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which I humbly think are points for you, and, at all events, are A. D. 1843. made by these issues points for the jury trying the same. The questions are
1. Whether, by the description in the said specification, the The questins. patentee did, or did not, refer to any particular form, or shape, or mode of construction, of the air vessel or vessels, or receptacle or receptacles, in which the air under blast is to be heated ? 2. Whether, by the use of the term “effect” in the specification, the patentee did, or did not, state that the form and shape of the air vessel or vessels were immaterial for the purpose of heating the air in such air vessel or vessels ? 3. Whether the terms of the specification respecting the air vessels or receptacles, and the size and numbers thereof, are, or are not, such as to mislead persons acquainted with the process of heating air, so as to direct and cause them to construct the vessels in a form or manner contrary to the ordinary and necessary rules to be attended to in heating air passed into vessels, for the purpose of being heated under the progress of the blast (r)?
To the above direction in law of the Lord Justice Clerk the Olher ercep counsel for the defenders excepted as follows:
tions. (2.) In so far as he did direct the jury, that the patentee did not claim as any part of this invention, or profess to describe, any mode of heating the air under blast in a vessel; or any
find for the pursuer. I think you are entitled to weigh the whole matter in your minds.
Then there is another branch of damage, viz. compensation for the invasion of the patent. Now, the invasion of a patent is just as much an invasion of a man's rights as if you were to make an inroad upon a man's house, or as if you were to trespass on his property. It is an injury done to him, and therefore he is entitled to compensation.
(r) The learned judge then recapitulated the evidence, and gave the following directions as to the damages.
The damages.—The only other point that arises on the supposition of your finding for the pur
ier, is the question of damages. Damages are claimed of two kinds. You are aware that the amount of the damage arises in regard to, and is of course involved in the consideration of this first issue. The amount of damage you may give ac. cording to the circumstances proved. I must own that I think the damages should have been much more satisfactorily proved, if it was to be proved in pounds, shillings, and pence, in regard to this colliery. But still there is no contradictory evidence. The saving spoken of, viz. £2 2s. per ton, is not contradicted. The answer that was put was this-be it that the manufacture was conducted at that rate of saving, still I have not made profit on this whole concern. That is no answer in point of law; and no evidence was tendered to show that the saving was overrated. Whether that saving comes to £3400, as calculated, it is for you to say. I am bound to tell you in point of law, that the pursuer is entitled to claim the benefit arising out of the saving made by his apparatus. But it is said, it does not fol. low that he is entitled to obtain in law the whole of that saving, because the defenders tell you the variety of circumstances under which these works were carried on. It is impossible to take it as a legal estimate, from which you are not to depart in deliberating on the claim, assuming that you
The jury found as follows : “ That in respect of the matters proven before them, they find for the pursuer on all the issues; and further find, that by the description in the said specification, the patentee did not refer to any particular form, or shape, or mode of constructing the air vessel or vessels, or receptacle or receptacles, in which the air under blast is to be heated; and further find, that by the use of the term 'effect' in the specification, the patentee did not state that the form and shape of the air vessel or vessels were immaterial for the purpose of heating the air in such vessel or vessels ; and further find, that the terms of the specification respecting the air vessels or receptacles, and the size and number thereof, are not such as to mislead persons acquainted with the process of heating air, so as to direct and cause them to construct the vessels in a form or manner contrary to the ordinary and necessary rules to be attended to in heating air passed into vessels for the purpose of being heated under the progress of the blast; and they assess the damages at £3000.”
