E. T.,

1841.

upon extreme cases, because undoubtedly one may put a case of In the Exchequer some very valuable discovery, but which was to be carried into effect by some known machinery, in which the machinery would be comparatively immaterial, and in which there might be such a series of blunders and inaccuracies in the specification as to contain, in fact, from the beginning to the end, an untrue statement of the modus operandi, and yet there might be workmen brought before the jury who would say, we understand this work so well that we should not be misled by it. But the question is, whether any inaccuracy of language the inaccurate use of a single word, "effect"—it is here of the word effect—which will not mislead any body, which will not mislead the manufacturer of a blowing apparatus-[Lord Abinger, C. B.: Nobody says that a mere inaccurate use of words, which words are often used, if they are explained by the context, will necessarily avoid the patent.] I do not know what more this is. [Alderson, B.: There was a remarkable instance, which we mentioned in the former part of the argument, where the French word "vice” was used.] That was the case of Bloxam v. Elsee. The French word "vice" meaning a screw; the English word meaning something very different; yet the word "vice" was used, and in an English specification. [Lord Abinger, C. B.: Yes, and the context showed what it meant.] [Alderson, B.: I think that a picture, which was annexed to the patent, showed that it was a screw.] These cases go to this extent, to show that an inaccuracy in the use of an expression, or perhaps of several expressions, if looking at the whole instrument together would not mislead any ordinary competent workman, they would not avoid the specification. It seems to me, that if this construction is put on the word "effect," it could mislead nobody. But I rest this case mainly on the ground, that at least one meaning may be put on it-namely, that for which we contend, and that your lordships will give it that meaning which is calculated to sustain the patent. And I further contend, that this is not doubtful; that fairly and reasonably looking at the whole of the specification, the word "effect" means the object to be attained by the patent, and does not mean any particular effect, or any particular part of the operation. On these grounds I submit, that, looking to the specification itself, and taking the finding of the jury, there is no substantial objection to the specification, and that the plaintiff is entitled to enter a verdict on the issue in question. Cur. adv. vult.

PARKE, B.: In this case of Neilson and Harford, at the Judgment. request of my Lord Abinger, I proceed to deliver his lordship's June 26, 1841. judgment, and that of the rest of the court on this question.

We have, after much consideration, and not without some doubt and hesitation, arrived at the conclusion that the present

Judgment.

The notice of objections intended to give the plaintiff more informa

tion than the

rule, obtained by Sir William Follett, for entering the verdict for the plaintiff on the fourth issue, should be made absolute.

Several points were made at the time of the argument, to which we propose very shortly to advert. In the first place, it was contended that the objection to the specification on which I proceeded at the trial, was not sufficiently raised by the notice given under the provisions of Lord Brougham's act, but we all think it was. We concur in the opinion of the Court of Common Pleas, in the cases cited by Sir William Follett, that the act must be construed to mean that a mere copy of the pleas will not be a sufficient compliance with its provisions. It was passed after the new rules had required the several defences to be pleaded, and must, therefore, be considered as having intended to give to a plaintiff some additional advantage beyond the information which the record would give him. But that plea; so that in did not mean to say, nor do we think the Common Pleas meant general a notice in the terms of to decide, that it would not be sufficient in some cases to give the plea will notice in the terms of the plea itself; the objection may be so completely and so fully expanded on the record, that a mere transcript of the plea itself may be sufficient; in other cases the plea may be so general in its language as to be insufficient as a notice, if transcribed from the plea merely. Each case must At nisi prius the depend on its peculiar circumstances. But at nisi prius we only question, think the only question for the judge is, whether the language of the notice fairly includes the objection taken. If the notice be too general, a previous application must be made to the court or a judge at chambers for redress. Here the language of the notice was very general, and we think it included the objection relied upon.

not be sufficient.

whether the terms of the

notice fairly include the objection taken.

The construction of all writ

ten instruments

cumstances

Then we come to the question itself, which depends on the proper construction to be put on the specification itself. It was contended, that of this construction the jury were to judge. We are clearly of a different opinion. The construction of all written instruments belongs to the court alone, whose duty it is is for the court, to construe all written instruments, as soon as the true meaning the meaning of of the words in which they are couched, and the surrounding the words and surrounding cir- circumstances, if any, have been ascertained by the jury; and it having been as- is the duty of the jury to take the construction from the court, certained by the either absolutely, if there be no words to be construed as words jury. of art, or phrases used in commerce, and the surrounding circumstances to be ascertained, or conditionally, where those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law, for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error, but a misconstruction by the jury cannot be set right at all effectually. Then, taking the construction of this specification upon ourselves, as we are bound to do, it becomes necessary to examine what the

A.D. 1841.

nature of the invention is which the plaintiff has disclosed by In the Exchequer this instrument. It is very difficult to distinguish it from the specification of a patent for a principle, and this at first created in the minds of some of the court much difficulty; but after full consideration, we think that the plaintiff does not merely claim a principle, but a machine embodying a principle, and a very valuable one. We think the case must be considered as if the principle being well known, the plaintiff had first invented a mode of applying it by a mechanical apparatus to furnaces; and his invention then consists in this-by interposing a receptacle for heated air between the blowing apparatus and the furnace. In this receptacle he directs the air to be heated by the application of heat externally to the receptacle, and thus he accomplishes the object of applying the blast, which was before of cold air, in a heated state to the furnace.

