Losh's wheels.) "If," continued his lordship, "the wheels had been made and sold to any one individual, the public's not wanting them because there were no railways, their not being adapted to any particular use, which at that time was open to the public to apply them to, makes no difference. You have it in evidence that these wheels were made in the first instance; that thirty pairs were made with a complete continuous circumference all round. If they were so made and sold, or used at all, though not for any purpose that then made them popular or desirable, still they are made with that particular advantage which is claimed by Losh's patent, namely, a periphery made of one continuous piece of wrought iron, as well as the spokes. But that is not all the evidence; there are two parties. from Manchester. One Horsefall says that he remembers, nearly twenty-eight years ago, that there were three trucks, having each three wheels, and those wheels were made of wrought iron spokes in a wrought iron circumference, and there is one exhibited before you which was actually in use at that time; the other, Roberts, confirms that, and has stated that they existed for many years, and that they have been used."

It may be well also to refer to the case of Macnamara v. Hulse (2 W. P. C. 128 n.) which was an action for an infringement of a patent for a method of paving streets with blocks in the form of two solid rhombs placed one in front of the other, in opposite directions, so that each side of a block was bevelled both inwards and outwards. It was proved that the defendant used blocks, each consisting of a single solid rhomb, and then fastened two together by pins, so that two of the defendant's blocks thus fastened exactly resembled one of the plaintiff's blocks. This was the infringement complained of. The defendant, at the trial, put in the specification of an expired patent, obtained by

one M'Arthy, for a pavement in which each block had two bevels inwards and two outwards on the same side. If M'Arthy's block were cut into two, it would make two blocks similar to the plaintiff's; if cut into four, it would make four blocks similar to the defendant's. Both judge and jury thought that, under these circumstances, the plaintiff's invention was destitute of novelty. The plaintiff asserted that the defendant had infringed his patent by cutting his block into two. The defendant showed that the plaintiff, in forming his block, had only cut M'Arthy's block into two. The plaintiff, in support of his own patent, was bound to contend that M'Arthy's invention and his own were distinct; but then it followed that his own and the defendant's were likewise distinct, in which case there was no infringement.

In Lewis v. Marling (1 W. P. C. 496), Bayley, J., said, "If I make a discovery, and am enabled to produce an effect from my own experiments, judgment, and skill, it is no objection that some one else has made a similar discovery in his mind, unless it has become. public." And Parke, J., said, "There is no case in which a patentee has been deprived of the benefit of his invention because another had also invented it, unless he had also brought it into use." Again, in the case of Hill v. Thompson (1 W. P. C. 244), Dallas, J., said, "It is not enough to have discovered what was unknown to others before, if the discovery be confined to the knowledge of the party having made it; but it must have been communicated more or less, or it must have been more or less made use of, so as to constitute discovery as applied to subjects of this sort."

The evidence given in Lewis v. Marling, to impugn the patentee's claim of novelty, was that several years previously a similar machine was in use at New York, and that a specification had been sent over in 1811 to a

person residing at Leeds, who employed two engineers to manufacture a machine from it, which was never finished, in consequence of disturbances amongst the populace. The specification was shown to several persons; but the machine was never brought into use. In 1816, a model of a machine for shearing from list to list, by means of a rotatory cutter, was brought over from America, and shown to two or three persons in the manufactory of the importer; but no machine was ever made from it, nor was it publicly known to exist. Moreover, one Coxon, many years previously, had made a machine to shear from list to list, and this was tried by a person called as a witness; but he did not think it answered, and soon discontinued the use of it. Lord Tenterden told the jury that if it could be shown that the patentee had seen the model or specification, that might rebut the claim of invention; but there was no evidence of that kind; and he left it to them to say whether the invention had been in public use and operation before the granting of the patent. They found that it had not; and on the motion for a new trial, the Judges thought there was no reason to find fault with the verdict.

In charging the jury assembled to try the action of Cornish v. Keene (1 W. P. C. 508), Tindal, C. J., said, that "if the invention was at the time the letters patent were granted in any degree of general use; if it was known at all to the world publicly, and practised openly, so that any other person might have the means of acquiring the knowledge of it as well as the person who obtained the patent, then the letters patent are void. Now it will be a question for you to say whether, upon the evidence which you have heard, you are satisfied that the invention was or was not in public 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 which 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 sole making of the article for fourteen years; and it will be no answer to him to say that another person 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, many rivals that may be running on the same road at the same time, and the first that comes to the Crown and takes out a patent, it not being generally known to the public, is the man who has the right to clothe himself with the authority of the patent and enjoy its benefits. That would be an extreme case on one side; but if the evidence, when properly considered, classes itself under the description of experiment only, and unsuccessful experiment, that would be no answer to the validity of the patent. On the other hand, the use of an article may be so 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 in almost 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 the 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 these two 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, the evidence which has been brought before them convinces them 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."

Hancock v. Somervell (reported in Newton's L. J., vol. 39, p. 158) is a case in which peculiar circumstances were adduced in evidence for the purpose of rebutting the claim to novelty. Hancock's patent was for improvements in the preparation of caoutchouc, and the invention consisted in combining sulphur with the caoutchouc, which rendered it elastic at all temperatures. The defendants imported from America shoes made of caoutchouc, which, when analyzed, were found to contain sulphur along with oxide of lead and other ingredients. In an action for an infringement of the patent it was proved in evidence, that previous to the date of the plaintiff's patent specimens of caoutchouc prepared by sulphur were sent to England by Goodyear, of New York, and were shown to Hancock, but the secret of the manufacture was not communicated to him. Negotiations were commenced for the sale of the invention to Hancock, but never completed. It was stated in evidence that Goodyear's agent left specimens with Hancock, supposing that it would not be possible for him to discover the process by which it was prepared. However, Hancock made experiments, and discovered that sulphur endowed caoutchouc with the property of elasticity at all tem