In the House of particular form or dimensions of the vessel or vessels to be em
ployed for that purpose. (3.) In so far as, upon such view of the extent and nature of the patentee's claim, he did direct the jury, in point of law, that the said patent was valid, and did not direct the jury, in point of law, that the patent was invalid. (4.) In so far as he did not direct the jury, in point of law, that the specification, by not giving a particular description of the nature of the said invention, and in what manner the same was to be performed, was insufficient, and did not comply with the condition on which the patent was granted. (5.) In so far as he directed the jury, that it was a question on the intelligibility of the patent, and for them, whether the specification contains a special, limited, and restricted description, by which the inventor so described one sort of apparatus, that he cannot maintain that his patent is one which applies to all varieties in the apparatus which may be employed in the heating of air while under blast, and did leave that question on the evidence to the jury; and did not direct that the meaning of the specification, on a matter not involving words of art, is matter of law for direction by the court. (6.) In so far as he did not direct the jury, that on the construction of the patent and specification, the patentee cannot claim or maintain that his patent is one which applies to all varieties in the apparatus which may be employed in heating air while under blast, but was limited to a particular apparatus described in the specification. (7.) In so far as he directed the jury, that the sense of the term "effect” in working on this specification, was a question upon the evidence for them, and not matter of law for direction by the court. (8.) In so far as he did not direct the jury, that the term “effect," as employed in the specification, meant heating the air while under blast, and increase of heat in the furnace. (9.) In so far as he directed the jury, that if they were of opinion that the patentee had not limited himself in his specification to any particular description of vessel or apparatus, variances in the modes or kinds of apparatus are of no moment, provided that, in the processes referred to (the use of fires, forges, and furnaces), the object of the particular contrivance or apparatus is to heat the air under blast at the same stage of the process, viz. between the blowing apparatus and the furnace, and to throw it so heated into the furnace, to the effect of this improved application of air for that purpose. (10.) In so far as the said Lord Justice Clerk directed the jury, in point of law, that it was no objection to the validity of such a patent, that it included every mode of applying the principle or agent so as to produce the specified result, although one mode may not be described more than another—although one mode may be infinitely better than another-although much greater benefit would result from the application of the
principle by one method than by another—although one me- A.D. 1843. thod may be much less expensive than another; and that this generality of claim, that is, for all modes of applying the principle to the purpose specified, according to or within a general statement of the object to be obtained, and of the use to be made of the agent to be so applied, was no objection whatever to the patent. (11.) In so far as the Lord Justice Clerk directed the jury, in point of law, that the proof of prior use of the patent invention must not only be—1. Public, but—2. Must have been continued, not abandoned; and—3. Must have continued to the time when the patent was granted, not to the very exact period, but that it must have been known and used as a useful thing at the time. (12.) In so far as the Lord Justice Clerk directed the jury, in point of law, that for the object and purpose of the patent the specification is not defective, so far as it does not state how, or in what manner, the mouth of the furnace was to be guarded, and that the patentee was not bound to do so. (13.) In so far as the said Lord Justice Clerk did not direct the jury, in point of law, that for the object and purpose of the patent the specification was defective, in so far as it did not state how, or in what manner, the end of the pipe conducting the heated air into the furnace was to be protected against the effects of the intensity of the heat, and that the patentee was bound to do so (s).
The Attorney General ( Sir F. Pollock), the Lord Advocate Argument on (D.M'Neill), and Kelly, for the appellants. As to the first excep
the exceptions. tion (t). Under the issues and averment on the record of user, it was competent to the defenders to have gone into the whole question of the originality of the invention. The defenders proposed to show the prior use of hot air at Irvine and other places. Prior use intimates prior knowledge, and shows prior invention. The relevancy of the rejected evidence cannot be disputed. [Rutherford : The evidence was rejected on the ground of there not being sufficient notice.] [Lord Campbell: The question was whether, according to the mode of proceeding in Scotland, taken in conjunction with Lord Brougham's act, it was competent to give evidence of that particular case on that particular occasion. The relevancy, of course, was assumed in taking the objection.] [Lord Brougham: You contend that place and time ought to have been given, that you might be prepared to meet it.] An issue having been granted to try the
(s) The exceptions tendered in this case were argued before the judge of the Second Division of the Court of Session, and overruled. The substance of these judgments, with reference to the first exception, and the decision that Lord
Brougham's act did not apply to the system of pleading in Scotland, has been alrcady given, ante 552. The judgments are printed at length in the appendix to the case.
(1) See the exception, ante 676.
