In the Privy and most fixed oils, whether animal or vegetable, including cocoa nut oil, could be separated by means of pressure, at various temperatures, into two distinct substances, called stearine and elaine; that this well-known property, and the processes of effecting the separation, were described in wellknown chemical works, and in the specifications of various patents; that the process of mechanical pressure had been extensively applied in this country to spermaceti and also to tallow, before the date of Soames's patent; that under these circumstances the specification claimed what was not new; that there was little merit in Soames's invention, and that the candles of the stearine of the cocoa nut oil alone had but little sale, and were not suited to general use in this country, and in order to produce a marketable article it was necessary that the stearine should be mixed with the stearic acid of tallow, as in the composite candle; that the trade would be greatly prejudiced by the extension of the patent, since it would prevent them from making the composite candle, which would in all probability altogether supersede the mould candle. Lord BROUGHAM (to Sir Thomas Wilde): Of course we cannot take an admission from you, because we are here to protect the public, and are to satisfy ourselves as to your claim; but it appears to me, from the experiments of Chevreul and Braconnot, and the scientific works Mr. Erle has referred tothe Annales de Chimie, Thompson's Chemistry, the Annals of Philosophy, and Murray's Chemistry, to say nothing of the patents, which I do not think much of; but those scientific works seem to indicate, that prior to your patent, there was a very small step in invention to make, namely, in the separation of the liquid from the solid part of a substance, consisting of two bodies combined mechanically and not chemically; if combined chemically, of course, no pressure could separate them; but combined mechanically-applying pressure to that, was but a small step to make from what was known before. Now you admit, I suppose (which is the only thing wanting to prove their case), the books which bear date in 1815, 1816, 1819, and 1832, to have been published at those dates? [Sir Thomas Wilde: Oh, yes!] (To Mr. Erle ;) Now, on the other hand, I do not exactly see how you could strengthen your case by calling people to say, they knew those things, because, if they were in a book, they were accessible to the patentee, and though it is very likely the patentee might know nothing of them, it goes to the point of public benefit. The public had the benefit of those things before, and consequently, the benefit the public has got from the patent is merely the difference between the matter which was known before the patent, and that which is known now, though it is clear that in fact the patentee has been at a great outlay of money in carrying it into effect. Lord CAMPBELL: I should say, sitting here, if it had been A.D. 1843. published in a foreign journal, considering whether the patent Publication in should be prolonged, I should be influenced by what I saw a foreign work to be considered published in a foreign journal, without inquiring whether it was on an applicaknown in England; though when sitting in a court of justice, and tion for an exconsidering the validity of the patent, I should require that it in an action. should be known in England. tension, but not Lord BROUGHAM: The merit of an importer is less than of The merit of an an inventor. We are now sitting judicially, and it is an argu- than that of an importer less ment against the patent, that it was imported and not invented. inventor. I do not say it takes away the merit, but it makes it much smaller. Is it worth your while to give evidence to strengthen that point? He may have had all the merit in the world; he may have invented the mariner's compass, not knowing it was known before, but still the public benefit is reduced very much if it was known before. Lord CAMPBELL: The strength of your case seems to be this. That before this patent of Mr. Soames was taken out, not only was the distinction known between stearine and elaine with reference to animal oils but with reference to vegetable oils, and it is the overcoming certain difficulties in the separating of them which Mr. Soames takes out his patent for. Lord BROUGHAM: Then the extracts you have read from those scientific works, and the specifications of the three patents, may be taken as put in. Sir Thomas Wilde, in reply. However small the step, it is Reply. that which has made the whole difference between a worthless and most valuable commodity; the merit of the inventor cannot be tested by the apparent change, the result and its consequences must be looked to. The public have obtained a valuable article in a cheap and good candle; cocoa nut oil, the produce of our own colonies, has become a permanent article of trade. The assignees have risked an enormous capital, upon which they have not received fair or ordinary returns. The present case is precisely similar to those in which, from the importance of the result, and the inadequacy of the remuneration to those who have brought about the result, the legislature has granted an extension of the term of the letters patent (c). Lord BROUGHAM: If this case were to be disposed of upon Judgment. the ground which in arguing such cases has sometimes been assumed to be the fit one, that there must not only be merit and benefit to the public, and (which is essential) a want of sufficient remuneration in the course of using the patent, but that, moreover, the case is to be tried here as on a bill in parliament introduced to prolong the patent; then, I apprehend, there can (e) See the cases, ante 40. In the Privy an extension is in the same manner as an really be no doubt whatever that in this case no bill would ever have passed through the two houses of parliament; but their The petition for lordships have always considered that it was with the view of not to be tried affording a better remedy, not only cheaper and easier, but better in this respect, that there might be cases which never would have prevailed on the legislature to make a new personal law prolonging a monopoly, which, nevertheless, might seem meritorious enough in respect of the individual, beneficial enough in respect of the public, and deficient enough in remuneration, to justify interference, which, nevertheless, had they been presented in the form of a petition to parliament, would have failed to procure an act. application to parliament. Proceeding therefore upon this ground, that it is not necessary to show there is case enough for an act of parliament, their lordships are of opinion, that in this case there may be sufficient ground for granting a very moderate extension of the term. Clear proof has been given of some moderate benefit to the public, and of a step having been made by the patentee; that, though previous to his invention of the process, or his application of the ordinary process, viz. mechanical pressure— which is no more a peculiar process than mixing, or any other chemical process known at all