If, however, it appear that there is really a doubtful question at issue, the Court will not decide it for itself if either party desire a jury. (Davenport v. Goldberg, 2 H. & M. 282.) In this case the plaintiffs had established their patent at law in a suit against one Rickard, and afterwards filed a bill against one Jepson, in the Court of Chancery. The usual issues were tried before Wood, V. C., when the jury disagreed, and were discharged without giving a verdict. The issues were again tried before another jury, when the defendant did not appear, and a verdict was taken for the plaintiffs, and ultimately a decree for an injunction was made against Jepson. The plaintiff now filed a bill against a third infringer, who, by his answer, put in issue all the points disputed in Davenport v. Jepson, and moved to have the issues tried before a jury. Wood, V. C., refused the application, except as to the issue of infringement, and made the following observations:

"In what position would a patentee be placed if he is to try his right ab initio against every separate infringer in infinitum? That certainly is a view of his rights which has never been adopted by this Court. If the defendant thinks that he can get rid of the patent, he had better proceed by scire facias to repeal or annul it; if he does not choose to take that course, but simply disregards it, and stands on his defence, I must take the validity of the patent as already sufficiently established against him." See also Davenport v. Phillips (5 N. R. 485). But in the absence of special circumstances, cases in the Chancery Division have generally been tried without a jury. (Patent Marine Mansions Company v. Chadburn, L. R. 16 Eq. 447; and see Bovill v. Hitchcock, L. R. 3 Ch. 417.)

By the Patent Law Amendment Act, 1852, section 41, the plaintiff in any action for the infringement of

letters patent is required' to deliver particulars of the breaches complained of in the action, and the defendant in pleading thereto is to deliver particulars of the objection to the patent on which he means to rely; and no evidence is to be allowed at the trial in support of any alleged infringement or objection to the patent not contained in these particulars. This practice was adopted by the Court of Chancery (Finnegan v. James, L. R. 19 Eq. 73), and is now the rule in the Chancery Division of the High Court of Justice.

If the particulars delivered are insufficient, further and better particulars may be required. In Needham v. Oxley (1 H. & M. 248), it was held by Wood, V. C., that particulars of breaches are sufficient if, taken together with the pleadings, they give the defendant full and fair notice of the case made against him. See, however, the subsequent case of Curtis v. Platt (8 L. T. 657), before the same learned judge.

A plaintiff may be ordered to point out by reference to the pages and lines the parts of his specification which he alleges to be infringed (Lamb v. The Nottingham Manufacturers' Company, Seton on Decrees, 4th Ed. p. 349). But this will not be required when the things alleged to be an infringement have been made an exhibit in the action. (Batley v. Kynock, No. 2, L. R. 19 Eq. 229.)

The 41st section of the Patent Law Amendment Act,

At common law it is held that the objections cannot go beyond the pleas; they are merely to state more particularly what the pleas state generally. (Macnamara v. Hulse, 2 W. P. C. 128.) As to other points bearing upon this subject at common law, see Palmer v. Wagstaff (8 Exch. Rep. 840); Palmer v. Cooper (9 Exch. Rep. 231); Hull v. Bollard (1 H. & N. 134); Lister v. Leather (3 Jur. N. s. 816); Greaves v. Eastern Counties Railway Company (1 Ell. & Ell. 961; S. C. 5 Jur. N. S. 733) Talbot v. Laroche (15 C. B. 310); Electric Telegraph Company v. Nott (4 C. B. 462); Fisher v. Dewick (1 W. P. C. 551n); Heath v. Unwin (1 W. P. C. 551); Jones v. Berger (1 W. P. C. 544 n); Househill Company v. Neilson (1 W. P. C. 552); Holland v. Fox (1 C. L. R.

1852, requires the particulars of objection to state "the place or places at, or in which, and in what manner the invention is alleged to have been used or published prior to the date of the letters patent," and under this section it has been held by the Court of Appeal, contrary to what had been previously held (Penn v. Bibby, L. R. 1 Eq. 508; Grover & Baker Sewing Machine Company v. Wilson, W. N., 1870, 78), that an order for better particulars must follow the exact words of the Act. (Flower v. Lloyd, 45 L. J. N. s. 748.) But under such an order the defendant must still furnish full and sufficient particulars (Flower v. Lloyd, cited above); and it is not a sufficient compliance with the order to give merely the places of user without giving also the names and addresses of the persons alleged to have used the invention. (Flower v. Lloyd, 20 S. J. 860; Crossley v. Tomey, L. R. 2 Ch. D. 533.) And an objection alleging the surrender of a previous American patent and prior publication in certain journals of specified dates, and in sketches and drawings in the Patent Office Library, was held insufficient, and the defendant was required to specify the date of the American patent, the name of the patentee, the date of the alleged surrender, and the pages of the publications referred to, and was also ordered to identify the drawings. (Plimpton v. Spiller, 20 S. J. 859.)