In the House of question of prior use, the statement that the invention had been
used in Scotland and England was quite sufficient; it was competent for the other party to have objected to the issue, or to have required more specification. [Lord Campbell: Some places are specified (t).] Some places in England; and the allegation is, that the invention was known and practised both in England and Scotland; an objection cannot be taken to the sufficiency of the statement after an issue has been granted (u). The question is, what degree of particularity is required to satisfy the enactments of the Judicature Act and the Act of Sederunt; a particular of person, time, and place, has never been required (w). The evidence in this case was not rejected on the ground of the insufficiency of the general averment, but because that the general averment being followed out by specific instances, the party was misled into the belief that only those specific instances were to be adduced in evidence. The learned judge at the trial said the general statement by itself would have been sufficient, and the judges of the Second Division of the Court of Session adopted this opinion. If the general statement were sufficient of itself, the particular instances in England cannot limit it at all events with regard to Scotland. The question therefore is simply, whether the party was taken unawares by the attempt to prove some use in Scotland; the record gives notice of some use in Scotland. No more particularity is required in cases of patents than in other cases, unless the statute 5 & 6 W. 4, c. 83, applies (y).
As to the 11th exception-The learned judge divided the question of user into three classes; it must be public- continued, and not abandoned—continued to the time of the patent being granted, not to the exact time, but known and used as a useful thing at the time (2). What is meant by the exact time? What period of cessation would be sufficient to give a fresh right? [Lord Lyndhurst, L. C.: I have always understood the rule in England to be this, that if a man invents a thing and uses it, and it is publicly communicated, if he discontinues the use of it, still that prevents another person from taking out a patent.] According to the above direction, however public the use, and however long continued, if it be not continued down to the time of the patent, such prior use will not invalidate a subsequent patent for the same invention. The learned judge by
(t) See the statement, ante 675.
(u) See the decision of the Court of Exchequer, unte 370, in the analogous case of the notice of objections under the statute.
(a) See the enactments cited, ante 674-5. The following cases were referred to: Wilson v. Bereridge, 10 S. & D. 110; Rutherford v. Carruthers, 1 S. & D. 1109, N. S.; Dubriel v. Erors. of Queensbury, 4 Murray, 14; McDonald v. Mackie
and Company, 5 W. & Sh. Ap. C. 465; Gibbon v. Mackinglay, 5 W. & Sh. Ap. C. 472, as showing the kind of averments in other cases. Also the case of Russell v. Crichton, 16 Sh. & D. 1157; 23 to which, see per Lord Moncrieff, ante 582:
(y) See the section, ante 260, n. a. Their lordships intimated an opinion, that this section did not apply to the Scotch proceedings.
() See ante 691.
this direction entirely withdrew from the jury the consideration A.D. 1843. how far the facts proved went to show that Mr. Neilson was not the original inventor.
As to the 2nd, 3rd, and 4th exceptions—The title gives no idea in what the improved application consists, whether in a particular treatment of the air to make it more suitable, or in the introduction of the air at any particular place, or under any particular circumstances. It might be either in heating or in cooling the air, or in rendering it more dry or more damp, or introducing it more rapidly or more slowly, or by diverse currents. The specification declares the invention to consist, in applying air to furnaces in the manner described. The specification tells you to go through a certain process, and a beneficial result will follow. That is a description of a mode of heating air in order that it may be delivered hot into the furnace. The specification does not sayı-hot air delivered into the furnace is better than cold air-heat the air as you please, and deliver it hot, and you will have benefit; but it says, do these things which I have described. The learned judge says, that the patentee does not claim the mode or manner of heating; that this is no part of his claim (a). The specification declares the mode in which you are to heat the air: the form, shape, dimensions and numbers of the vessels are not claimed or intended to be prescribed (6). The learned judge withdrew from the jury any question of substantial agreement between the alleged infringement and the process of the patentee, by laying it down as matter of law, that the invention was merely for heating air in transitu between the bellows and the furnace; and if therefore, in any way whatever, the defenders have done this, they have infringed the patent; this direction excluded comparison between the machinery employed in the two cases; and then, if it be said that the patent is merely for applying hot air instead of cold—that hot air is better than cold, the patent is simply for a principle, and cannot be maintained. [Lord Campbell : What issue have you on this record The issue as to to raise the question of the patent being for a principle ?] the
eine for a principles the infringeUnder the first issue. (Lord Campbell : That clearly admits validity of the that there is a valid patent.] If the patent is, as has been sug- pate gested, for a certain machine, namely, a vessel for heating the air between the blowing apparatus and the furnace, then the direction pointed out in the 2nd exception was wrong. [Lord Campbell : You might have pleaded that it was a patent for a principle, and not for any particular mode of applying a principle. There was no issue for the direction of the judge upon