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 INCI 
 
 OF T 
 
TREATISE 
 
 OK 
 
 THE PATENT LAW 
 
 OF 
 
 THE DOMINION OF CANADA, 
 
 iNCLrDiNG The Revised Latent Act, as Amended to Date, 
 
 WITH Annotations. The Patent Office Rules and 
 
 Forms, General Forms, and Forms Relating 
 
 to Practice in the Exchequer 
 
 Court of Canada, Etc. 
 
 i 
 
 BY 
 
 JOHN G. RIDOUT, (late c.e.) 
 BARRISTER, SOLICITOR, ETC. 
 
 OF the Firm of RIDOUT AND MAYBEE, Solicitors 
 OF Patents and Er^-ERTS, of the City of Toronto, 
 
 Canada. 
 
 TORONTO : 
 
 ROWSELL & HUTCHISON, 
 
 74 AKD 76 KiMO Stbest East, asd Cotjkt Street, 
 
 Lata Publishers and Booksellers. 
 
 1894. 
 
R5^ 
 
 Entered according to Act of the Parliament of Canada, i the year one thouB- 
 and eight hundred and ninety-four, by John Gibb iiDOUT, of the City 
 of Toronto, Barrister-at-Law, at the Department of Agriculture. 
 
JOII!) O. KiDOlT (Utb C.E.), 
 
 Barritter, Sol%eitor, Notary, etc. 
 
 Jia. Kdw. Matbm, 
 
 Meehanieal Kt^/ineer. 
 
 Patent Suits Conuitctkd a8 Solicitor or Counsel. 
 
 KkPOKTS rKEPAKEU F(»K OTHER COUNHEL. 
 
 RIDOUT & MAYBEE, 
 
 Solicitors of Home and Foreign Patents, 
 Mechanical and Electrical Experts, 
 
 103 Bay Street, Toronto. 
 
 PREFACE. 
 
 This work is based on about 1,100 cases, and its object is to 
 [novide a Treatise on the Patent Law of Canada from a Canadian 
 st!M)dpoint, embodj'ing therein all the reported cases in the differ- 
 ent Provinces and in Canada from the earliest dates to the 
 present time, some unrepor':ed Ontario Cases and Standard Cases, 
 as well as a large number of the latest English and Amencan 
 decisions of Courts of Last Resort, not to be found in other text 
 books ; to analyze the pi'cvisions of our Revised Patent Act as 
 amended to date; to point out what are deemed errors and 
 inconsitencies, as well as to suggest improvements, and to en- 
 deavor to supply a want long felt by Canadian lawyers, as well as 
 by Solicitors of Patents in this and other countries. 
 
 As our present Act has been largely framed on old United 
 States enactments, besides containing matter original to this 
 i.ountry, and as in some cases British, and in others United States 
 authorities should be followed, care has been taken to select only 
 those English and United States cases which may be applicable as 
 precedents to the present state of our law or to illustrate differences, 
 and which bear on points of interest most likely to arise in the 
 practice of lawyers in Courts, as well as in the daily practice of 
 
IV 
 
 PBEFAOE. 
 
 Solicitors of Patents (who may not be lawyers) throughout all 
 parts of the Dominion. 
 
 Digests of judgments delivered as late as May, 1894, nml 
 which appear in recent reports of cases of interest in U. S. A., 
 England and Canada, have been made and noted. 
 
 The text of the Patent Act in the body of this work, as well 
 as in Appendix III., where the various sections have bten 
 assembled, includes all amendments up to date; the Acts being 
 noted at the end of each section. 
 
 The side notes relating to each of the sections of the Patent 
 Act, as amended to date, have been collected in the Table of Con- 
 tents at the commencement of this work, so as to indicate brietlv 
 the provisions of the Patent Act, and the pages where each of 
 the sections may be found, as v.^ell as the notes relating thereto. 
 
 Besides the Patent Office Rules and Forms in Appendix I. 
 there will also be found in Appendix II. a number of General 
 Forms relating to Patents and to Practice in the Exchequer Court 
 Canada, in scL fa. and other cases, which may be useful to prac- 
 titioners in the Courts and in the Putent Office, as well as to 
 inventors. The work also contains an outline of Exchequer Court 
 Practice, also matters relating to Appeals in Patent Cases to the 
 Privy Council, England. 
 
 Points of interest bearing on foreign patents and foreign 
 practice generally, are noted, but this branch of the work is 
 necessarily limited ; further information can be obtained from 
 Solicitors of Patents. 
 
 Seventy years have elapsed since our first Patent Act was 
 passed, and during the whole of this period there has been no 
 Canadian Treatise on Canadian Patent Law, or the work of a 
 Solicitor of Patents ; hitherto we have been obliged to rely entirely 
 on American and English text books, which, in many respects, 
 are manifestly inapplicable ; this, obviously, should not continue 
 to be the case. 
 
PREFAOE. 
 
 As a i)'oneei- work this i.s intended to be adapted to our own 
 Patent Act as amended to date, and is put forward with sonio 
 jnisgivings, for errors and oversights are likely to occur. If, how- 
 ever, it prompts discussion, and directs attention to various 
 matters of importance, to lawyers, Solicitors of Patents, and 
 inventors generally, a useful rnd will ite attained, and the work 
 may be, as it is hoped, the forerunner of an improved state of the 
 law, and of an improved series of Canadian text books. 
 
 As the country grows, the legal business in the Courts in 
 this branch of the law, as well as in the soliciting of Patents, 
 must increase in volume and importance, and will call for specially 
 trained men who are not only lawyers, but also mechanical, 
 electrical, and chemical experts, competent as draftsmen, and who 
 liave a large stock of general information relating to the arts and 
 science" genei'ally, and thus this somewhat difficult, but interest- 
 ing branch of the law, now occupied by Solicitors of Patents, may 
 be elevated to the rank of a science, instead of being left, in its 
 present unsatisfactory s^^^ate, as a means of livelihood for any 
 un(|uaiitied person. 
 
