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1841.

KAY

MARSHAL.L.

as

The opinion of the Court of Common Pleas cannot be supported in law; it did not apply to the letterspatent, or to any defect on the face of them, but to the form of the specification-a point which was not raised by the pleas at all. The points raised by the pleas and by the issue, and also on the case sent to that Court, was whether the machinery of which the plaintiff claimed to be the inventor was new, and whether the invention was of public utility. That machinery, though the defendants attempted by their pleas to divide it into two distinct processes, was one combined operation, by maceration of the fibres and contraction of the reach, spinning flax at a distance of 2 , inches between the rollers: and the jury having found it to be new and useful, there was nothing on the face of the patent to make it void. The verdict of the jury was not neutralised or invalidated by their finding of the facts indorsed on the postea; that indorsement applied to matters stated in the specification.

[The Lord Chancellor :-A Court of Equity regards as much the indorsement on the postea as the verdict; the whole inquiry being for the information of the Judge in equity.]

It is not denied that the indorsement is part of the finding of the jury. Both together showed no good defence in law to the relief prayed by the bill. Some parts of the plaintiff's machinery described in the specification were not, nor alleged by him to be new; but the whole combination was new, and produced the most important results to manufacture. It seldom happens that the most useful inventions are perfectly new, or the result of pure science. Sir H. Davy's lamp is one of the few exceptions : philosophical instruments are also to be excepted. The patent laws protect every new combination or variation of machinery

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applicable to useful purposes. Of that description was Neilson's patent for blowing blasts of hot air into furnaces; and also a patent taken out for cleaning lace by an Argand lamp lighted with gas, the novelty of which was the substitution of gas for oil. It was no part of the judgment of the Court of Common Pleas that the Appellant did not discover what was new and useful; but they held that his specification containing two separate things, both useful, but one only new, was bad, and therefore the patent was void. The jury found that the Appellant invented something deserving a patent; the Court did not deny that finding, but said the specification claimed something that was not new, and that vitiated the patent. This case is distinguishable from Brunton v. Hawkes () and Boulton v. Bull (k).

The opinion of the Judges of the Court of Common Pleas forms no part of the record in the Court of Chancery, and consequently is not the subject of appeal; but the judgment of the Master of the Rolls declaring the patent invalid, and dismissing the Appellant's bill with costs, which is appealed from, is founded on the same misapprehension of the claim of invention as described in the specification, instead of what is actually protected by the patent; and to that judgment the same objections apply. If the opinion certified by the Court of Common Pleas cannot be sustained, neither can the judgment of the Master of the Rolls; which ought therefore to be reversed, especially when it is remembered that the Appellant had 14 years' enjoyment of his patent, which he defended and established by several actions; and now he has obtained from the Privy Council an extension of it for three years more. (1) 4 Barn. & Ald. 541.

(k) 2 H. Blac. 463.

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Mr. Pemberton and Sir William Follett, for the Respondents :-- What the Appellant claims as new machinery is not new. The placing the rollers at 2 ) inches distance is not new: they have been placed nearer in cotton-spinning.. They have always varied in distance, according to the length of the fibre of the substance to be spun. Suppose the macerating of the flax is new, then the patent ought to be taken out for that only, and not for two processes, one of which is not new. If part of the invention claimed fails, the patent for the whole is void. The Appellant does not claim anything in respect of the macerating process, which he says is now unnecessary: he claims for the machinery for spinning; which, not being new, cannot be the subject of a patent.

[The reports of the argument on the demurrer (1 Myl. & C. 380), of Sir W. Folletts argument on the case in the Common Pleas, and of the reasons given by the Judges of that Court for their opinion (5 Bing. N. C. 492), and again of the judgment of the Master of the Rolls (1 Beav.535), together with the following judgment of the Lord Chancellor, make it quite unnecessary to give here more than the above outline of the arguments on the present occasion.]

June 18.

The Lord Chancellor :-In this case the plaintiff complains of the defendants' having infringed his patent, and of the course which has been taken below; one, certainly, not of very ordinary occurrence, as your Lordships will see when I call your attention to the mode in which the case was disposed of in the course of the proceedings. The bill sets forth the letters-patent and specification, and states that the invention was in respect of machinery for preparing and spinning flax, hemp, and other fibrous substances. It states the specification, and then states that the first

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process, namely, that of macerating the flax, had to a considerable degree become unnecessary. It then complains of what the defendants have done, not as interfering with the plaintiff's patent as regards the preparing of the flax for spinning, but as having invaded his patent so far as it was for an improved machinery for drawing and spinning flax; which machinery for drawing and spinning flax is stated to have been in use, and very generally adopted. That is the complaint made by the bill, to which the defendants pleaded, and by their pleas thus raised two objections to the plaintiff's title. The first objection was, “ That the plaintiff had not before, and at the time of the making of the letters-patent in the bill mentioned, found out and invented any new and improved machinery, as in the said bill of complaint, and in the said letters-patent and specification, is alleged.” That objection therefore was, that the patent was bad, because the invention described in the letters. patent and specification was not new, that there was not any novelty in it ;-alluding to the rule of law, that if any part of that which is claimed as a new invention, was not in fact new, the patent would be bad. First of all, upon the construction of this plea, I cannot entertain a doubt that the terms “ any new and improved machinery, as in the said bill of complaint and the said letters-patent and specification is alleged,” are to be construed as meaning any such machinery as is there alleged, and in respect of which the patent is claimed: but I apprehend that that does not now come before your Lordships for decision.

The two pleas having been set down for argument, an issue was directed, which was afterwards tried. No judgment was pronounced on the validity of the pleas, the parties having, although it is not expressed in ·

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v. MARSHALL.

ces

terms in the order, thought it expedient to proceed to the trial of the truth of the pleas, not obtaining or asking the judgment of the Court as to the legality of the pleas, and as to how far they raised the important fact. They proceeded to a trial accordingly, and on the trial the jury found in favour of the novelty and of the usefulness of the invention; but there was an indorsement on the postea, which stated—[His Lordship read the indorsement, as before stated, p. 250 :

-Now that indorsement, which is to be taken as part of the information which the Court was to act upon as ascertained before the jury, states the various distances at which the rollers were placed in the ordinary spinning machines, and states as a fact, which cannot now be in dispute, “that before the granting of the patent, flax, hemp, and other fibrous substances were spun with machines with slides, by which the reach was varied according to the length of the staple or fibre of the article to be spun.” We have it therefore as a fact, now to be assumed as true, that spinning machines were constructed with rollers, the distances between which varied according to the substance to be spun.

Now all the variation which the plaintiff introduced into the ordinary spinning machine, which he claims as his invention, is fixing the rollers at 21 inches distance from each other; and that he states is such an improvement to the ordinary spinning machine as entitles him to be protected from all the rest of the world, against their using spinning machines with the rollers at that distance. It is not, as was argued at the bar, one invention, namely, the macerating the flax, and using the flax so macerated, with a particular machine. The earlier part of the invention he not only does not claim as against the defendants, but does not complain of the defendants as having

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