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own wit or invention, doth bring any new trade into the realm, or any engine tending to the furtherance of a trade that never was used before, and that for the good of the realm, in stich cases the king may grant to him a monopoly patent for some reasonable time until the subjects may learn the same, in consideration of the good that he doth bring by his invention to the commonwealth, otherwise not"(a). And this prerogative of the Crown, which is the original source from which the existing law and practice of letters patent for inventions are derived, and on which (subject to the modifications subsequently introduced by statute) they still rest(b), was confirmed by the Statute of Monopolies (21 Jac. 1, c. 3), which is declaratory of the common law, and by which, after declaring that all monopolies should be void, it was enacted (s. 6) that "any declaration before-mentioned shall not extend to any letters patent and grants of privilege for the term of fourteen years or under(c), hereafter to be made, of the sole working or making of any manner of new manufactures within this realm to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patent and grant shall not use, so as also they be not contrary to the law nor mischievous to the State by raising prices of commodities at home, or hurt of trade, or generally inconvenient," etc.

It results from the principles mentioned above that a patent is a kind of equitable contract made by the Sovereign with the patentee, or a purchase made by the discoverer of an invention from the Sovereign acting on behalf of the public, the consideration for such purchase being the novelty and utility of the invention discovered or first introduced into this country by the patentee(d); and the condition precedent to the validity of such contract or purchase being, that after the lapse of the prescribed period the inventor shall make public his invention for the general benefit(e). It is still, however, legally speaking, an exercise of prerogative, and being so, is not available against the Crown itself; otherwise an invention essential to the defence of the

(a) Darcy v. Allin, Noy, 182. And see 3 Inst. 184.

(b) See Feathar v. The Queen, infra.

(c) Which may, under 5 & 6 Will. 4 c. 83, s. 4, and 7 & 8 Vict. c. 83, s. 2, be further extended for fourteen years or less. See Bovill v. Finch, L. R., 5 C. P. 523. Re Saxby's Patent, L. R., 3 P. Ca. 292. Re Clark's Patent, Ibid. 421. Houghton's Patent, Ibid. 461. And as to an application for a prolongation by an assignee; Normand's Patent, L. R., 3 P. C. Ca. 193. An imported patent, however, expires on the expiry of the foreign patent, 15 & 16 Vict. c. 83, s. 25. (d) See Williams v. Williams, 3 Mer. 160; 11 East, 107. Cartwright v. Eamer, cited 14 Ves. 131, 136.

(e) Lord Tenterden, C.J., Crompton v. Ibbotson, Dan. & Lloyd, 33 Gibbs, C.J., Wood v. Zimmer, Holt, 58. Abbott, C.J., in Savory v. Price, Ry. & M. 1.

realm might be unavailable on behalf of the public, whilst a foreign power at war with this country might be profiting by it (ƒ). The grant must be "to the true and first inventor." "It is a material question," said Tindal, C.J., " to determine whether the party who got the patent was the real and original inventor or not, because these patents are granted as a reward not only for the benefit that is conferred upon the public by the discovery, but also to the ingenuity of the first inventor; and although it is proved that it is a new discovery so far as the world is concerned, yet if anybody is able to show that, although that was new, the party who got the patent was not the man whose ingenuity first discovered it; that he had borrowed it from A or B(g), or taken it from a book that was printed in England(h), and which was open to all the world; then, although the public had the benefit of it, it would become an important question whether he was the first and original inventor of it(i). And not only must the patentee be the actual inventor, but he must have invented every part of what he claims to have invented(k); for if a man claims by his patent to have invented a number of things, and some of them are not original, his patent his void(). There is nothing, however, to prevent him from employing his servants in assisting him to bring a design to perfection, or to work out an idea first suggested by him(m), or from employing third persons for such a purpose(n). He is still the true and first inventor. If the invention be publicly known in any part of the realm, in Ireland or the colonies for instance, he is not the true and first inventor(o). But a description of a similar process in a book, or in the specification of a previous patent, must, to defeat a patent, impart such information as to enable any one of reasonable intelligence in that department of art or industry to reckon with confidence on the result(p).

73 The subject-matter of a patent.-The subject-matter of the grant is "any manner of new manufactures." The word "manufacture" in the statute may be construed in one of two ways. It may mean the

Feather v. The Queen, 35 L. J., Q. B. 200.

(g) Barber v. Walduck, cited 1 C. & P. 567.

(h) Stead v. Williams, 7 M. & G. 818. See Heurteloup's case, 1 Webst. R. 553.

