they were the same as this, and those used by the defendant; the one was fluted, and the other covered with leather; first they were fluted wood upon an iron axis; the other was the same, only covered with calves' leather; that he originally made them of a different proportion, and one to move faster than the other.

alteration must

If there was any alteration that the defendant made that was Any material material, it ought to be stated, but in speaking of that article, be stated. the specification is perfectly silent as to the material or the form in which it should be made.

A witness, Kay, says, one roller turned faster than the other; and there was a use in this, because it was to draw the cotton finer. In this also the specification is perfectly silent. In the plan one appears to be something smaller than the other, but how much, or what were to be the relative dimensions, or upon what scale they were to be made, the specification says nothing. Crofts, who was employed by the defendant to draw up the specification, told the defendant it was imperfectly done, and would not answer the purpose; defendant said he meant it should operate as a specification, but to be as obscure as the nature of the case would admit.

I begin with this evidence, because it is very material to be considered whether the specification, in any part of it, bears a doubt; because the obscurity of it was pointed out to the defendant before he made it, and he then professed to make it as obscure as he could; his object was to get the benefit from the patent so far as putting money in his own pocket, but as to the benefit the public were to receive, it was to be kept back as far as it could. Immison says, that from the specification he should have made a parallel cylinder, and not a spiral one, but this is the one used by the defendant. As to the rollers, it does not appear from the specification some were to go faster than others; from the specification, without other sources, it is impossible to say how they should be made, as there is no scale or plan to work by. A roller is necessary to the feeder to give regular direction to the work; it will not answer without it. From the knowledge he has now, he should add a roller if he was directed to make the machine. But that does not prove the specification Specification into be sufficient, because if a man from the knowledge he has got formation must from three trials, and seeing people immediately employed about be derived from it, is able to make use of it, it is his ideas improve the plan, and other sources. not the merit of the specification; if he makes it complete, it is his ingenuity, and not the specification of the inventor. He says as to No. 5, it will not work five minutes together before it will be entirely full of cotton; he is asked, supposing the cotton was to be spread upon the feeder only the breadth of the fillers, would it have that effect? He says it would not do even then. (The learned judge commented on the evidence of several other witnesses to the imperfection of the specification.)

sufficient if in

The defendant's

Mr. Pilkington says, that Mr. Arkwright gave him some cases which he was to present to the House of Commons, and desired the witness would read them, and promised to send him more by his servant, which he did. Those which were delivered by the defendant seem to me to be material, because they show what the defendant's sense of this business was immediately after the first trial. It has appeared from what has been said upon both sides, and it was so stated in this case, that he was beat upon the first trial upon the subject I am now stating to you, that is, the specification. He admits in that he has not properly specified how the machine was made, and he says he purposely (in prevention of an evil, that foreigners might not get them) omitted to give so full a description of his inventions in the specification attending the last patent as he otherwise would have done. This he admits, and he goes on and states a trial in Westminster Hall in July last, at a large expense, when solely by not describing so fully and accurately the nature of his last complexed machines, as was strictly required by law, a verdict was found against him: he bows with the greatest submission to the court and the verdict against him, and he deprecates the favour of parliament.

Now in a case where an invention is lucrative to so enormous acquiescence in a degree as you have heard, and where the verdict was given diet raises a pre- against him upon a particular point, had he not been most thosumption against roughly convinced that the verdict was right, or if he could by any

the former ver

him.

Evidence for defendant.

[Printed case, 177.]

explanation have supported his specification, is it to be conceived for three years and a half he would lie by and totally lose the benefit of his patent? But excepting this application to parliament, which does not go upon the grounds of his patent being good, but abandoning it on account of his own fault, and desiring favour and bounty there, he relinquishes the patent for three years and a half.

