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general, he may not be able to go into every matter under that A.D. 1843. issue if in the condescendence or answer he has not stated the matter at all; but here it is distinctly stated that the invention was used at other places as well as those named; there is nothing, therefore, to limit the party from going into these. It has not been stated on the part of the respondents what degree of particularity as to names and places is required. In the case of Gye v. Hallam, which has been relied on, evidence was taken of which there was no specific notice upon the record; a new trial was applied for on the ground of surprise; there was no exception to the admissibility of the evidence. The notice under Lord Brougham's act was given, not because the defenders thought the record insufficient, but because it was thought that the statute might be held to apply to Scotland, and that such notice was incumbent on the pursuers. It was incumbent upon the pursuers to have objected to the generality of the averment, and to have had it made more specific; otherwise, the defenders are entitled to any advantage to be derived from the broadest construction which can be given to it. This principle was recognised and adopted by the Court of Exchequer in the case of Neilson v. Harford (f).
As to the 11th exception—The learned judge assumes the question of prior use to be competent to be made out, and then proceeds to give two directions in point of law respecting it (g). He refers to the words of the letters patent and not to the statute, and speaks of the sort or kind of use (not the use by way of experiment) the existence of which a jury must find in order to warrant them to find against the patentee. The learned judge speaks of the trials of a regular machine, and it is said, that means experiments only; but he meant those operations, whatever they are, which were founded on as a proof of prior use. The learned judge was understood to have said, that supposing there to have been a perfected invention, publicly used and known, and abandoned before the patent was granted, the patentee under those circumstances might be considered as the inventor, provided he did not steal it from the prior inventor; and the argument was maintained, that there was no evidence to connect Mr. Neilson with the operations at Bradley. (Lord Campbell : In that case, what would be the use of one of the sections of the statute referred to as Lord Brougham's act?] The question is, how the jury did understand the charge of the learned judge, and it is impossible that they can have understood it in the way now suggested; the judges of the Second Division did not so understand it. The learned judge ought to have left it to the jury to say, whether what was done at
In the House of Bradley was experiment or not; but passing by that, he gires Lords.
certain directions as expressing the settled law which could not fail to mislead the jury in the conclusion to which they were to come. The words of the charge of the learned judge, “known and used as a useful thing at the time,” are altogether objectionable, because, if not known and used at the time, but twenty years ago, the patent would not be valid, and the cases adverted to by the learned judge give no countenance to such a doctrine.
Judgment. Lord Chancellor LYNDHURST. My Lords: The principal ques
tion in this case arises out of the 11th exception. The learned
fecting the invention. But I understand the word “trials” to Mere trials and have been used in a different sense. It could not have been
ents used in the former sense for this reason, that the distinction though continued up to the which the learned judge draws, and draws with so much pains tent, will not
par and so much care, could not have applied to that meaning of the vitiate the grant. term “ trials,” because if they were mere trials and experiments
in the progress of the invention, it was wholly immaterial whether they were continued or whether they were abandoned, because in neither case could they have been made use of as evidence of prior use for the purpose of invalidating the patent. It becomes necessary, therefore, from the context, to consider what it was that the learned judge meant by the word "trials," and I think that sufficiently appears by a reference to the former passage, which former passage, indeed, is only separated from the passage in question by the two cases to which the learned judge refers. He says, “the cases referred to at the bar have settled that the use must be public, that the existence and trial of regular machines of the very same sort, if abandoned, if not used and introduced into practice, is not public use and exercise thereof in the kingdom.” Then he goes on, after stating the two cases, thus : “ You will observe that it is settled that the trials founded on as a proof of prior use must have been continued, not abandoned, must have been continued to the time when the patent was granted.” He is, therefore, obviously
speaking of the same trials to which he had before referred, A.D. 1843. ; namely, trials of regular machines of the very same sort. And he says, “those trials of regular machines of the very same sort, if abandoned, will not be evidence of public use;" and that he so meant is quite obvious also from the concluding part of the sentence, where he says, “but it must have been known and used as an useful thing at the time.” So that I understand the position of the learned judge to be this, that if the machine had been made, and had been put in trial, unless those trials had gone on, and the machines had been used up to the time of the granting of the letters patent, it would not be evidence of prior use so as to invalidate the letters patent.
Now I am obliged to say, with all deference to the learned Prior public judge, and with all respect to the learned judges of the Court of
Ochine, though Session, that I think in that respect they are mistaken; and discontinued, that if it is proved distinctly that a machine of the same kind
"subsequent let. was in existence, and was in public use, that is, if use or if trials ters patent. had been made of it in the eye and in the presence of the public, it is not necessary that it should come down to the time when the patent was granted. If it was discontinued, still that is sufficient evidence in support of the prior use so as to invalidate the letters patent.
It appears to me that the learned judges in the court below were misled by the two cases that were cited by the learned judge who presided at the trial. There is an expression, supposed to have been made use of by Mr. Justice Patteson, at a trial at nisi prius, and reported I think in Mr. Godson's work, upon which reliance was placed (h). Whether that learned judge did really make use of that expression or not, I have no means of knowing (i); but when in another case (k) in the Court of Exchequer, a reference was made to the same passage in the summing up of that learned judge, Mr. Baron Alderson, apparently with the assent of the rest of the court, commented upon that observation, dissenting from the position.
