the Court in which any action for the infringement of letters patent may be pending, or a Judge of the Court if the Court be not sitting, may make an order for an injunction, inspection, or account, on the application of either party. The following cases have been decided on this section of the Act: Vidi v. Smith (3 E. and B. 969); Holland v. Fox (3 E. and B. 977); Shaw v. Bank of England (22 L. J. N. s. Ex. 26); Amies v. Kelsey (22 L. J. N. s. Q. B. 84); The Patent Type Founding Company Limited v. Lloyd (5 H. and N. 192).

An injunction might also have been ordered by a Court of Common Law under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, s. 79), and at any stage of the cause (s. 82); but in Gittins v. Symes (24 L. J., C. P. 48), it was held that the Court would in the first instance only grant a rule nisi, and on cause being shown would give such directions as would be given by a Court of Equity.

The Court of Chancery would not as a general rule interfere by injunction, unless the plaintiff had established his title in a Court of Law. Where, however, that had been done, and there had been no attempt to disturb. the verdict, then an Equity Judge would, almost as a matter of course, assist the patentee by an injunction, with a decree for an account. The Court, however, could not give damages for past infringements. But by the 21 & 22 Vict. c. 27 (commonly called Sir Hugh Cairns' Act), the Court of Chancery was empowered in injunction cases to award damages to the injured party in addition to other relief, and the same Act enabled it to cause the amount of such damages to be assessed, and any question of fact arising in the suit to be tried either by a jury before the Court itself, or before the Court itself without a jury. And by the 25 & 26 Vict. c. 43 (known as Mr. Rolt's Act), the Court was bound itself to try every question of law

and fact arising in any cause pending before it, subject only to the proviso that issues might be directed to try questions of fact at the assizes, when it appeared to the judge that the matter might be more conveniently tried there. See Young v. Fernie (1 De G. J.

and S. 353).

The above-mentioned Acts have not been expressly repealed, though they are, in fact, superseded by the Judicature Acts under which every question of law and fact, or mixed law and fact, arising in any action is now determined wholly in that Division of the High Court of Justice in which the action is brought, subject to certain powers of transfer of the action from one Division to another, and subject also to the further qualification that trials by jury cannot be had before a judge of the Chancery Division (Warner v. Murdoch, L. R. 4 Ch. D. 750).

It has, however, always been and still is the practice of the Court, when the plaintiff can make out a proper case, to grant an interlocutory injunction, that is, an injunction before the trial of the action, without requiring the patent to be established. "The principle on which the Court acts," said Lord Eldon, in Hill v. Thompson (3 Mer. 622), "in cases of this description is the following: Where a patent has been granted, and an exclusive possession of some duration under it, the Court will interpose its injunction, without putting the party previously to establish the validity of his patent by an action at law. But where the patent is but of yesterday, and, upon an application being made for an injunction, it is endeavoured to be shown in opposition to it that there is no good specification, or otherwise that the patent ought not to have been granted, the Court will not, from its own notions respecting the matter in dispute, act upon the presumed validity or invalidity of the patent, with

out the right having been ascertained by a previous trial, but will send the patentee to law, and oblige him to establish the validity of his patent in a court of law, before it will grant him the benefit of an injunction." And, again, in Dudgeon v. Thomson (30 L. T. N. s. 244), Sir George Jessel, M. R., said: "The Court can grant an injunction before the hearing when the patent is an old one and the patentee has been in long and undisturbed enjoyment of it, or when its validity has been established elsewhere and the Court sees no reason to doubt the propriety of the result, or when the conduct of the defendant is such as to enable the Court to say that as against the defendant himself there is no reason to doubt the validity of the patent." (See also Renard v. Levinstein, 10 L. T. N. s. 94, affirmed on appeal, ibid. p. 177; Betts v. Menzies, 3 Jur. N. s. 357; Clark v. Ferguson, 5 Jur. N. s. 1155.)

