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Lord BROUGHAM: Their lordships think, that regard being Judgment. had to the benefit which the public are likely to receive from this manufacture going on, and regard being had also to the peculiar circumstances of the Temple contract being the first time it has come into notice, there ought to be an extension for the term of seven years.
Cor. The Lord President; Lord Brougham; Lord Campbell ; July 15, 1843.
and Dr. Lushington.
This was an application by the patentee, in conjunction with the assignees, of letters patent granted the 9th of September, 1839, to Thomas Morgan, for “a new method of manufacturing or preparing iron plates, or black plates for tinning.”
Sir W. W. Follett, S.G., and Webster, in support of the petition; and Sir F. Pollock, A. G., for the crown.
It appeared in evidence, that according to the old process of manufacturing tin plates, the iron or black plate, preparatory to tinning, was scaled, that is, the oxydated surface removed, by manual operation, after being placed in a furnace; this was a wasteful mode, and the whole of the scale was not perfectly removed; the plate after being scaled was cold-rolled, for the purpose of giving it a smooth surface, and then cleaned with sulphuric acid. According to Mr. Morgan's invention, the plate was prepared for tinning by pickling in sulphuric acid, the effect of which was to remove all the scale. This was a more effectual and cheaper mode, and the tinned plate has an improved appearance. The saving effected was estimated at from 10d. to 18. on a box of tin plates, value about 20s. It appeared that the inventor was a working man at £2 a week, and having been unsuccessful in his first attempts to get the invention adopted by a large manufacturer, with whom he had entered into an arrangement, nothing was done with the invention until 1840, when he sold the patent to Messrs. Lewis, for £200, reserving to himself a right to use the invention at works in which he was a partner, and at which about 150 boxes a week were made. It appeared that the Messrs. Lewis had made from 15,000 to 18,000 boxes a year during the last three years, and received £300 a year for licenses.
Lord BROUGHAM: When applications are made to their Judgment. lordships for the extension of a patent term, that is to say, of a monopoly, under letters patent by assignees, to whom the interest of the patentee has been parted with, and in whom it is
hat they are three year whether an
In the Privy vested, their lordships have always been used to consider, that
by taking into their view and favourably listening to the applithe inventor is cation of the assignee, they are, though not directly, yet medi
hately and consequentially, as it were, giving a benefit to the sulted through the assignee. inventor, because if the assignee is not remunerated at all, it
might be said that the chance of the patentee of making an advantageous conveyance to the assignee, would be materially diminished, and consequently, his interest damnified. For this reason, consideration has been given to the claims of the assignee who has an interest in the patent.
Their lordships applying this principle to the present case, would look at the situation of the assignees, and it appears from the evidence that they have made a profit in two respects ; first, in the saving effected upon their 15,000 to 18,000 boxes, of somewhere about 10d. a box, and the small amount of sulphate of iron that is made, being somewhere about £60, making altogether about £700 per annum for three years; and secondly, the amount of £300, or thereabouts, for licenses; no evidence being given of that, but it being suggested that it amounts to about £300. Taking it at that, it would make the remuneration that they have had amount to £3000, that is to say, £1000 a year during three years. It appears, therefore, to their lordships, in considering whether any additional term should be granted to them, that the amount they have made is a very reasonable amount for any thing they have a right to expect. So much then as to the claim of the assignees mediately to the interest of the patentee.
Now, as to the patentee himself, who really appears nominally only a party to this application. The patentee has made by his bargain with the assignees £200,-£100 of which has been paid, and the other £100 is yet to be paid; and it is said, that he makes about £7 a week in partnership with two others, leaving him a profit of about £2 a week.
Their lordships do not consider that this invention is entirely without merit, but it seems of a very moderate degree, being the substitution of the chemical process of washing with sulphuric acid for the scaling process by fire, making a cheaper and somewhat better article. It is not without merit, at the same time it cannot be said to be of very great merit-merit which could lead their lordships to strain much in favour of the inventor.
