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But the introducer and publisher of
that which is not in use may not be
the true and first inventor. Gibson v.
The question, whether the plaintiff is
the true and first inventor or not, de-
pends on whether he borrowed the in-
vention from a source open to the
public. Walton v. Potter, 592.
He who adopts that which has been
published in a source open to the public
is not the inventor. Cornish v. Keene,
Where it appeared in evidence that the
patentee himself invented and brought
into use the machine for which the
patent was granted, but before that time
several other persons had seen a model
and a specification of such a machine,
which were brought over from America;
held, that the patentee was, nevertheless,
to be considered the inventor within the
meaning of the statute, 21 Jac. I, c. 3,
s. 6, no machine having been manufac-
tured and brought into use from the
model and specification, and there being
no evidence that the patentee had ever
seen them. Lewis v. Marling, 493.
He is not a true and first inventor
within the meaning of the statute who
has seen the model or specification of
a machine subsequently patented, but
which had not been in public use and
operation. Ibid. 496.
The party introducing an invention,
not before in public use, is the true and
first inventor, though others may have
received a private communication of the
invention from abroad. Ibid. 496.
The introducer of an invention is
prima facie the inventor. Minter v.
The person who suggests the principle
is the inventor, not he who as a work-
man carries out the suggestion into
effect. Ibid. 132.
And although a skilful mechanic be
employed to perfect the details. Ibid.
132, n. e.
In the case of simultaneous inventors,
the party first obtaining the letters pa-
tent is the inventor in law. Forsyth v.
Riviere, 97; Galloway v. Bleaden, 529.
The distinction between first inventor
and public use is, in the abstract, sound.
The Househill Company v. Neilson,
Letters patent cannot be dated before
the delivery of the warrant into Chancery
(Stat. 18 H. 6, c. 1). 430, n. c.
The Chancellor will not alter the date
of the sealing so as to enlarge the term
for the enrolment of the specification.
Ex parte Beck, 430.
A recompence and reward for making
smalt within the kingdom. Baker's pa-
tents, 9 & 11.
To be construed favourably for the
grantee. Mansell's patent, 26.
Granted in order that the public may
learn the art. 36, n.
The term of fourteen years too long.
Adequate reward and remuneration
to the inventor the ground of extension
of term. Liardet's patent (Stat. 16 G.3,
The granting and prohibitory part of
letters patent expressed in different
terms. 7, n., & Minter v. Williams, 138.
Semble, That letters patent contain other purposes than those of sale and
ing a proviso more general than the commerce will not vitiate such patent.
statute authorizes are voidable. Per Lord Bramah v. Hardcastle, 194.
Lyndhurst, L.C. 447.
Making without selling an infringe-
The grant of letters patent not a mat. ment. Jones v. Pearce, 124,
ter of favour. Arkwright v. Nightin-
There may be several patents for the
MANUFACTURE AND NEW
same object, the means of attaining the
object being different. Huddart v. Grim-
The word 'manufacture in the sta-
The letters patent are prima facie
tute, must be construed in one of two
tute, must be
evidence on the part of the person claim ways; it may mean the machine when
ing the right. Minter v. Wells, 129.
completed, or the mode of constructing
the machine. Morgan v. Searard, 193.
The letters patent and specification are
to be taken as one instrument in enforcing
A new principle developed, carried out,
the claim of the inventor. Crossley v.
and embodied in the mode of using the
principle, constitutes a new manufacture.
Walton v. Bateman, 620.
In concurrent applications for letters
Semble, That an expanding table, with-
patent, the party first clothing himself
with the legal right is the inventor.
out reference to the mode by which the
Forsyth v. Riviere, 97.
pieces are caused to diverge or expand,
is a manufacture. Jupe v. Pratt, 150.
The introducing cords or strands of
India rubber in combination with non-
elastic strands in making a fabric, is a
Money paid for a license to use a pa- new manufacture, although similar cords
tent afterwards appearing to be invalid may have been introduced in pipes after
cannot in general be recovered back the fabric was complete. Cornish v.
