the principle of the long ratch, for the new and useful purpose of spinning silk waste. Seventh, in certain improvements effected by us in the throstle machine, by which its utility in spinning silk waste is greatly augmented. Eighth, in the application of water to silk waste with long fibres in the process of spinning with the long ratch.

*

*

Having thus described the nature or leading characteristics of our invention, it is desirable, before we enter into the practical details of them, to give a brief outline of the methods heretofore adopted for spinning silk wastes. * (b) Having now given the necessary details of the manner in which our invention is to be performed, we desire it to be understood, that we disclaim those parts of the process or mechanism which were, or may have been, previous to the granting of our patent, well known or in use for the same purposes, but we restrict our claims to the eight several heads of invention mentioned in the early part of this specification, all of which we believe to be new and of great public utility. In witness, &c.

GIBSON & CAMPBELL V. BRAND.

Cor. Sir N. C. Tindal, C.J.

In the C. P.

Trin. V. 1841.

This was an action for the infringement of the preceding Declaration. patent, and the declaration, after the usual averments, assigned as a breach, "that the defendant directly or indirectly made used and put in practice the said invention, and every part thereof, and therein counterfeited, imitated, and resembled the same, and every part thereof."

The defendant pleaded-1. Not guilty. 2. That the plaintiffs Pleas. were not the true and first inventors of the alleged invention. 3. That the said invention was not a new invention. 4. That the said invention was and is of no use, benefit, and advantage, to the public. 5. That the said instrument in writing was and is as follows (setting it out); that no other was enrolled; and averring, that the said instrument in writing does not particularly describe and ascertain the nature of the said invention, and

(b) It is unnecessary to give the specification at length. It was designated by the Lord Chief Justice as a confused statement of processes, designs, objects, and means, and the above must be added to one of the many instances in which the fruits of an invention of great value have been perilled, if not altogether lost, by the careless and inartificial manner in which the specification is prepared. The concluding sentence is that given above, with respect to which it may be as well to

observe, that the specification should of itself point out or make clear by obvious intendment what parts have been in previous use; it is not sufficient to leave this to be supplied by information derived from other sources.

In the subsequent case of The Queen v. Nickels, Lord Denman, C.J., directed a verdict for the crown, on the ground of the insufficiency of the specification in this respect.

The summing up.

not in use may

and first inventor.

in what manner the same is to be performed. Upon these pleas issues were joined, the replication to the fifth plea being, that the said instrument in writing, in that plea set forth, does particularly describe and ascertain the nature of the said invention, and in what manner the same was and is to be performed. No question turned upon the notice of objections.

Sir F. Pollock, Bompas, Sergt., M. D. Hill, Hoggins, and Corrie, were counsel for the plaintiffs; Sir W. Follett, Kelly, Channell, Sergt., and J. Henderson, for the defendant. The following portion of the summing up of the learned judge will sufficiently explain the principal features of the case.

Sir N. C. TINDAL, C. J., to the jury. This is an action for the infringement of letters patent granted to the plaintiffs, and the defendant first says, that he has not been guilty of any infringement, and before he could be called upon for an answer, the plaintiffs must satisfy you that the defendant has in some mode or other infringed this patent. The defendant next says, that these letters patent have not been granted to the true and first inventors, which you are aware is a condition required by The publisher the statute. Now, a man may publish to the world that which of that which is is perfectly new in all its use, and has not before been ennot be the true joyed, and yet he may not be the first and true inventor; he may have borrowed it from some other person, he may have taken it from a book, he may have learnt it from a specification, and then the legislature never intended that a person who had taken all his knowledge from the act of another, from the labours and assiduity or ingenuity of another, should be the man who was to receive the benefit of another's skill. There is some distinction, although perhaps not a very broad one, between the plea which alleges the plaintiffs were not the first and true inventors, and that on which I conceive the principal question be tween the parties will turn-the third in order, viz. whether the subject-matter of this patent was known in England at the time the letters patent were granted. It is quite clear, if on the evidence you have heard you are satisfied that this which is alleged to be a discovery by the plaintiffs had been publicly known and practised in England, there is an end to the validity of the patent. It would not be sufficient to destroy the patent to show, that learned persons in their studies had foreseen, or had found out this discovery, that is afterwards made public, or that a man in his private warehouse had by various experiments endeaexperiments in voured to discover it and failed, and had given it up. But if you perceive on the evidence, that the thing which is now sought to be protected by the patent has been used, and for a considerable period, and used so far to the benefit of the public question for the as to be sold to any body that thought proper to purchase it that is a public of those who made it, then it becomes a material question, whether such mode of user is not in your judgment a public

The speculations and sug

gestions of learned men

will not vitiate a patent, nor

private, or abandoned.

But if the arti

cle has been sold, it is a

jury, whether

user.

using of the article, of the process, or of the invention, before A.D. 1841. the letters patent were granted, and therefore you will apply the evidence when you come to it, subject to such an explanation, not giving a force or efficacy to any attempts that have been made towards the discovery which the plaintiffs set up, but which have failed and been abandoned, and rested indeed only in experiment, but at the same time giving full effect to such evidence as has been brought before you that tends to show that, by other persons, on various occasions, the article has been made and the process been pursued which is now sought to be protected, and has been sold to such of the public as have thought proper to come forward and purchase.

Then the defendant says-the invention is of no utility; but it does not appear to me that can, on the present occasion, afford you any considerable trouble. No doubt there is evidence enough to show that the result of this process does produce an article that is of considerable beauty and value; the demand that is made for it, indeed, would seem to establish that.

tion.