Their lordships upon the whole are of opinion, that if they were to grant an extension of the term in this case, either with a view to the inventor himself, or to his assignees mediately towards him, they hardly could ever resist any future application that might be made. It is any thing rather than a matter of course that an application of this sort should be granted. Formerly it was most difficult to obtain an extension of a
patent. An act of parliament was very seldom indeed obtained A. D. 1843. by an inventor, great as his merits might be, and small as his gains might have been. It is by no means the course of their lordships-as has been frequently said, and by myself lately, in giving the judgment of the court in a recent case-it is by no means their course to put themselves precisely in the situation of the legislature, and never to grant an extension in a case where an act of parliament could not have been obtained. At the same time there are some limits to this. They are to look to a certain degree at the position in which they are placed, and to consider that they here represent the legislature, and that they are invested with somewhat similar powers of discretion to those exercised formerly by the whole three branches of parliament. And therefore, they by no means intend to have it understood (as has been repeatedly said in these cases), that it is any thing like a matter of course, that upon a case being produced of small merit, and proportionably small consequence, especially in the circumstances of its being the assignee that makes the application, that it is any thing like a matter of course, that they shall grant the application; and upon the whole, their lordships see no reason for granting this application for an extension.
Other Cases. The following cases of application to the Judicial Committee of the Privy Council, for an extension of the term of letters patent have occurred :
Bate's Patent. This was an application (9th of March, 1836,) by the patentee for an extension of the term of letters patent, granted 21st of March, 1822, to Robert Bate, for "certain improvements on hy. drometers and saccharometers."
The petition stated the expenditure of a large sum of money in experiments, carried on during many years, upon the expansion of liquids at different temperatures. That the experiments upon the infusion of malt, or wort, alone amounted to 346, the results of many of which were calculated to a unit in the fifth place of decimals. That the improved instruments were essential to the Excise, and at the time of the petitioner's invention five different instruments were employed for the purposes to which the new instrument is applicable. That the petitioner's instrument was more correct, and would supersede the old instruments, but could only be introduced generally by the assistance of the Commissioners of Excise, which assistance the petitioner was on the point of obtaining.
The petition was lodged 16th January, 1836, and on the usual application being made shortly afterwards for an early day to be fixed for the hearing, their lordships intimated, that as the English patent did not expire till the 17th of June, 1837, the profits accruing in the mean time might materially affect the question of extension, and the application had better stand over for the present. . (Feb. 1837.) W. H. Watson renewed the application for a day to be fixed for the hearing, and suggested to the committee the difficulty in which the postponement of the former application bad placed the petitioner as to the notices on the caveats of the opposing parties; whether the old notices would be sufficient.
Hindmarsh objected that the old notices could not be sufficient, as fresh parties had become interested in opposing the patent since the date of the previous application. Special leave had been given to one of these parties to enter a caveat.
Their lordships declined giving any opinion on the question of the notices, but intimated that the best plan would be to fix as late a day as convenient for the hearing, and the petitioner to act as he should be advised as to proceeding on the old notices or giving fresh notices.
The hearing was fixed for the 22d day of April.
(June 24, 1837.) The petitioner having abandoned the above petition, Corrie, on an affidavit of facts, applied on behalf of one of the opposing parties for the costs which he had been occasioned in the matter of the above petition.
Their lordships granted the application for costs.
Macintosh's PATENT. This was an application in respect of the several letters patent, granted in 1823, to Charles Macintosh, for “rendering certain substances impervious to water and air." (See ante 582, n. 6.)
QUARRILL'S PATEXT. This was an application (June 30, 1840) by the assignee, under an assignment from the executris, the widow of the patentee of letters patent, granted the 20th of December, 1826, to Thomas Quarrill, for “improvements in the manufacture of lamps."
It appeared that between 600 and 700 lamps had been sold during Mr. Quarrill's life-time, at a profit of about 10s. a lamp, the selling price being about 30s. ; that the petitioner had purchased the stock in trade at a fair value, and had been no loser by the transaction.
Their lordships refused the application. Their lordships also intimated, that with regard to the question of remuneration, the actual expenses must be shown; that it was not sufficient to state there had been neither loss nor profit.
