also the assignment by way of mortgage to Haworth; the Jan. 10, 1837. original deed of license from the patentee to Slater, under which some of the petitioners claimed as assignees; also the letters patent and specification, the injunction, the proceedings in the action at law, and under the two bankruptcies, and accounts of the licenses and of the expenditure.

It appeared in evidence that twenty-two licenses were in existence, and that all the parties had been seen, and were to have their licenses on the same terms in the event of the term of the patent being extended. That the number of cubic yards of stove paid for under the licenses was 1833. That the trade and all the licensees had been apprised of the application, and that some licenses had been taken since the proceedings on this petition had commenced. That the amount received for infringements and by way of license was £8915.

Evidence was also given as to the expense incurred and experiments made by the patentee in perfecting his invention, in which from £1500 to £2000 was expended, and great interruption of his business occasioned; that at the time of the bankruptcy of the parties who had the original license, the trade were on the point of taking licenses, but they took advantage of the bankruptcy, and refused to enter into any arrangements until after the end of the legal proceedings. Evidence was given as to the utility of the invention; the saving of time, labour, and expense, and the superiority of the work; one-half the amount of the cost for bleaching being in some cases saved. That the modern improvements in the chemical parts of bleaching admit of these operations being carried on to a very extensive scale, which, until the invention of Mr. Southworth, were limited by the drying. According to the former method, the cloth was much injured by the handling.

Lord BROUGHAM: Their lordships are of opinion, that the Judgment. merits of this invention are quite understood. They are also of opinion, that it has been proved that the benefit which the patentee might otherwise naturally be expected to obtain from this specific patent has not arisen, in consequence of the misfortunes of the patentee and of those connected with him, as agents and otherwise, in the management of this patent; and The nature of they have also taken into consideration in some degree the cir. the invention as affecting its incumstance of the nature of the invention being such that it troduction into would not be likely to come into immediate use. Upon these use to be conconsiderations they are induced to report to his Majesty their opinion, that it would be right, if his Majesty should think fit, to give an extension to the time granted for the period of five years, at the expiration of the term of the patent already granted. That patent was granted in 1823, therefore it will be five years from the 19th of April, 1837. The new letters patent The new patent must be, by the statute, granted to the party or parties who must be to the

sidered.

assignee.

have a legal interest in the letters patent now existing. Of course the parties must take care that the right party or parties alone have the patent, otherwise it will have no legal effect.

Stephen, Sergt.: Those having the legal estate.

Lord BROUGHAM: Those in whom the subsisting patent is vested (p). Report accordingly.

Title.

LEWIS'S PATENT.

Letters patent, 15th Jan. 1818, to J. Lewis, W. Lewis, and William Davis, for "improvements on shearing machines, for shearing or cropping woollen or other cloths, that may require such process, the same being further improvements on a patent obtained by J. Lewis, for an improved shearing machine,' dated 27th July, 1815."

Hil. V., 1829.

If the shearing

to list by shears

LEWIS AND ANOTHER v. Davis.

Cor. Lord Tenterden, C.J.

[3 Car. & P. 502.]

This was an action for the infringement of the above patent; of cloth from list the specification claimed as the plaintiffs' invention-First, the be known, and application of the flat spring for directing and pressing the cloth the shearing it from end to end to the cutting edges. Second, the application of the triangular by means of ro- steel wire on the cylinder. Third, a proper substance to brush tary cutters be the cloth. Fourth, to shear with rotary cutters from list to list, in the manner specified (9).

also known, and

a person construct a machine to shear from list

of rotary cutters,

F. Pollock for the defendant.

As these are alleged to be imto list by means provements on a former machine, for which a patent was granted this is a new in- in the year 1815, the specification of that patent must be provention, and will duced. How can the jury say that these are improvements withventor to main- out they know what the original machine was?

entitle the in

(p) The new letters were accordingly granted to E. Haworth for five years.

