARPENTER v. SMITH. Cor. Lord Abinger, C.B. The declaration set forth the specification and disclaimer, and assigned breaches after the entering of the disclaimer in respect of the part of the invention not disclaimed. The defendant pleaded—1. Not guilty. 2. That the plaintiff was not the true and first inventor of the part not disclaimed. 3. That the part not disclaimed was not a new invention as to the public use and exercise thereof. 4. The insufficiency of the specification. 5. That the invention not disclaimed was not a new manufacture within the proviso of the statute. The following notice of objections was delivered with the pleas:-1. That the plaintiff was not the first and true inventor of the said alleged invention, or for which the said letters patent were granted. 2. That the said alleged invention was not a new invention as to the public use thereof in England at the time of the grant. 3. That the specification set forth in the declaration is insufficient, inasmuch as it does not set out what parts are old and what new of the lock; and also, inasmuch as it disclaims the separate parts of the lock, without saying what is intended to be claimed, while the title of the patent is for improvements in locks only; at the same time, that much is said in the said specification about box staples and Objections. Kelly, M. Smith, and Webster, were counsel for the plaintiff, and Sir F. Pollock, A. G., and Rotch, for the defendant. Several objections were taken on the part of the defendant to the specification and disclaimer; that the latter was not such as the officer of the crown ought to have allowed; but they became immaterial (a). The alleged infringement of part of the invention was admitted; the combination of the sliding bolt and spring lever latch, with the peculiar form of striker and staple, was described as a great improvement, the door shutting more easily and with greater certainty, than when the spring bolt, which has to be pushed back, is used. The evidence as to the particular parts of the lock became immaterial, the learned judge being of opinion, that the specification claimed generally the lever latch and bolt, however combined in the same frame, and without reference to the combination with the other parts shown and described in the specification. The facts of the case are very fully stated in the summing up of the learned judge. Lord ABINGER, C. B.: Gentlemen of the jury, I will endea- Lord Abinger, C.B.,to the jury. vour, as shortly as I can, to bring before you the precise questions to be tried; and I must entreat of you to try those questions entirely free from any impression that may have been attempted to be made on you, either of compassion to the plaintiff or the defendant. Now, admissions have been made (and the cause has been conducted very fairly by the counsel on both sides), in order to reduce the question to the least possible number of points. The plaintiff had taken out a patent in the year 1830, for a new lock. It appears when he first took out the patent, he embraced in his patent a great deal of matter, which would have made the whole. patent void that he certainly embraced in it a claim for an invention which turned out to be useless, and for another invention which turned out to be old, and not to be useful; and, therefore, he took advantage of the statute that has been made within the last few years for the benefit of patentees, and by entering at the proper office a disclaimer of certain portions of his former specification, he made that good as far as he could make it (a) The original specification contained no disclaimer or claim, but the disclaimer disclaimed the particular parts, and claimed the combination of the bolt and lever latch. See per Lord |