BODMER'S Patent. This was an application to extend the several terms of the letters patent granted to J. G. Bod. mer, for “ certain improvements in machinery for cleaning, carding, drawing, roving, and spinning of cotton and wool ;" the letters patent for Scotland, Ireland, and England, bore date the 18th of August, the 7th and 14th of October, 1824, respectively.
The petition was duly presented (31st of May, 1838), and notices of intention to apply on the 26th of June, for a day to be fixed for the hearing, duly given by advertisement. On that day two caveats were entered, under which the parties being respectively entitled to four weeks' notice, the ordinary sitting of the Judicial Committee would have terminated before the petition could be heard, and the letters patent would have expired before the sittings could be renewed after Michaelmas Term. Under these circumstances their lordships appointed the 17th of August, for the hearing, but a sufficient number of members could not be obtained to form a council. The 29th day of November was then appointed for the hearing
(Nov. 29, 1838.) The above petition came on for the hearing, the caveats having been withdrawn..
Sir J. Campbell, A.G., on the part of the crown, objected that their lordships had not power to entertain the application after the letters patent had expired, the statute 5 & 6 W. 4, c. 83, s. 4, requiring that the application should be prosecuted with effect before the expiration of the term originally granted by the letters patent.
Their lordships were of opinion that the above objection was fatal; that the words “prosecuted with effect,” meant that something more than the application by presenting the petition, and obtaining a day to be fixed for the hearing, must have taken place to satisfy the proviso of the statute.
It may be suggested, whether the terms "prosecuted with effect” in the statute, do not mean, or would not be satisfied by, obtaining the report of the Judicial Committee of the Privy Council.
WOODCROFT'S PATENT. This was an application (Feb. 11, 1841) for an extension of the terms of the letters patent, granted (A.D. 1827-8) to Bennet Woodcroft, for “certain processes and apparatus for printing and preparing for manufacture yarns of linen, cotton, silk, woollen, or any other fibrous material."
The subject of the above patent was printing yarns, which, after they were printed, were to be woven into cloth, the yarns so printed being the warp. The cloth made of such yarns had a peculiarly clouded or shaded appearance, and the above invention gave rise to the clouded or chenie silks and fabrics, recently brought to so much perfection (see account of these fabrics by G.T. Kemp, Esq., in the 54th volume of the Transactions of the Society of Arts). It appeared that during the first four years printed cotton yarns, and goods manufactured from them, were in great demand, and that a considerable profit (£7000) was realized, but that from the removal of the duty on printed calicos (the printed yarns not being subject to duty) and other causes, a large capital invested in working the patent ceased to be profitable, and the invention to be little used, so much so, that in 1835 the patent right, on a cer. tain valuation of partnership effects, was not estimated at more than £600. In 1839, in consequence of the importation of certain French silks, manufactured of printed yarns, the invention under a somewhat improved form became very valuable, and led to the introduction of the new class of silk goods above referred to. It appeared that the method described in the specification of the above patent answered perfectly well for simple patterns, but that it failed for the more elaborate patterns and the brighter colours, which required the yarns to be washed after printing
The application was opposed on the ground (among others), that the invention in its present improved form was introduced from France in 1839 by other persons than the petitioner.
(May 20, 1840.) The act 2 & 3 Vict. c. 67, having been passed to obviate the hardship of the above case, the application for an extension of the terms of the above patents was renewed. Proof having been given of the insertion of the adver. tisements, as in the case of an application under the statute 5 & 6 W. 4, c. 83, and of the merit of the invention, and that no remuneration had been received till within the last three years, and that only of a moderate kind, their lordships recommended the extension of the term for seven years.
The new letters patent were accordingly granted, bearing date the 18th of July, 1840.
of by the public, will not vitiate subse-
As where before plaintiff's invention
The abandonment of a mode raises a due up to a certain period into court, and
Ample justice may be done to the
The abandonment is an important 168.
The abandonment is almost decisive, ACTS OF PARLIAMENT.
Letters patent extended by act of
parliament, 37 & 40.
ACTION AT LAW.
A party against whom an injunction
has been granted will be permitted to
have the validity of the patent tried at
law. Russell v. Barnsley, 473.
tinuing an injunction, and refusing to