 Having had nine years' experience as a Solicitor of Patents, 
 aii<l having acted both as Counsel and Solicitor in some of the 
 most important causes in our Ontario and Dominion Courts, the 
 author trusts that in putting forward this work as the result of 
 some of his experince, he may be of assistance to the legal pro- 
 fession in Canada, as well as to the large number of Patent Solici- 
 tors in this and other countries who do business with our Patent 
 Office, and that he may also advance the interests of many 
 inventors and manufactureiij who are interested in the Patent 
 Law of Canada and its administration, and in the procuring of 
 properly prepared specifications, claims, and drawings of all 
 degrees of complexity, and relating to all classes of subjects. 
 
 JOHN G. RIDOUT. 
 Toronto, 22nd August, A.D. 1894. 
 
m 
 
 TABLK OF CONTENTS. 
 
 Pkkkack III-V 
 
 Errata vii 
 
 TaULE of AuHKKVIATIONS VIII . MI 
 
 Table ok Caseh Cited xiii- xi-i 
 
 Contents of Ciiapter II., conipriaing sidu notes relHting to 
 the Hectioiis of Tlio KoviHed Patent Act imd AmoncUng 
 
 Acts XLII-.XIA'I 
 
 Contents of Chapter III., conipming side notes relating to 
 Hub-Hections 4, 5 and 6 of section 30 of " The Bills* of Ex- 
 change Act, 1890" — re Notes, etc., given for Patent Rights xLvi 
 
 Patent Office Rules — side notes relating thereto xi.vu 
 
 CiCAI'TEK I. 
 
 Review of Early Legislation as to Patents of Invention ... 1 -20 
 
 Chapter II. 
 
 The Patent Act of Canada as Amended to date, with Anno- 
 tations 21-4(50 
 
 Chapter III. 
 
 On Bills or Notes given for Patent Rights 461-467 
 
 APPENDIX I. 
 Rules and Forms of The Patent Office, Canada 471-490 
 
 APPENDIX II. 
 General Forms and Forms Relating to the Exchequer Court, 
 
 Canada, Etc 491-.522 
 
 APPENDIX III. 
 
 The Patent Act of Canada, as Amended by The Acts of . 
 1888, 1890, 1891,1892 AND 1893 523-540 
 
 Index 541-587 
 
 Index to Appendix I. 588-589 
 
 Index to Appendix II 589-590 
 
ERRATA. 
 
 Should 1)0 4, Oeo. TV., c. 2r) I. 17, p. :\ 
 
 ShodUl bo " invention or " instead of " invention of "... . 1. ."5, p. 4 
 
 Should l.e 1 Wni. IV., c. '24 I. 24, p. r, 
 
 Should lead " an article " for " a patent " 1. 25, p, 7 
 
 •' Named " to ho inserted after " arbitrator " 1. 29, p. II 
 
 Add after " document," " affecting or " 1. 22, p. 10 
 
 •* Insufficiently," for " sufficiently " 1. 34, p. lU7 
 
 Should be " Ksteyv. Burdett" instead of "Eskyv.Burdett" 1. 13, p. 137 
 Huniphcrson v. Syer " 4 Rep. Pat. C?as." instead of " 4 
 
 Web., Pat. Cas." 1. 33, p. 144 
 
 Read " Intermediate " for " Immediate " in block letter head 1. 22, p. IHU 
 
 " Diverted " for " divested " 1. 3, p. 2')i\ 
 
 " Rollins V. Hinks " for " Hollers v. Flinks " 1. 23, p. 2G1 
 
 " Invalidity " for " validity " '. . 1. 12, p. 2!>2 
 
 " 5 Fisher " for " 4 Fishar " (Baldwin v. Beinaid) I. 10, p. 30(» 
 
 " Decree " to be substituted for "writ " on lines 12, 13 and IG, p. 30j^ 
 Should be read " Prouse v. Pagnuelo, 2 L. C. R.," instead 
 
 " 2 a. 0. R." 1. 28, p.' 312 
 
 ** The London and Leicester Hosiery Co." for " The London 
 
 and Lancashire Hosiery Co." 1. 25, p. 314 
 
 "The Courts hould fix the amount" instead of " to fix," etc., 
 
 in block letter head line 1. 35, p. 359 
 
 Substitute " licensor " for " licensee " on last line of p. 49G 
 
 The word " Under," in front of 12 Vic, ch. 24, sec. 22, to 
 
 be struck out 1. 30, p. 520 
 
 i 
 
VIII 
 
 ABBREVIATIONS. 
 
 AB]3REVIATIONS. 
 
 N.B.— Thosk Casks Maukkd with Asteuisk Rkfer to Cana- 
 dian WoilKS. 
 
 Ala Aliibaiim .Sii|ireiiii- Court. 
 
 Allen (Mau. ) Allun's ManHnohufiottH Miiprumu Court Rup. 
 
 App. Cam ApiMiul CaMCH. Kngliiili IIouhu of LordH ami Privy (!ounoil. 
 
 *App. K., Out Appeal KuportH, Ontario. 
 
 H. & A Ittiriiuwall & AldorHou's ReportH, K. H. 
 
 B. & Ad Barnewall k AdolphuH RuiMrts (Kng.). 
 
 H. & C liarnuwall Si Croai well's Ruporttt, K. \i. 
 
 U. & F Ho8an(|uet & I'uIler'H Report*, C. P. 
 
 B. & S Best k Smith's Reports, Q. B. 
 
 Han. k Ard Banning k Arden'a Circuit Court Rep., U. 8. 
 
 Barl). (N. Y. ) Barbour's New York Supreme Court. 
 
 Beav Bea van's Reports, Rolls Court. 
 
 Bing. N. C Bingimm's New Cases, C. P., Eng. 
 
 Bissell « Bissell's Circuit Court Cases, U. 8. 
 
 Bluck Black, U. S. Hupreme Court. 
 
 Dlackf Blackbird, Indiana Supreme Court. 
 
 Blatch Blatchford's Circuit Court Rep., U. S. 
 
 Bond Bond's U. S. Circuit Court Rep., 6th Circuit. 
 
 Brodix Brodix, English and American (8up. Ct.) Patent Coses. 
 
 Bump Bump on Patents, 2nd Edition. 
 
 BuhIi (Ky.) Bush, Kentucky Court of Appeals. 
 
 C. B. (N. S.) Common Bench New Series (Eng.). 
 
 (/. D Commissioner's Decisions (U. S. ). 
 
 C and F Clark k Fennelly's House of Lords Cases. 
 
 (y. L. R Common Law Reports. 
 
