THIS HIS was an action for the infringment of a patent A specificaobtained for an improved method of drying and finish- tion of a paing paper.

"The

The specification contained these words: — invention consists in conducting paper, by means of a cloth or cloths, against a heated cylinder, which cloths may be made of any suitable material: but I prefer it to be made of linen warp and woollen weft, which cloth is shewn in the drawing by blue lines." At the trial before Bayley J., at the last Lancaster assizes, a witness was called for the plaintiff, who admitted, that as to the conducting medium, he had tried several things; but he was not aware that any thing would answer the purpose, except the material which the patentee said he preferred; and, therefore, the learned Judge nonsuited the plaintiff, on the ground that his specification was uncertain, and that he ought not only to have stated what would do, but also to have excluded what would not do.

Brougham now moved to set aside this nonsuit, contending, that the important part of the invention did not consist in the material interposed, but in the mode of applying the paper to the cylinder. In the method before used the paper became cockled, probably for want of sufficient pressure. Here there was a screw which tightened it: the gist of the invention was the conducting of the paper. Now this part was set out with great accuracy, and, as to the other, it was not so neces

D

tent contained these words"which cloths

may be made

I

of any suitable prefer it to be made of woollen weft," the fact being, that no other material

material, but

linen warp or

but this had

been found to answer: Held, bad, as not

being sufficiently accu

rate.

1828.

CROMPTON

V.

IBBOTSON.

sary. The Court had never yet gone so far as to say that every possible negation must be made in the specification. It was sufficient if it enabled another to avail himself of the invention without making further experi

ments.

Lord TENTERDEN. The patent was obtained for the discovery of a proper conducting medium. The plaintiff found, after repeated trials, that nothing would serve the purpose, except the cloth described in his specification; yet he says the cloth may be made of any suitable material, and merely that he prefers the particular kind there mentioned. Other persons, misled by the terms of this specification, may be induced to make experiments which the patentee knows must fail; and the public, therefore, has not the full and entire benefit of the invention, the only ground on which the patent is obtained. In Turner v. Winter (a) a patent was held void, on the ground of an ambiguity in the specification like the present.

Rule refused.

(a) 1 T. R. 602. In that case Ashurst J. says: "It is incumbent on the patentee to give a specification of the invention in the clearest and most unequivocal terms of which the subject is capable; and if it appears that there is any unnecessary ambiguity affectedly introduced into the specification, or any thing which tends to mislead the public, in that case the patent is void." And Buller J. adds: "If the patentee could only make the colour with two or three of the ingredients specified, and he has inserted others which will not answer the purpose, that will avoid the patent." The observations of Chief Justice Abbott, in delivering judgment in the case of The King v. Wheeler (b), which came before the

(b) 2 B. & A. 349.

Court on a sci. fa. to repeal a patent, will be found valuable, as illustrating the principles of the law of patents. In the course of it he remarks, that "a specification which casts upon the public the expence and labour of experiment and trial, is undoubtedly bad." Upon the whole, therefore, it is clear that unless the specification be so expressed that, at the expiration of the monopoly, the public may at once have the same benefit from the invention which the inventor himself had, the patent is void. Nor is there any hardship in this; monopolies in general are prejudicial to the public interest; the only purpose of granting them is to stimulate invention by holding out a bonus, not for the benefit of the individual, but for that of the public. If the inventor will not grant them this benefit, the reason for his monopoly at once ceases, and, therefore, the monopoly itself. And it should be recollected that in all these cases it is the fault of the patentee himself, who seeks unfairly to obtain all the advantage which the law bestows on a discovery useful to the community, and at the same time takes care that it shall be useful to no one but himself.

1828.

CROMPTON

v.

IBBOTSON..

AGREEMENT STAMP.

In the KING'S BENCH.-Easter Term.

TOOKE v. MEERING.

ASSUMPSIT for non-performance of contract.

On the 6th June 1827, an agreement in writing was entered into between plaintiff and defendant, by which the former undertook to sell and the latter to buy the ship Betsey for 700l.; 450l. to be paid in cash in one

introduc

tion of other

matter connected with the sale, does not render a stamp necessary. An agreement, therefore, for the sale of a ship, and for procuring her to be chartered, (the object of the parties being to earn freight in part payment of the price): Held, to be within the exemption in favour of agreements "for or relating to the sale of goods."

1828.

TOOKE

v.

MEERING.

month, and the remaining 250l. to be secured by mortgage on the vessel. The defendant further agreed that a charter should be procured for the ship to London, and that on her arrival there the mortgage should be closed. For the breach of this last part of the contract the action was brought. An objection was taken to the admissibility of the agreement, on the ground that it ought to have had an agreement stamp. Lord Tenterden, however, being of opinion that, taken altogether, it was an agreement for the sale of goods, and therefore within the exception of the stamp act (55 G. 3. c. 184.), the plaintiff recovered a verdict.

It

Brougham now moved to enter a nonsuit, on the ground that the agreement was not admissible. could not be construed as an agreement for the sale of goods, so as to fall within the exception of the stamp act: an agreement for the sale there meant an instrument selling. Where a contract executory was intended, different words were used. Besides, it was for the doing of two things distinct and independent. Though the first part might be within the exception, the latter clearly could not; and that it would be opening a door to fraud, and an entire evasion of the stamp acts, if to a contract which was exempt from the duty there might be appended another which was not so, and then both together might be treated as one. A stamp might become necessary to an instrument which of itself would not require it, by adding other matter; as in the case of a cognovit, with a condition to pay by instalments; Reardon v. Swaby. (a)

Lord TENTERDEN.

If this is not an actual sale and transfer of the ship so as to fall within the provisions of

(a) 9 East, 135.

the register act 6 G. 4. c. 110., then it is an agreement for the sale of goods, and therefore within the exception of the stamp act. The ship is to be mortgaged. She is then to be chartered to London; then the freight earned on that voyage is to be applied to the payment of the remainder of the purchase-money. The agreement to procure a charter is therefore a part of the agreement for the price; the introduction of any thing immediately connected with the agreement does not render a stamp

necessary.

Rule refused.

1828.

TOOKE

V. MEERING.

The words of the act are, "any memorandum, letter, or agreement made for or relating to the sale of any goods, wares, or merchandise;" and it has been held, therefore, that an agreement to take a share of goods bought, and pay for them at a future time (a), and a receipt for the price of a horse, containing a warranty of soundness (b), come within the exception, and do not require an agreement stamp. It is necessary, however, that the primary object of the agreement should be the sale of goods; if it relate to such a sale incidentally only and collaterally, the stamp will not be dispensed with; such a case manifestly not being within the intention of the clause: therefore an agreement to provide for acceptances, if goods in the hands of the acceptor were not previously sold, was held to require a stamp. (c)

(a) Venning v. Leckie, 13 East, 7.

(b) Skrine v. Elmore, 2 Campb. 407.

(c) Smith and Others v. Cator and Others, 2 B. & A. 778. See further on this subject Curry v. Edensor, 3 T. R. 524. Warrington v. Furber, 8 E. R. 242. Watkins v. Vince, 2 Stark. N. P. C. 369.; and Whitworth v. Crockett, 2 Stark. N. P. C. 431.