(q) The defendant had a patent for an improved shearing machine, with certain novelties of construction; among others, the rotary cutter had a lateral motion, by which the operation of shearing was performed in a superior manner. The stripes of plush were placed between the spiral blades of the rotary cutter, and answer the

purpose of brushes to raise the pile as the cylin der went round; and so bring it into contact with the edges of the cutter. The substantial part of the invention was shearing from list to list by a rotary cutter. It was admitted that the only infringement was in respect of the use of the rotary cutter. For a description and plate of the respective inventions of the plaintiffs and defendant, see 2 Newt. Lon. J. 255, 2d Series.

it.

Rotch for the plaintiffs. I submit that that is unnecessary, tain a patent for because the plaintiffs' specification is perfect; any one who reads that may make the machine, without looking to any earlier specification.

the

of that former patent must be

the read.

But it is not

Lord TENTERDEN, C.J.: When these parties applied to the In an action for crown, in the year 1818, they might have applied for a patent of a patent, proan infringement for their invention, without reference to any thing that had gone fessing to be an before. Now, that they have not done; on the contrary, they a former patent, improvement on profess to have improved a machine already known. That ma- the specification chine may be used by any one after fourteen years from earlier patent, but any new matter which is included in present patent is not open to every body, till fourteen years material whefrom a later period. It is, therefore, material to show what are the improvements contained in the plaintiffs' patent. Now I to that specificannot say what are improvements upon a given thing, without cation of the first patent knowing what that thing was before; for aught I know, all the would be useful things mentioned in the plaintiffs' specification may have been or not, if it be included in the former specification.

ther a machine made according

shown that a machine constructed accord

The specification of the patent of 1815 was read. That was ing to the subfor a machine with rotary cutters, which were to shear the cloth sequent patent from end to end.

It appeared that the defendant's alleged infringement of the patent consisted in making a machine with rotary cutters, to shear from list to list, but that he had not used either the first, second, or third of the improvements stated in the plaintiffs' specification. It was also proved that shearing from list to list by machinery to carry shears, was known before the date of the plaintiffs' patent, and also that rotary cutters to shear the cloth from end to end were known before that time. It was proved that the plaintiffs' improvements were all useful.

F. Pollock for the defendant. The old mode of shearing was from list to list, by machinery to carry shears in that way. The plaintiffs have combined a rotary cutter, which was a thing well known before, with three other things, which the defendant has not infringed upon. Now I submit that the rotary cutter being old, we had a right to use it in shearing from list to list, which was the old way of shearing by means of shears, though perhaps rotary cutters had only been used in shearing from end to end. The defendant has not infringed on any of the three things which the plaintiffs claim. The plaintiffs have no right to claim the going from list to list as their invention, and we have only sheared in that way with a rotary cutter instead of shears, that species of cutter being old, and not of the plaintiffs' invention.

Lord TENTERDEN, C. J.: It is not material whether a machine made under the patent of 1815 is useful or not, as it is shown that the plaintiffs' machine is highly useful. The case stands thus; it appears that a rotary cutter to shear from end

is useful.

The shearing

to end was known, and that cutting from list to list by means from list to list of shears was also known. However, if before the plaintiffs' by a rotary cutter the subject- patent the cutting from list to list, and the doing that by means patent, indepen- of rotary cutters, were not combined, I am of opinion, that this is such an invention by the plaintiffs as will entitle them to maintain the present action (r).

matter of letters

dently of the particular

means.

Verdict for the plaintiffs. Damages 1s.

In the ensuing term, F. Pollock moved for a new trial on affidavits, but no question was made as to either of the points decided at the trial. Rule refused.

A party took

LEWIS & ANOTHER V. MARLING.

Cor. Lord Tenterden, C. J.

[4 Car. & P. 52.]

This was another action for an infringement of the same out a patent for patent as in the preceding case.

an improved shearing machine, to shear woollen cloths, and claimed four things as his invention:

a proper sub

Scarlett, A. G., for the plaintiffs, contended that the jury ought to give considerable damages, as the validity of the patent had been litigated in that case.

