article, of that objection is distinct and clear upon the face of it. It A.D. 1842. involves two questions for your consideration. First, was any The old article article made before, answering the purposes and having the pro- must have the same properties perties of that, which the plaintiff has made and claims as the as the patent patent? Are you satisfied by the evidence in this cause, to which I shall direct your attention by and by, that any article was in fact made and sold at a previous period, having the qualities and the properties of that which the plaintiff claims as his patent article? That is one part of it. To say that an article was sold before, which would make a card back, is nothing to the purpose. Leather was sold before to make a card back, but because leather would make a card back before, they cannot say "oh, that was sold before, and then you having made a card back of a different material, that will not protect your patent." That is nothing. They must show that the article made before had the same properties as that in respect of which the patent was granted. By and by you will have to say, whether that article which was sold under the denomination of Hancock's patent leather (for that is the only article which has been introduced or talked of, as far as I recollect at present, as being put in competition with the plaintiff's patent article), was an article having the properties and qualities of that which the plaintiff claims as his patent article. It is very remarkable, gentlemen, certainly, in a case of this sort, that now that we have heard evidence upon it for three whole days, not one question has been asked of any one witness, as to whether it had those properties or not, as far as I recollect. You will see, when I read the evidence, that no witness was asked, nor did any witness volunteer the statement, that the article which was so made by Hancock and sold by him had the properties for which this patent was granted. Now if it had not, it cannot be and have been put in competition with this; if it had, then was it known and in use? That would involve another question. Now, in the first place, was it known as an article having those properties? Did any person know what he was buying? They say, "Yes, I knew I was buying Hancock's patent leather." What was Hancock's patent leather? Why, he would look to Hancock's patent and specification, and would he find in Hancock's patent and specification that he was buying an article having the properties for which the plaintiff has taken out his patent-his patent being for giving an elastic bed to the teeth of cards by the application of India rubber? Would any person buying Hancock's patent leather suppose he was buying that? The patent itself distinctly shows, according to the chemical evidence we have had, that such an article could not be produced by that patent; that if that patent were applied to the manufacture, it would destroy the elasticity of the India rubber, and such an article could not be produced by it. Therefore, if they supposed that they were known and in use. Cresswell, J., to the jury. buying that article, made under that patent, they certainly could not suppose that they were buying an elastic bed for the teeth of their cards. Were they, in fact, buying an article of that sort, and how do they attempt to show now that they were? That will be for your better judgment, but it seems to me by a very singular sort of evidence. They have called several gentlemen before you who prove, that by analyzing small portions of it, they find certain ingredients. They find in the inner cloths India rubber as a cement for the cloths. But they find something on the outside also. The cloth was composed of the one as much as of the other; and they do not tell you what was the effect of the whole upon the card. They are not asked. Now, if we are to take it as an article made under Macintosh's patent, the inner cloths might be cemented according to Macintosh's patent; but was the article when turned out as patent leather an article made under Macintosh's patent? What had Macintosh's patent to do with that colouring matter which was on the outside the ochre, the oxide of iron, and the carbonate of lime? However, what did these people suppose they were purchasing? There is a curious fact about that, that Hancock himself does not appear to have known what he was selling, because he states he said, at the last trial, and believed he said truly (of course, we must take it, that, at the time he was stating it, he supposed he was stating truly), that that article was made according to his patent, and he says, "I have discovered since by accident (and I now have a memorandum book showing the manner in which I made out my invoice to Mr. Hemmingway, who bought it), that it was not made according to my patent, but according to something else." Why, gentlemen, if he did not know what he had sold in 1827, was it a thing in known use when this patent was taken out, or had it been thrown aside and abandoned? But did he ever sell it in that state? That is coming back to the first point-was it an article that could be placed in competition with the plaintiff's? Had it those properties which are the only properties in respect of which the plaintiff's patent has been granted? Then, with respect to the extent of the use, we have it in evidence that Mr. Dyer had some for the purpose of making cards to clothe an engine for Messrs. Birley, and that Mr. Hemmingway had the quantity mentioned, which you shall hear more particularly by and by, for the purpose of making some on his own account, and some to make up for others, and it appears they were supplied to several different persons. One firm, I think, had three or four sets; none of the others appear ever to have had it a second time. That was in 1827, and though there is a great deal of looseness in the dates given by the witnesses-and certainly, if dates are important, it is a thing very much to be deplored in a court of justice that witnesses should be so inac limited and not by way of curate in their statements-yet I think we have pretty good A.D. 1842. evidence from Mr. Hancock himself-for he referred to the dates in his books-when these things were sent out; and it appears that the whole took place between July, 1826, and December, 1827. It does not appear that, from that time downwards, any more was called for, that any more was ever used for that purpose, or that any cards were constructed of those materials after the year 1827. Then even supposing that If a user be that article did embody the principle of the plaintiff's, so as to abandoned, the present to persons using it the properties, qualities, and advan- question will be, tages in principle of that article which the plaintiff makes, the whether it was question for you will be, whether that user is not to be con- experiment. sidered rather in the nature of an experiment than of any public use of the article, so as to deprive the plaintiff of the fruit of this discovery in respect of this manufacture? Now, gentlemen, upon that I would rather you should take the opinion of others than mine, and therefore I will take leave to direct your attention to that which has been said by other judges upon that