Scientific Adjudication.

VICE CHANCELLOR'S COURT.

July 30th, 1842.

RODGERS v. STOCKER & OTHERS.

This was a motion to remove an injunction, obtained in this Court, some few months back, by Rodgers against Stocker and others, restraining them from manufacturing a certain kind of improved hook and eye, which was alleged to be similar to, and an infringement of, a patent, granted to Rodgers, for an invention communicated to him by a foreigner residing abroad, dated 13th May, 1839.*

On behalf of the defendants, many affidavits were produced, shewing that the injunction ought to be removed, on the grounds, that the invention was not new at the time of granting the patent to Rodgers, and that for other reasons the patent was not valid.

The defendant stated, that the particular spring hook which constituted the subject of infringement complained of, was nothing more than an imitation of an old hook, the tongue of which, being pressed closer to the stem, formed a spring-stop, retaining the eye or ring from slipping off, when passed into the hook beyond the band, and that many other spring hooks, long known, had the same properties. That the said foreigner who made the communication to Rodgers, was indeed a foreigner, an American citizen, but he had long resided in this country, and went on to the continent for the express purpose of making the communication to Rodgers, and immediately returned; consequently, the pretence of his residing abroad, was evasive, and therefore the patent could not be valid.

To these objections the plaintiff replied, by a number of affidavits, that the old hook produced, was not a spring hook,—had

For Specification of this Patent, see Vol. XX., p. 29, of our present Series,

never been intended as such, and had been put up by defendants on purpose to resemble the patentee's improved spring hook; and that the other spring hooks produced, were altogether different in principle.- The question of the invalidity of the patent, on the grounds of the objection-that the real inventor had indeed a residence in England, could not be gone into, except under a writ of scire facias.

JUDGMENT.

The VICE CHANCELLOR.-Now I quite agree, that the matter is now to be considered precisely in the same manner as if no previous injunction had been obtained, and the point came on before the Court with all the conflicting evidence; but I apprehend, that it is not the habit or the course of the Court, on applications for injuctions in such cases, to determine, positively, whether the patent is good or bad, but the Court looks to see, first of all, whether there has been an enjoyment under the patent; and the Court has been in the habit of considering enjoyment under a patent to be such good evidence of rightful possession, that it is not in the habit of allowing speculative inferences which are drawn from facts stated; for instance,-the thing not being an invention, or the thing having been used before, and so on, to countervail against the prima facie right which possession has given to the plaintiff. That is the way in which, as I understand, that part of the law has always been administered in this Court.

Now the Court has to consider, whether there is sufficient evidence of infringement. I cannot but myself say, that, with respect to that latter point, that really the two things appear to me to be substantially the same, although there is a variation. I must exercise some judgment on the point; and though my judgment may be erroneous, I do not mean that it shall be conclusive on the parties; but if I do, on the evidence that is presented to me, think that there has been an infringement of the patent, supposing there was a patent,-and I do find this evidence in favor of supposing it to be a good patent, namely,—that

there has been that enjoyment which is stated on the affidavits, -I apprehend that, without regard to hardship, I must look to what is the mere justice of the case,—that is the mere rule of law, as administered by this Court.

Well, now then with respect to the enjoyment, the patent having been taken out on the 13th of May, and the specification having been enrolled on the 12th of November, in the year 1839, this affidavit is made by the plaintiff on the 13th of June, this last month, and in that he swears that he has, ever since the date of the letters patent, manufactured according to the principle of the invention, and vended and disposed of, and still continues to manufacture, vend, and dispose of, large quantities of hooks, and so on, according to the principle; and that appears to me to be mainly supported by these affidavits of Andrews, Peyton, Cattel, and Van Wart, and so on; so that there is no doubt left upon my mind, that there has been a very considerable enjoyment in the way of making and selling those articles, for the protection of which the plaintiff took out the patent.