When it can be shown that the patentee has had undisturbed possession for many years, the Court will grant an interlocutory injunction without requiring the patent to be established, notwithstanding doubts may exist as to the validity of the patent. (Losh v. Hague, 1 W. P. C. 201; Muntz v. Foster, 2 W. P. C. 93, 95; Betts v. Menzies, 3 Jur. N. s. 357.) Butin order to establish a right to an interlocutory injunction on this ground, the patentee must show actual public user of the invention (Plimpton v. Malcolmson, L. R. 20 Eq. 37), unfettered by the necessity of obtaining the licence of any prior patentee. (Heugh v. Magill, W. N., 1877, 62.) Where the patent has been the subject of several suits, all of which have terminated in favour of the patentee, an interlocutory injunction will be granted, notwithstanding a fresh fact is brought forward tending to impeach the novelty of the invention (Newall v. Wilson, 2 De G. M. & G. 282; Davenport v. Jepson,

Q

4 De G. F. & J., 440), or the defendant offers to keep an account. (Renard v. Levinstein, 2 H. & M., 628.) And the fact that the validity of the patent has been established in Scotland is sufficient prima facie evidence of the validity of the patent to warrant the granting an interlocutory injunction in England. (Dudgeon v. Thomson, 30 L. T. N. s. 244.)

If the plaintiff has shown negligence in prosecuting his rights, even though his patent has been established against another defendant (Bridson v. Benecke, 12 Bea. 1; Bovill v. Crate, L. R. 1 Eq. 388), or if the fact of infringement is matter of doubt, an injunction will be refused until after a trial; and even then, if there is ground for supposing that a new trial will be obtained. (Collard v. Allison, 4 My. & Cr. 487; Electric Telegraph Co., v. Nott,1 2 Coop. C. C. 41, and the other cases collected by the reporter.) In almost all cases, however, the Court thinks it right, when it postpones the consideration of the injunction, to order the defendant to keep an account until the plaintiff has had an opportunity of testing the validity of his patent. But if the interlocutory injunction be granted, the Court always requires from the plaintiff an undertaking to abide by any order the Court may make as to damages in case it should ultimately be of opinion that the defendant has sustained any by the injunction which the plaintiff ought to pay. (Wakefield v. Duke of Buccleuch, 11 Jur. N. s. 523.)

For further statements of the general principles on which the Court acts in granting or withholding in

In this case, Cottenham, C., said that the Court will not grant an injunction where the legal right is disputed, unless it is satisfied that the legal right will eventually be established; nor where the legal right is disputed, unless satisfied that the acts complained of are a violation of it. Where, however, the sole question is the validity of the patent, and there has been exclusive enjoyment under it for a reasonable time, the Court will interpose, by injunction, until the invalidity has been established; but the injunction will be refused if there is conflicting evidence as to the infringement.

terlocutory injunctions see Bacon v. Jones (4 My. & Cr. 434); Bridson v. M'Alpine (8 Bea. 229); Davenport v. Jepson (4 De G. F. & J. 440); Plimpton v. Spiller (L. R. 4 Ch. D. 286).

The Court, however, being now empowered to try the validity of the patent, and having the control of the proceedings, and being, consequently, able to prevent any undue delay, is less disposed than formerly to grant an interlocutory injunction, but will generally content itself with giving directions to insure an immediate trial of the questions at issue between the parties, and order the motion for the injunction to stand to the hearing of the cause, adding, when necessary, a direction for the defendant to keep an account. The action may then proceed to trial in the ordinary way. (See the remarks of Sir George Jessel, M. R., in Plimpton v. Malcolmson, L. R. 20 Eq. 37.)

It is open to either party to move that issues may be settled, raising the various questions of fact in the cause. In a patent case the issues usually are, whether the invention be new, whether it be useful, whether it was a new manufacture, whether the patentee was the first and true inventor, whether the specification be sufficient, and whether the defendant has infringed; but, of course, these may be varied as circumstances require. Since the Judicature Acts, however, the practice appears to be not to apply for issues, but to let the action come on for trial generally, upon the pleadings and objections and particulars of breaches.

It is not a matter of course for the Court to grant issues, and they are sometimes refused (Davenport v. Goldberg, 2 H. & M. 282; Davenport v. Phillips, 5 N. R. 485; Bovill v. Goodier, Law Rep. 1 Eq. 36); and a reference to a jury will, in general, not be allowed where the issues proposed have been already determined in a suit between the plaintiff and other parties.