 C. M. & R Crompton, Meesan k Roscoe's Reports (Eng.). 
 
 *C. S. (.' Consolidated Statutes of Canada. 
 
 *C. S. U. C Consolidated Statutes of Upper Canada. 
 
 Cal California Supreme Court. 
 
 *Can. L. J Canadian Law Journal. 
 
 *Can. L. T Canadian Law Times. 
 
 Car. k Kir Carrington k Kirwin's Reports. 
 
 Car. jb M Carrington k Marshman. 
 
 Car. & P Carrington k Payne's Reports, N. P. 
 
ABBREVIATIONS. 
 
 IX 
 
 (IMM) Ch. Vol. 1 . . Lftw Ut-portK niivno«ry, Vol. 1, for I81W. 
 
 'i'sMulw' Di^mt CitMi'U' l)ii{»<itof .Supnimti Court I)«>oUIoim. 
 
 Ch. Ap ('hn .utry Apiw*! ('.M«a (Kiig.). 
 
 < li. I>iv rh/mcery Divinioii l,»w K«|)orta (Kiik.). 
 
 r'liit. i'rurog Chitty* Pn ro^ativits of tlif l'n)Wii. 
 
 I'l. Ac F C'lui-kn A Kiiullyn t{t!)M)rU, Hoiim) of Ix)r(U. 
 
 Clijr ClifforilH r. .S. Ciiciiit Court It.'iiorta. 
 
 CoUiur Colliur uii rArtnentliip, 'Jml K<l. 
 
 <'onri C'oniiectiutit .Siiprmiu' Court of I'rrorii (U. H.). 
 
 *Coii. iStnt. (.'an Coiisoli<lutf<l Stututii* of Cuiiitilii. 
 
 i 'ow. N. V Coweii, Xf w York .Supremo Court ami Court of Krrori. 
 
 Crunch Crunch, I'nitutl .St.Ucf< Surreme Court. 
 
 Curt CurtiH, U. .S. Circuit Court Kep., Ut Circuit. 
 
 CurtiH Curtix on I'litentn, 4th K<lition. 
 
 Curtii* C. C Cnrtiit Circuit Court ('«««« (U. S.). 
 
 • 
 
 bo (f. k J I)e Gex ami Jom-i' RvportsC'hiuicory (Kng.). 
 
 l>c (i., F. & J De Hex, Fiiiher & Jonei*' KcportH, Chancery. 
 
 l)i) (J., .1. A S I)e (iex, .lonon * Smith's Kuporti. 
 
 l>c ii., M. ft G Dc Gex, Mucniighten & Gonhtn. 
 
 DtmicU DuniulH* on Piitents (Kng.). 
 
 Dili Dillon'H U. S. Circuit Court Rep, 8th Circuit. 
 
 Duer (N, Y.). . . . New York City Superior Court. 
 
 Duryuo Duryeo oit AMftignnienta of Patent Right^i. 
 
 KilmumU KdmumU on I'utents (Kng. ), 1890. 
 
 El. & HI Elli* & Hlackhurn Roports, l}. B. 
 
 Kx. R WeUhy, HurUtone & Gonlon's Report*. 
 
 *Ex. ('t. R, Can. . . .Excheijuer Court Iteports (Can.). 
 
 Fed. Rep Federal Reporter (U. S. ). 
 
 Fiaher Fisher's Circuit Court Patent C/'ases (U. S.). 
 
 Frost Frost on Patents (Eng. ). 
 
 Gall Gallison, U. S. Circuit Court, Ist Circuit. 
 
 Gilpin Gilpin, U. 8. District Court, Eastern District of Pennsylvania. 
 
 Goodeve Goodeve's Patent Cases (Eng. ) . 
 
 *Grant Grant's Chancery Reports, Upper Canada and Ontario. 
 
 H. L House of Lord.i. 
 
 H. & N Hurlstoue & Norman's Reports Ex. (Eng. ). 
 
 Hem. & M Hcnnning & Miller, Chancery (Eng.). 
 
 Higgins' Digest Higgins' Digest of Patent Cases (Eng.). 
 
 Hindmarch Hindmarch on Patents (Eng.). 
 
 Holmes Holmes U. S. Circuit Court, Ist Circuit. 
 
 How Howard's Reports, Supreme Court (U. S.). * 
 
 Hughes Hughes' U. S. Circuit Court Reports, 4th Circuit. 
 
 Hun. N. Y Hunter's New York Circuit Court Reports (U, S.). 
 
 Hy. 61 Henry Blackatone Reporta (Eng. ). 
 
 B 
 
ABBREVIATIONS. 
 
 l! 
 
 
 Ind Indiana Supreme Court. 
 
 inst Coke's Institutes. 
 
 Iowa Iowa Supreme Court (U. S.). 
 
 .1. N. S lurist New Series. 
 
 .lohn Johnson's Reports, Chancery. 
 
 Jones (N. C.) Jones' North Carolina Supreme Court in Equity. 
 
 Jur. N. S Jurist New Series (Eug. ). 
 
 K. & J Kay & Johnston's Reports, Chancery. 
 
 Kay Kay's Reports, Chtmcc ry. 
 
 Kerr on Inj Kerr on Injunctions. . , 
 
 •L. C Lower Cana<la. 
 
 *L. C. J Lower Canada Jurist. 
 
 *L. C. U Lower Canada Reports. 
 
 L. J Law Journal Heports in all the Courts. 
 
 L. J. Ch Law Journal Chancery. 
 
 •L. N Legal News, Lower Canada. 
 
 L. R. Ch Law Reports Chancery Appeal Case (Eng. ). 
 
 L. R. Ch. D Law Reports Chancery Division (Eng.). 
 
 L. R. E. & I. App. . .English and Iriyh Appeal Cases. 
 
 L. R. Eq Equity Cases (Eug. ). 
 
 L. I!. Ir Law Reports, Ireland. 
 
 L. T Law Times. ' • 
 
 L. T., N. S Law Times, New Series (Eug.). 
 
 L. T. R., N. S Law Times Reports, New Series. 
 
 Lev Levintz Reports, K. B. 
 
 N.B. — Since January 2nd, 1893, L. 11. is omitted when referring to The Eu^; 
 lish Reports and the year (189.3), etc., takes its place. 
 