subject; and I do this the more particularly, because I believe that the direction I am now going to read to you was confirmed afterwards on further consideration by the court out of which the record came. In an action respecting some manufacture of India rubber, a few years ago, my Lord Chief Justice Tindal addressed the jury in this manner: "It will be for the jury to say, whether the plaintiff's invention was or was not in public use and operation at the time the patent was granted." Now, in considering that you will bear this in mind, that so far had that escaped the recollection of the very man who made it, that in 1840, when examined in court and upon his oath, he could not tell how it was made. But now he has corrected himself by reference to his books and by the assistance he has derived from a chemical analysis. That question being debated in the court above, my lord again said-"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 slight alteration in the effect of the evidence will establish either the one proposition or the other, and the only proper mode of 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 see no reason to be dissatisfied with the conclusion at which they arrived." (Ante 519.) The direction of another learned judge, Mr. Justice Patteson, in another court, was very Cresswell, J., to the jury. new manufacture. similar, pointing out the distinction between experiment and public use as the criterion by which you are to be guided. So much for that which is the second issue raised upon this record. The third issue is much wider; the defendants say, "that the alleged invention was not nor is a new manufacture within the meaning of the statute concerning monopolies." Now that is put to me as a question of law. It is raised by the Solicitor General as a question of law, in order that I might decide upon it as a matter of law, and that he might take an exception to my ruling if it should be against him, so as to carry the question to another and superior court. Gentlemen, I gave the case the best attention that I could then. I have given it more attention since, and I am confirmed now on further consideration in the opinion I then expressed, that there is sufficient of a new manufacture in this case to justify and maintain the patent that The tests of a has been granted. I think that there is a new principle developed, carried out, and embodied in the mode of using that principle, and in availing himself of that which is sufficient to sustain the patent right in this case; and that, gentlemen, disposes of a great many of the objections of which notice was given, that it was not a new manufacture. Then the notice goes on to state the reasons why it was not-that the supposed invention was not nor is the subject-matter of a patent for a monopolyand then we come back to the second plea again (and this shows the inconvenience of having the notice in this form). After objecting, in the first instance, to the want of novelty, they say, that long before the granting of the letters patent, fillets or sheets were made by uniting plies or pieces of linen, cotton, or other like cloth together, by a solution of caoutchouc, being cemented by such solution, and being of the same manufacture, and cemented in the same manner as alleged in the specification. That goes to the question of novelty. The mere fact of their being cemented together, no doubt, was known before. Nobody ever disputed that. Then they go on to say, that letters patent were granted to Hancock, and that large quantities of artificial leather manufactured under that patent were sold. Now, it is very curious that the case made to-day is, that the leather was not made under Hancock's but under Macintosh's patent, the probability being that it was a combination of the two. The interior was made according to Macintosh's patent, by cementing pieces together with a thin solution of India rubber, and the exterior was made by Hancock's, so as to give it rigidity and firmness. Then they go on to say, that the letters patent granted to Hancock are expired, and that it is now the common right of every subject to use India rubber, and its solution, or cement, combined with cloth or any other fibrous substance, in any way, for any purpose to which leather before the grant of that patent had been commonly applied. Hancock's A.D. 1842. patent never prevented that, therefore that consequence does not follow from the expiration of Hancock's patent. But-as has been said, I think, with great propriety by the learned counsel for the plaintiff-if they like to make card backs according to Hancock's patent, let them. The plaintiff does not object to their doing that. fication. Then the defendants further say, that the plaintiff did not As to the speciparticularly describe and ascertain the nature of his alleged invention, and in what manner the same was to be performed, according to the meaning of the letters patent. Now that is a question for the jury. It is a question for the jury, whether he has given such a description of his invention, and of the manner of carrying it out, as will enable a workman of competent skill in that line of business to act upon it. And, gentlemen, this objection to want of clearness is expanded certainly to a very great degree in this notice. It is objected that the specification does not describe the alleged invention truly and sufficiently, but is insufficient, and ambiguous, and unmeaning, in the following respects:-in not stating or showing with certainty how or when the brown holland cloth is to be cemented or annexed to the India rubber-whether after or before the wire teeth have been inserted through the India rubber; also in that the specification does not describe truly and sufficiently how the brown holland is to be used (that is very much the same thing); also, that the claim of invention in the letters patent makes no mention of any use or application of linen cloth. The claim of invention in the patent is an improvement in making cards. It is not necessary that it should be there. The specification must be taken altogether, and you find most distinctly he speaks of using linen cloth. Then again it is objected also, "that the specification does not particularly describe and ascertain the nature of the supposed invention, but merely says so and so, and does not with sufficient particularity or distinctness say what new invention or manufacture is claimed by the plaintiff." If that is a question of law, I must say I think it does most distinctly. I cannot read it without seeing that he says, "I declare the nature of my invention to consist in the application and adaptation of the material known by the name of caoutchouc or India rubber as a substitute for the fillets or sheets of leather, which are commonly used in the construction of ordinary cards, and thus giving a superior elasticity and durability to such cards." I cannot help thinking that he states very clearly and explicitly what he claims, and as to his not having sufficiently described the mode in which that is to be carried out, that is a question of fact for people of competent understanding in the matter to prove. You have had a great variety of witnesses before you on that subject-on one side certainly— |