But, in order to help out this part of the case, the drawings have been referred to. They show the combined thing, it is true, but the specification. is silent as to the drawings, which are not necessarily to be taken as a part of it. If the specification itself made reference to the drawing, then they would become a part of it, and might be referred to for the purpose of elucidating any thing obscure in the description. But here the description is perfect without a drawing, and most probably a mechanic could make the contrivance, without resorting to the drawings at all, for explanation. The specification very clearly describes the revolving top plate, part by part, and in the summary, the plaintiff claims the entire thing described,-not as a combination, but as consisting of constituent parts, which he himself had discovered. Here lies his error, and upon this ground his action must fail. That my views on this subject may be clearly understood, I adopt the language of Lord Eldon, in the case of Hill vs. Thompson, [3 Merival's Rep., p. 621,] as containing what I consider a concise summary of the law on this point. He observes that "the judge, in his direction to the jury, has stated it as the law on the subject of patents, first, that the invention must be novel; secondly, that it must be useful; and thirdly, that the specification must be intelligible. I will go further, and say, that not only must the invention be novel and useful, and the specification intelligible, but also that the specification must not attempt to cover more than that which, being both matter of actual discovery, and of useful discovery, is the only proper subject for the protection of a patent. And I am compelled to add, that if a patentee seeks by his specification any more than he is strictly entitled to, his patent is thereby rendered ineffectual, even to the extent to which he would be otherwise fairly entitled. On the other hand, 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 materials. But, in order to its being effectual, the specification must clearly express that it is in respect of such new combination, or application, and of that only, and not lay claim to the merit of original invention, in the use of the materials. If there be a patent both for a machine, and for an improvement in the use of it, and it cannot be supported for the machine, although it might for the improvement merely, it is good for nothing altogether, on account of its attempting to cover too much."

After a full view of this case, I am compelled most reluctantly to come to the conclusion that the plaintiff has undertaken to secure more than he has a right to claim, and in my view of the law he cannot recover. He should have patented his combination, and not his constituent parts. I regret this result the more because I consider that the plaintiff has invented a machine or contrivance, ingenious in itself, and highly useful for the purposes to which it is to be applied. I would protect him if I could conscientiously do so, under the views of the law which I have taken, and I consider the whole matter rather as a question of law for the court, than as a question of fact for the jury. If, however, the parties prefer to go to the jury upon any of the matters in issue, they have a right to take that course--but I would choose, if I could, to put the cause in that shape which would be tnost likely to secure the plaintiff's rights, if I have mistaken the law applicable to the case, or given an incorrect construction of the patent.

[The plaintiff voluntarily submitted to a nonsuit, with leave to move to set it aside hereafter.]

Note. The above opinion expressed to the jury in said cause, was taken down at the time by one of the Counsel for the plaintiff was then shown VOL. XVII.-No. 3.-MARCH, 1836.

19

to Judge Thompson, by him examined and approved, and is published as corrected by him. S. P. STAPLES. S. P. Staples, J. P. Hall, and J. R. Staples were for the plaintiff. R. M. Sherman, of Connecticut, Hugh Maxwell, Mr. Ormsby, of Rutland, Vt. and Mr. Harris of Albany, were for the defendant.

Remarks by the Editor. It is truly gratifying to those who take a deep interest in the progress of the useful arts, to witness the change which has taken place within a few years in the tone of the decisions of the courts both of this country, and of England, where the rights of patentees have been concerned. Several of the judges in both countries appeared, formerly, to partake of the popular prejudice against patentees, as monopolists, whose claims ought, if possible, to be resisted; and many patents have been vacated upon grounds which we believe would now be generally deemed frivolous. It is not improbable that the name of "the Statute of Monopolies" by which the law of the 21st of James 1st, was designated, might itself have contributed towards the producing of such a result. At all events we consider the fact as notorious, and the difference at the present day as perfectly manifest. The foregoing report may serve to illustrate the position, which, were it necessary, might be sustained by numerous examples.

The patent laws of England, and of this country, are based upon the same principles, and the decisions of the English courts are, in consequence, cited in ours; there are, however, some provisions in our statutes, not contained in the British, and these of course, must govern our courts in those points to which they relate, and it has appeared to us that in one particular of this description, the foregoing decision may be considered as in some degree defective.