 M. & W Meeson & Welsby's Reports (Eng. ). 
 
 Mac. & G Macnaghten & Gordon's Reports, Chancery. 
 
 Man. & G Manning & Gr&'.ger. 
 
 Mason Mason's U. S. Circuit Court Reports, 1st Circuit. 
 
 McLean McLean U. S. Circuit Court Reports. 7th Circuit. 
 
 Me Maine Supreme Court. 
 
 Mer Meri vale's Reports, Chancery. 
 
 Merwin Merwin on Patentability of Inventions (U. S.). 
 
 Mich Michigan Supreme Court. 
 
 Mo<l Modern Cfi "es or Modern Reports. 
 
 My. & Cr Mylne & C'raig's Reports, Chancery. 
 
 Myers F. D Myers' Federal Decisions. 
 
 N. H New Hampshire Supreme Court. 
 
 N. B New Reports, Bosanquet & Pnllen C. P. 
 
 N. Y New York Court of Appeals. 
 
 its! 
 
ABBREYIATIONS. 
 
 XI 
 
 0. O Official Onzette, United States Patent Office. 
 
 Ohio St Ohio State, Ohio Suprtrne Court. 
 
 *Ont. App. R Ontario Appeal Ileport!>. 
 
 *Ont. Dig Ontario Digest (1880-189C). 
 
 *Ont. R Ontario Reports. 
 
 F. C Privy Council. 
 
 Pa Pennsylvania Supreme Coi;rt. 
 
 Pen. N. J. Rep Pennington New Jersey Supreme Court Reports. 
 
 Peters Petflra' U. S. Supreme Court Report. 
 
 Pick (Mass. ) Pickering Massachusetth Supreme Court Report. 
 
 P. 0. News The Patent Office News (U. S. ). 
 
 P. O. R Patent Office RepcMt-*, Kug. (Cutler). See R. P. C. 
 
 •Prac. Rep. (Ont.). ..Practice Reports (Ontario). 
 
 Q. li Adolphus & Ellia, Queen 'a bench Reports, New Series. 
 
 (189.S) Q. B. V. I Law Reports Queen's Bench Division, V. I. for 1893. 
 
 *Q. L R Quebec Law Reports. 
 
 •Q. L. R., S. C Quebec Law Reports, Suprtnne Court. 
 
 Renwick Ren wick on Patentable Invention. 
 
 *R. L Revue Legal (Quebec). 
 
 R. S Revised Statutes (U. S.). 
 
 •R. S. Revised Statutes Ontario. 
 
 ♦K. S. C Revised Statutes of Canada (U). 
 
 R. P. C Reports of Patent Cases, Eng. (Cutler). See P. 0. R., other- 
 wise abreviated 0. R. , Official Reports. 
 
 R. P. S Revised Patent Statutes (U. S.). 
 
 Rich. (S. C. Law Rep. ) . Richardson's South Carolina Law Reports, 
 
 Robinson Robinson on Patents. 
 
 Russ Russell's Reports, Chancery. 
 
 Salk Salkeld Reports, K. B. 
 
 Sawyer Sawyer, U. S. Circuit Court Rep., Northeni Circuit. 
 
 Sedgwick Sedgwick on Damages. 
 
 Stark Starkies' Reports, N. P. 
 
 Story Story's U. S. Circuit Court Reports, 1st Circuit. 
 
 Sumn Sumner's Circuit Court Reports ( U. S. ). 
 
 *Sup. Ct. R. (Can.) . .Supreme Court Reports (Can.). 
 
 *S. C. R Supreme Court Reports (Can. ). 
 
 Sup. Ct U. S Supreme Court United States. 
 
 T. Rep Term Reports (Dumford & East) K. B. 
 
 Terrell Terrell on Patents, Ist Edition. 
 
 *U. C Upper Canada. 
 
 *U. 0. C. P. R Upper Canada Common Pleas Reports. 
 
 *U. C. Q. B. R Upper Canada Queen's Bench Reports. 
 
 U. R United States Supreme Court Reports. 
 
 U. S. or U. S. A. . . . .United States or United States of America. 
 U.S.C.Ct. of Appeals. United States Circuit Court of Appeals. 
 
 0a 
 
i. f 
 
 XII 
 
 ABBREVIATIONS. 
 
 Vt. Vermont Supreme Court. 
 
 W. N Weekly Notes (Eng. ). 
 
 W. R Weekly Reporter (Eng.). 
 
 Walker Walker on Patents (U. S.). 
 
 Wall Wallace's Supreme Court Reports (U. S.). 
 
 Wallace Wallace on Patents (Eng. ). 
 
 Wash Washington, United States Circuit Court, 3rd Edition. 
 
 Web. P. C Webster's Patent Cases. 
 
 Wend. (N. Y.) Wendell's New York Supreme Court and Court of Errors. 
 
 Whart. (Pa.) Wharton's Pennsylvania Supreme Court. 
 
 Wis Wisconsin Supreme Court. 
 
 Wood Wood's U. S. Circuit Court Reports, 5th Circuit 
 
 lii 
 
 m 
 
OASES CITED. 
 
 XIII 
 
 CASES CITED. 
 
 N.B. — Those Distinguished by an Asterisk are Canadian 
 
 Cases, 
 
 A. 
 Abe-Ash. 
 
 *Abel V. McPherson 
 
 *A(lams V. Bell 
 
 Adams v. Burke -. 
 
 Adams Patent, In re 
 
 Adamson's Patent 
 
 Adair v. Young 
 
 Agawam Co. v. Jordan 
 
 *Aitcheson v. Mann 
 
 •Allen V. Reed 
 
 Allis V, Stowell 
 
 Alliance Syndicate v. Mclvor's Patents.. 
 
 American Bell Telephone Co. v. Spencer. 
 
 American Diamond Rock Boring Co. v. 
 Marble Co 
 
 American Pavement Co. v. Elizabeth 
 
 Amies v. Kelsey 
 
 American Wood Paper Co. v. Fibre Dis- 
 integrating Co 
 
 American Braided Wire Co. v. Thomson 
 
 American Milling Co. v. Atlantic Milling 
 Co 
 
 Andrews v. Hovey 
 
 Andrews v. Carman 
 
 Anglo-American Brush Electric Light Co. 
 
 V. King, Brown 'i Co 
 
 Ansonia Co. v. Electrical Supply Co... . 
 
