Mr. Edwards, who was in the employment of the London and North-Western Railway Company, and who, by merely placing the two old contrivances side by side, had made working drawings, which it was admitted showed a combination substantially the same as Saxby's subsequently patented modification. Two sets of tracings were made from the drawings in Edwards's office, where four or five draughtsmen were kept, and they were afterwards sent to the offices of the L. & N. W. R. Company at Crewe, where there were seventeen or eighteen draughtsmen. The general public visited these offices, and there was evidence that the drawings or tracings had there been seen by an engineer who was not in any way connected with the railway company. No secrecy or concealment was imposed or observed in regard to the drawings and tracings with reference either to the draughtsmen in these two offices or to members of the general public who might happen to visit them. Further, the particular combination had been explained by Edwards to a person in Saxby's employment, and rough sketches of the drawing were left with him. The drawings and tracings were laid before the chief engineer of the railway company, and they were submitted to their locomotive committee. Besides all this a working apparatus was made from the drawings by a person in the employment of the company, and this was placed in the pattern-shop, where it was subjected to trial. All this occurred before the end of the year 1873. It was held by a Divisional Court, by the Court of Appeal, and by the House of Lords, that these facts amounted to evidence of a publication of the invention, that such a disclosure of it had been made as placed it within reach of the public, and therefore that Saxby's patent was invalid. (Saxby v. Gloucester Waggon Co., 2 Griffin P. C. 54.)

The defendant applied for a patent in respect of a waste water preventer in January 1885, but did not proceed with his application. In the next month the plaintiff applied for a patent in respect of what was substantially the same invention, and in due course a patent

was granted to him. An action for infringement having been brought it was proved that before the date of the patent the defendant had openly exhibited in his shop to at least two persons, without any injunction of secrecy, the apparatus described by him in his provisional specification. It was held by the Court of Appeal that there had been publication of the invention, and that the patent was invalid. (Humpherson v. Syer, 4 R. P. C. 407.) In this case L. J. Fry framed the enquiry in this form: Is it the fair conclusion from the evidence that some English people, under no obligation to secrecy arising from confidence or good faith towards the patentee, knew of the invention at the date of the patent?

PUBLIC EXHIBITIONS.

If an inventor desires to exhibit at an industrial or international exhibition an invention which he has not yet patented, but for which he intends to obtain a patent, he should proceed under the 39th section of the Act of 1883, Rule 15 of the Patents Rules, 1890, and the 3rd section of the Act of 1886. The 39th section enacts that (a) the exhibition of an invention at an industrial or international exhibition certified as such by the Board of Trade, or (b) the publication of any description of the invention during the period of the holding of the exhibition, or (c) the use of the invention for the purpose of the exhibition in the place where the exhibition is held, or (d) the use of the invention during the period of the holding of the exhibition by any person elsewhere, without the privity or consent of the inventor, shall not prejudice the right of the inventor, or his legal personal representative, to apply for and obtain provisional protection and a patent in respect of the invention or the validity of any patent granted on the application. But the exhibitor must, before exhibiting the invention, give the Comptroller the notice prescribed by Rule 15 of his intention so to do; and the application for a patent must be made before or within six months from the date of the opening of the exhibition. The inventor must also furnish to the Comp

F

troller a brief description of the invention with drawings if necessary, and such other information as the Comptroller may require. The notice must bear a stamp of 10s. (See Form O, post, p. 402.)

By the 3rd section of the amending Act of 1886 it was enacted that it should be lawful for the Queen, by Order in Council, from time to time to declare that section 39 of the Patents Act of 1883 shall apply to any exhibition (held out of the United Kingdom) mentioned in the Order in like manner as if it were an industrial or international exhibition certified by the Board of Trade, and to provide that the exhibitor shall be relieved from the conditions, specified in the said section, of giving notice to the Comptroller of his intention to exhibit, and shall be so relieved either absolutely or upon such terms and conditions as to Her Majesty in Council may seem fit.

CHAPTER V.

AMOUNT OF INVENTION REQUIRED TO SUPPORT A PATENT— PATENTS FOR APPLICATIONS.'

THESE Subjects are closely connected with that of Novelty, but it will be more convenient to separate the cases and treat of them in a distinct chapter. In contesting the validity of a patent, it is often objected that there had been no exercise of ingenuity on the part of the alleged inventor in arriving at his invention, and that mere accident or good luck is not entitled to a patent privilege. Where, however, the utility of the invention is great, and the novelty undoubted, these facts will come in aid of an apparent want of ingenuity on the part of the inventor.

'If a patentee would succeed it is necessary for him to show not merely newness in the sense of doing a thing which has not been done before, but he must show newness in the shape of novelty by producing a thing which requires some exertion of mind that could properly be called invention.' (Per Mr. Justice Willes in Tatham v. Dania, 1 Griff. P. C. 213. And see what fell from L. J. Cotton and the other LL.JJ. in American Braided Wire Co. v. Thomson, 5 R. P. C. 123; Britain v. Hirsch, 5 R. P. C. 232; and Cole v. Saqui, 6 R. P. C. 41.)

A person having obtained a patent for adapting an iron plate to the heel of a boot similar to what had been previously adapted to the toe, brought an action for an infringement. In the Court of Appeal L. J. Cotton said: 'In my opinion a thing is not to be called new in the sense of Crane v. Price, simply because that particular thing has never been seen before. To be new in a patent sense it is necessary that the novelty must show invention, and it is

not sufficient to be new in the patent sense for the patentee to be the true and first inventor, if it is merely using that which has been used for an analogous purpose before the date of the patent.' (Blakey v. Latham, 6 R. P. C. 187.)

It is impossible, however, to lay down any general rule as to the amount of ingenuity which is essential to support a patent. In nice cases there can be no certainty previous to a judicial decision on the point whether any given patent is or is not impeachable on the ground of want of ingenuity; which phrase cannot be regarded, perhaps, as different from want of novelty. All that can be done is to study the decisions already made, and to be guided by those cases which approach nearest to the one about which doubt may be felt. Some of the decisions, indeed, seem to conflict with others; and it will require a good deal of acute discrimination on the part of those who are called on to advise inventors, to distinguish the line which separates what is patentable from what is not patentable.

The question whether that which is claimed as an improvement of an existing machine was the result of a sufficient amount of invention often raises one of the most difficult points of patent law. There are many cases in which the moment you see the specification or improvement you can say without any evidence at all, "This is a most remarkable, elaborate, and difficult thing to do; it must have required great invention, and there can be no dispute about it," and no dispute is ever raised. On the other hand, there are some things so clear, so simple, and so obvious, that a person having any decent amount of mechanical knowledge says at once it is so easy that it requires no invention at all; it is a mere mechanical equivalent, or that sort of thing, that any ordinary workman can do without any difficulty. Then there are a great number of cases between, where the improvement is no doubt small, but it may require a considerable amount of invention to effect it.' Per Sir G. Jessel, M. R., in Saxby v. The Gloucester Waggon Company (Court of Appeal shorthand writer's notes; see an abridged report in 2 Griff. P. C. 54).