and make locks of the same description, if they were to A. D. 1841. be told to-day "you cannot do that without violating Mr. Carpenter's patent, although you did it twenty-six years ago, and made a profit by your manufacture of it.”

Having made these observations, I now come to the particular cases. The first introduced to you is the locks made for the Martello Towers. They are said to be made for the Martello Towers, but there is no proof of that. You have before you the man who manufactured them; he says, he was instructed to make the model of a lock, which he thought might be more suitable for the Martello Tower, and on his own invention he made a model. He says, that a part of that model still remains, which is the box receiving the lock-bolt, and that the other part has been destroyed, but that, from his memory, he has made exactly one of these locks which were made for the Martello Towers. He made eighty of them, and received money for them. Now, if they be any part of the invention which the plaintiff claims, then we know that is a public use of them for the reason I gave before-because they are used in public, and not in secret. It is not an invention kept in the closet, but there is a public use and exercise of it. But it is stated to you (and for aught I know, that statement may be perfectly correct), that these locks which were used for the Martello Towers are not exactly of the same description as the plaintiff's, for Mr. Kelly has observed to you, and the observation is very true in point of fact, that the combination the plaintiff claims is not a combination of a latch-bolt together with a lock-bolt in the same instrument, but of a separate latch-bolt and a separate lock-bolt; whereas in the Martello Tower lock the bolt and the latch were formed by the same piece of iron; so that the one end of it is used as a latch, and then, when that was not required to be used, it has a bolt, and, by means of a key which is turned, the same piece of iron slides further and makes the bolt. That is the case in almost every bed room or drawing room door lock which you see in London, or any where in the country, because most of them have a latch, by which you may shut the door without the use of the key; but if you use the key the latch is turned into a bolt; and I think the learned counsel is right in saying, that certainly is not the combination which the plaintiff claims. But it is this-the effect of that is to show, that the mode of receiving the bolt, the mode of drawing it out of the lock, and the mode of receiving it into the box by an uplifting latch, by an inclined plane, and by bearing off the edges of the bolt, that that is clearly not original. The plaintiff's patent, therefore, if good at all, cannot consist in the adoption of that expedient, but in the combination of it with the other, namely, with the bolt.

Now we come to the second case, Mr. Chubb's patent. You

patent.

Lord Abinger, will observe, that if the plaintiff had thought fit in his specificaC.B., to the jury. tion to say, "I take out my patent for an improved method of An improved combining the bolt and the latch in a more skilful form than combination has hitherto been adopted, which will remove from it the inthe subjectmatter of letters tricacy of the machinery, but which effects the same combination as before;" he might have had, for aught I know, a very good patent (e); but as his patent is for the combination of the two, then look at Mr. Farey's evidence, and look at Mr. Chubb's lock, which combines them; it does not combine them exactly in the same way, undoubtedly, but the plaintiff has not claimed the particular way, for then he makes the brass plate E a part of it. But he says, he does not mean to say that, but that he claims the combination generally. Mr. Chubb's is undoubtedly the combination of the latch and the bolt, with a more complicated machinery undoubtedly, because his latch consists of four parts, and the plaintiff's bolt of one; and it is very true that the latch and the bolt must be used together, if you use them both; that is to say, if you want to lock the door, you must latch it also. There is no great prejudice in that undoubtedly; but such is the fact. It is true that the plaintiff's you may use separately; but the patent is not for the separate use of either, but the combination. You will consider, whether you think Mr. Chubb's lock, as Mr. Farey explains it, is a combination of the bolt and latch. Mr. Farey's evidence is this; he says, "he has been in practice many years, and has been acquainted with machinery of this kind for thirty years; with all these sorts of subjects." He says, "in a work called the 'Repertory of Arts and Sciences,' published a great many years ago, before this patent" (and he produced a copy of that work, which he then had); he says, "in that publication is contained a statement of an invention made by Mr. Chubb, and that he himself prepared the drawings in order to Mr. Chubb taking out a patent." There is no evidence that Mr. Chubb took out a patent; that is not material to the circumstance. Mr. Chubb, in the publication, gives figures from which the machine might be made; a lock was put into his hand, and he says he has one of these locks himself, which was given to him by Mr. Chubb. He himself drew the figures from that lock. He says, "this lock, which I hold in my hand, corresponds with a part of one of the inventions stated in this publication. There is a description of two locks-one being a latch-lock, and the other the same, with the addition of the sliding bolt. Two figures are described-one is a separate latch-lock, and the other a latch-lock combined with a sliding bolt moved by a key. This which I have in my hand is a combination of both the latch and the bolt, and is one of