 Armour v. Walker 
 
 Aron V. Manhattan R. W. Co 
 
 Ashworth v. Roberts 
 
 Ashworth v. Law 
 
 Page. 
 17 Grant, 18 Grant (App.) 121 
 
 1 L. C. R 2 
 
 17 Wall 231 
 
 21 L. T. Rep. 1 Web. P. C 431 
 
 25 L. J. Chy 67 
 
 llCh. D 263 
 
 7 Wall 54 
 
 9 Prac. Rep. (Ont.) 275 
 
 14 (J. L. R., S. C 
 
 36, 71, 84, 119, 135, 1315 
 
 15 Fed. Rep 30(> 
 
 R. P. C. vol. 8 316 
 
 8 Fed. Rep 2C2 
 
 2 Fed. Rep 306 
 
 6 Fish 407 
 
 22 L. J. Q. B 308 
 
 23 Wall 66 
 
 L. R. 44 Chy. (App.) 1890 . .249, 256 
 
 3 Ban. & Ard 300 
 
 16 Fed. Rep., 8 U. S. Rep., 123 
 and 124 U. S 67, 330, 425 
 
 2 Ban. and Ard 141 
 
 App. "as., 1892, H. L 144 
 
 O. G. 58, 144 U. S 121 
 
 32 W. R 316 
 
 19 Brodix 136 
 
 45 Ch. D., R.P.C., vol. 7, 60 L. J. 
 
 309, 311 
 
 R. P. C, vol 7 230 
 
XIV 
 
 Atw-Lat. I'AOK- 
 
 Atwood, Ex parte ■»« «>l «iv W' 
 
 Atlantic Giaut Powder Co. v. (ioodyour. :; Sim. * Ard 126, 2fl9 
 
 •Attorney General v. Bate , , . iL IL 2?. (Que.), 27 L. C. J 
 
 115,333. 337 
 
 ♦Attorney -General v. Hirkbeuk IIL' IL 3F., Q. B. D 463 
 
 Automatic VVeighing Machine Co. v. lu- 
 
 ternutioual Hygienic Co * Hi P. C 130 
 
 Automatic Weighing Machine Co. v. Tiit 
 
 National Exhibitions Aesocn, L'd *Q: P. C. (l«9l), 9 R. P. C. (1892) 
 
 289, 290 
 Automatic Weighing Machine (!o. w. 
 
 Knight HI ai P; C 289 
 
 Automatic Weighing Machine Go. ^v:. 
 
 Fearly Times L. R., vol. 10 128 
 
 Avery v. Wilson Jfliffrtil. Rep. 8r)7 30 
 
 Axmann v. Lund IL. R,, 18 Eq, 238, 2(il 
 
 Bacon v. Spottiswoode U Bbav. 262, 263 
 
 Bacon v. Jones -ttSCy. & Cr 301 
 
 Badische Anilin, etc., v. Levinstein iWO'b. DLv., etc 105, 128, 278, 309 
 
 (N. B. — Should be Lceusteiu on^aip* \X\fi), 
 
 Baird v. Maule's Patent Earth Closet C;u. IL BU L7 Ch. D 318 
 
 Baker v. Kennell ftl P: '^., voL 9 (1892) 120 
 
 Baldwin v. Bernard .Ti EihIi 300 
 
 (N. B.— Should be 5 Fish, instaad rf -B ffiidl. on p. 300). 
 
 Baldwin v. Sibley D Clilf. 150 226, 233 
 
 *Ball V. Crompton 'JiWnt. R., 12 A. R., 13 Sup. C. R. 
 
 (Can.) ... .40, 86, 120, 126, 134, 135 
 
 Ball V. Ray ;iOtIL T. If. S 267 
 
 Ball and Socket Fastener v. Kraitzer — (Ol <(^., voL 65 324 
 
 Ballard v. Pittsburg D^Heil. R 
 
 *Bank of Upper Canada v. Bradshaw . IL. R. 1. P. C. 267 
 
 Bantz V. Frantz fflff'GT. vS^. 177 
 
 •Basil V. Masterman . -filL. 15. 137 
 
 Barnes v. Strauss *aiiitch. 294 
 
 Barrett v. Hall D SCiaan 95 
 
 •Barter v. Howland 2ii<tkant 142, 175 
 
 •Barter v. Smith Ex.. Ct, R. (Can. ), vol. 2, Appx. 2. 
 
 34if, 340, 351, 353, 354, 359, 360, 
 mi, 3«4, 365, 368, 369, 370, 371, 
 
 372, 374, 386, 397, 399, 400, 414 
 
 Batley v. Kinoch IL. R. 19 Eq 308, 312 
 
 Bate Refrigerating Co. v. Gillett HKffad. Rep., 20 Fed. Rep. .80, 458, 459 
 
 Bate Refrigerating Co. v. Hammond m ffed. Rep., 19 Brodix, 129 U. S., 
 
 80, 458 
 
 It ■' 
 
OASES CITED. 
 
 XV 
 
 Bat-Bon. 
 
 l'.at« R<^frigeratiDg Co. v. Sultzberger ... 66 0. (^ 
 
 Batten r. Taggert 17 How 
 
 *Be*|n V. Merner 14 O. R., Can. L. J., vol. 
 
 Paok. 
 
 . 4.59 
 
 17fl 
 
 23.44, 236, 27S 
 
 i;eck. Ex parte 1 Brit. Crown Cas 430 
 
 j;e<ifonl V. Hunt 1 Mason 123 
 
 }'.«rcher Mfg. Co. v. Atwatei- Mfg. Co. . . 16 Brodix 142, 1 7S 
 
 Belding v. Turner « Blatch 2:i(> 
 
 Bell V. McCollongh 1 Fish 221) 
 
 *fiell Telephone Co. , In re 9 0. R 15'), 34H 
 
 MWII Telephone Co. v. The Teleplione 
 
 Mfg. Co 7 0. R 348 
 
 Bellas V. Hares 5 S. & R. Pa 
 
 Benni, Jaflfe, etc., Fabric v. Richardson 
 
 * Co 10 R. P. C 309 
 
 <X. B.— Should read Benni for Benno, 1. 33, p. 309). 
 