In the English statutes there is no provision whatever making it necessary to accompany the specification of a patent for machinery with drawings. "It was also formerly considered that the words of a specification ought of themselves to be sufficiently descriptive of the improvements, that the specification ought to contain within itself all the necessary information, without the neces sity of having recourse to a diagram; and that if a diagram were given, it ought to be merely taken as an illustration, and not constituting a principal, or essential part of the specification; and therefore that a person was not bound to look at the diagram to learn the invention. But a very learned judge has however held that if a drawing, or figure, enable a workman of ordinary skill to construct the improvement, it is as good as any written description." Godson on patents, p. 119, edit. 1823. In the act of Congress of Feb. 21st, 1793, sec. 4, it is provided that the patentee shall not only describe his invention "in such full clear and exact terms as to distinguish the same from all other things before known," but also that "he shall accompany the whole with drawings and written references where the nature of the case admits of drawings." Under this provision we cannot resist the conviction that in every thing which admits of drawings, these drawings and written references, imperatively required by the statute, do make a component and necessary part of the specification, and that they are not to be taken as merely an illustration. In the drawing up of specifications of things which "admit of drawings" it would always be advantageous to refer to them in the body of the specification, and the only reason for omitting this is to save expense, as, in such cases, two copies of the drawings are required, one to attach to the patent, and the other to remain in the office. The practice of the office, and not the requirements of the law, has made a copy of the specification a component part of the patent; this practice arose from the impossibility of

carrying that part of the law into effect, under a literal construction of it, which requires that the patent shall contain "a short description of the said invention, or discovery." A specification which is without written references to drawings, might be considered as fulfilling this intention; but not so where it contains within itself references to the drawings, as it could not, in that case, be undersood, without attaching these also to the patent.

There are some points relating to this subject which we have left untouched, although we think them of much importance, but more space would be required for their investigation than it is thought proper to occupy at present, and they are therefore omitted.

FOR THE JOURNAL OF THE FRANKLIN INSTITUTE.

On making Sugar from Plants which thrive in the Temperate Zone, and north of the Climate where the Sugar Cane can be cultivated with success. The article Sugar, strictly considered, ranks amongst the luxuries of life; but its pleasant taste, good qualities, and our habit of using it, has made the luxury a necessary article to a very large portion of the citizens of the United States.

Through various channels, the public are informed, that in consequence of measures adopted into the colonial policy of foreign nations, the process by which sugar has heretofore been produced, will be much deranged, and the supply greatly diminished.

The only concern that the Franklin Institute has with measures of this kind is, to bring scientific power to bear upon them, so as to reduce to its lowest point, their tendency to do ill, and to carry their capacity of doing good to its maximum. If the change of colonial policy, that is spoken of, should lead to a diminished supply, this will be followed by an increased price; and much privation of comfort must be experienced, until people acquire the habit of doing without sugar, should no new mode be discovered by which the article can be produced.

In this stage of the business, there is a propriety in the Franklin Institute turning its attention to making the citizens of the United States acquainted with what has been done in producing Sugar from plants growing in fortyeight degrees of north latitude. It is impossible, at this time, to appreciate the value of the services conferred on society, by the labours and discoveries of the French chemists, who have shown to the world, that a supply of sugar is to be had from plants growing so far north. These discoveries will prove one of the great scientific victories that characterise the chemistry of this age.

Translations of all that has been published in France, on this subject, if presented to the patrons of the Journal of the Franklin Institute, would be of great value, not only to them, but to the whole nation; the information contained in the French treatises, will be rendered still more valuable, if they are followed by essays from men of science, in our own country, who are acquainted with its soil, climate, agricultural and manufacturing resources. Although the natural circumstances of the United States, evidently arefavoura ble to this branch of agriculture, the subject has had little, if any attention bestowed upon it, we are almost ignorant of all that has been done or written about it.

The beet, and some other sacchariferous roots, when cultivated in France, mature their saccharine juices so perfectly, that they admit of chrystalization. There is every reason to presume that the same plants, with equally good cultivation, would advance to higher perfection throughout the

United States; and this greater perfection must be the result of our warmer

summer.

The weight of beets and roots that might be grown to make Sugar from, is so great, that the sugar farmer, in most instances, would necessarily become the sugar maker; be his own chemist, and have his own laboratory: for in fact, the planter's sugar house is a laboratory,-only that the Pennsylvania and Ohio sugar house will differ from the Jamaica one, by having for a companion, the English cow-shed; for it must be recollected that the refuse or pulp of beets will feed cattle, whereas the squeezed cane is worthless trash.

The readers of the Journal will see that the present paper has solely in view to awaken their attention to a subject of great importance, in its relations to agriculture, manufactures, commerce, and the comforts of society. This is only doing what the Institute, on former occasions, has effected, through the publications in the Journal, by exhibitions, and by premiums. By these means, it has brought forth the energies of men of talents, and the result has been the supplying ourselves with many things, the want of which would now be felt, as a very great calamity. J. R. January 12, 1836.

