another for the improvement. I doubt whether it must not appear in the specification for improvements, what are the improvements, exhibiting them so as to show that it is for them alone that the patent is granted, and not having a tendency to mislead. • The question is, whether a patent for a machine having been duly specified, and a subsequent patent being granted for improvements, it is allowable to represent in the specification, that the latter patent was granted not for the improvements, but for the machine, carrying forwards that idea, and describing the new invention as one entire machine, not as improvements contradistinguished from the original machine.' I feel very considerable doubt; but there has been possession sufficient under this patent to make it fit to be tried, but it must be done speedily. It may be put in the shape of a case, as a question of law."

On the 28th April 1809, this case was argued in the Court of King's Bench, and the following opinions given, respecting the specification.

Lord Ellenborough: "The difficulty is, whether this mode of making a specification is not calculated to mislead, and induce people to suppose that the term for which the new patent is granted, may preclude the use of all parts of the improved machine, for they can only tell by comparison with some other patents, what are the new, and what are the old parts of the invention. If this can be done with reference to one, why not by reference to many old patents, so as to render the investigation very complicated? It may not be necessary, in stating a specification of an improvement, to state all the former known parts of the machine, but it may be sufficient to refer generally to them. As in the instance of a common watch, a patentee might say, take a common watch, and add or alter such and such parts." When Lord Mansfield said, that "the meaning of the specification was, that others might be taught to do the thing for which the patent was granted," it must be understood to mean persons of reasonably competent skill in such matters.

It was argued, that, if there were a succession of patents, for several improvements, ending at different periods, it might be extremely difficult to collect, from specifications like the present, at what periods the successive inventions would come to the public. Mr. Justice Le Blanc said, "Suppose the specification had merely described the improvements and additional parts, must not reference still have been made to the former specification, in order to understand truly how to adapt those new parts to the old machine." Mr. Justice Bayley said, "The second specification being as it is, suppose the former specification to be lost, how is the public to know from the second, what parts of the whole improved machine they may use?" To the latter, the patentee's counsel (Mr. Hol

royd) answered, that the patentee cannot be made answerable for such loss; but even in that case the public would be benefited by the present mode of specifying, because the knowledge of the whole improved machine would be preserved, which would otherwise be lost, if he had merely described the improvement by itself. Lord Ellenborough: "I feel impressed by the observation of my brother Le Blanc, that the trouble and labour of referring to, and comparing the former specification with the second, would be fully as great, if the patentee had therein only described the precise improvements upon the former machine. Reference must often be necessarily made, in these cases, to matters of general science; or the reader must carry with him a reasonable knowledge of the subject matter, in order clearly to comphehend specifications of this nature, though intended to be fairly made.”

The Court certified to the Lord Chancellor that the specification was sufficient. Liardet v. Johnson.

Watson against Pears. An Action for Infringement of Watson's Patent, dated 10th May 1808, for Improvements in Soap-making. Tried in the King's Bench, 6th December 1809, before Lord Ellenborough. Verdict for the Defendant. In this case it was objected, that the Specification was not enrolled till the 10th of June 1808. The Judge decided, that the day on which a Patent is dated, is not to be reckoned in the time allowed by the Patent for enrolling the Specification.

The Statute of Enrolments (27 Hen. VIII. c. 16,) enacts, that enrolments shall be made within six months next after the date of the deed. In a case Thomas v. Popham, an indenture, bearing date 9th October 1557, was enrolled in the Chancery 21st March 1558, which was the last day of the six months, reckoning 28 days to a month, and not reckoning the day of the date. This was held to be well enrolled. In reply it was objected, that the grantor in that case was a subject, but that grants by the King are liable to a different rule of construction.

Lord Ellenborough: It used to be held, that the words, from the date,' includes that day, in the computation of time; that the words, from the day of the date,' excludes that day. Where the time is to be from any act done, the day on which that act is done, is to be included in the reckoning. These formal distinctions have heen done away, and the rule of good sense established, that the words shall be construed according to the meaning of the parties who use them. The case cited is in point, and shows that the day on which the patent bears date, is not to be reckoned. Therefore the month allowed in Watson's patent only began on the 11th of May, and included the 10th of June, on which day the specification was inrolled." A verdict was given against the patentee on other grounds.

Note. This decision is frequently of importance to the patentees of valuable and complicated inventions, which are very difficult to organize sufficiently within the time allowed for specifying, to be able to describe them in a proper manner, so as to support the patent; an additional day will often make the difference between being obliged to specify from speculation, or from the result of an experiment. Davies, p. 325.

Bainbridge against Wigley. An action for Infringement of Bainbridge's Patent of 1807, for Improvements on the Flageolet, or English Flute. Tried in the King's Bench, December 1810, before Lord Ellenborough. A juror was withdrawn, and each party paid their own costs, the Plaintiff undertaking to bring no new action.

The specification stated, that by the improvement, the instrument produced notes not before produced on the old instrument; it appeared from the evidence that it was a great improvement, but only one new note was produced. Lord Ellenborough held, that this would be fatal to the patent, the consideration on which it was granted not being truly stated. The patentee stated, that by his improvement he had given new notes, when in fact he had given but one new note.

Dyer ex-parte in Chancery; on a petition respecting an application for a Patent, in 1812, which had been commenced previously to another application for the same object, but owing to circumstances, the progress of the first application had been delayed, and the second was in advance, so as to be likely to be sealed first. Lord Chancellor Eldon held, that in concurrent applications for a patent for the same object, that which obtains the great seal first, will have the sole right at law. "I can see no other mode of deciding, than by awarding the patent to him who runs the quickest through the process."

