Names of Cases.

peculiar modes of weaving when yarns of india-rubber were used. The defendants were said to have infringed one wherein it was claimed to make elastic webs by combining covered elastic threads and non-elastic threads in the same plane, the effect being, that the non-elastic threads restrained the extent of elasticity of the elastic threads, and lighter elastic fabrics could be made than when using all elastic yarns in the warp. Evidence was given, on the part of the defendants, of several instances of previous making and using like descriptions of manufactures by other parties. His Lordship, in summing up, said," Now it will be a question for you gentlemen to say, whether, upon the evidence which you have heard, you are satisfied that the invention was or was not in use and operation at the time the letters patent were granted? It is obvious that there are certain limits to that question; the bringing it within that precise description which I have just given, must depend upon the particular facts that are brought before a jury. A man may make experiments in his own closet for the purpose of improving any art or manufacture in public use: if he makes these experiments and never communicates them to the world, and lays them by as forgotten things, another person who has made the same experiments, or has gone a little further, or is satisfied with the experiments, may take out a patent and protect himself in the privilege of the sole making of the article for fourteen years; and it will be no answer to him to say that other persons before him made the same experiments, and therefore that he was not the first discoverer of it; because there may be many discoverers starting at the same time, rivals that may be running on the same road at the same time, and the first which comes to the Crown and takes out a patent, it not being generally known to the public, is the man who has a right to clothe himself with the authority of the patent and enjoy its benefits. That would be an extreme case on the one side, but if the evidence that is brought in any case, when properly considered, classes itself under the description of experiments only, and unsuccessful experiments, that would be no answer to the validity of the patent. On the other hand, the use of an article may be so

Names of Cases.

general as to be almost universal. In a case like that you can hardly suppose that any one would incur the expense and trouble of taking out a patent. That would be a case where all mankind would say, 'You have no right to step in and take that which is almost in universal use; for that is, in fact, to create a monopoly to yourself in this article, without either giving the benefit to the world of a new discovery, or the personal right to the value of the patent to which you would be entitled from your ingenuity and from your application.' Therefore it must be between those two (if I may so call it) limits that cases will range themselves in evidence; and it must be for a jury to say whether, supposing those points to be out of the question in any particular case, evidence which has been brought before them convinces them to their understandings that the subject of the patent was in public use and operation at that time,-at the time when the patent itself was granted by the Crown. If it was in public use and operation then, the patent is a void patent, and amounts to a monopoly; if it was not, the patent stands good. Now, gentlemen, you will have to apply your understanding to-day to the evidence in this case, which is in many parts contradictory, in order to see whether you bring the case within the one or the other of these two descriptions, and whether this patent is or not a new invention."

The jury found a verdict for the plaintiffs. Subsequently a rule was obtained to enter a nonsuit; for a new trial, the verdict being against evidence, and by reason of the discovery of new evidence; also for misdirection. The new evidence consisted of a specification of a previous patent. The specification now relied on had, however, been enrolled subsequent to the sealing of the plaintiffs' patent.

Their Lordships held as follows:-The invention claimed consisted of combining covered elastic strands and non-elastic strands in the same plane; by thus combining the strands of india-rubber with yarns of cotton-flax and other non-elastic material the patentee was enabled to produce a cloth which should afford any degree of elastic pressure according to the proportions of the elastic and nonelastic materials. Now, the first objection made to the patent so described is, that the invention is not the subject-matter

Names of Cases.

of a patent; that it is neither a new manufacture nor an improvement of any old manufacture, but is merely the application of a known material in a known manner to a purpose known before. The question, therefore, as to this point, is, does it come under the description of 66 any manner of new manufacture? which are the terms employed in the statute of James. That it is a manufacture can admit of no doubt; it is a vendible article, produced by the art and hand of man; and of all the instances that would occur to the mind when inquiring into the meaning of the terms employed in the statute, perhaps the very readiest would be that of some fabric or texture of cloth. Whether it is new or not, or whether it is an improvement of an old manufacture, was one of the questions for the jury upon the evidence before them. The materials, indeed, are old, and have been used before, but the combination is alleged to be, and, if the jury are right in their finding, is new, and the result or production equally sc. The use of elastic threads, or strands of india rubber, previously covered with filaments wound round them, was known before; the use of yarns, or other nonelastic material, was also known before; but the placing them alternately, side by side, together as a warp, and combining them by means of weft, appears to be new. It is a web combining the two qualities of great elasticity and a limit thereto.

Their Lordships thought that, the evidence on both sides having been carefully listened to and weighed by the jury, there was no reason to disturb the verdict.

Their Lordships also said, with regard to the third ground upon which the rule nisi was granted, viz., that since the trial the defendants have discovered a patent taken out by one Desgrand, the patent being sealed in November, 1832,-We think it sufficient to observe, that this specification was not enrolled till May, 1833; whereas the article made under the plaintiffs' patent was publicly made and sold in the London market, to a very large extent, in March and April of the same year. And, although the specification of Sievier's patent was not enrolled till July, 1833, we think the mere fact of the enrolment of Desgrand's specification (after the plaintiffs' patent was sealed and his discovery known in

Names of Cases.

the market) does not of itself alone afford any proof whatever of the want of novelty in the manufacture made under the plaintiffs' patent.-Rule discharged.

Crane v. Price et als.

This patent was taken for improvements in the manufacture of iron, and the claim to invention consisted of the use of hot-blast in combination with anthracite or stone-coal, the specification disclaiming the use of hot blast separately, and also the separate use of anthracite or stone-coal. The use of hot-blast was claimed generally by Mr. Neilson under a previous patent, and the plaintiff, on taking his patent, obtained a license from Mr. Neilson for the use of hot-blast. The defendants had also a license from Mr. Neilson, and had long been making iron by the use of coke of bituminous coal subsequent to the granting of the plaintiff's patent. The defendants proceeded to use one-third anthracite and two-thirds coke of bituminous coal in combination with hot-blast. For the defendants it was contended, that a patent could not be valid which required the use of another patent; and that the combination of anthracite, or stone-coal, with hot-blast in making iron was no manner of new manufacture. At the trial a verdict was taken for the plaintiff on the evidence given, subject to the questions being argued before the Court as a special case.

Their Lordships held, that if the result produced by such a combination (hotblast and anthracite) is either a new article, or a better article, or a cheaper article to the public, than that produced before by the old method, that such a combination is an invention or manufacture intended by the statute. (The King v. Wheeler; Hill v. Thompson.) There are numerous instances of patents which have been granted where the invention consisted in no more than in the use of things already known, and acting with them in a manner already known, and producing effects already known, but producing those effects so as to be more economically or beneficially enjoyed by the public. (Hall v. Boot; Derosne v. Fairrie; Hill v. Thompson; Rex v. Daniell.)

It was objected, in the course of the argument, that the quantity or degree of