Remarks and Inquiries respecting Mr. Avery's Patent Steam Engine.

TO THE EDITOR OF THE JOURNAL OF THE FRANKLIN INSTITUTE.

SIR-You have doubtless seen in a late number of the New York Mechanic's Magazine, (the one for September I think) an engraved drawing of "Avery's Rotary Steam Engine," accompanied by a description. It is generally believed that this engine has been secured to Mr. Avery by patent. I have always supposed the main object of the patent law to be, the protection of original inventors in the enjoyment of whatever pecuniary advantages they may fairly derive from their useful inventions.

That Mr. Avery's engine, or one constructed upon the same principle of action, though perhaps somewhat different in detail, will be found in some situations a convenient and economical machine, I do not doubt. Indeed, I know some persons who would like to make use of such engines, but who are, some of them unable, and all unwilling, to pay Mr. Avery for the privilege of doing that which they feel themselves equally at liberty to do with himself. My reasons for doubting the validity of his patent, may be found, first, by referring to the September number of the New York Mechanics' Magazine for 1833, in which is given a drawing and description of the beautiful contrivance of Hiero, the first account of which is said to have been published in the year 1571.

The principle upon which Mr. Avery's engine acts, will, I think, be seen at a glance, to be the same as that of Hiero's. Secondly, in a work by Oliver Evans, entitled the "Young Steam Engineer's Guide," published by Carey & Lea, page 93, the biographer of Mr. Watt, speaking of his first attempt to produce a direct circular motion by steam, says, he (that is, Mr. Watt) then tried Parent's or Doctor Barker's Mill, inclosing the arms in a metal drum which was immersed in cold water; the steam rushed rapidly along the pipe which was the axis, and it was hoped that a great

Descriptions of Barker's Mill may be found by your readers, in Ferguson's Lectures, Nicholson's Operative Mechanic, and almost every reputable work on Mechanics

now in use.

reaction would have been exerted at the ends of the arms, but it was almost nothing, the reason seems to be that the greatest part of the steam was condensed in the cold arms It was then tried in a drum kept boiling hot, but the impulse was now very small in comparison with the expense of steam." Upon this experiment Mr. Evans remarks as follows: "It is evident from this account that Mr. Watt has used weak steam, and placed dependance on the use of a condenser; had he in his experiment with Doctor Barker's Mill, lessened the apertures by which the steam issued, so as to confine the steam until the power in the boiler was equal to 100 lbs. to the inch, he would have been astonished to see it revolve about 1000 times a minute, supposing the rotary tube to have been three feet in length; I have tried the same experiment, but without the least hope of success, on any other principle than by confining the steam to increase its elasticity to a great degree. My rotary tube was three feet long, the elastic power of the steam about 56lbs. to the inch; it revolved with a velocity of about 700 to 1000 times a minute. The aperture by which the steam issued about of an inch diameter; it exerted more than the power of two men, and would answer to turn lathes, grindstones, &c. when fuel is cheap. I have specified and explained it in the Patent Office." Unfortunately, there is no date to this work of Mr. Evans, but I presume it can be readily ascertained in Philadelphia, when it was published, and probably when the specifications were entered at the Patent Office. But that it was done long before Mr. Avery's engine was thought of, I think there can be little room for doubt, as it appears from another part of the same work of Mr. Evans, page 96, that he matured his experiments upon the application of steam to a wheel, in the year 1784, which, as he states, he described in the Patent Office.

Under these circumstances, I cannot see what possible claim Mr. Avery can have to a patent for this invention; as to the drum which encloses the arms as represented in the drawing of his engine before referred to, I understand it is claimed as having been first applied to it, by a Mr. Clark, of some western town in this state.

By giving the foregoing an early insertion in your Magazine, you will sir, essentially oblige several of the friends and readers as well as promote the cause of justice. Should you be willing to express your own opinion as to the merits of this question, it would be deemed particularly valuable. FAIR PLAY.

Remarks on the foregoing Communication, by the Editor.

It so happens that "Fair Play," and others, who desire information on the subject of Foster and Avery's Reacting Steam Engine, (commonly called Avery's) will, in the present number, have a full opportunity of seeing what constitutes the claim of these gentlemen to a patent for an improvement in this machine. They were fully informed respecting what had been attempted with engines similar in construction to their own, previously to their obtaining a patent; and it will be seen that they have confined their claim to improvement within very narrow limits, and so far as we are informed, their claim is a valid one. It may be said that their improvement is trifling; that, however, is their own concern, as those who do not need it are at full liberty to use the machine in any of the various forms which had been previously given to it, or to devise others which are new, without buying from them what may be deemed unimportant. We are not sufficiently well informed respecting the comparative results