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The two pleas having been set down for argument an issue was directed, which was afterwards tried. No judgment was pronounced on the validity of the pleas, the parties having, although it is not expressed in terms in the order, thought it expedient to proceed to the trial of the truth of the pleas, not obtaining or asking the judgment of the Court as to the legality of the pleas, and as to how far they raised the important fact; they proceeded to a trial accordingly, and on the trial the jury found in favour of the novelty and of the usefulness of the invention, but there was this endorsement on the postea.* [His Lordship read the endorsement.] Now that endorsement which is to be taken as part of the information which the Court was to act upon as ascertained before the jury, states the various distances at which the rollers were placed in the ordinary spinning machines, and states as a fact which cannot now be in dispute, "that before the granting of the patent, flax, hemp, and other fibrous substances were spun with machines with slides, by which the reach was varied according to the length of the staple, or fibre of the article to be spun." We have it, therefore, as a fact, now to be assumed as true, that spinning machines were constructed with rollers, the distances between which varied according to the substance to be spun.

Now all the variation which the plaintiff introduced into the ordinary spinning machine, which he claims as his invention, is fixing the rollers at two and a-half inches distance from each other; and that he states is such an improvement to the ordinary spinning machine as entitles him to be protected from all the rest of the world, against their using spinning machines with the rollers at that distance. It is not, as was argued at the bar, one invention, namely, the macerating the flax and using the flax so macerated, with a particular machine. The earlier part of the invention he not only does not claim as against the defendant, but does not complain of the defendant as having used that, which, in point of fact, it is quite clear, they did not so use, and in point of fact, it is quite clear that he has not adopted that mode. Another mode has been adopted of macerating the flax, and the flax so macerated by another process has been * Ante page 161.

used in a machine with rollers at a distance of two and a-half inches.

If the patent be good so far as the spinning machine is concerned, that is to say, if the plaintiff has a right to tell the defendants and all the rest of the world that they shall not use the common spinning machine with rollers at two and a-half inches distance, then the existence of the patent deprives the defendant and all the rest of the world of the right of using the ordinary spinning machine in the form in which they had a right to use it before the patent was granted. That is not the object of the patent; if he has discovered any means of using the spinning machine which the world had not known before, the benefit of that he has a right to secure to himself by means of a patent. But if this mode of using the spinning machine was known before, and the endorsement upon the postea states that it was known before, then the plaintiff cannot deprive them of having the benefit of that which they enjoyed before. The endorsement on the postea, stating that the rollers had been used at a variety of distances, not precisely specifying two and a-half inches, but stating that the distances had been made to vary according to the length of the fibre to be spun, appears to me to establish a fact which is of itself conclusive against the plaintiff. Some question was raised at the bar as to whether the effect of the maceration was to shorten the fibre. There is no very distinct evidence on the subject, but upon referring to what has taken place in the Court below, it does not appear that any doubt existed that the effect of the maceration was to detach one fibre from another, the substance consisting of a variety of fibres of the length of two and a-half inches each, which, when combined, constituted a compound fibre of considerable length, but when detached by means of maceration by the application of moisture, then each individual fibre was reduced to the length of two and a-half inches. It does not appear to me, however, that this case can depend upon this circumstance, because the real use of the spinning machine, before that process of maceration was introduced, was this. A machine for spinning with rollers at any distance at the option of the party using it, or according to the substance to be spun,-and any substance might be spun, that was capable of being

so spun, with rollers at two and a-half inches distance, because the fibre was of that length, or for any other reason, that it is quite immaterial. The question is, whether it is an innovation, the placing the rollers at two and a-half inches distance from each other; but by the indorsement on the postea we are told that the distance between the rollers varied according to the length of the fibre of the substance to be spun. Under these circumstances, the case now being reduced simply to the question, whether the construction proposed by the patent is an improvement of the spinning machine, it appears to me that the judgment of the Court of Common Pleas is well founded, confined as it is now to that point, and that such a patent is not valid in point of law. Some objection was made to the course which was adopted in sending the case, that is to say, to the terms in which the case was sent. It appears there is no question that the parties below were willing to adopt the terms proposed, in order to put an end to the litigation, and that the Court therefore sent a case embracing the right of the parties, namely, the validity of the patent confined to the particular point raised. That of itself would be an answer to the objection now made to the form in which the case was sent, because this House will not permit parties upon appeal to raise an objection which they did not think proper to raise before, and on which they did not obtain the judgment of the Court below.

