In the case of Losh v. Hague (1 W. P. C. 202), the question was reduced to this-Is a man who finds a particular construction of wheel already in use for carriages on ordinary roads entitled to a patent for applying it to railway carriages, such application not having been previously made? Lord Abinger remarked that you cannot have a patent for applying a well-known thing, capable of being applied to fifty thousand different purposes, to an operation which is exactly analogous to what was done before. His lordship put this

case- Suppose a man invents a pair of scissors to cut cloth with; if the scissors were never invented before, he could take out a patent for it. If another man found he could cut silk with them, why should he take out a patent for that?" Again-"It would be a very extraordinary thing to say, that after all mankind have been accustomed to eat soup with a spoon, that a man could take out a patent because he says you might eat peas with a spoon."

In an action brought by the assignee of a patent for improvements in separating the fibres of cocoa-nut husks, for an alleged infringement, it was shown that the principal part of the invention consisted in passing the split husks between crushing rollers, and that, for some time previous to the date of the patent, similar rollers had been employed in treating hemp. Lord Campbell, who presided at the trial, told the jury that the use of the crushing rollers having been thus anticipated, no claim for their application to the crushing of cocoa-nut husks would hold good. (Hyde v. Trent, Newton's Lond. Jour. vol. 45, p. 135.)

So, in the case of the Queen v. Cutler (Macrory's Pat. Ca. 124-138), it was held by two judges on different occasions, that the mere application of a known article to a new use, the mode of application not being new, but having been previously used in applying

analogous articles to the same purpose, cannot be made the subject of a patent. In this case the patent

was for improvements in the construction of the tubular flues of steam boilers. The specification claimed the application of iron tubes coated with copper or brass to this purpose. This kind of tube was not new; nor was there any novelty in the way the patentee applied the tubes in the formation of flues, uncovered tubes having been previously used in a similar way.

In The Patent Bottle Envelope Co. v. Seymer (5 C. B. N. s. 164), it was held that the use of a model or mandril in the form of a bottle in making envelopes for bottles out of rushes or straw, could not be the subject of a patent, this being merely the application of a wellknown tool to work previously untried materials or to produce new forms. And in Tetley v. Easton (2 C. B. N. s. 706) it was decided that the discovery that a particular advantage may be obtained by the use of a known machine used in a known manner is not patentable. See also White v. Toms (37 L. J. Ch. 204.)

On the trial at Nisi Prius of Bush v. Fox (Macr. P. C. 163), it appeared that the invention, for an infringement of which the action was brought, consisted in the use of a caisson or hollow cylinder for building under water. It was proved at the trial that a similar caisson for building on land had been described in the specification of a patent granted several years previously. This was only a new application of a machine previously known and applied to another purpose. to the jury) "that a man cannot, if he has applied— supposing this to be a new application-an old invention, or part of an old invention, to a new purpose, obtain a patent for such an invention. Both the plaintiff and the other witness say that the invention

"I think" (said Pollock, C. B.,

consists in the application, and not in the novelty of the thing itself-in other words, that the only novelty is in the application of the apparatus. I think that a patent cannot be taken out for such an application. If a man were to take out a patent for a telescope to be used to make observations on land, I do not think any one could say, 'I will take out another patent for that telescope to be used for making observations on the sea."" When the legal points raised at the trial were argued in the Exchequer Chamber, Maule, J.,said, "Assuming that the machine itself is old, the learned judge held that a mere new application is not a new manufacture, and therefore not the subject of a patent; and my present opinion is, that, on the evidence, he was right in so directing the jury" (Macr. P. C. 175). The case having been taken to the House of Lords (Macr. P. C. 179), it was there held that the judge who tried the case had rightly directed the jury.

In Brook v. Aston (8 E. & B. 478), the plaintiffs had obtained a verdict in an action for an infringement of their patent granted in 1856, for improvements in finishing yarns of wool and hair; but the defendant obtained leave to move to enter the verdict in his favour if the Court should be of opinion that the patent was invalid. It appeared that the plaintiff had obtained a patent in 1853, for a process precisely similar except that it was applicable to the finishing of cotton and linen yarns. After argument, the Court held that as the alleged invention under the later patent was only the application of an old machine to a new purpose, there had been no improvement or discovery for which a patent could be obtained. It was destitute of novelty, being merely the application to woollen and hair yarn of the machine previously patented and then applied to cotton and linen yarn. This decision was

affirmed by the Court of Exchequer Chamber (5 Jur. N. s. 1025).

The case of Harwood v. The Great Northern Railway Company (2 B. & S. 194; affirmed by the House of Lords, 11 H. L. C. 654), may also be consulted with reference to the same point. In this case a patent for the application of "fishes" to iron rails for railways, for the purpose of securing them, was held invalid, because a similar contrivance had been applied to fasten pieces of timber together in the construction of bridges, and had also been used in various articles of machinery. As Mr. Justice Willes said, the invention for which the patent had been obtained was "the mere application of an old contrivance on the old way to an analogous subject without novelty or invention in the mode of applying such old contrivance to the new purpose."

Jordan's specification claimed the construction of ships with an iron frame combined with an external covering of timber planking for the sides, bilges, and bottoms. At the trial of an action for an infringement of the patent, it appeared that a combination of wood and iron in the construction of ships was well known previous to the patent, and that frames partly of iron and partly of wood had been coated with iron. The jury having returned a verdict in favour of the plaintiff, the patentee, a rule was obtained for leave to enter a verdict for the defendant on the ground that the invention was not patentable. The Court decided that as iron and wood had both been long used in the construction of vessels, the application of wooden planking to the iron frame of a vessel, without any peculiarity in the nature of that planking, could not be the subject-matter of a patent. The alleged invention was not only the substitution of one wellknown and analogous material for another-that is,

wood for iron-to effect the same purpose on an iron vessel, but it was the application of the same old invention, viz. planking with timber, which had been formerly done on a wooden frame, to an analogous purpose on an iron frame. (Jordan v. Moore, L. R. 1 C. P. 624.)

In Parkes v. Stevens (L. R. 8 Eq. 358, affirmed L. R. 5 Ch. 36) it was held that the invention of a spherical lamp with a sliding door was not patentable, as it was proved that cylindrical lamps with sliding doors had been previously in use.

Compare the preceding cases with Penn v. Bibby (L. R. 2 Ch. 127). Penn obtained a patent for an improvement in bearings and bushes for the shafts of screw propellers, which consisted in grooving the inner surfaces of the bearings of the shaft, and placing in the grooves strips of wood, which projected beyond the inner surface of the metal bearings, so as to support the rubbing action of the shaft whilst water was allowed to circulate freely in the intermediate channels. The metal bearings previously employed had been found unable to withstand for any length of time the friction of the screw shaft, and it almost seemed as if the screw propeller would have to be abandoned; but Mr. Penn's simple contrivance got over the difficulty, and the invention came into general use. It was contended that the alleged invention was merely a new application of an old and well-known thing, viz. wood, and the wooden bearings of grindstones and waterwheels were adduced as showing that the invention was not novel. "In every case of this description" (said Lord Chelmsford), "one main consideration seems to be whether the new application lies so much out of the track of the former use as not naturally to suggest itself to a person turning his mind to the subject, but to require some application of thought and