evidence of user, induced the Court to nonsuit the plaintiff. (Dav. P. C. 429.)

PRIOR PUBLIC USER.

One of the first cases which the books contain was decided in 1798. Tennant brought an action for the infringement of his patent for a method of using calcareous earths instead of alkaline substances in bleaching. It was proved, on the one hand, that bleachers were generally ignorant of the patented bleaching liquor until after the date of the patent. On the other hand, it was proved that a certain bleacher had used the same method of preparing bleaching liquor for five or six years previously to the date of the patent; and that the method had been kept secret from all except his two partners, and two servants employed in preparing the liquor. On this evidence the previous user was held to render the patent invalid (1 W. P. C. 125).

The evidence given in Lewis v. Marling, to impugn the patentee's claim of novelty, was that several years previously a similar machine was in use at New York, and that a specification had been sent over in 1811 to a person residing at Leeds, who employed two engineers to manufacture a machine from it, which, however, was never finished. The specification was shown to several persons, but the machine was never brought into use. In 1816 a model of a machine for shearing from list to list, by means of a rotatory cutter, was brought over from America, and shown to two or three persons in the manufactory of the importer; but no machine was ever made from it, nor was it publicly known to exist. Moreover, one Coxon, many years previously, had made a machine to shear from list to list, and this was tried by a person called as a witness; but he did not think it answered, and soon discontinued the use of it. Lord Tenterden told the jury that if it could be shown that the patentee had seen the model or specification, that might rebut the claim of invention. But there was no evidence of that kind; and he left it to them to say

whether the invention had been in public use and operation before the granting of the patent. They found that it had not; and on the motion for a new trial the judges thought there was no reason to find fault with the verdict.

Losh's patent was for improvements in the wheels of railway carriages, and these improvements consisted in constructing the pieces composing the entire wheel of malleable iron, and then welding them together. It was contended by the defendant in the case of Losh v. Hague (1 W. P. C. 202) that the invention was not new, inasmuch as one Paton had, previously to the date of Losh's patent, and under a patent of his own, described a mode of constructing wheels of wrought iron, which differed little, if at all, from those patented by Losh; moreover, that although the first wheel made under Paton's patent was riveted, all Paton's other wheels, thirty pairs in number, were made with the circumference of the inner rim entirely of wrought iron, and then welded into one piece. The question you have to try,' said Lord Abinger to the jury, on the originality of Losh's invention, is not whether Paton's patent contains that perfect periphery that is required in this case, but whether wheels have been publicly made on this principle.' (The jury by their verdict found that wheels had been previously made on the same principle as Losh's wheels.) 'If,' continued his lordship, the wheels had been made and sold to any one individual, the public's not wanting them because there were no railways, their not being adapted to any particular use, which at that time was open to the public to apply them to, makes no difference. You have it in evidence that thirty pairs were made with a complete continuous circumference all round. If they were so made and sold, or used at all, though not for any purpose that then made them popular or desirable, still they were made with that particular advantage which is claimed by Losh's patent, namely, a periphery made of one continuous piece of wrought iron, as well as the spokes. But that is not all the evidence; there are two parties from Manchester. One, Horsefall, says that he remembers, nearly twenty-eight years

ago, that there were three trucks, having each three wheels, and those wheels were made of wrought-iron spokes in a wrought-iron circumference, and there is one exhibited before you which was actually in use at that time; the other, Roberts, confirms that, and has stated that they existed for many years, and that they have been used.'

In charging the jury assembled to try the action of Cornish v. Keene (1 W. P. C. 508), Tindal, C. J., said that if the invention was at the time the letters patent were granted in any degree of general use; if it was known at all to the world publicly, and practised openly, so that any other person might have the means of acquiring the knowledge of it as well as the person who obtained the patent, then the letters patent are void. Now it will be a question evidence which you have