Particulars of objections, stating the use of the alleged invention, "in the following among other instances," were held sufficient; but the insertion of such words is in general undesirable. (Penn v. Bibby, L. R. 1 Eq. 548.) But allegations of prior user "by carriage builders generally throughout Great Britain," or by carriage builders in certain specified places, and "various other of the principal towns of Great Britain," were held insufficient. (Morgan v. Fuller, No. 2, L. R. 2 Eq. 297.)

A defendant in a suit for injunction will be permitted, at any time before trial and on payment of costs, to amend his particulars of objection, by alleging prior users discovered since the objections were first delivered (Penn v. Bibby, L. R. 1 Eq. 548), and this after the action has been set down for trial. (Wilson v. Gann, 23 W. R. 546.) And this liberty has been allowed even during the trial, and after the plaintiff's case was concluded. The practice of the Court in the latter case appears to be to refuse the evidence when tendered, but to give leave to make a special motion that it may be received. (Renard v. Levinstein, 13 W. R. 229; 11 L. T. N. s. 505; Daw v. Eley, L. R. 1 Eq. 38.)

An objection to the validity of a patent taken under the 25th section of the Patent Law Amendment Act, 1852, on the ground of the expiration of a foreign patent for the same invention, cannot be taken at the trial unless it has been raised on the pleadings. (Bovill v. Goodier, No. 2, L. R. 2 Eq. 195.) Under an objection that the invention is not new the defendant may show the want of novelty of one of two inventions described in the specification. (Sugg v. Silber, L. R. 2 Q. B. D. 493.)

When a plaintiff files several bills at one time against separate infringers, the Court will, on the application of the several defendants, order the validity of the patent to be tried in one of the suits, and will, in the meantime, stay proceedings in the other suits; but this order will not be made until the defendants have given full discovery of the machines used by them and alleged to be infringements. (Foxwell v. Webster, 2 Dr. & Sm. 250; S. C. on appeal, 10 Jur. N. s. 137.)1

It was said by Wood, V. C., in the case of Bovill v. Crate (L. R. 1 Eq. 388), that when the infringers are very numerous, the proper course

Where two patents were granted to different persons for the same invention, Kindersley, V. C., refused to interfere by injunction and left them to try the legal right by scire facias, being prevented by the 25 & 26 Vict. c. 42, s. 1 (Mr. Rolt's Act), from directing a case for the opinion of a court of law. (Copeland v. Webb, 11 W. R. 134.) See also Baskett v. Cunningham (2 Ed. 137).

In connection with this subject it may be useful to remember that the Court looks with distrust on experiments conducted for the express purpose of manufacturing evidence for the cause. (Young v. Fernie, 5 Giff. 577; Betts v. Neilson, L. R. 3 Ch. 429, 433.)

It is now settled that the plaintiff in a patent action cannot have both damages and an account of profits, but must elect between the two which he will adopt. (Neilson v. Betts, L. R. 5 H. L. 1.)

In estimating the amount of damages sustained by a plaintiff in respect of an infringement of his patent, the Court adopts a form of inquiry different from that which it employs in the analogous case of an imitation of a plaintiff's trade-mark. In the latter instance the Court will not assume in the absence of evidence that the plaintiff would have sold all the articles which the defendant has wrongfully sold. (The Leather Cloth Company v. Hirschfeld, 1 L. R. Eq., 299.) But every sale without licence of a patented article must be a damage to a patentee, and therefore the inquiry in a patent case will extend to the sale by the defendant of any articles made by him since the infringement was commenced. (Davenport v. Rylands, 1 L. R. Eq.

for a plaintiff to pursue before filing separate bills against all the infringers is to select one as a defendant, and write to the others, and ask if they object to be bound by the proceedings against that one and have the case tried once for all. And as to the circumstances which will entitle the plaintiff to an interlocutory injunction notwithstanding delay, see Bovill v. Smith, W. N. 1867, 240.