Lord Abinger, good, by striking out the objectionable parts of the specification. C.B.,to the jury. But the objection to his specification originally, is plain on the face of it, and it was this-it is required as a condition of every

tion must distin

the patent extends to the whole and to each part.

patent, that the patentee shall set forth in his specification a The specifica- true account and description of his patent or invention, and it guish between is necessary in that specification that he should state what his new and old; if invention is, what he claims to be new, and what he admits to not, the presumption is that be old; for if the specification states simply the whole machinery which he uses, and which he wishes to introduce into use, and claims the whole of that as new, and does not state that he claims either any particular part, or the combination of the whole as new, why then his patent must be taken to be a patent for the whole, and for each particular part, and his patent will be void if any particular part turns out to be old, or the combination itself not new. Now, as the patent stood originally, he neither claimed the combination nor the specific parts, but when he comes to make the disclaimer, in the year 1839, he disclaims the particular parts; but I will not call your attention to them, because they are not material, but he retains his claim to Fig. 2, and disclaims the particular parts; he says, "the latch is not new, the bolt is not new,”—but it is plain that he claims the rest. Now the rest either means the combination, or it means a combination within a combination, such as it was that he claimed as his patent. Now that combination, as it is set forth in his figure, as well as in his patent, consists of a certain brass plate, which is marked with the letter E, and which serves to confine the movements of the two bolts, that is, of the latch and the bolt latch together, if the party chooses so to use them. But he certainly states that he may use them separately, without the plate E, in which case it is admitted that the brass plate marked with the letter E would not be required. But then his counsel says, that the claim is sufficiently large to entitle him to the combination independent of that. Now that is a question upon which I entertain very considerable doubt, that is a question open for future discussion, but we assume, for the purpose of trying the question before you, that he may claim a patent for a combination, independent of that brass plate marked with the letter E, which it is admitted the defendant has not used. Why, then, what is the combination he claims? he does not say that he claims (at least, he does not say in terms that he claims) the combination of the box and the sliding inclined plane in the box; he does not say he claims that as a part of his combination; but you are to collect that in the specification from his figures. But, as I understand it, he certainly claims the combination of the two bolts in one frame, and I do not deny that, according to the evidence he has given, he has proved that there is more advantage in having them in one frame than in two; we must take that for granted,

that the advantage here is not questionable. Well, but then A. D. 1841. does he claim the combination in that precise and particular form and no other?-because, unless he goes on in his specification, and says, "I claim the combination in the precise form I have stated, but I do not claim the combination in any other form whatever," his claim in general is for the combination of the two bolts in one frame-the one the bolt, and the other the latch. Now on that subject the counsel for the defendant says, "I deny that that combination is new-I deny that it is new in its parts, and I deny that it is new in the combination." That is the plea. The pleas are changed in two or three different ways, but that is the substance of the pleas. The plaintiff has certainly given evidence to show that the witnesses who have been called had never seen the combination before-but their evidence goes further than that; for Mr. Carpmael and Mr. Bramah both distinctly say, not only that they have never seen the combination before of the two bolts in one frame, but they both say that they never before saw a lifting latch that was raised up by an inclined plane on the box, and by a bearing off of the edge of the latch, so as to accommodate the inclined plane, and to make it rise more easily and get into the box, and hold it fast. Mr. Carpmael says, in terms, that he had never seen that before; Mr. Bramah says the same thing, that he had never seen that before. Now, I desire you to dwell with some attention on that, because a great deal of argument has been urged here, and a very ingenious reply has been addressed to you by the plaintiff's counsel, and witnesses have been called, some of them persons of great science and extensive knowledge, and these witnesses have been called to prove that they never knew this before; from which you are desired to infer, that it could not have been known before to any purpose or effect whatever. Why the same persons who tell you they never knew the combination before, also tell you that they never knew the particular part in its present form before, that is, the latch; when you find from other evidence, that that form was well known, that that form was known to other persons, who had introduced it into practice, at least it is an argument to show, that the knowledge of these gentlemen, however intelligent they may be, is not to be altogether relied on. Mr. Carpmael was evidently surprised to see the lock put into his hand from the Martello Tower, and admitted that he had never seen any thing like it before. I think there are several instances which I might allude to, which show with respect to the form of the latch, and the mode of its being got in the box, that that has been used before. Then what is it that is new? It is the combination that is new; that part is not new. The box has been proved sufficiently to have been used before in that form, or on the same principle-Mr. Carpmael admits it; therefore, it