This is the evidence upon the part of the prosecutor against the specification, and it is material to see a little how the defendant's counsel endeavour to support it. Here is a specification that states ten different instruments; it is admitted by them that as to No. 8, it is of no use, and never was made use of by the defendant in his machine. It is also admitted, No. 9 stands exactly in the same situation, as these could not be put into the machine. This is a little extraordinary, for if he meant to make a fair discovery, why load it thus with things that they make no use of, and which are totally unnecessary? That could answer no purpose but to perplex. But, say the counsel, we will show you that there were two machines, and they were two distinct things, for, say they, No. 3, 4, and 5, are the material parts of one machine, and those alone afford all the information necessary. Then, besides that, there is the roving machine, which consists of No. 6, 7 and 10, joined together. If that be the

truth of the case, and there are to be two distinct machines to be made up by parts only of the instrument specified in this plan, let us see whether it is so said in the specification ;-there is not a word of it. It begins with the first, or No. 1, which is a breaker or beater of seeds and husks, and a finer of the flax, hemp, and other articles which are to be prepared for dressing. Then, says the counsel, there was a difference as to those things, because the hammer was proper for the hemp, and not proper for wool; if there be that difference, it was necessary for the defendant to state it in his specification; but he has made no distinction; he has left to those who are to learn his art and secret to use the same machine for every part of it. He has not distinguished between the cotton and the flax; the specification states that it is proper for every thing. Is it so? It is admitted it is not. Is there any thing which states that these parts are for two machines, and how they are composed? That the specification is totally silent about. What is there in the specification that can lead you to say that you must make use of three things for one of the machines and three for the other, and which three for one or the other? and even if it were so, what is to become of the other four? If those are of no use but to be thrown in merely to puzzle, I have no difficulty to say upon that ground alone the patent is void, for it is not that fair, full, true discovery which the public have a right to demand from an individual, who, under the sanction of parliament, gets so great a reward as a monopoly for fourteen years together.

However, upon the part of the defendant, they have called several witnesses to show you it is perfectly intelligible, and that they can make the machines from this specification. Wilkinson took his information, or a great deal of it, from the defendant himself, and supposing it true that he or any other person instructed by the defendant, and having seen what he does, can make a machine from the specification, yet that will never support it, unless other people from the specification itself, who have any knowledge in the business, can also do it. That is not the case with this man; but the last thing he says is also a material thing against the patent, for he says, for different purposes different proportions of the rollers are necessary. How is any man to find that out? It is not said in the specification it must be different in the one case from the other, and that you are to have different rollers for hemp or for cotton. All this remains to be the subject of a future discovery. Moore says, with due attention to the old machine, and an accurate attention to the specification, I could direct a skilful artificer to make the machine. This is all that a very ingenious sensible man can say of this specification. He has examined the instruments and machine, and seen a great deal of it between the trials, and at last he believes, with all the extreme caution that I have mentioned

If additions be requisite, the specification is insufficient.

to you, that he could direct a skilful artificer to make the machine. He says, that as to No. 3. a piece of cloth with cotton or any other material that was to be carded, rolled up in it, would certainly move much better and more steady with a roller within side, but it would do without it. If wanted, he thinks it would easily occur to a mechanic to put it in, that is, that a sensible man would have understanding enough to supply any defect in this specification; but in this case it proves the specification is insufficient. It will not do of itself, but wants something to be added, it is deficient, and there is nothing in the specification that imports there should be a roller in it.

Now it is admitted by the former witnesses, if there are sections of rollers, there ought to be a scale, and there is no scale, there is nothing in the plan to show the different comparative velocity of the rollers, but there will be a difference, because the one is larger than the other in diameter.

was.

You see how that applies to this part of the evidence. There is nothing, says he, that shows what the difference of velocity should be, that remains for experiment hereafter. Is that the case with the defendant? No, he knew to a certainty what it The man that comes to give an account of the invention, says, I had calculated it, and the difference of the velocity was to be as five to one; this is the way I made my rollers; now the defendant has not said a word of that in his specification. In that he has kept back the knowledge he had as to the size of the rollers, and velocity, and it is left to people to find it out as chance may direct.