(i) Cornish v. Keene, 1 Webst. R. 507.

(k) Tennant's case, 1 Webst. R. 125.

(7) Losh v. Hague, 1 Webst. R. 202. See R. v. Arkwright, Dav. P. C. 61.

(m) Minter v. Wells, 1 Webst. R. 132.

(n) Bloxam v. Elsee, 1 C. & P. 558.

(0) Brown v. Annandale, 1 Webst. R. 433. Roebuck v. Sterling, ib. 45, 451
(p) Betts v. Neilson, L. R. 3 Ch. App. 429; 5 Eng. & Ir. App. 1.

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machine when completed, or the mode of constructing the machine(9). "The word manufacture," said Abbott, C.J.,(r) "has been generally understood to denote either a thing made which is useful for its own sake, and vendible as such, as a medicine, a stove, a telescope and many others; or to mean an engine or instrument, or some part of an engine or instrument, to be employed either in the making of some previously known article, or in some other useful purpose as a stocking frame, or a steam-engine for raising water from mines; or it may, perhaps extend also to a new process to be carried on by known implements, or elements acting upon known substances, and ultimately producing some other known substance, but producing it in a cheaper or more expeditious manner, or of a better and more useful kind. No merely philosophical or abstract principle can answer to the word 'manufactures.' Something of a corporeal and substantial nature-something that can be made by man from the matters subjected to his art and skill, or at the least some new mode of employing practically his art and skill, is required to satisfy this word "(s). And it is now perfectly well established that a method or process in itself, and apart from its produce or results, or from the substances used in the process, may be the subject of a patent privilege, proved some beneficial result, such as the cheaper or netter production of the product, is attained from the use of such method or process(t).

Thus there may be a valid patent for a new combination of materials previously in use for the same purpose, or for a new method of applying such articles(u), or for the mere omission of one of several parts of a process, by which the article is manufactured cheaper or better(x); for a new method of lessening the consumption of fuel in fire-engines(y); for a method of securing buildings from fire(z); for an improvement in the construction of chairs(a); for a method of giving fire to artillery and all kinds of fire-arms(b), and the like. So a patent may be sustained for a combination of processes, each of which

(9) Parke, B., Morgan v. Seaward, 2 M. & W. 558.

(r) R. v. Wheeler, 2 B. & Ald. 349,

(s) And see Boulton v. Bull, 2 H. Bl. 481, 492, per Eyre, C.J., and Heath, J., Huddart v. Grimshaw, Dav. P. C. 278, per Ld. Ellenborough.

(t) Crane v. Price, 4 M. & G. 580. Wright v. Hitchcock, L. R., 5 Exch. 37.

(u) Hill v. Thompson, 3 Mer. 629, per Lord Eldon, C. See Parkes v. Stevens, L. R., 9 Eq. Ca. 36.

(x) Russell v Cowley, 1 Webst. R. 464.
(y) Hornblower v. Boulton, 8 T. R. 95.
(z) 2 H. Bl. 493, per Eyre, C.J.
(a) Minter v. Wells, Cr. M. & R. 505.

(b) Forsyth's case, 1 Webst. R. 95.

was previously well known, provided the combination be new and produces a beneficial result(c). But the use of a new material to produce a known article cannot be the subject of a patent, unless some invention and ingenuity are displayed in the adaptation(d).

However, as the title and terms of the letters patent in most cases convey but very imperfect information as to the real subject-matter of the patent, and as one of the fundamental principles upon which a patent rests is (as has been mentioned before) that the public shall have the benefit of the invention after the prescribed period has elapsed, the grant always provides that the letters patent shall be void, unless a sufficient description of the nature of the invention, and in what manner the same is to be performed,-so as to enable any person of moderate skill and knowledge in that department of manufacture to which it relates, to practise and enjoy the invention at the expiration of the term in as ample and beneficial a manner as the patentee himself(e), — (called the specification)(ƒ), be filed in the Court of Chancery (g) within a given time. It follows from this, that the specification forms an essential part of the patent contract, if such a term be allowable, and that an incorrect or imperfect or ambiguous specification(h), or one calculated to mislead(), or materially differing from the letters patent, will, if the defence be properly raised by the pleadings(4), and such ambiguity, incorrectness, etc., has not been removed by disclaimer or alteration under the provisions of the several statutes passed for that purpose(), be sufficient to defeat the plaintiff's claim or avoid the patent(m). Mere generality of the title, however, if not inconsistent with the specification, will not do so, and, indeed, the specification generally limits the description of the patent(n). Nor, on the other hand, will a small and immaterial variation entitle a person to infringe a patent(o).