Lord Abinger, is the combination which is new. Now, is the combination C.B.,to the jury new? Upon that you had the evidence of the opinion of many

A public use and exercise, not a use and

witnesses on behalf of the plaintiff, that it was not known before, and that they did not know it before. You have also the facts adduced by the defendant's counsel.

But, gentlemen, before I come to consider these facts, and apply them to the evidence, I must beg leave to make an observation upon a very important part of the address of the counsel in reply, because I think it is my duty that you should not give your verdict under any mistaken impression of what the law may be. The plaintiff's counsel has referred to the words of the statute, to show that the words "public use and exercise" formed a part of the patent, from which he desires you to take the definition of what he calls the legal meaning of the word "new," and he draws this inference-that unless it has been in public use and in public exercise before, it is new. I repeat the words, that there may be no mistake; the inference he draws from it (for I took his words down at the time) is thisexercise by the that unless it was in public use before, and there was a public public. exercise of it before (that is, exercised by the public before), it is new. Now, I differ altogether from the learned counsel in that respect; and I think what is meant by "public use and exercise," as has been held by my predecessors before (and I think one's own common sense leads one to adopt that definition), is this;-a man is entitled to a patent for a new invention, and if his invention is new and useful, he shall not be prejudiced by any other man having invented that before, and not made any use of it; because the mere speculations of ingenious men, which may be fruitful of a great variety of inventions, if they are not brought into actual use, ought not to stand in the way of other men equally ingenious, who may afterwards make the same inventions, and apply them. A great many patents have been taken out, for example, upon suggestions made in a very celebrated work by the Marquis of Worcester, and many patents have been derived from hints and speculations by that ingenious author. But yet, as he never acted on them, as he never brought out any machines whatsoever, those patents are good. So that the meaning of the words "public use" is this-that a man shall not, by his own private invention, which he keeps locked up in his own breast, or in his own desk, and never communicates it, take away the right that another man has to a patent for the same invention. Now "public use" means this-that the use of it shall not be secret, but public; and in that sense I must say, that if you think the shall be public as contradistin- lock used by Mr. Davies is a lock which combines the same thing (I do not say whether it does or not; that is left entirely for your consideration), I think that is a public use of it, and is within the meaning of this clause of the patent-" public use

Public use is, that the use

guished from

secret.

and exercise," as used in opposition to private and secret use. A. D. 1841. Therefore, if a man invents a thing for his own use, whether he sells it or not, if he invents a lock and puts it on his own gate, and has used it for a dozen years, that is a public use of it. If it were otherwise, see what the consequence would be: Mr. Davies has a lock, which he has directed to be made (we may suppose that to be the case), and put on his gate some twenty years ago-sixteen years ago at least; if that was not a public use of it which prevented a man from taking out a patent, any man might go and take a model of that lock, and get a patent for it. How can he be the inventor of it?-because, to obtain a patent, a man must be the inventor; and if it has been once in public use (that is, used in a public manner, not used by the public), yet if it has been used by half a dozen individuals, or one, in a public manner, any man having access to it, how can he be said to be the inventor, if by merely gaining access to that he takes out a patent? For recollect that the words of the statute show that the patentee is to be the inventor; and one of the questions which you have to try is, whether he is the inventor, as well as whether there is any novelty in the invention. A man cannot be said to be the inventor of that which has been exposed to public view, and which he might have had access to if he had thought fit (b).