 BenMey v. Bignold a B. & Aid 4(14 
 
 Bentley v. Fleming (ioodeve (57 
 
 Benbow v. Law 16 Ch. D 321 
 
 l>erdon's Patent, In re L. K. 20 Eq 431 
 
 * Bemier v. Beanchemin o L. C. J 6 
 
 Bertholzeimer. Ex parte CD. (1870), p. 33 38 
 
 Betts r. Xeilaon L. R. 3 Ch 67 
 
 Betts V, de Vitre L. R. 3 Ch. App. Cas., 34 L. J. 
 
 Ch 262, 292, 306 
 
 Betts V. Wilmot L. R. 6 Ch. App. Cas 306 
 
 Betts V. Menzies 3 Jur. N. S 297 
 
 Bickford v. Skewes Webs. Pat. Cas 105 
 
 Binney v. Annam 107 Mass 296 
 
 Birch v. Mather 321 
 
 BirdseU v. Shalliol 15 Brodix 279 
 
 Bischoffv. Wetherel 9 Wall 81 
 
 (X. B. — Should read Wetherel instead of Wethered, on I. 23, p. 81). 
 
 Black V. Th.>m 15 Brodix 255 
 
 Black V. Hobbard 3 Ban. & Ard 423 
 
 Black's Law I'ictionary 91 
 
 Blake v. San Francisco N. N. Co 1 13 U. S 121 
 
 Blake v. Robertson 11 0. G., 94 U. S 254 
 
 Blakey & Co. v. Latham & Co R. P. C, vol. G 320 
 
 Blamonds Patent, In re 3 1,. T. R., N. S 431 
 
 Blanchard v. Spr- gue 3 .Sum 23 
 
 Bliss V. Haight 3 Fish 125 
 
 Bloomer r. Oilpin 4 Fish 231 
 
 Bloxam v. Elsie 1 Car. & Payne, 6 B. *, C. . . . 104, 281 
 
 <X.R— Should read Elsie instead of Elsee on 1. 7, p. 281.) 
 
 Bljthe. Ex parte G., vol. 30 95 
 
 *B(Miaduin V Bowmanville Furniture 
 
 Mnfg. Co 31 U. C. Q. B. R 12, 236, 278 
 
XVI 
 
 OASES CITED. 
 
 liiP 
 
 'In 'I 
 
 n 
 
 Bo«-Bnt. 
 
 Itoesoh V. Graff. 
 
 Booth V. Kennard 
 
 Booth V. Bank of England 
 
 Boulton V. Bull 
 
 Bovell V. Gooilier 
 
 Bovill V. Pimm k Hands 
 
 Boville V. Conte 
 
 Boving Co. V, Sheldon 
 
 Bowen v. Kerrimun 
 
 Boyd V. Farrar 
 
 Boyd V. Horrocks 
 
 Bozon V. Farlow 
 
 Brocher v. Bracher, Dean & Co 
 
 Brammer v. Jones 
 
 Bredson v. Mc Alpine 
 
 Bredson v. Benecke 
 
 Brett's Commentaries of Law of England. 
 
 Brian v. Piper 
 
 Bricknell v. New York 
 
 Britain v. Hirsch 
 
 British Tanning Company v. Groth 
 
 British Dynamite Company v. Kribs .... 
 
 •Broadhead v. Penman Mnfg 
 
 Brook V. Ashton 
 
 *Brook V. Broadhead 
 
 Brooks V. Becket 
 
 Brown v. District of Columbia 
 
 Brown v. Duchesne 
 
 Brown, Ex parte 
 
 Bruuton v. Hawkes 
 
 Brunton v. Hawke 
 
 Brush Electric Light Co. v. Electric Im- 
 portation Co. of St. Jose 
 
 Brush Jllectric Co. v. Electrical Accumu- 
 lator Co 
 
 Brush V. Condit 
 
 Buerck v. Valentine 
 
 Bull V. Pratt 
 
 Bulnois V. McKehzie 
 
 Bump 
 
 Paok. 
 
 20Brodix 2B0 
 
 2 Hurl. A; Norm 35 
 
 7C. &. F 465 
 
 2Hy. Bl 24,62,72,122 
 
 L. R. 2 Eq 281 
 
 11 Exch. R 287 
 
 L. R. 1 Eq 
 
 18 Blatch 295 
 
 2 Pearson (Pa.) 467 
 
 57 L. T. R.,.\. S., R. P. C. vol. 6.. 314, 321 
 
 6R. P. C. (1889) 287 
 
 1 Mer 
 
 R. P. C, vol. 7 303 
 
 3 Fi9h 300 
 
 L. R. 4 Ch. D 303 
 
 12 Beav 
 
 Vol. 1, p. 282 122 
 
 Page 319, Merwin 121 
 
 5 Ban. k Ard 423, 424 
 
 B. P. C, vol. 5 320 
 
 60 L. J. Ch.,8R. P. C 145 
 
 Goodeve p. 91.. 107 
 
 (Unreported) Ont 387 
 
 Goodeve 138 
 
 Exch. Ct. R., Can., vol. 2, 
 
 Appx. 2 377, 385, 38C, .387 
 
 9 Q. B 274 
 
 lOBrodix 136 
 
 19 How 417 
 
 C. D.,0. G., vol 63 170 
 
 4 Ban, & Ard., Goodeve. . .42, 104, 202 
 4 Ban. & Ard 104 
 
 O. G., vol. 62 
 
 101 
 
 138 
 M? 
 
 Burdett v. Estey . 
 Burgess v. Hill . . . 
 Burr V. Duryee . . . 
 Bury v. Thompson . 
 
 Bush V. Fox 
 
 Butler V. Steckel . 
 
 56 0. G 
 
 19 Brodix 
 
 9 Blatch 
 
 1 Conn ,. . 
 
 4Bing. N. C •»« 
 
 2nd ed. . . .86, 103, 104, 128, 175, 'HP 
 
 298, 30i: 
 
 3 Fed. Rep 267 
 
 36 Beav 293 
 
 1 Wall, 2 Fish 191, 2.35 
 
 0, G., vol. 58, p. 1255 140 
 
 9 Exch. R 122 
 
 20 Brodix 136 
 
 i 
 
 t^i! 
 
OASES CITED. 
 
 XVII 
 
 i»A«E. 
 