Now, in the specification, after stating that the air heated up to red heat may be used, but that it is not necessary to go so far to produce a beneficial effect, he proceeds to state that the size of the receptacle will depend on the blast necessary for the furnace, and gives directions as to that. And then he adds"the shape of the receptacle is immaterial to the effect, and may be adapted to local circumstances." It is this part of the specification which has raised the difficulty. At the trial I construed this passage as meaning, that the shape was immaterial to the degree of effect in heating the blast, and if this were so, the jury having, by their finding, negatived the truth and accuracy of this statement, the specification would be bad, as containing a false statement in a material circumstance, of a nature that, if literally acted upon by a competent workman, would mislead him, and cause the experiment to fail.

Nor do we think that the point contended for by Sir William Follett, that if a man acquainted well with the process of heating air were employed, this misstatement would not mislead him, would at all relieve the plaintiffs from the difficulty; for this would be to support the specification by a fresh invention and correction by a scientific person; and no authority can be found that in such a case a specification would be good. To be valid, we think it should be such as, if fairly followed out by a competent workman, without invention or addition, would produce the machine for which the patent is taken out, and that such machine so constructed must be one beneficial to the public. If therefore we had thought, on consideration, that the construction which I put on this clause of the specification was the true one, we should have concluded that the patent was bad, and we should have thought that the verdict should remain as found by the jury on the fourth issue.

But my lord and my brothers, after considerable hesitation, are of opinion, that a construction may reasonably be put upon

Judgment.

this clause which will support the patent; and though I myself still entertain great doubt whether such is the true construction, I am not prepared to say that it is not, and I am very glad, that in so meritorious an invention as this is admitted to be, in this view of the case, the inventor will not be deprived of his reward.

The word "effect" occurs four times in the specification; and it is a just rule of construction to judge of the meaning of a particular phrase by taking the whole instrument together. In the first sentence, the patentee, speaking of the temperature being as high as that of "red heat," adds, that "so high a temperature is not absolutely necessary to produce a beneficial effect.” Then he adds, that the receptacle "may be made of iron, but as the effect does not depend upon the nature of the material, other metals or convenient materials may be used." Here he cannot mean that all metals or convenient materials will equally be heated by application of external fire; for some heat more easily, others more slowly; but he means that the quality of the heated air, whether heated in an iron vessel or any other (if heated at a proper temperature), will not materially alter the beneficial effect on the furnace to which it is applied. "Effect" here, then, is equivalent to a beneficial effect; and the passage is this" but as the effect" to be a beneficial effect" does not depend on the nature of the material," and so forth. The same is, we think, obviously the meaning of the word "effect" in the concluding sentence of the specification. The manner of applying the heat to the air vessel is, however, immaterial to the effect, if it be kept at a proper temperature: in other words, the effect will be a beneficial effect on the furnace, whatever be the manner in which you apply heat to the air vessel, provided only that you so apply it as to raise its temperature sufficiently.

Then, if so, it is not unreasonable, we think, to construe the word "effect," in the sentence on which this question turns, in a similar manner, and to hold it to mean an assertion by the patentee, that though the size of the vessel must be regulated as directed, yet the shape of the air vessel is immaterial to the effect; that is to say, any shape will produce a beneficial effect, and may be adapted to the local circumstances. Now, if this be so, still it casts upon him the necessity of proving to the satisfaction of the jury, that any shape in which the air vessel could reasonably be expected to be made by a competent workman would produce a beneficial effect, and be a valuable discovery. On the present occasion we are bound, as to this point, by the finding of the jury, who have arrived at this conclusion of fact; and if they are right, we think the verdict was not correctly entered for the defendant on this fourth issue, but that it should have been entered for the plaintiff. The rule, therefore, must be absolute.

There is another point, which I need only notice shortly, which

was made by the Attorney General, as to the title of the patent. In the Exchequer He contended that the title of the patent was itself defective, A. D. 1841. and did not agree with the invention; and he insisted also that it was competent to raise that objection upon the issue raised upon the fourth plea—and probably it was. But we have already intimated, in the course of the argument, that we thought that that objection was not well founded. The title of the patent is for the "improved application of air." Though that is am- An ambiguous biguous, it is sufficiently explained by the specification, and is title if explained by the specificanot at variance with it, as was the case in the King v. Wheeler. tion will not Therefore we think the verdict on the fourth plea must be entered for the plaintiff.

vitiate.

Rule absolute.

Cor. Lord Lyndhurst, L. C.

The Lord Chancellor LYNDHURST: This was a motion to re- In Chancery.

Motion to revive

vive an injunction. The injunction had been dissolved by the late Dec. 14, 1841. chancellor, the defendants undertaking to keep an account, and injunction. the plaintiffs either to bring or to proceed in an action at law, for Injunction rethe purpose of trying the validity of the patent. The action has vived as matter since been tried, and judgment has been entered up in the Court judgment in an of Exchequer. It is, under these circumstances, almost a matter action at law. of course that the injunction should be allowed.

On the part of the defendants it has been stated, that the learned judge who tried the cause, and who was one of the judges of the court where the question was finally decided, dissented from the opinion of the rest of the court; and it is also stated, on the part of the defendants, that from the course which the proceedings took, they were deprived of their right of bringing a writ of error.

I have, in consequence of these objections, thought it my duty to read the report of the trial, and of the proceedings in the Court of Exchequer. I do not find that the learned judge, to whom reference was made, did dissent from the opinion of the rest of the court. He said, undoubtedly, that it was a question of nicety, and he entertained great doubts with respect to the question; but he himself delivered the judgment of the court, and said, in the course of delivering that judgment, that he could not say that the construction put by the court upon the specification was wrong.

With respect to the other objection that was made, namely, that the defendants were deprived, by the course of proceeding, of bringing a writ of error, the facts of the case appear to be these. Towards the conclusion of the trial, the learned judge suggested as the proper course to be pursued, that the facts

of course, after