for you to say whether, upon the heard, you are satisfied that the invention was or was not in public use and operation at the time the letters patent were granted. It is obvious that there are certain limits to that question; the bringing it within that precise description which I have just given must depend upon the particular facts which are brought before a jury. A man may make experiments in his own closet for the purpose of improving any art or manufacture in public use; if he makes these experiments, and never communicates them to the world, and lays them by as forgotten things, another person who has made the same experiments, or has gone a little further, or is satisfied with the experiments, may take out a patent and protect himself in the sole making of the article for fourteen years; and it will be no answer to him to say that another person before him made the same experiments, and therefore that he was not the first discoverer of it, because there may be many discoverers starting at the same time, many rivals that may be running on the same road at the same time, and the first that comes to the Crown and takes out a patent, it not being generally known to the public, is the man who has the right to clothe himself with the authority of the patent and enjoy its benefits. That would be an extreme case on one

side; but if the evidence, when properly considered, classes itself under the description of experiment only, and unsuccessful experiment, that would be no answer to the validity of the patent. On the other hand, the use of an article may be so general as to be almost universal. In a case like that you can hardly suppose that anyone would incur the expense and trouble of taking out a patent. That would be a case where all mankind would say, "You have no right to step in and take that which is in almost universal use, for that is, in fact, to create a monopoly to yourself in this article without either giving the benefit to the world of the new discovery, or the personal right to the value of the patent, to which you would be entitled from your ingenuity and from your application." Therefore it must be between these two limits that cases will range themselves in evidence; and it must be for a jury to say whether, supposing these points to be out of the question in any particular case, the evidence which has been brought before them convinces them that the subject of the patent was in public use and operation at that time, at the time when the patent itself was granted by the Crown. If it was in public use and operation, then the patent is a void patent, and amounts to a monopoly; if it was not, the patent stands good.'

The case of Carpenter v. Smith (1 W. P. C. 530) arose out of an alleged infringement of a patent for an improved lock. I think,' said Lord Abinger to the jury, 'that what is meant by "public use and exercise" is this: a man is entitled to a patent for a new invention, and if his invention is new and useful, he shall not be prejudiced by any other man having invented that before, and not made any use of it; because the mere speculations of ingenious men, which may be fruitful of a great variety of inventions, if they are not brought into actual use, ought not to stand in the way of other men equally ingenious, who may afterwards make the same inventions and apply them. The meaning of these words, "public use," is this: that a man shall not, by his own private invention, which he

keeps locked up in his own breast, or in his own desk, and never communicates it, take away the right which another man has to a patent for the same invention. Now "public use means this: that the use of it shall not be secret, but public. If a man invents a thing for his own use, whether he sells it or not-if he invents a lock, and puts it on his own gate, and has used it for a dozen years, that is a public use of it. If it were otherwise, see what the consequence would be. If Mr. Davies has a lock which he directed to be made and put on his gate sixteen years ago at least; if that was not a public use which prevented a man from taking out a patent, any man might go and take a model of that lock, and get a patent for it. How can he be the inventor of it? Because, to obtain a patent, a man must be the inventor; and if it has been once in public use, that is, used in a public manner, not used by the public, yet if it has been used by half-a-dozen individuals, or one,' in a public manner, any man having access to it, how can he be said to be the inventor, if by merely gaining access to that he takes out a patent? A man cannot be said to be the inventor of that which has been exposed to public view, and which he might have had access to if he had thought fit. . . . If you are of opinion (not that they were generally adopted by the public and used by the public, for that, in my opinion, is a perfect fallacy) that the use of them is public, and the exercise of the invention was public, and not kept secret so that the public might have no benefit from it, then I think that part of the issue you ought to find for the defendant.' The learned judge summed up the evidence as

'If a person' (asked Dallas, J., Hill v. Thompson, 1. W. P. C. 240) 'had done precisely all that is specified to be done in this specification, and had not communicated it to any one, could he be prohibited by the patent from doing that which he had done before, though known to no one but himself; or could it be considered as new, if practised by only one person, but not communicated to the world?' And Tindal, C. J., in Cornish v. Keene (1 W. P. C. 511), observed that if the defendants had shown that they practised it (i.e. the patented invention), and produced the same result in their factory before the time the patent was obtained, they cannot be prevented by the subsequent patent from going on with that which they have done.'