(e) See the case of Minter's patent, ante, 140 and 142.

the inventions described in this publication; there is no differ- A. D. 1841. ence in the printed book-the staple in the plaintiff's model and that in Mr. Chubb's lock;" that is the lock already spoken of. "The latch consists of four distinct latches, each of which has the under edge rounded, and the combination of the four together in action forms an inclined plane. The plan of the sliding bolt is different; but the principle is the same. The sliding bolt in Mr. Chubb's being broader is above the latches, and also below them." That is true, it comes out broader and occupies the space of the latches; "and also below the latches; but," he says, "the principle is the same, the combination of the sliding bolt with the latch; that latch was not new in 1830, but is contained in this publication; there is in the staple an inclined plane" (this is in his cross-examination)—“ there is in the staple an inclined plane to raise the latch, and a place or recess for it to fall into when the door is shut, which is exactly the same as the plaintiff's." Now he says (and he is a man of science), he considers the principle to be the same; there is no doubt there are more latches in the one than in the other; but as the plaintiff in his patent has not distinguished it, that he means to take it out in contradistinction to the more complicated machinery-but it is simply the combination of a latch with a bolt-and you have to say, whether that is not the combination of a latch with a bolt, and something more—because his patent is equally bad, if all that it claims has been found in another patent and another invention, combined with something else, unless he makes a distinction, and shows that the invention for which he claims the patent has novelty to support it.

The next case is the lock of Mr. Davies. You have had that lock in your hands, and I own, according to my inspection of it, it appears to me, though more rough in its form, to be on exactly the same principle as the plaintiff's. It consists of a sliding bolt, and it consists of an uplifting latch, and they are both in the same frame; they are both received into the same receptacle, with, I think, this difference-that part of the receiver which takes the bolt rises above the enclosed part of the receiver, and so it is a little outside of it; but it is raised to the same external surface. Now, Mr. Kelly argues on this, and says, this cannot be considered as any attack on the novelty of the plaintiff's patent, because it was not in public use and exercise. Gentlemen, in my opinion, if you believe the witness that the lock was on Mr. Davies's gate sixteen years ago, and that he saw it every day of his life, and repaired it twelve years ago, and has brought it here and described it to you now, it appears to me, if you are of that opinion, that that was a public use of the invention. The application and the practical utility of that before the eyes of the public comes within the meaning

The use of a

situation that

the public

might see it, is

of the words, as I understand them, of this patent, and it is only lock in such a used in contradistinction of a public use and exercise, to which the public has no access. If you believe, therefore, these wita public use and nesses (and you saw the lock), and you agree with me that it is the same in principle as the plaintiff's lock, I own it does appear to me that there is sufficient ground to justify you in finding, that the invention is not new.

exercise of the

invention.

Now we come to the locks made by the two Walkers; but if I understood the learned counsel rightly, in his very ingenious and elaborate reply, he admits that those are similar in principle, and the only ground that he takes on that is, that they were not in public use and exercise. It appears to me that they are similar in principle, for they are exactly the shooting bolt and the lifting latch, and you may use them by a separate application, and with this addition; there are two separate applications the one which the witness called a bagpipe latch, which is pressing down at the top-and the other, a horizontal shaft to press it down, which might act on either side with pressure. It opened the latch, and the key opened the lock. It seems to me to be exactly the same as the plaintiff's. Then we come round to the question which I stated before, that the manufacture of a dozen and a half in the month of May, and six by a workman dozen in February before, by a British workman, who still of seven dozen retains the model, is a public use and exercise of it; he makes