Again, my lords, in the other case which has been referred to, which is also a nisi prius case, at which the Chief Justice of the Common Pleas presided, similar expressions are imputed to him (1). But when that case came before the Court of Common Pleas, in which they took time to consider their judgment,
(h) See in Jones v. Pearce, ante 124, which was printed from a copy of the short hand writer's notes, received from a source of undoubted authenticity; the note on the brief of the learned counsel (Lord Campbell) for the defendant is substantially the same. The report in Mr. God. son's work would appear to be derived from the same authentic source. See also per Lord Campbell, post 716. In the course of the argument the noble lords intimated their unqualified concur
rence in the direction of Mr. Justice Patteson, when taken in connexion with the facts of that case.
(i) In the case of Carpenter v. Smith, ante 542. See per Lord Abinger, C. B., as to the grounds upon which the direction of Mr. Justice Patteson rested.
(k) In Carpenter v. Smith, ante 542.
In the House of and in which the learned Chief Justice afterwards pronounced Lords.
the opinion of the court, he did not state the position in those terms, but said, that if before the granting of the letters patent the machine had been in public use, that was prior use sufficient to invalidate the letters patent, and it is not necessary that the contrivance or the machine should be in use up to the time of the letters patent (m). If it is discontinued, provided it has been once in public use, and the recollection of it has not been altogether lost, if it has been once publicly used, it will be sufficient to invalidate the letters patent, although the use may
be discontinued at the time when the letters patent were The notorious granted. I apprehend that is the law, and the known law upon use of an invention, though the subject in this country. I never heard it before questioned, discontinued, that the notorious public use of the invention before the grantsufficient to invalidate subse- ing of the letters patent, though it may have been discontinued, quent letters is sufficient to invalidate the letters patent. patent.
Then, my lords, the remaining question for consideration is this, and it is an important one, whether if the learned judge laid down the law incorrectly to the jury, this was calculated to mislead the jury in the verdict that they were to pronounce. Now I apprehend that in this case it was eminently calculated to mislead the jury, and for the reasons I am about to state, The question related to the proceedings that had taken place at the Bradley Iron Works. It was contended that a machine similar to that of the pursuers had been publicly used at these works. And another point was raised also as to whether or not it was a mere experiment, or the actual use of a complete machine. It is quite obvious that as these were points for the consideration of the jury, the jury were liable to be misled, and greatly misled by the summing up of the learned judge, for the reason which I am about to state. When they retired for consideration they would naturally say, “ It is a question for our consideration whether this machine, used at the Bradley Works, was a machine similar to that of the pursuers. And another consideration that we have before us is this, Was that machine simply in the course of experiment, or was it a complete machine." In order to disentangle themselves from the difficulty of deciding this question, they might immediately have said, and they would naturally have said, “ It is quite immaterial for us to
(m) In Cornish v. Keene, ante 519. The pas sage referred to is, it is conceived, the following: “ 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 ex. periments had been made in various quarters, and had been afterwards abandoned."
It should be observed with reference to the
distinction adverted to by the Lord Chancellor between the language of the learned Chief Jus tice of the Common Pleas at nisi priss, or in summing up the case to the jury (for which see ante 507–509), and when he delivered the judg: ment of the court (ante 519), that the alleged user, relied upon as defeating the patent, apphed itself to about the date of the patent in questios. The question of user and abandonment at any long interval before the date of the patent did not arise.
ra new trial.
consider these points, because as that machine was afterwards A.D. 1843. discontinued, the learned judge has told us, that although we should be of opinion that the machines were the same, although we should be of opinion that the machine was not merely in the course of invention, but that it was completed for the purpose of practical use, yet the learned judge has told us, that unless that use has come down to the time, or about the time of granting the letters patent, it cannot be made use of as prior use for the purpose of invalidating the letters patent. It is unnecessary, therefore, for us to consider these points.” That would have been the natural course which the jury would have taken. Therefore, it is perfectly obvious, that if the learned judge be incorrect in the manner in which he stated the law in the particular which I have stated, it was calculated to mislead the jury.
Now, my lords, if this were a motion for a new trial, having on a bill of ex. read the evidence, and having attended to the record, I really ceptions;
Y law was incorfor one should feel strongly of opinion that we ought not to rectly laid down have disturbed the verdict, for I think the verdict is supported an
cu may have been by the evidence. But when we come to consider a Bill of misled, the exExceptions, we are bound to take a different view of the subject, aipo
ont view of the hit ception must be and if we are of opinion that the law was laid down incorrectly, Aliter in the and if we are of opinion that the jury may have been misled, for we have no discretion to exercise-we are bound to say, under such circumstances, the exception must be allowed. For these reasons I am of opinion that the 11th exception ought to be allowed.
With respect to the other exceptions: first, as to the 1st ex- The statute, as ception, I am quite satisfied by the arguments at the bar, that to the notice of
objections, does the learned judge did right in refusing to admit the evidence, not apply to the The arguments at the bar have satisfied me, that according to pro the law of Scotland, and according to the course of proceeding in Scotland, the judge in that respect was correct. And with respect to the other exceptions, the 8th and 9th, it is unnecessary for me to enlarge upon them, because my noble and learned friends who are near me, and myself, expressed our opinions upon those points in the course of the argument, and I understand that they were ultimately abandoned by the learned counsel.
Under these circumstances, my lords, I should recommend your lordships to allow the 11th exception, and to disallow all the rest.
Lord BROUGHAM. My Lords: I entirely agree in the view taken, and for the reasons so luminously expressed, by my noble and learned friend on the woolsack, that the exceptions, all but the 11th, were properly disallowed by the court before whom the bill was brought, and that your lordships should disallow those exceptions here, affirming the judgment below; but I also