Now, it may be perfectly true, that when the matter comes before a Jury, as in my opinion it ought, that the Jury may have either these facts alone, or additional facts, laid before them, on which they may come to a conclusion, that the patent is not a good patent; and they may come to the conclusion, that there has been no infringement of it, supposing it to be a good patent; that is for the Jury in a future stage of the cause. But my opinion is, that there is so much evidence of the validity of the patent, by reason of past enjoyment, and so much evidence of infringement, that even if the matter had now been brought before me de novo, I should have felt myself bound to grant the injunction, and, having granted it, I think that I am bound to continue it; and it seems to me, therefore, that I must continue the injunction; but I must direct the plaintiff to bring such action as he may be advised.

VOL. XXI.

M

NORTHERN CIRCUIT, LIVERPOOL.

BEFORE MR. JUSTICE

August 10, 1842.

MAULE.

SMITH v. WATSON.

This was an action for the infringement of two patents, granted to the plaintiff, Mr. Andrew Smith, engineer and patentee, of the wire rope, in the years 1835 and 1836.* The first patent being for an invention of a new standing rigging, composed of iron wire, and the second patent for an invention of an improvement on the first.

The defendant pleaded,—first, that the plaintiff was not the true inventor; second, that the inventions were not manufactures; third, that the inventions were of no use; fourth, that the inventions were not new as to the public use; fifth, that the specifications were not sufficient; sixth, that the specifications were not duly inrolled; and seventh, that the defendant did not infringe the patents. Mr. Hindmarsh appeared on behalf of the plaintiff, and Mr. Corrie for the defendant.

Mr. Hindmarsh, in opening the proceedings, entered generally into the properties of the standing rigging, made of hemp, as compared with that composed of wire, under the patents granted to the plaintiffs, pointing out the superiority of the latter, both as regards lightness of weight, and diminution of bulk or space in standing rigging, which was important, in presenting less surface to the wind. Another advantage which the wire rope or rigging possessed, was that of it not being affected by moisture.

The counsel proceeded to observe on the specification and drawings, explaining to the jury the several modes of manufacture. From the descriptions, we gathered, that, for standing rigging, a series of iron wires were laid in a straight or parallel line or salvage fashion, the tension, which in no way diminishes the size of the rope, or lengthens the same, and which is necessary to obtain an equal strength, being acquired by application of ma

*For Specification of these Patents, see Vol. VII., p 359, and Vol. X., p. 171.

chinery to that object. The specimens submitted to the jury varied from 1 to 3 inches in circumference, and the wires of which such ropes were formed, from 50 to 150 inches; the rope, thus formed, is then saturated with a solution of Indian-rubber, and the interstices so filled up, it is then " parcelled" or covered with a binding of woollen list, so as to exclude the moisture, and to protect the wires from oxidation; this being done, the rope is "served over" or bound round with spun yarn, so that, when finished, it represents the appearance of the ordinary hempen rope, with the exception of its being one-half the size of that of hemp. He was informed, that one of the grounds of defence was, that lines, or strings of hemp, forming a rope or rigging of a similar construction to that of the wire rope, had been used, such lines or strings having been "served," as with the wire rope or rigging, and thus, that there was no novelty in the invention; but he would be prepared to shew, and it was perhaps a question for the Court to determine, whether the application of wire, as in this case, was not a manufacture under the Act, inasmuch that although the application might be the same, the material used was altogether dissimilar. As regarded the second patent, which was simply an improvement on the first, in making the loop, or so splicing the wire, as to obtain a firm hold, he presumed no objection could arise, and having entered fully on the question, the learned counsel proceeded to call his witnesses.

The first witness called, was Mr. Whellan, 72 years of age, who stated, "That he was a master rigger in Liverpool, having been 40 years in this port, and employed in such capacity since 1805; since which period he had rigged a number of vessels, (760, as we understood, with hempen rope.) Had never known of wire rigging being used before the date of plaintiff's patent in 1835. Has since fitted the 'Great Liverpool,' of 1400 tons, with rigging of that description. The 'John Garrow,' 'Guadalupe,' and many others. Considered the invention as useful, and that the wire rope had a decided advantage as to strength; as the same time, that it was less bulky, and consequently held lest wind."