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cases, and who gave a very fair, and impartial, and careful ac- A.D. 1843. count of it, and he gave most distinct evidence upon his oath to the fact, that the first and second and third paddle-wheels were all set aside, having failed from some defect in their power, and that the fourth was made according to the principle of the first, which was according to the model of the four floats at the end of the vane at the outside of the spindle, and according to the plan, without any of the alleged improvements in the frame, although there can be no doubt, and it is past contention, that it does not admit of a choice between the two. It must, however, be observed, that it cannot here be said, that the difference between the float being at the end, or outside of the spindle and the balance floats, or the float part of which is inside and part outside the spindle, is a material difference or an improvement; if it were an improvement in the invention, that might be urged, but the patent is not taken out, as we understand it, for that particular construction of the wheel; the patent is taken out for a mode of making floats (whatever they are, whether the balance float or the single float, whether floats partly inside and outside the spindles, or floats entirely inside the spindle, whatever may be the mode and manner of making the float) enter and go through the water at a particular angle, and then quit it at another angle—at such an angle as shall oppose resistance to the water—that being the object to be attained; the principle being thereby applied, of opposing the greatest space in the most advantageous form, to give resistance where resistance is wanted for the power, but is only wanted to withdraw it, either through the water in the first instance, or through the air in the next, upon the ordinary principle of feathering an oar.
Now it appears that improvements were made in the float, The fact of such manifest improvements, that no person would after these gre
ments having ever think of persisting in using the invention as it originally been made on stood, but would have recourse to the improvements. That, vee however, is no reason against the claim of the original inventor, no objection to
the extension of it is only saying that his invention, though useful, has been the capable of improvement, and its having been improved affords no reason for denying him an extension of the patent, if upon other grounds he has merit, and if upon other grounds he has shown not to have reaped a due benefit in proportion to that merit. If such an argument were to prevail, any improvement made by him upon the patent would at once take away the patentee's right to obtain under whatever circumstances he may come before this court, a recommendation to have under the act of parliament, an enlargement of the term.
Some difference of opinion has been expressed by persons of great learning, experience, and ingenuity, in their several departments, but in weighing the testimony of those gentlemen much
the term .
In the Priny
depends, as it is in conflict, upon the spirit in which the testi-
paddle-wheel seems to have done its duty admirably and power- A.D. 1843.' fully, and another would not have done so well.
Upon these grounds their lordships are to consider, whether As to the profits or not a profit has been realized by the patentee. Now it ap- and deductions
to be made in pears that from four years' litigation, entailing an expense of estimating them. £2423, including the expense of taking out the two patents, and including the expenses always attendant upon bringing a patent invention, however useful or however much approved of by the public, into use, and deducting the expense of the steam engine, which was set aside, and afterwards exported, and deducting all expenses not belonging to this very invention itself, by an examination very strictly gone through, both by the bar and the court of persons called for that purpose, the £6000, which has been received, has been considerably more than exhausted by that expenditure. And then we are to observe, that the £6000 A manufacwas not, properly speaking, the patentee's profit, it was not turer's fair profit
"must be dethe profit of the monopoly, but the profit which any manu- ducted. facturer employed to make these vessels with these engines would have derived by it, who had no right to the patent, and no right to the monopoly. That is a very material circumstance, for it shows that all the poor inventor got by this patent was a sort of priority in this market, a preference in obtaining those orders, and no profit whatever from his monopoly. Not only, therefore, was the expenditure greater than the profit received, but the proportion of that expenditure to him was still greater.
Their lordships, taking all these circumstances into consideration, are of opinion that they ought to recommend, under the powers of the act, that the patent should be extended, and they consider the fit and proper period of that extension should be five years (f).
Sir W. Follett, S.G.: I do not know whether in this case I ought to apply to your lordships, as we have been put to very great expense by the opposition, that we should have any costs. I find that your lordships have done that in similar cases (g).
Lord BROUGHAM: No costs ought to be allowed.
Soames's PATENT. Cor. The Lord President; Lord Brougham ; Dr. Lushington ; June 21, 1843.
and Lord Campbell. This was an application by the grantee and assignees of letters patent, granted September 9th, 1829, for “a new prepa
(f) New letters patent were granted to James Lancaster Lucena accordingly.
(g) See ante 567.
In the Privy Council.
ration or manufacture of a certain material produced from a vegetable substance, and the application thereof to the purpose of affording light, and other uses" (a).
The petition stated that the cocoa nut oil, which at the temperature of the East Indies is a fine fluid oil, may be produced
(a) Specification. The specification declares “the nature of the said invention or discovery to consist in preparing or manufacturing the ma. terial or substance commonly called cocoa nut oil, by subjecting it to the process of hydraulic or other suitable pressure, by which process I separate the elaine, by which I mean the more fluid part from the stearine, by which I mean the more solid part, and thereby obtain two products—one fit to be applied to the manufacture of candles, and the other to burning in ordinary lamps, and other purposes." The specification then describes the mode of pressing the crude cocoa nut oil, and the manipulation of the stearine and elaine, whereby they are obtained the one in a state fit for the manufacture of candles, according to the ordinary process of making mould tallow candles; the other for burning and other uses to which oil is applied; and concludes as follows:-“ Now, whereas the process of separating the elaine from the stearine, by pressure, in manner aforesaid, has never before been applied to the substance called cocoa nut oil; and, consequently, no product has heretofore been obtained thereby from that substance, fit for being manufactured into candles in the ordinary way, or for being refined by any of the usual modes so as to burn in ordinary lamps; both which objects are obtained by my method of preparing or manufacturing the said substance. And whereas, I therefore hereby claim as my in vention or discovery, the manner hereinbefore de scribed of preparing or manufacturing the sub stance called cocoa nut oil, by hydraulic or other suitable pressure, and the application of the products obtained thereby, one to the purpose of making candles, and the other to the purpose of burning in ordinary lamps, without the necessity of applying the conductors of heat, and other contrivances now adopted when cocoa nut oil in its ordinary state, as imported, is used for burning, and also to other uses."
