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word "experiment," in the cases referred to, has been used, not as the sole test upon a matter of this sort, but as indicating a class of practice, and for the purpose of showing that if there has been a user of an invention not of a substantial character, but in the character of an experiment, then, although the thing has been done before, it does not preclude a person from taking out a patent for it; so that although what Croll did may not have been strictly in the nature of an experiment, still the jury have so found it, and we cannot grant a new trial.'

Other cases bearing upon the question of prior experimental user are Brereton v. Richardson (1 R. P. C. 165); Moseley v. Victoria Rubber Co. (4 R. P. C. 253); Morgan v. Windover (4 R. P. C. 417); S. C. on Appeal (5 R. P. C. 295); and in H. of L., 7 R. P. C. 130; Edison and Swan Co. v. Holland, Court of Appeal (6 R. P. C. 277, 283); Winby v. Manchester, &c., Tramways Co. (6 R. P. C. 359).

Prior Imperfect Machines.-The fact that there had previously been made a machine which turned out a failure will not invalidate the right of a patentee who has made a successful machine with the same object, although there may be a certain degree of similarity between some of the details of the two machines (Murray v. Clayton, 7 L. R. Ch. 570). And in Barlow v. Baylis (1 Griff. P. C. 44), where a machine, alleged to be an anticipation of a patented machine, was shown to have been so imperfect as to be incapable of doing the promised work more or less badly,' it was held not to have deprived the later machine of the attribute of novelty.

Earlier Inventions having a similar object.-It is sometimes argued that a patentee is not to be deemed the true and first inventor, if a patent for a similar object had been previously obtained by another inventor; but this contention will not prevail when it can be shown that the earlier patentee had not secured the principle, and that the means by which the object is attempted to be accomplished are substantially different in the two cases.

Kneller obtained a patent for an apparatus for the

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evaporation of liquids and solutions at a low temperature. The apparatus consisted of pipes or tubes, along which air was forced nearly to the bottom of the vessel containing the liquid to be evaporated, which air, passing through small holes in the submerged tubes, traversed the liquid and carried off the aqueous particles. The invalidity of this patent was attempted to be proved by showing that an invention. having a similar object in view had been previously patented. But when it appeared that the earlier invention consisted in propelling a quantity of heated air into the lower part of the vessel containing the liquid, and causing such air to pass through the liquid in streams, by means of a perforated coil of pipe or colander, the jury found that, although the principle of both inventions consisted in forcing air in finely divided streams through a fluid, for the purpose of facilitating evaporation, yet the modes by which this was effected in the two cases were sufficiently distinct to acquit the latter invention of being a piracy of the former; and that the latter patent was not invalidated by reason of want of novelty in the invention. The Court was of the same opinion, upon the application for a rule to set this verdict aside. (Hullett v. Hague, 1 Carp. Rep. 501; 2 B. and A. 370.)

In Minter v. Mower (1 W. P. C. 140) it appeared that the plaintiff had taken out a patent for an improvement in reclining chairs, which consisted in the application of a selfadjusting leverage to the back and seat of a chair, whereby the weight on the seat acted as a counterbalance to the pressure against the back. Mower, the defendant, made chairs in imitation of Minter's chair, and contended, in an action for an infringement of the patent, that the plaintiff was not the first and true inventor, alleging that one Brown had, previously to the patent, made chairs embodying a similar principle. It appeared, however, that although Brown's chair contained a similar principle to that patented, it was encumbered with machinery which rendered it a very different thing from the plaintiff's. Lord Denman said that, supposing Brown's chair to have been a chair with a self

adjusting leverage (i.e. a chair similar to the plaintiff's), if the encumbering additional part had been away, 'then the question is, whether the principle of self-adjustment was at all discoverable or thought of at that time. Because, it seems to me, if that principle might have been deduced from the machinery of the chair that was made, but it was so encumbered and connected with other machinery that nobody did make that discovery, or ever found out that they could have a chair with a self-adjusting leverage, by reason of that or any other defect in the chair actually made; it seems to me that does not prevent this from being a new invention, when the plaintiff says, I have discovered, throwing aside everything but this self-adjusting leverage itself, something that will produce an effect, which I think a very beneficial one.'

PUBLICATION IN PRINTED BOOKS.