 . 260 
 . 35 
 
 . 465 
 J, 122 
 . 281 
 
 . 287 
 
 . 295 
 . 467 
 4, 321 
 
 . . 287 
 
 .. 303 
 .. 300 
 .. 303 
 
 .. 122 
 .. 121 
 
 23, 424 
 
 .. 320 
 
 . 145 
 
 107 
 
 ... 387 
 
 ... 138 
 o 
 
 .86, 387 
 .. 274 
 .. 136 
 .. 417 
 .. 170 
 04, 202 
 ... 104 
 
 ,. 101 
 
 138 
 .. ii? 
 
 ^98, 30i: 
 267 
 I... 293 
 191, 236 
 |. .. 140 
 1... 122 
 . 136 
 
 
 a 
 
 Oah-Oln. PA<iK. 
 
 Cahoonv. Ring 1 Fi»h., 1 Cliff 61,66, 116, 139 
 
 Camineyer v. Newton 04 U. S 164, 4l(J 
 
 •Canipljcll V. Bate 16 R. L., 29 L. C. J 116, 337 
 
 Canatla Central R. W. Co. v. Murray . . 8 App. Cm 282, 2S3 
 
 Canada Mineral Wool Co. v. Montgomery (Unreported) Ont 239, 240, 307 
 
 Canan v. Pound Manufacturing Co 23 Blatcli., 31 0. (J 438 
 
 Cannington v. Nuttall (Joodcve, p. 109 12.'S 
 
 Canover v. Roacli 4 Fislj 46 
 
 Cansler v, Kuton 2 Jones Kci. (N. C), 499 227 
 
 Cantrell V. Wallicit U. S. 117 66 
 
 Carew v. Fabric Co 1 Holmes 187 
 
 Carpenter v. Smith 1 Web. P. C, 9 M. k W.6I, 69, 87, 316 
 
 Carr v. Rice 1 Fish, 204 \0U, 244 
 
 •Carter v. Rose (Unreported) Unt 36, 268 
 
 Carter v. Baker 4 Fish 124, 254, 262, 266, 2«i8 
 
 Carter v. Fisher 4 Fish 249 
 
 •Carter v. Oldtield (Unreported) Ont 297, 303 
 
 •Carter v. Hamilton L. N., vol. 16, p. .145., Ex.Ct.Rep., 
 
 vol. 3, p. 351, Can. L. T., vol. 
 
 13, Can. L. Journ., vol. 29 
 
 Cartridge Co. v. Cartridge Co 15 Brodix., U. S. 112 207 
 
 Cartwriglit v. Arnott 2 B. ft P 
 
 Cassela v. Levtnstein 8 Rep. Pat. Cas 
 
 •Cassela' Digest 55 
 
 Cawood Patent 94 U. S 125 
 
 Chalmers on Bills 3rd ed., p. 6 463 
 
 Chambers v. Crichley 33 Beav 235, 237, 238 
 
 Chanter v. Johnson 4 M. & A 221 
 
 Cheetham v. Oldham R. P. C, vol. 5 310, 314 
 
 Chetty 11th ed 
 
 Chevin v. Walker L. R. 5 Ch. D 29 
 
 Chollett V. Hoffman 26 L. J. Q. B 223, 316 
 
 Christie v. Seybold U. S. C. Ct. App., 0. G., vol. 64. . 54 
 
 Cliurch Engineering Co. v. Wilson .... R. P. C, vol. 3 321 
 
 •City of Toronto v. Street Railway Co. . 12 Prac. R. (Ont.) 305 
 
 ♦Civil Code L. C 28, 29 
 
 Clark V. Wooster 16 Brodix 253 
 
 Clark V. Adie L. R., 10 Ch. App. Cas 291 
 
 •Clark v. GrifBths In App. , vol. 24, New Bnms- 
 
 wick R 292 
 
 Clements v. Odorless Excavating Co ... . 15 Brodix 183 
 
 C'lothworkers of Ipswich King's Bench, 1615 1 
 
 Clow V. Baker 36 Fed. R 150 
 
 Clum V. Brewer 2 Curtis CO 32 
 
 o 
 
 239 
 211 
 215 
 314 
 
 I 
 
 ,f 
 

 XVIII 
 
 0A8E8 CITED. 
 
 Oln-Oro- >*A«iK. 
 
 i lu.'tt V. Clnflin 80 Ted. R 6« 
 
 4 .'ohbiii Cabinet Lock Co. v. Kagle liOck 
 
 Co 0. (},, vol. fla 177 
 
 « 'ochrnn v. Diener 94 U. 8. , 11 Brodix. . , 22, 47, 49, 7.1, H\ 
 
 147 
 
 Cotliran (lionl) V, Hmithhurst 1 Stark R 96 
 
 ( Cochrane v. Watennan ('rancli Pat. , Dec 407 
 
 « VmM'h Pntfiit, III re R. P. C, vol. I 205 
 
 CofK V. Collins Co 9 Fed. R 99 
 
 Coffin V. Ogden 18 Wall ^^ 
 
 Coiiaiieey Mnfg Co. v. Wharton 2H Fed. U 55 
 
 ( "oli-m.-in V. Filler 1 H. & N. 37 241 
 
 i ollur Co. V. Van Dusen 23 Wall 1S4 
 
 < oUar Co. V. White 2 Ban. & Ard 194 
 
 Collins Co. V. Loring 19 Brodix 14*_' 
 
 "CoUette V. Laanier 13 S. C. R. (Can. ) 204, 200, 2(57 
 
 Colby V. Hart 44 Cli 261 
 
 (7oIt V. Anns Co 1 Fish., 108 . . 
 
 Comliined Weighing Co. v. Auto- Weigh- 
 ing Co 42 Ch. D 
 
 Commercial Mnfg Co. v. Fairbank Can- 
 ning Co 135 U. S 
 
 Commissioner's Decisions 0. G., vol, 62 
 
 288 
 
 261 
 
 83 
 
 ('onsolidated Fruit' u- Co. v. Wright . , 
 
 Consolidated Fruit Jar Co. v. Whitney. . 
 
 Consolidated Roller Mill Co. v. Walker.. 
 
 Consumers' Gas Co. (Danville) v. Ameri- 
 can Electric Construction Co. (ijtd.) . . 
 
 Continental Windmill Co. v. Windmill 
 Co 
 
 Cooley on Torts 
 
 Coon V. Wilson 113 U. S . 
 