But even independently of that consideration, although the terms of the question for the Court of Common Pleas are as to the validity of the patent, you must take the whole case together; you have the facts stated which raise the objections to the validity of the patent, which are contained in the pleas; and these facts are confined to the question of novelty and to the question of usefulness. In point of fact, therefore, although the terms in which the question is couched are larger than the plea, it is the very same question which was raised before his Lordship the Master of the Rolls. And that was the question on which the judgment of the Court of Common Pleas was pronounced. It does nothing more than establish this proposition, that the objection taken to the patent, namely, that it was not new, and not useful (novelty is the question rather on which it turns), is a

good objection, and that the patentee has failed to show that that for which alone he has claimed the patent is any novelty, and entitles him to the benefit of the patent. Lord Brougham concurred.

Ordered that the appeal be dismissed with costs, and that the orders and proceedings complained of be affirmed.*

Mr. Kay introduced into the manufacture of flax and hemp the most important invention, and produced the greatest change in that manufacture which has been realized since hemp and flax have been spun, and yet for want of proper advice in preparing the title of his patent and the specification of his invention, he failed to reap those advantages which he was so justly entitled to. All parties are agreed, and it was admitted by the defendant's counsel at the trial, that to Mr. Kay this country is indebted for that manufacture which consists of using wet flax in spinning machinery, combined with the placing of the rollers at two and a-half inches apart. At the date of Mr. Kay's patent it was not new, neither was it useful to spin from wet flax generally, but only when combined with the use of rollers set at two and a-half inches apart. Mr. Hall had in his patent (taken before Mr. Kay's) described the use of wet flax combined with four to five inches reach, or ratch, which necessarily failed. Then with respect to the use of rollers set at two and a-half inches apart, that of itself was not useful in spinning flax, or any other fibre, and that arrangement of spinning machinery was and is only useful when combined with wet flax and hemp. Mr. Kay was therefore only an inventor of the combined process, and not of the two separate parts. It is suggested, that his patent should have been taken for a very different title, and the specification should have been very different to that which was enrolled. If the title of the patent had been for improvements in spinning flax and hemp, and had the specification, after fully describing a process of wetting the flax and machinery for spinning with rollers at two and a-half inches apart, gone on to state that no claim was made to the employment of wet flax and hemp separately; and further, that no claim was made for placing rollers of spinning machinery at a distance of two and a-half inches apart, when separately considered, and that the only claim to invention was the spinning of flax and hemp by combining the process of wetting with the use of spinning machinery, having the rollers set at a distance of two and a-half inches apart, there is no reason to doubt that the patent would have been sustained, and that Mr. Kay would have been rewarded for his highly meritorious invention. The case of Kay v. Marshall should be well studied by all future inventors and patentees, in order that they may not, like Mr. Kay, be deprived of the benefit which they may be entitled to.-W.C.

LOVELL v. HICKS AND OTHERS.

In the Court of Exchequer in Equity.—Before Mr. Baron Alderson. The hearing of this cause was in February, but judgment was not given until the 20th June, 1836.

In this case, Mr. Hicks, one of the defendants, had obtained letters patent for "an economical apparatus or machine to be applied in the process of baking for the purpose of saving materials," sealed at Westminster the 26th June, 1830. The invention consisted of so constructing an oven that the vapours passing off when baking bread were condensed in the ordinary manner of distilling spirits, it being stated that bread when being baked was in such a state of fermentation as to give off spirit, and the patentee claimed "an economical apparatus or machine to be applied to baking, consisting of a combination of an oven for baking fermented dough into bread with a conducting pipe leading to a refrigerator or condensor for the purpose of saving and collecting the liquid materials which are evolved from dough during the process of baking, whatever may be the kind of metal or substance of which the oven is made."* The defendant, Mr. Hicks, entered into an agreement with the plaintiff for the sale of a license for a certain district of England under his patent, and the plaintiff had paid Mr. Hicks 3,000l. under this agreement. The invention failed to produce the results stated, and the plaintiff filed a bill on the equity side of the Court of Exchequer to have the agreement cancelled and to recover back the money paid. The bill stated that the defendants had caused bread to be baked before the plaintiff and others by which there was produced spirit, and this induced the plaintiff to enter into the agreement, and the bill charged the defendants with having fraudulently introduced spirit into the bread, by which the invention apparently succeeded, and the plaintiff had thereby been misled.

Mr. Knight and Mr. Blunt appeared for the plaintiff, and Mr. Wigram and Mr. Heathfield for the defendants. Mr. Baron Alderson, at the hearing of the cause, said that it was incumbent on the plaintiff to show active fraud with a view to misrepresent; and his Lordship gave judgment, as follows:

The question raised in no way turning on the construction of the specification, it is not thought desirable to introduce it.

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