is to be observed, that all orders made on applica. tions of this kind are merely interlocutory orders; they do not bind the right between the parties. The injunction which I have stated it to be my intention to grant, will be an injunction, of course only till further order. It will not be a perpetual injunction; not an injunction to continue during the continuance of the patent. Notwithstanding this order, the defendant may put in his answer, he may displace all the affidavits which have been filed on both sides. The plaintiff and the defendant may respectively proceed to evidence, they may bring this cause on for a hearing, and upon the bearing of the cause, the whole case, the law regarding the patent, and the facts which will appear upon the depositions, will have to be reconsidered, and that reconsideration may, for any thing that can be known to the contrary, jastly end in a result different from that which I have come to upon the present occasion.
The defendant having his option to adopt this course of proceeding, has at the bar expressed his desire to have this matter tried at law. If he were left merely to prosecute a scire facias for the repeal of the patent, that would be one part of the question which he might in that way try. Bet there are other questions subsisting between the parties regarding matters of fact, which could not be tried in that way.
Now it has been stated by Lord Cottenham, that he recollected no instance in which the court has not adopted the course of directing the trial of an action; he has stated that to be the result of his experience. I certainly lam very reluctant to try my own memory against that, but I should have supposed that there were instances in which that had been done. It is not the right of parties in every case to have an action tried in a court of law, it is a question of convenience, and the court is to exercise a fair discretion. I have no doubt whatever of the competency of this court to graut an injunction simpliciter. Neither had Lord Cottenham any doubt of it. But the question is, whether, when there is an opportunity for carrying the matter further, it is not, on the whole, a cosvenient course of proceeding to have it tried be fore the tribunal which is most proper for the determination of the legal question, and by which the facts can be better investigated than they can here. It is not, therefore, upon the ground of any doubt as to the validity of the patent that I make the order which I am about to make; but it is because the nature of the case entitles the defendant to a further investigation in one form or other, and the most convenient and most effective mode appears to me to be that which has been mentioned, namely, by bringing an action in a court of law. Notwithstanding, therefore, the very forcible arguments I have heard upon this subject, I think I must in this case, as has beea done in so many other cases, direct the plaintiff to bring an action to try this right, the injunction being granted in the terms of the notice of motion.
Wilson v. Tindal. A bill had been filed (Nov. 17, 1841) by the plaintiffs, the assignees of the above patent of Soames, to restrain the defendant from infringing the patent, and the Master of the Rolls in granting the injunction, 26th November 1841, delivered the following important judgment :
Lord Langdale, M.R.: Having regard to the arguments on the validity of the patent, to the enjoyment of it by the plaintiffs, and to the evidence which appears upon the affidavits which have been made in this case, I am of opinion that the injunction which is applied for ought to be granted.
The question for consideration is, whether any terms ought to be imposed upon the plaintiffs, or whether any other mode of investigating the facts than that which is adopted in the usual course of proceeding in this court ought to be adopted. It
in any quantity in the British Colonies, particularly in Ceylon, A. D. 1843. where the British Government from 1813 to 1833 made great exertions to establish the trade in cocoa nut oil as an export trade. The attempt, however, failed, from the inutility of the oil in England, it being unable to be burnt under ordinary circumstances, and was practically useless, until the invention of Mr. Soames, by which it became an article of great utility. The petition then stated various circumstances connected with the progress of the invention, and the assignment of the patent, and the difficulties with which the assignees had to contend, arising from the following circumstances—a great scarcity in the supply of cocoa nut oil from the demand for the purposes of Soames's invention, and the adoption of the oil to mix with tallow in the manufacture of candles, and the discontinuance of the Government mill and establishment at Ceylon, the result of which was, a great scarcity in the article and a rise in pricethe petitioners being compelled to establish agencies at Ceylon, and on the Malabar coast, for the regular exportation of oil to England, and to erect mills, and plant cocoa nut trees for the same purpose, in all which undertakings great difficulties were experienced--the failure of their expectations as to the supply of oil at a moderate price. The petition further stated, that the invention of Mr. Soames had led to the invention of the composite candle, an article in very great demand by the public. That a capital of upwards of £100,000 was embarked in the working of the patent, but the profits had been less than the ordinary returns on manufacturing capital. The petition, in conclusion, stated as specific grounds for extension of the patent, the introduction of a new trade and manufacture, namely vegetable candles, and the establishment of the importation of cocoa nut oil as a trade of great value, both to the country and the colonies (6); the utility and importance of the consequent improvement in candles to the public at large; the want of remuneration and the difficulties in which the assignees had been involved from circumstances which could not be foreseen, and over which they had no control.
Sir Thomas Wilde, M. D. Hill, Rotch, and Webster, in support of the petition; Sir W. Follett, S. G. and M. Smith opposed on behalf of the trade; Erle and Swann on behalf of Mr. Tindal.
The usual formal and other proofs in support of the petition The Objections." having been given, the following objections to the extension of the term were stated as intended to be relied on. That long before Soames's invention it was well known that all fats,
(b) It appeared from the parliamentary papers, that on the average of fifteen years, prior to 1824, the quantity of cocoa nut oil imported was 102 tons annually, at £30 per ton; during the next
six years, the average was 344 tons, at £35 a ton; and during the next eight years, up to the end of 1842, the annual average was 1743 tons, at £38 a ton.