(c) Cannington v. Nuttall, L. R., 5 Eng. & Ir. App. 205.

(d) Rushton v. Crawley, L. R., 10 Eq. Ca. 522.

(e) Campion v. Benyon, 3 B. & B. 12, per Park, J. Buller J., R. v. Arkwright, Dav. P. Ca. 106. Crossley v. Beverley, 9 B. & C. 63.

(f) See as to provisional and complete specification, 15 & 16 Vic. c. 83.

Thomas. Welch,

L. R., 1 C. P. 192. Ex parte Manceaux, L. R., 5 Ch. App. 518. 6 Ibid. 272. Ex parte Scott & Young, Ibid 274.

(g) 15 & 16 Vict. c. 83, s. 27.

(h) Campion v. Benyon, 3 B. & B. 5. Turner v. Winter, 1 T. R. 602. Simpson v. Holliday, LR, 1 H. of L. 315.

(i) Savory v. Price, Ry. & Mo. 1.

(k) See Derosne v. Fairie, 2 C. M. & R. 476.

(l) 5 & 6 Will. 4, c. 83; see s. 1. 7 & 8 Vict. c. 69; see ss. 5 & 6. See Ralston v. Smith, 35 L. J., C. P. 49.

(m) R. v. Wheeler, 2 B. & Ald., 345. Jessop's case, cited 2 H. Bl. 489.

(n) Forsyth's case, 1 Webst. R. 95.

(0) Gibbs v. Cole, 3 P. Wms. 255.

A patent cannot be taken out for a principle, but it can for a principle coupled with the mode of carrying the principle into effect(p). Although machinery be employed, the machinery may not be of the essence of the invention, but only incidental to it(g). It follows from this that an invention may be infringed by adopting the same general idea, although carrying it on by different means(r). The invention must be new to satisfy the terms of the statute, yet every novelty is not an invention for which a patent may be granted(s), for it must be of public utility also. If, however, it be new and useful, it is not material whether it result from long experiment, profound research, and great expense, or whether from some sudden and lucky thought or mere accidental discovery().

74 Remedies for infringement.-The infringement of letters patent is prohibited by a clause contained in the letters patent, and the remedy for such infringement is either by action at law for damages(u), in which action an injunction and an account may now be ordered(c), or by a bill in equity for an injunction, which the court granted formerly on the principle of the fraudulent interference by the defendant with property to which the plaintiff had, at all events, a colorable possessory title(x), and upon which the Court of Chancery, under recent acts, may now give complete remedy, without sending the applicant to a court of law for redress(y). The Court of Chancery may also award damages under 21 & 22 Vict. c. 27(z).

A person is guilty of a breach of patent privilege who, directly or indirectly, by himself or his servants, has used the art or invention which has been made the subject of the privilege, or applied it in any way for his own profit or benefit(a). And if the defendant has employed means only colorably different to produce the same or a similar result, yet he is guilty of an infringement if he has, in fact, used the art which is the subject of the privilege(b).

(p) Jupe v. Pratt, infra per Alderson, B.

(q) Boulton v. Watt, 2 H. Bl. 496, per Eyre, C.J.

(r) Jupe v. Pratt, 1 Webst. R. 146.

(8) Webster on Patents, pp. 24, 25, Supplement. Ralston v. Smith, supra.

(t) Crane v. Price, 4 M. & G. 603, per Tindal, C.J.

(u) 21 Jac. 1, c. 3, s. 2. Com. Dig. Patent, E. 2. As to particulars of breaches, 15 & 16 Vict. c. 83, s. 41.

(v) 15 & 16 Vict. c. 83, s. 42.

(x) Per Lord Eldon, 6 Ves. 707. Hill v. Thompson, 3 Mer. 622. Bickford v. Skewes, 4 My & Cr. 500. See post, ch. 23, s. 1. But see Collard v. Allison, 4 My. & Cr. 487.

(y) Betts v. Neilson, infra.
(2) Penn v. Jack, L. R., 5 Eq. Ca. 81.

(a) Betts v. Neilson, L. R., 3 Ch. App. 429; 5 Eng. & Ir. App. 1, in which case the user was simply by transmission through this country. Upman v. Elkan, L. R., 12 Eq. Ca. 140, acc. (b) Hindmarch on Patents, 257. See Gillett v. Wilby, 9 C. & P. 334; Jupe v. Pratt, supra.

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