It has been repeatedly held that an inventor's claim to novelty is destroyed by showing the previous publication of the invention in some printed book in use in Great Britain. Mr. Justice Buller, in Rex v. Arkwright (1 W. P. C. 72), said, 'It is admitted that this is not a new discovery; for Emmerson's book was produced, which was printed a third time in the year 1773, and that is precisely the same as this.' Although' (said Tindal, C. J., in Cornish v. Keene, 1 W. P. C. 507) 'it is proved that the invention is a new discovery, so far as the world is concerned, yet if anybody has been able to show that although that was new-that the party who got the patent was not the man whose ingenuity first discovered it, that he had borrowed it from A or B, or taken it from a book printed in England, and which was open to all the world-then it would become an important question whether he was the first and original inventor of it.' In the course of the argument of the case of The Househill Company v. Neilson (1 W. P. C. 673), an appeal from the Court of Session in Scotland to the House of Lords, Lyndhurst, L. C., asked, 'If the machine is published in a book, distinctly and closely described, corresponding with

the description in the specification of the patent, though it has never been actually worked, is not that an answer to the patent? It is continually the practice on trials for patents to read out of printed books, without reference to anything that has been done.'

If the foreign book containing a description of an invention has been circulated in England (Reg. v. Steiner, Newton's Lond. Jour. vol. xl. p. 71), or even if only four copies of the foreign book are sent over to a bookseller in this country and by him exposed for sale, only one being actually sold to a public library (Lang v. Gisborne, 31 Beav. 133), a patent subsequently obtained by an independent inventor is invalid.

However, where the book relied upon as evidence of a disclosure before the date of his patent of the patentee's invention, a skate, was an American book containing a copy of a drawing of the skate attached to the patentee's American patent, and which book had been received by a librarian of the Patent Office Library in London about thirty-seven days before the date of the English patent without being entered either in the list of donations or in the catalogue of the library, and nothing more was known of it until another librarian found it many months afterwards on a shelf in a corridor leading to the public room, which corridor was open to the public, all this was held by Sir G. Jessel, M. R., and afterwards by the Court of Appeal, not to prove a publication sufficient to invalidate the patent. (Plimpton v. Spiller, L. R. 6 Ch. D. 412.)

In the case of Otto v. Steel (31 Ch. D. 241, and 3 R. P. C. 112) Mr. Justice Pearson held that the simple fact that a copy of a French book was in the inner library of the British Museum was not sufficient publication to lead to the inference that whatever was found in that book had become part of the public stock of common knowledge.

Two specifications in the German language of German patents, with drawings, were deposited in the Library of the Patent Office, London, the one more than two years, the other forty days, before the date of a British patent, and

entries of these specifications were published in the official Patents Journal and their subject-matter stated, a footnote being appended to the effect that the specifications might be seen in the Library. It was held that this amounted to a publication of the inventions in this country. (Harris v. Rothwell, 31 Ch. D. 416; S. C. 3 R. P. C. 383; 4 R. P. C. 225.)

It may be inferred from some of the preceding cases that when the validity of a patent is contested on the ground of the invention having been previously communicated to the world by a book, it is not necessary to show that the patentee derived his knowledge of the invention from such book. And it was expressly decided in Stead v. Williams (2 W. P. C. 142), that if the invention has been already made public by any description contained in a work, whether written or printed, which has been publicly circulated, in such case the patentee is not the true and first inventor within the meaning of the statute, whether he has himself borrowed his invention from such publication or not; because the public cannot be precluded from the right of using such information as they were already possessed of at the time the patent was granted.

The application of this rule must depend upon the particular circumstances of each case. The existence of a single copy of the work in a depository where it had long been kept in a state of obscurity, would afford a very different inference from the production of an encyclopædia or other work in general circulation. The question will be, whether, upon the whole evidence, there has been such a publication as to make the description a part of the public stock of information. (See also Plimpton v. Malcolmson, L. R. 3 Ch. D. 531; Plimpton v. Spiller, L. R. 6 Ch. D. 412; Von Heyden v. Neustadt, 50 L. J. N. s. Ch. 126; United Telephone Co. v. Harrison, L. R. 21 Ch. D. 721.)

If a published drawing of a machine is sufficient of itself to enable a mechanist to construct the machine, that would be enough to invalidate a subsequent patent for a similar machine. (Per Lord Esher, M. R., in Herrburger v. Squire, on Appeal, 6 R. P. C. 198.)

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