The manufacture and sale, without secresy,

and a half of

to a model

which is re

lic use and ex

vention.

locks, according no secret of it, and they are sold by him, and he is paid for them. I think it would be a very hard thing to say, that he tained, is a pub- could not use the same invention now, because the plaintiff has ercise of the in- taken out a patent for it. However, it is for you to consider, whether all these different locks which have been produced before you, combining the latch with the bolt, are the same in combination, the same in principle; and if you are of opinion (not that they were generally adopted by the public, and used by the public, for that in my opinion is a perfect fallacy), that the use of them is public, and the exercise of the invention was public, and not kept secret, so that the public might have no benefit from it, then, I think, that part of the issue you ought to find for the defendant.

Verdict for the defendant.

In the Exchequer Motion for a new trial.

H. T., 1842.

The "public use and exer

cise" of an in

CARPENTER V. SMITH.

Cor. Lord Abinger, C.B.: Alderson, B.; Gurney, B.

[9 M. & W. 300.]

Case for the infringement of a patent for certain improvements "in locks and other securities, applicable to doors and

other purposes." Pleas-first, not guilty; secondly, that the vention which plaintiff was not the true and first inventor of the said im- prevents it from being considered provements; thirdly, that the said improvements were not a a novelty, is a new invention as to the public use and exercise thereof. On which issues were joined.

use in public so

as to come to

the knowledge of others than the inventor,

not mean a use

proved lock, for

individual on a

At the trial before Lord Abinger, C. B., at the Middlesex the sittings, after Michaelmas Term, the main question between the as contradistinguished from parties was, whether the plaintiff's invention, the principle of the use of it by which was a combination of the bolt and latch of the lock within himself in private, and does one frame, was or was not a novelty. A witness called by the defendant proved, that in the year 1816, he received from a by the public generally. house in the United States a pattern of a lock, similar in prin- Therefore, ciple to the plaintiff's, and that he procured several dozens to be where an immade at Birmingham, according to the pattern, and sent them which to America. The defendant also produced a lock similar to that tiff had a patent, had previously of the plaintiff's, which he proved to have been used for sixteen been used by an years on a gate, adjoining a public road belonging to a clergygate adjoining man of the name of Davies, residing near Birmingham. For the public road, the plaintiff it was contended, that inasmuch as there was no proof that the locks in question had been brought into public veral dozens of general use in this country, the plaintiff's might nevertheless be had been made considered a new invention. The Lord Chief Baron in summing at Birmingham, from a pattern up, stated that an invention could not be considered new, which received from had been in public use before; that the word "public" was not America, and equivalent to "general," but was distinguished from secret use: was and he expressed his opinion, that the circumstance of a lock this constituted such a public similar in principle to the plaintiff's being on Mr. Davies's gate use and exerfor so long a period, and the manufacture of several dozens by cise of the inan English artist for money, without secrecy, amounted to a avoid the papublic use of those locks. The jury having found a verdict for tent. the defendant

Kelly now moved for a new trial, on the ground of misdirection. The rule of law on this subject is not so narrow as it was stated to be by the learned judge. The mere manufacture or use of an invention by an individual, who may himself have discovered it, even in such a manner that a particular portion of the public in his particular locality may have access to it, but without its being sold or brought into the market, does not constitute such a public use or exercise of that invention, as to prevent another person, who does not copy it, from afterwards obtaining a patent for the same principle: Morgan v. Seaward (ƒ). [Alderson, B.: How then do you get over the case of the invention for which a patent was avoided, because it had been previously published in a book (g) ?—the principle being, that it

for several

years; and se

a similar lock

sent abroad it

vention as to

(f) Ante 194; 2 M. & W. 544.

(g) The case referred to was understood to be Dr. Brewster's Kaleidoscope, but I have not been

able to obtain any account of the proceedings. If an invention be contained in a book, a subsequent though independent inventor is not, in point of