times, to all persons, and in all operations-it had been known that vegetable as well as animal oils consisted of two parts, a solid and a fluid, mechanically combined, capable therefore of being separated by mechanical pressure; yet as there never had been any application of mechanical pressure for the purpose of separating the cocoa nut oil into two parts, which being separated, are found exceedingly useful; the oily part useful, and particularly the solid part, very useful in making candles; it is fit to consider that the person who made this step-no very great step, yet still a step to some extent, was not sure before hand, that he would find the solid part separable by pressure; he was not quite sure, because it had been done with other things, but he might very well calculate that it would be so-he was not at all sure that he would find the thing so separated, was applicable to common and to public use, viz. to the purpose of making a good burning candle. The fact of a Well, then, another improvement was made by him after be further improve- discovered the process of separating the one from the otherbeen made is an that when separated, a candle might be usefully made of the ment having argument in favour of an extension. solid part. There was then made, it appears, another improvement, viz. the composite candle which is now chiefly in use. Though that is chiefly in use and the other not, that affords no argument against the invention or against the benefit the public may derive therefrom, because it is only carrying the invention further, though they do not patent it, and do not claim the exclusive benefit of it; it is really carrying further the original process. Then it appears clearly it has been no benefit; it has rather been a damnosa hæreditas. It appears that £800 was A. D. 1843. paid in the first instance, and that they have rather lost than gained that they have lost somewhere about £500 or £600. It appears they have rather speculated lately; they have spent £3000 or £4000 within the last two or three years. Perhaps they had no right to calculate upon that being restored. They have incurred a great outlay of money, perhaps not a very prudent one under those circumstances. Then it is said, there has been an obstacle in the want of cocoa nut oil. It does not appear there was any change to make that cocoa nut oil less easy to be obtained than it was before; on the contrary, the whole average importation is about seventeen times as much now as it was originally. They could hardly therefore have been disappointed in that, because they could hardly have calculated, and they had no right to calculate, and therefore no right to complain if they were disappointed, upon the supply of cocoa nut oil ever rising in a greater proportion than 17 to 1. Nevertheless, they have been spirited and active persons in this matter, and the public has gained something from their spirit and activity, and from what they have expended; and their lordships under these circumstances are of opinion, that they will do well in giving the benefit of a very moderate extension of this patent right, but that moderate it must be, in respect of the circumstances which I have already stated-the very small step which was made, and the proportionate small benefit which the public may be said to have gained. merit of the the step, must be guarded It is very fit their lordships should guard against the in- An inference ference being drawn, from the small amount of any step made against the in improvement, that they are disposed to undervalue that in invention from importance; if a new process is invented, if new machinery is the smallness of invented, if a new principle is found out and applied so as to carefully become the subject of a patent right, embodied in a manufac- against. ture, then, however small it may be in advance of the state of science or of art previous to the period of that step being made, that is no reason whatever for undervaluing the merits of the person who makes a discovery in science or an invention in art, because the whole history of science, from the greatest discoveries down to the most unimportant-from the discovery of the system of gravitation itself, and the fractional calculus itself, down to the most trifling step that ever has been made-is one continued illustration of the slow progress by which the human mind makes its advance in discovery; it is hardly perceptible, so little has been made by any one step in advance of the former state of things, because generally you find that just before there was something very nearly the same thing discovered or invented. Therefore it is no argument whatever in general, if there is a new principle, or a novel invention—a new process, for instance. But that is not the case here, and therefore it is, In the Privy that being not at all the case here, but only a new application, which might very easily suggest itself to any body; a new application of a well-known simple process, which had been employed with respect to other substances, a new application to this known substance of cocoa nut oil. Therefore, the general observation fails altogether here, and their lordships are perfectly justified, without any thing unfair towards the party, at the time they are granting an extension of the term, in taking into consideration how small that step has been. Their lordships being of opinion therefore, upon the whole, that a moderate extension ought to be given, they will humbly recommend her majesty, under the powers of the act, to grant an extension of three years, from the expiration of the term of fourteen years already enjoyed (d). July 5, 1843. WRIGHT'S PATENT. Cor. Lord Brougham; Lord Campbell; Dr. Lushington; and This was an application by the patentee for an extension of letters patent, granted the 26th of January, 1830, to Samuel Wright, for "a manufacture of ornamental tiles, bricks, and quarries, for floors, pavements, and other purposes." M. D. Hill, and Webster, for the petitioner; Sir F. Pollock, A.G., for the crown. The subject of this invention was described by the witnesses as the encaustic tile, a description of which was well known in the middle ages, but the art of its manufacture had been lost. The patentee having failed altogether in introducing the invention, in 1838 transferred his model, and granted a license to a Mr. Minter, reserving to himself a royalty of 2s. per square yard. Mr. Minter immediately reduced the price from 428. to 18s. the square yard, and undertook the contract for the Temple Church at 16s. 6d. a square yard, as a means of bringing the pavement into notice, at a loss on that contract of £250: the patentee had expended between £700 and £800, and received no return, except about £100 royalty from Mr. Minter. Sir F. Pollock, A. G., informed their lordships that he saw no objection on the part of the public to the extension asked for being granted. (d) The new letters patent were granted (sealed 24th of Aug. 1843,) to William Wilson, John Studbolme Brownrigg, John Cockerill, and Sir George Gerard de Hochpied Larpent, Bart., for the term of three years, from the 9th day of September. |