Fox ex-parte in Chancery. An application for sealing a Patent, for certain Improvements in Steam Engines, notwithstanding a caveat which had been entered by another Patentee, who alleged that the plan was borrowed from his Patent. Heard before Lord Eldon, 9th December 1812. Patent granted.

66

An affidavit was made by an engineer, that the two inventions were quite different from each other. Lord Chancellor Eldon observed, A man may, if he chooses, annex to his specification a picture or model descriptive of the invention; but his specification must be in itself sufficient, or it will be bad." If the petitioners have invented improvements upon an engine, for which a patent has been granted, and those improvements cannot be used without the original engine, the petitioners could, after the expiration of that patent, make use of a patent for their improvements, though they would have no right to make use of the other's substratum

before their patent for it expired; after that time the public will have a choice between the patents."

This is a very difficult subject; but I think I am not justified in withholding this patent. I do not like to give costs in a case of this kind, because I cannot say that under the circumstances the jealousy on the other side was unreasonable."

Wood and others against Zimmer and others. An issue out of Chancery, to try if Zinck's Patent of 1812, for" a Method of making Verdigris," was a valid Patent on the 5th February 1813. Tried in the Common Pleas, 1st July 1815, before Chief Justice Gibbs. Verdict against the Patentee.

The defendant Zimmer had agreed to purchase Zinck's Patent for £2,500. but afterwards refused to pay to plaintiff, Wood, (the assignee of Zinck, who had become bankrupt since), alleging that the patent was invalid. The verdigris was proved to be superior to the French; and that it could be made by boiling copper in oil of vitriol, as directed by the specification; but there was no mention of aqua fortis, which Zinck was accustomed to put secretly into the boiler, in order to hasten the solution; but he had kept that secret ever since. The article was made and sold before the date of the patent.

he

Chief Justice Gibbs: "A patentee must disclose the most beneficial manner that he possesses of carrying on the invention, with as little labour and expense as it costs himself. The price pays for his patent is, that he will enable the public to practise in the same way, and with the same advantages. If any thing which gives an advantageous operation is concealed, the grant is void. Though this specification should enable a person to make verdigris, substantially as good, without aqua fortis, as with it, still as it would be made with more labour, the omission is a prejudicial concealment, and a breach of the terms the patentee made with the public. The objection that the article was not new at the time of the patent (because a great quantity was sold by the patentee in the course of the previous four months) is somewhat new some things are obvious as soon as they are made public; of others, the scientific world may possess itself by analysis; some inventions almost baffle discovery; but to entitle a man to a patent, the invention must be new to the world: the public sale of that which is afterwards made the subject of a patent, though sold by the inventor only, makes the patent void.' The jury will say whether aqua fortis was used by the inventor, and whether the invention was in public sale, before the patent; in either case, the Judge thought the patent void. The jury found both in the affir

mative. Verdict for the defendants.

Manton against Parker. An Action for infringement of Manton's Patent of 1803, for an Improved Hammer for the Locks of

Fowling Pieces. Tried in the Exchequer, 6th July 1814, before Lord Chief Baron Thompson. The Patentee Nonsuited.

The under side of the hammer, which forms the cover of the pan, containing the priming powder, has a small prominent lip, which applies very close against the touch-hole, and is hollowed out, and perforated with a small hole, so as to let the air pass through, but not the powder; the intention being to let the air pass out of the gun-barrel, when the wadding is rammed down, but to keep the touch-hole always full of powder, in order to prevent flashing or hanging fire. It was contended, that hammers corresponding to the description in the specification, had been tried before the patent, but did not answer; also, that Manton, in his own practice, could not make them answer, without making the holes so large as to let the powder pass through, from the barrel into the pan. On a witness showing the Court, that common gunpowder procured at an adjoining shop, did so pass through the hole in the lip of one of Manton's own hammers, the Lord Chief Baron said, "The powder passes through the same hole as the air; it seems to me, therefore, that the utility of this invention, and the purpose of this patent wholly fail; that of itself would be an answer to this action; besides, on other parts of the case, the evidence is strong." Plaintiff nonsuited. Davies, p. 327.

Joseph Manton against his brother John Manton. An Action directed by the Court of Chancery, to try if there was any violation of Joseph Manton's Patent of 1803, for an Improved Hammer, and of his Patent of 1806, for an Improvement in Double-barrelled Guns. Tried in the Common Pleas, 20th June 1815, before Lord Chief Justice Gibbs. Verdict against the Patentee.

The improvement in double-barrelled guns, consisted in fixing a grooved ruler between the two barrels, in a proper direction to form the line of sight, to point the gun to the object to be fired at.

Lord Chief Justice Gibbs: " It is necessary that the patentee should show that the invention is new, and unknown to the trade, and to the world before; that it is useful to the public; and that he has accurately explained the invention in his specification, separating that which is new, from that which is old, so as to enable a person of tolerable skill, to make the thing by means of his specification. Some men of experience, who we have heard, had never seen these inventions before the patents: prima facie, that is good evidence, but fifty witnesses proving that they never saw them before, would be of no avail, if one was called, who had seen and practised them. It is proved, that the mode of directing the sight in double-barrelled guns, had been practised before. Several gentlemen have proved, that the hammer with the perforated lip is a useful application, but it is also proved that such hammers were made many years ago. Verdict for the Defendant Davies, p. 333.

VOL. VIII.-SECOND SERIES.

P