Then the defendant objects to the specification. I should Requisites of tell you, as far as there are any objections in point of law to the the specificaspecification, I do not propose to trouble you with them on this occasion; all that I mean to leave to you is the question of fact that is raised for your determination, namely, whether it is so worded, and such explanations are given in it, that a person of a sufficient degree of understanding on the particular subject could carry the provisions of the specification into effect, and obtain the proposed result. The specification ought to be so clearly worded as to lead without any doubt or difficulty to that result, because it is the price that the man who takes out his patent pays to the public for their being so long kept out of the enjoyment of the commodity or manufacture that is protected; the price he pays is, that he will lodge such an account of his own discovery and invention as will enable the public at the expiration of the fourteen years, to have as free and unreserved use of the invention as he himself. Therefore, every man who is an honest man is bound to pay that price justly and fairly, and to word his specification, which he is obliged by the terms of the patent to enrol in the Court of Chancery, in such a way as to be clear from all doubt. Now, I cannot say that I think this a very clear specification, I cannot read through these eight different heads, which I understand to be the eight different points that are sought to be protected by the patent, without thinking there has been a mixture rather of object and purpose The objects of or design, to which the party means to apply his patent, with the invention, that which is more strictly and properly the process by which whereby those the object is meant to be obtained; the mixing them together, objects are to and not keeping them separate and distinct, tends very much should be kept to obscurity in the document itself.

and the means

distinct.

Sir N.C. Tindal, The only person who proves the invasion of the patent is C.J., to the jury. Rolleston, who says, "I bought the silk from the defendants.

The sale of an

article made according to the patent, is a using of the invention.

Verdict.

They called it patent silk, and Mr. Miller, their manager, called it so to me; and in the invoice it is written, patent fringe boiled off at 10s. 6d." He says, "it was yarn similar to that I bought at Mr. Campbell's, but 59. cheaper in the pound; it was not so good as what the patentees furnished. Campbell and Gibson's was always taken in preference to theirs if we had it in hand." You see what was actually produced, and it rests entirely on this man's evidence, and on the affidavit put in by the plaintiffs that was made by the defendant, in which, in the Court of Chancery, he says, he had been in the course for the last two years of using and making the silk which he was then selling, because it was done openly, and they had never taken any notice of it; and also, that he did not think that their patent was an available patent-not, in effect, denying that he was selling what was then manufactured, but defending it on the ground that it was not protected by the letters patent. Upon that you must say, whether you are satisfied that the defendant has violated this patent at all. If they have themselves sold an article of exactly the same fabric, made in the same manner as that for which the patent was taken out, such sale may be considered as a using of the invention within the terms of the declaration, and so you would say, if you are satisfied on the evidence, by your verdict. Next you must say, whether the plaintiffs are the true and first inventors, and then, whether this is a patent which has been taken out for a new manufacture; that is, either for a new result, or a new mode of obtaining a result, although it would be upon an old process and with new combination, and producing new results. Then comes the question of utility, about which you need hardly trouble yourselves; and lastly the question, whether this specification is so worded, and with that accuracy of description, as to enable a person versed in the matter, and of competent intelligence, to perform the object of the patent.

The verdict was as follows-The jury are of opinion, that the invention is not new, but an improved process-not a new combination; that the defendant is guilty; that the invention is useful, and that the specification is sufficient.

Sir N. C. TINDAL, C. J.: The verdict will be for the plaintiff on the first, fourth, and fifth issues; on the second and third issues there is the special finding, which the court must mould as well as they can.

IN THE COMMON PLEAS.

Cor. Sir N. C. Tindul, C.J.; Coltman, J.; Erskine, J.; Cresswell, J. In the C. P., E. T., 1842.

Channell, Sergt., obtained a rule calling on the plaintiffs to show cause why the verdict should not be entered for the defendant on the second and third issues, or why there should not be a nonsuit (c), or why the judgment should not be arrested on the fifth issue; against which cause having been shown, the court delivered the following judgments.

Sir N. C. TINDAL, C. J.: With respect to the question, why the verdict should not be entered for the defendant upon the general issue, we have already in the course of the argument given a sufficient answer. The breach alleged in the declaration is, that the defendant infringed the patent by making, using, and putting in practice, the plaintiffs' invention; and the evidence is, that an order was given in England, which order was executed in England, for making articles by the same mode for which the plaintiffs had obtained their patent, which articles were afterwards received by the defendant (d). This is quite sufficient to satisfy an allegation that he made those articles; for he that causes and procures to be made, may be well said to have made them himself.

fendant cannot

admitted in that

With respect to that part of the rule which calls on the plain- An issue in fact tiffs to show cause why the judgment should not be arrested, found for the on a plea being I am of opinion, that no sufficient ground has been made out plaintiff, the defor that purpose. It is to be observed that the last plea con- resort to matter tains an allegation, that there was no other specification en- not in issue and rolled by the patentees than that which is set forth in the plea. plea to arrest Then it goes on to allege, that the specification is not sufficient, the judgment. on which there is an issue taken in fact, that it was sufficient. The parties go down to trial upon it, and the jury find that it was a sufficient specification, meaning sufficient in point of fact, that a workman of competent skill and ability, pursuing the directions in the specification, would understand them very well, and might produce the result which the patentees intended. That is, therefore, a plea which is put in to the whole of the

(c) With respect to the nonsuit it was contended on the part of the defendant, that the particular breach laid in the declaration was not supported by evidence that the defendant had sold silk known by him to have been spun according to the plaintiffs' invention-that a vending ought to have been laid in the declaration. the evidence, ante 630, and the judgment, infra.

See

(d) There would appear to be some discrepancy between this statement of the evidence, and the summing up of the learned judge to the jury (ante 630), where he directs that the sale of an article may be considered a using of the invention, that is, evidence whence the practising of the invention, the subject of the patent, may be inferred.