Taylor v. Hare, 292.
The plea of the invalidity of a patent A slight difference from what has ex-
may be an answer to an action for rent isted before may not be a new manufac-
agreed to be paid for a license under a ture. Hastings patent, 6; Matthey's
patent. Chanter v. Leese, 295. patent, 6.
The grant of an exclusive license to . The welding tubes by fixed dies in-
use a patent does not invalidate the pa stead of rollers may be a new manufac-
tent itself, although the patent may be ture. Russell v. Conley, 466.
vested in twelve persons; and it is
Tubes having been welded by grooved
wholly immaterial to its validity in what
rollers or a maundril, it is a new manu-
number of persons such license is vested.
facture to weld them on grooved rollers
Protheroe v. May, 414.
without a maundril. Ibid. 464 & 466.
Such a license would not be invalid if
The attaining the same result, or pro-
the district or districts covered by the
ducing the same effect, in a different
license included the whole extent of the
manner, is a new manufacture, as welding
patent. Ibid. 414.
by dies instead of by grooved rollers.
The adaptation of a rotary cutter in a
machine, so as to shear from list to list,
A licensee under letters patent is a a new manufacture, although the shearing
competent witness for the plaintiff in an from end to end by a rotary cutter, and
action for an infringement. Derosne v. from list to list by shears, are old. Lerris
v. Davis, 490.
A button and a flexible shank being
both old, their being simply put toge-
ther, without regard to the particular
The making, prior to obtaining a pa- means, is not a new manufacture. Saur-
tent, for the purpose of experiment or for ders v. Aston, 75.
The speculations and suggestions of
learned men will not vitiate letters pa-
tent, nor experiments in private or
abandoned; but if the article has been
sold, it is a question for the jury, whether
that is a public user. Gibson v. Brand,
The application of detonating powder
by suitable mechanical means to dis-
charge fire-arms. Forsyth's patent, 97.
The improvement in lace by gasing
it. Hall's patent, 98.
The application of new implements
and processes to obtain old results.
The discovery of a principle, as a law
of nature, or property of matter, not a
new manufacture. The Househill Com-
pany v. Neilson, 683.
An allowance of or for the sole buy.
ing, selling, making, working, or using of
anything, whereby persons are restrained
of any freedom they had before, or hin-
dered in their lawful trade. Darcy v.
Allin, 5, n.
A grant of the sole making of cards
void, as being a monopoly and contrary
to law. lbid. 2.
The power of exclusive sale of any
commodity, a monopoly. Ibid. 5.
True tests or incidents of a monopoly,
the price raised, quality of commodity
inferior, and artificers impoverished. Ibid.
All monopolies declared void except
letters patent for the sole working or
making of any manner of new manufac-
ture to the true and first inventor. (Stat.
21 Jac. 1, c. 3, s. 5,6.) 30.
Monopoly patent in respect of a new
trade or engine in furtherance of a trade
for a limited period lawful. Darcy v.
Allin, 6; Crane v. Price, 411.
A patent of monopoly and of privilege
different. Darcy v. Allin, 5, n.
patent furtherance Darcy v.
MEMORANDUM OF ALTERATION.
The Master of the Rolls has no juris-
diction to remove from the rolls of the
Court of Chancery a memorandum of
alteration enrolled under the statute.
Re Sharp’s patent, 641.
Query, whether an omission in the
specification can be supplied by a memo-
randum of alteration enrolled under the
statute. Ibid. 642, n. e.
Or, whether that which might be the
subject of fresh letters patent, can be in-
corporated in existing letters patent by
memorandum of alteration. Ibid. 642,
The Attorney and Solicitor General ge-
nerally allow the enrolment of a dis-
claimer or memorandum of alteration,
leaving the question of its validity to be
decided by a court of law. Ibid. 642, n.e.
The fact of a sci. fa. pending is a
ground for not entertaining a particular
objection to the validity of a patent on a
motion for a new trial. Haworth v.
