laying down a cable at sea.

Such experiments were made, and the Court held that they did not amount to a gift of the invention to the world.

In Hills v. London Gas Light Co. (5 H. & N. 312), it appeared that one Croll had purified many thousand feet of gas by a mode for which Hills subsequently obtained a patent, and this gas was sold. The jury, on the trial of an action brought by Hills for the infringement of his patent, found that this was by way of experiment, and the Court refused to disturb the verdict. In delivering judgment on the defendants' rule for a new trial, the Court said, "the word ' experiment,' in the cases referred to, has been used, not as the sole test upon a matter of this sort, but as indicating a class of practice, and for the purpose of showing that if there has been a user of an invention not of a substantial character, but in the character of an experiment, then, although the thing has been done before, it does not preclude a person from taking out a patent for it; so that although what Croll did may not have been strictly in the nature of an experiment, still the jury have so found it, and we cannot grant a new trial."

We will now adduce some instances of patents which were adjudged bad on the ground of want of novelty in the invention generally.

Brunton took out a patent for (amongst other things) an alleged improvement in anchors. The two flukes were made in one, and had such a thickness of metal in the middle, that they might there be pierced with a hole for the insertion of the shank. Previously, the two flukes had been joined by welding them to the shank. It came out on a trial in Court, that the real improvement was in the avoidance of welding, and

that this was done by means perfectly well-known in other cases. There was no proof that the anchors made by the new process were better than those previously made, and since the invention seemed to be nothing more than the adoption of a known operation practised in analogous cases, it was held not patentable. (Brunton v. Hawkes, 4 B. & Ald. 540.) "Now" (said Abbott, C. J., in his judgment) "a patent for a machine, each part of which was in use before, but in which the combination of different parts is new and a new result is produced, is good, because there is novelty in the combination. But here the case is perfectly different: formerly three pieces were united together; the plaintiff (Brunton) only unites two; and if the union of these two had been effected in a mode unknown before, as applied in any degree to similar purposes, I should have thought it a good ground for a patent; but unfortunately the mode was well known and long practised. I think that a man cannot be entitled to a patent for uniting two things instead of three, where that union is effected in a mode well known and long practised for a similar purpose." (Brunton v. Hawkes, 1 Carp. Rep. 410.)

In the case of Kay v. Marshall (2 W. P. C. 34-84), it appeared that Kay had procured a patent for new and improved machinery for preparing and spinning flax, and the invention was declared in the specification to consist of new machinery for macerating flax previous to drawing and spinning it; and also for improved machinery for spinning the same after having been so prepared. If the patent had been confined to the new machinery for macerating, it was allowed that it would have been perfectly good; but, as to the second part of the invention, it appeared that the improved machinery was nothing more than the placing of certain portions of a machine well known and in

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common use within two inches and a half of each other, instead of at a greater distance. It was shown that the distances between the parts in question had not been fixed in previous machines, but had been varied according to circumstances; and, further, that the reach used in cotton spinning had actually been less than two inches and a half. It was held by the Court of Common Pleas, that the adoption of a particular distance, viz. two inches and a half, under these circumstances, did not constitute such an invention as would support a patent. Suppose," said Tindal, C. J., on delivering judgment-" suppose a patent to have been first obtained for some entirely new method, either chemical or mechanical, of reducing the fibres of flax to a short staple, we think that a second patent could not be taken out for an improved mode of machinery in spinning flax which consisted of nothing more than the spinning of short staple of flax by a spinning machine of a reach of a given length, not less than that already in use for the spinning of cotton, the effect of which would be to prevent the first patentee from working his invention with the old machine at the proper reach." Or, as Lord Cottenham put it in the House of Lords, if the plaintiff (Kay) has a right to tell the rest of the world that they shall not use the common spinning machine with rollers at two and a half inches' distance, then the existence of the patent deprives all the rest of the world of the right of using the ordinary spinning machine in the form in which they had a right to use it before the patent was granted.

In the process of calendering woven fabrics the use of a roller and a bowl, and the means of regulating the relative speed of their motions, were well known. In the process of calendering, the roller was smooth, and the speeds of the roller and bowl were different.

F

In embossing, the roller had a pattern upon it, and the speeds of the roller and bowl were equal. A patent was taken out for a combination of a patterned roller with a bowl moving at unequal speeds. The invention was held not to be a new manufacture' which could be the subject of a valid patent. Although the patentee might have discovered how to use an existing machine more beneficially than the owner knew of (viz. by making the patterned roller and the bowl move at different speeds instead of at the same speed, and by moving the fabric transversely when fed up), he had no right to prohibit the owner from using his property as he thought fit. (Ralston v. Smith, 9 C. B. N. s. 117; affirmed by the House of Lords, 11 H. L. C. 223.)

What are commonly termed patents for "applications" are those by which it is sought to protect inventions having reference to the application of an existing article to a purpose for which other similar articles have been previously used; or to the application of a well-known process to produce a well-known article; or to the application of a well-known process to effect a result in a well-known article after the same process had been publicly applied to an analogous article. When there is nothing new in the machinery or methods employed, patents for such applications are not favoured by the law, which looks upon the inventions as wanting in the attribute of novelty. The rule is well established that the mere application in a new manner of an old mechanical contrivance to an analogous purpose is not an invention for which a patent can be granted. "In all the cases in which a patent has been supported" (said Lord

Campbell in Brook v. Aston, 8 E. & B. 478), "there has been some discovery, some invention. It has not been merely the application of the old machinery in the old manner to an analogous substance. That cannot be the subject of a patent."

The casting of tubular boilers in one piece, similar boilers having been previously made in several pieces which were afterwards fastened together by means of cement, was held not to be an invention for which a valid patent could be obtained, although the result was useful and beneficial to the public. It was only the application of a well-known article, viz. iron, by a well-known process, viz. casting, to the production of a well-known article, tubular boilers. (Ormson v. Clark, 13 C. B. N. s. 337; S. C. in error, 14 C. B. N. s. 475.)

Again, the application of double-angle iron (a wellknown article of commerce already applied to a variety of purposes) to the construction of hydraulic joints of telescopic gas-holders, instead of making them of two pieces of single-angle iron attached to a plate, was held not to be patentable. (Horton v. Mabon, 12 C. B. N. s. 437; S. C. in error, 16 C. B. N. s. 141.)

From what was said in Mackelcan v. Rennie (13 C. B. N. s. 61), it would appear that the Court considered that the application in the construction of a known apparatus of a material not before used for that purpose, for example, iron instead of timber in the construction of floating docks, was not an invention for which a valid patent would be obtained. "The use of a new material to produce a known article is not the subject of a patent," said Malins, V. O., in Rushton v. Crawley (L. R. 10 Eq. 522), a case where a man had taken out a patent for the use of a kind of wool called Russian tops in the manufacture of artificial hair. (See also Thompson v. James, 32 Beav. 570.)