The specifications of the two patents (s) were put in, and read. one of them was, In the specification of the second patent, upon which this action stance to brush was brought, the plaintiffs claimed as their invention four the cloth. In things (t); one of which was "a proper substance to brush the describing cloth," and this was described in the specification as follows:in the specifica- " A narrow strip of plush is fixed on the surface of the cylinder, plush to be used parallel with the wire, to answer the purpose of a brush for for this purpose, raising up the wool, which is to be shorn off the cloth; or, in

the machine

tion, he directed

but he nowhere

was an essential

stated that this stead of the plush, bristles may be inserted on the cylinder.” Evidence was given of the novelty of the invention, and of chine. Before the defendant's infringement of the patent.

part of his ma

party's inven

the time of this A witness stated, that previous to the use of the plaintiffs' tion some kind machine, some substance had been always used to raise up the wool to be shorn, but that it was found that, in the plaintiffs' used, but it was machines, it was unnecessary, if more than one cutter at a time

of brush had

been uniformly

(r) This direction of the learned judge is founded on the assumption, that the shearing from list to list by a rotary cutter is of the essence of the plaintiffs' invention, and that the shearing cloth in that manner would be an infringement of their patent, independently of the particular means employed. The plaintiffs being the in

ventors of that mode or principle of shearing, the precise arrangements are of secondary consideration.

($) According to the ruling of the learned judge in the preceding case. Ante, 489. (t) See ante 488, & n. q.

ascertained, that

was used on the cylinder; and that, in point of fact, this plush subsequently never was used. He also stated, that the plaintiffs had only with this mamade one machine which had it; and that out of one thousand chine no brush and more of their machines that they had sold, none of them Held, that this had any plush, or any other substance, to raise the wool.

was necessary.

did not invalidate the patent.

tent for a ma

chine was made,

chine was be

F. Pollock, for the defendant: I submit that the plaintiffs Before a party must be nonsuited. The plaintiffs claim this plush as a part of took out a patheir invention, and its application is minutely described in the chine, a model specification. Now, the witness says, that the plaintiffs never of a similar maeven sold a single machine that had this plush applied to it; unknown to and I apprehend, that where a patent is taken out for a ma- him, and a machine consisting of several parts, and one of them is wholly gun to be made useless, the patent is void. It may be said, that it is a hardfrom it, but no similar machine ship that the party should be obliged to make a specification was ever used in before he has completed his invention; but to do that, time is this country bealways given: I admit, that if a machine is described in general, Held, that this it would be no objection that some particular part might ficient to defeat be made better, but here this plush is claimed as a specific the patent. invention.

Scarlett, A. G., for the plaintiffs: The argument on the other side is, that if a man makes an improved machine, combining with it something that was always thought necessary, and it be afterwards found that his improvement is so good that it dispenses with this thing that was always thought necessary, he is to lose his patent. The public is not deceived, and the only objection now is, that it was found, a year after the taking out of the patent, that if more than one cutter were applied the plush was unnecessary.

Brougham, on the same side. We say, that one of our novelties is the using of a brush of plush upon the cylinder, and that is an improvement upon the older modes of brushing; in the same way we say, that our rotary cutters are an improvement on shears used by hand.

F. Pollock, in reply: If the thing was beneficial at the time of the invention, I admit that it will not vitiate the patent that it becomes of no use by means of something invented afterwards; but here, the patentee claims as an invention a thing that with his machine is useless.

fore the patent.

was not suf

substance,

wards aban

doned,

Lord TENTERDEN, C. J.: This is a patent for an improved The claiming to machine for shearing woollen cloths, which is to be effected by use a particular means of rotary cutters going from list to list. In his specifi- which is aftercation the plaintiff claims several things as of his invention, one one, will not of them being the application of a proper substance to brush vitiate a patent, the cloth. It appears, that before this patent the universal if the public are practice was to raise the wool by means of some kind of brush: the crown here the patentee claims the exclusive use of this plush for that deceived. purpose, but not as an essential part of his machine. He claims it as his invention, and states it to be a novel mode of

not misled or