New facts which would be ground for
repealing letters patent by scire facias
will not be received on motion for a new
trial. Lewis v. Marling, 495.
Every mistake in a specification will
not vitiate a patent. Neilson v. Har-
NOTICE OF OBJECTIONS.
In an action for the infringement of,
and in a sci. fa. to repeal a patent, the de-
fendant and plaintiff respectively shall
give a notice of any objections on which
he means to rely at the trial. (Stat. 5 & 6.
W. 4, c. 83, s. 5.) 260, n. a.
If a defendant neglect to deliver the
notice of objections with his pleas, he
must obtain leave to plead de novo.
Losh v. Hague, 203, n.
To be made, deposited, and preserved.
Lombe's act, 39.
The notice of objections is intended to
apprise the plaintiff of what he is to meet
under the respective pleas. Ibid. 203.
It is not sufficient to state an objection
in the notice of objections, unless there
be a plea to which it can be applied.
Gillett v. Wilby, 270.
The notice of objections should be
drawn with reference to the pleas, or
notice given of the pleas to which the
objections are to be applied. Walton v.
The notice of objections must be taken
to be part of the pleadings, and should be
treated as part of the plaintiff's case.
Neilson v. Harford, 309.
In actions for infringing a patent, the
notice of objection delivered by a defend
ant under 5 & 6 W.4, c. 83, S. 5, is not
conclusive at his peril: but the court un.
der its general jurisdiction may model its
proceedings and order a further and fuller
notice. Bulnois v. Mackenzie, 260.
Doubtful whether the statute requires
the names of those who have used the
invention to be given. Ibid. 263.
The notice of objections meant to af.
ford more specific information than the
plea. Ibid. 263.
The court may decide on the suffi.
ciency of the notice: this power is not
created by the statute, Ibid. 263.
The jurisdiction of the court as to
these questions is analogous to that of
set off: but to require the names and ad.
dresses of all persons who have used the
invention may prejudice the defendant.
A particular of objections delivered by
the defendant in an action for infringing
a patent right must be precise and defi-
nite. It is not sufficient to say that the
improvements, or some of them, have
been used before; the defendants should
point out which. Fisher v. Dewick, 264.
The object of the statute not to limit
the defence, but to limit the expense, and
to prevent surprise on the plaintiff.
The defendant is not limited to the
number of his objections, but he must
state them with precision. Ibid. 268.
The court refused to order a particular
of the names of the persons to whom sales
of the invention, prior to the date of the
patent, are alleged to have been made.
Carpenter v. Walker, 268.
The words divers other persons,'
struck out of an objection. Fisher v.
Dewick, 551, n.; Galloway v. Bleaden,
268, n. d.
The defendant may apply to a judge at
chambers to add the names of other per-
sons. Fisher v. Denick, 551, n. f.
The particular machines to which the
improvements are said to be inapplicable
must be specifically stated. Ibid.551, n.f.
The part or parts in respect of which
an alleged discrepancy between the spe-
cification and letters patent exist must
be stated. Ibid. 551, n. f.
The notice of objections intended to
give the plaintiff more information than
the plea; so that in general, a n
the terms of the plea will not be suffi-
cient. Neilson v. Harford, 370.
But the objection may be so fully ex-
pounded on the record, that a notice in
terms of the plea will be sufficient.
Ibid. 364 & 370.
At nisi prius the only question is,
whether the terms of the notice fairly in-
clude the objection taken. Ibid. 370.
If the notice be too general, previous
application should have been made to the
court. Ibid. 370.
It is not sufficient notice to say, that
the invention was wholly or in part used
before. Heath v. Unwin, 552.
It is a sufficient notice to state that
the invention is not properly set forth in
the specification.” Ibid. 552.
The notice of objections must point
out the defence with greater particularity
than the record. Books intended to be
relied on should be distinctly described.
The court will see that the objection is
stated with reasonable particularity, ac-
cording to the circumstances of the case.