Wood put No. 4, 5, 6, and 7, together, and that machine he has worked ever since; he don't recollect that the defendant used any thing else. If that be true, it will blow up the patent at once; he says he believes nobody that ever practised would find any thing necessary upon this paper but the No. 4, 5, 6, and The insertion of 7; he should look after no others. Now if four things only more things than requisite a fatal were necessary instead of ten, the specification does not contain a good account of the invention. As to the can, he made use of it without rollers at the mouth; he thinks it answers just the same without it.

defect.

This is the evidence that relates to the specification upon the one side and the other. You see upon the part of the prosecution they have called to you very ingenious men, that seem to be much beyond what are called common mechanics in life; they have all told you it is impossible for them to make the machine according to the specification.

Upon the other hand, several respectable people are called upon the part of the defendant, who say they could do it, but there is this difference in their description; most, if not every one of them, have looked at and seen how the machines were worked by the defendant, and have got their knowledge by other

means, and not from the specification and plan alone; besides, they admit the manner the defendant works it is not consistent with the plan laid down, particularly as to the cylinder, a particular part of the business, for Moore says, this upon the face of it must be taken to be a parallel, whereas that which plainly appears to be used is a spiral; besides, after all this, they have spoken most of them in a very doubtful way, particularly Mr. Moore, who qualified his expression in the way which I have stated to you, and the others qualifying their expressions, saying they think upon the whole they could do it. Suppose it perfectly clear they could with the subsequent knowledge they had acquired, yet if it be true that sensible men that know something of this particular business, and mechanics in general, cannot do it, it is not so described as is sufficient to support this patent. It will be for you to say upon this part of the case whether you are satisfied this specification is such, as, with the plan, it may be made from it or not, taking the old machine into its assistance, which by the bye the specification has not taken notice of as known. If you think it is not sufficiently described, that alone puts a complete end to this cause, and then it will be unnecessary to trouble you with any other.

As to the other points, there are two; first, whether it is a [Printed case, new invention; and, in the next place, whether it was an inven- 182.]

tion made by the defendant. Now if, in your opinions, it is material to go into these points, I think the law in general is very different on them from what I have stated in the specification, because in the case of an invention many parts of a machine may have been known before, yet if there be any thing material Any thing maand new which is an improvement of the trade, that will be and an improvesufficient to support a patent (e); but whether it must be for ment in the the new addition only, or for the whole machine, would be trade, will supanother question. It seems to me not to be necessary now to state precisely how that would be, because this patent is at

terial and new,

port a patent.

(e) This dictum of the learned judge seems to present an admirable test of the sufficiency of an invention to support letters patent. The improvement of the particular trade is the principle upon which the policy of such limited monopolies rested, and in many cases the materiality and importance of the change can only be judged of by the effect on the result, which effect is tested by the improvement in the trade in the commercial sense of the term, that is, by the production of the article as good in quality at a cheaper rate, or of a better quality at the same rate, or both these partially combined. Thus the latter words, "improvement of the trade," define and explain the preceding, and the utility of the invention as ascertained by this result becomes, in cases of this kind, the real test. In other cases, as when some particular instrument or machine is the subject of the patent,

the same test is indirectly applicable. This view is suggested by the Court of Exchequer in their elaborate judgment in the case of Morgan v. Seaward. Parke, B.: "On a review of the cases, it may be doubted whether the question of utility is any thing more than a compendious mode introduced in comparatively modern times of deciding the question whether the patent be void under the statute of monopolies." 2 M. & W. 563. So that whenever utility is proved to exist in any great degree, sufficiency of invention to support a patent may be presumed; and if such invention be any manner of manufacture, and new, and the specification be sufficient, the letters patent for such invention will be valid in law.

Upon this test the decision in Brunton's case was correct, his anchors not being so good as those made in the old way.