Again, gentlemen, the learned counsel laid it down as a proposition, that if an invention is made, and actually used by a certain number of people, but does not get into public currency and use for twenty-four years or twenty-five years—not brought into activity—that that will not stand in the way of another man taking out a patent for the same invention. I cannot accede to that view of the law at all; I think that is not the law; nor do I think that any of the summings up of the learned judges which have been read to you, that you might understand what the law was, at all support him in that proposition (c). Well then, again, he considers that the evidence of the locks proved to have been made by the two Walkers, and by Mr. Tilsley, supposing them (which he seems to admit) to be the same invention as the plaintiff's, to rest on the same foundation, for he says, because they were made for a foreign market, they do not stand in the way of the plaintiff's invention. Now, gentlemen, you will understand this—a man has a right to a patent, not only for his own original invention, but he has a right to a patent if he is the first person who brings into England an invention which is

(b) The learned judge has not adverted to the question, whether, supposing no presumption that such subsequent patentee had seen the prior lock, or supposing it to be proved that such patentee was an original inventor, and that the article had been used to a very limited extent, and in such a manner as to render the presumption of any one having become acquainted with its construction

highly improbable, such independent inventor and introducer could not have a valid patent. The two issues would appear to be distinct. See per Lord Tenterden, C. J., ante 492; and per Sir N. C. Tindal, C. J., ante 507-8.

(c) The following cases were cited: Lewis v. Marling, ante 496; Jones v. Pearce, ante, 121; and Cornish v. Keene, ante 508.

Lord Abinger, used abroad, and not known in England; and if, therefore, any C.B.,to the jury person was to import from America a machine, and have that

machine used in England, and was to buy considerable quantities of them, no other person could take out a patent for that because it is a machine used abroad, and a man might have a patent taken out for it in England if he is the original importer of it. But however, on the case as it stands, I see no evidence before me that these locks were used in America. The question that was asked in cross-examination, was one which ought not to have been asked, namely, as to the information the party received when he received the order; all the instructions he had about the order were highly proper to be inquired into, but what was to be done with it afterwards, is a matter of fact collateral to it. But, however, the evidence is this-that a trader living in Birmingham, who is very much connected with the American trade, produced to Mr. Tilsley a model of a lock, and desired Mr. Tilsley, who was a factor, and also a manufacturer of hardware goods, to make him first six dozen of the locks, and at another time a dozen and a half, and Mr. Tilsley employed Walker to do it, and gave Walker the model. This was twenty-six years ago, I think, and six dozen of the locks were made at one time, and a dozen and a half at another time, and this gentleman, Mr. Freer, who traded with America, paid The making of the Walkers for them. Here you have an article, manufactured an article in this by an English manufacturer, and sold, and, in my opinion, for exportation, if it was sold even for the assumed purpose (of which there is no legal evidence), for the assumed purpose of being sent to America, I cannot but think that that would be a destruction of the novelty of the plaintiff's invention (d). And here let me be clearly understood; I do not mean to say, that if a man in America employs an agent to see if he can get an article manufactured in England by a particular model, and chooses to take out a patent for it himself, but not with a view of making it public at all, I do not mean to say that that man is to be considered as not entitled to the invention afterwards, because he employs a workman to assist him in it, or, that if he had failed entirely, that some other man might make the invention in England; but where a model is sent to a workman, who sells seven and a half dozen, and sells them for a certain price, I must say, I think the invention was used and publicly exercised. There is no secrecy in the manufacture of them, it is not shut up in the closet of the workman who makes them, but the man who makes them gives directions to another man; but he sells them for his own profit, and I think it would be the hardest thing in the world, if the Walkers were now to use that model,

country, though

will vitiate a

subsequent pa tent; unless under special circumstances.

(d) See on this point the case of Morgan v. Seaward, ante 194, and post 540.