Jones v. Berger, 544.
The objection, that the plaintiff did not
state the best mode with which he was
acquainted is sufficient. Ibid. 546.
Semble, That a notice of the invention
being known to persons of a particular
trade is sufficient. Ibid. 547 & 550.
Semble, The objection, that an inven-
tion was used by many would not be
supported by evidence of user by one
person. Ibid. 517.
The new rules being in operation be-
fore the statute, the legislature must have
intended that the notice of objections
should point out the defence with
greater degree of particularity than the
record. Ibid. 548.
The defendants should specify books
intended to be relied on, and cannot be
prejudiced by so doing. Ibid. 548.
The words and elsewhere to be
omitted, the places to be specified should
fresh evidence arise. Ibid. 549.
The pleas may be narrowed by naming
the person or limiting the nature of the
inquiry. The words and elsewhere
not unreasonable. Ibid. 550.
averment relating to a particular
trade in certain towns is limited and de-
finite, but under an averment; about
common forges, with a reference to nume-
rous places all over the kingdom, it is
impossible to tell what is intended to be
proved. The Househill Company v.
The section of the statute (5 & 6 W.4,
c. 83), as to the notice of objections, does
not apply to proceedings in Scotland, the
same object being obtained by the closed
record. Ibid. 552, 711, & 714.
A 'statement in the notices of objec-
tions, that the specification is calculated
to deceive, is sufficient to let in evidence
as to any particular passage being false.
Neilson v. Harford, 324, 332, & 370.
Admitting that he is the inventor, if
this invention be known and used at the
time at which the patent is granted, the
patent is void. Ibid. 720.
The notorious use of an invention,
though discontinued, sufficient to invali-
date subsequent letters patent. Ibid.
The prior use of a perfected invention,
if such prior use be publicly known, will
vitiate the subsequent letters patent for
the same invention. Ibid. 716.
Semble, That the prior use and aban-
donment of an invention, if lost sight of
and not known to the public, will not
vitiate letters patent for the same inven-
tion. Ibid. 717.
If an invention is in use at the time of
the making the grant, the party cannot
have a patent, although he is an original
inventor; if it is not in use he cannot
have a patent if he is not an original
inventor. Ibid. 719.
The statute excludes from a patent the
inventor who shall have made the inven-
tion so public, that others at the time
shall use it. The consideration fails,
The sale of the article in the market
by the patentee will vitiate letters patent
obtained subsequently to such sale.
Wood v. Zimmer, 44.
The making of two or three of the
patent apparatus by the patentee prior to
the date of the grant will not vitiate it,
unless others shall use the invention.
Bramah v. Hardcastle, 194.
The construction and sale, before the
date of the patent, of the patent machine
by the patentee for gain to any of the
public who will buy it, invalidates the
subsequent letters patent. Morgan v.
If such sale did not vitiate the subse.
quent letters patent, the inventor might
practically have a monopoly of much
longer duration than fourteen years.
The general question is, whether the
invention was known and in use before
the patent. Liardet v. Johnson, 53.
Two distinct issues—the one whether
the invention was in use, the other, whe-
ther the party derived it from another
person or from some public source.
Cornish v. Keene, 507.
The distinction between the issues as
to the first inventor and public use by
others of the invention, is in the abstract
sound. The Househill Company v.
The grantee must be the first inventor.
and the invention must not be in use at
the time of the granting the patent.
For the purpose of meeting the case, that
the party is the inventor, evidence may
be gone into to show that a person used
the invention ten years ago, and then
abandoned it. Ibid. 719-20.
The manufacture of two pieces of ma-
chinery for a party connected in business
with the patentee, under an injunction
of secrecy, and their user abroad, may not
be such a publication as will vitiate the
subsequent grant. Ibid. 195 & 705.
The making of an article in this coun-
try, though for exportation, will vitiate a
subsequent patent, unless under special
circumstances. Carpenter v. Smith, 536.