 <;^ornell v. Weidner 18 Brodix 
 
 94 U. S 67,69 
 
 1 Ban. & Ard 233,300 
 
 20 Brodix, 54 0. G., 136 136, 459 
 
 0. G., vol. 60, U. S. Cir. Ct. App. 237 
 
 SBlatch 217 
 
 30 
 
 182 
 
 180 
 
 Comely v. Marckwald 19 Brodix 255 
 
 Coming v. Burden 15 How 22, 35 
 
 Comish v. Keene 1 Web. P. C 67 
 
 Complanter Patent 23 Wall 51, 100, 141 
 
 County of Fond du Lac v. May 19 and 20 Brodix 47, 135 
 
 Cowing v. Rumsey 8 Blatch 257 
 
 Craigen v. Fowler 34 Vt 
 
 Crane v. Price 4 M. ft G 44 
 
 Cranson v. Smith 37 Mich 467 
 
 Crawford v. Heisinger 17 Brodix 193 
 
 Crompton v. Belknap Mills 3 Fisher 86, 287 
 
 Crompton v. Anglo-American Brush Elec- 
 tric Light Corp 35 Ch, D 317 
 
 ,"M 
 
0ABE8 OITED. 
 
 XIX 
 
 Oro-Der. P*<*i!. 
 
 ( Mningor v. Pnige 4 N. W. Hep •-»'J4 
 
 1 ro|.i.er v. Hinith R. 1». (.'., vol. 1 203 
 
 r'roi)|)er v. Smith (No. "2) 20 Cli. 1) 313 
 
 Crcmnley v. iJixon 10 H. L 235 
 
 < Voniley V. Derby Oa« Co I Web. P. C '.W 
 
 (Vooiley V. Bev«.lo> 1 Web. 1'. C 291), 306 
 
 OoMley V. Toiney L. R. 2 Ch. D 311, 321 
 
 CiUTttn V. Burdiill 20 Fe«l. Rep . 22rt 
 
 ruitig 22, 23, 40, H«, 99, 104, lOfi, 1.S8, 
 
 163, 192. 244, 255, 256, 408 
 
 Turtis V. Piatt L. R. 3 Ch. D. 136, 35 L. J. Ch., 
 
 • 8 L. T. N. S., Higgins' Digest. . 
 
 292, 295, 312, 313 
 Curtis V. Ikker 4 Fiahor . 254 
 
 D. 
 
 'Dttgleiah v. Conboy. 
 
 261 
 
 83 
 
 300 
 459 
 
 237 
 
 217 
 30 
 182 
 . 180 
 . 265 
 22,36 
 67 
 00,141 
 47, 136 
 267 
 
 44 
 
 467 
 193 
 
 |86,287 
 
 . 317 
 
 Diilzeel V. Dueber Watch-Case Mnfg. Co. 
 
 Dun V. Boylston 
 
 J )ane v. Chicago Mnfg. Co 
 
 Daniels v. Chesterman 
 
 Daniels 
 
 'Dansereau v. Bellemare 
 
 I )arcy v. AUein 
 
 Darst V. Brockway 
 
 1 )avenport v. Rylands 
 
 1 )a venport v. Jepaon 
 
 Day V. Fairhaveu R. Co 
 
 Day V. Bankers Tel. Co 
 
 De Florez v. Reynolds 
 
 I>e la Vergne Refrig. Co. v. Featherston. 
 
 De Vitre v. Betta 
 
 De Witt V. Elmira Nobles Mnfg Co . . . . 
 
 De Witt V. Mnfg Co 
 
 Dederick v. Gardner 
 
 Dederick v. Seigmund 
 
 *De Kuyper v. Van Dulken 
 
 Delano v. Scott 
 
 Demeny, Ex parte 
 
 Dent V. Turpin 
 
 Dental Vulcanite Co. v. Van Antwerp . 
 
 Deroane v. Fairie 
 
 *Dery v. Hamil 
 
 26 U. C. C. 0. P. R. .187, 214, 216. 221, 
 
 241, 245 
 
 O. G., vol. 63 223 
 
 «Fed. Rep 229 
 
 H Fisher 54 
 
 13 O. G 192 
 
 Page 1492 31, 298 
 
 12 L. N. 18 R. L., 16 S. C. R. (Can.) 279 
 King's Bench (1602) I 
 
 11 Ohio 
 
 L. R., 1 Eq 
 
 1 N. R 263,309 
 
 20Brodix 135 
 
 OBlatch 137 
 
 17 Blatch 81 
 
 O. G. Vol. 58, 147 U. S. . . 167, 224, 225 
 
 L. R. 6 H. L 248 
 
 12 N. Y. Sup 233 
 
 5Hun. N. Y 33 
 
 0. G., vol. 59 119 
 
 0. G., vol. 60 129 
 
 3 Exch Ct. R., Can., 4 Exch. Ct. 
 
 R., Can 274 
 
 1 Gilpin 126,262 
 
 0. G., vol. 64 96 
 
 2 J. & H 33 
 
 2 Ban, & Ard 262 
 
 IWeb. P. C 280 
 
 7 L. N., 13 Revue Legal (Que.), 11 
 
 Q.L. R 235,262 
 
 ]>\\ 
 i>ll 
 
 
 m 
 
XX 
 
 0A8E8 OXTED. 
 
 Dln-Ehr I'auk. 
 
 Dinmiiort), In re (Ptttvnt) 18 Tkav 431 
 
 Dixon U'owU Co. v. Ffclfer O. O., vol. (W UW 
 
 DoUon V. UvH 20 Hrodlx, 137 U. S 180, M»:» 
 
 Dolmoii V. Ciinipbtill 1 Sunnier 216 
 
 304 
 lOS 
 
 •J3:> 
 
 DohHon V. CnrHii Co 31 (). (t 
 
 Dolbuar v. Tel. Co H Hup. Ct. Uep 
 
 DoUiiml's Case I Wol). 1'. C 82 
 
 •Doinpierre v. Hiull 18 U. L, Ij. H 119 
 
 N.H. -.Should .-eail Biiril for Haiiil I. '21, p. 111). 
 
 Doriih Alley Khun v. Abil(K)l A/.uez L. 11. ft Ind. App 
 
 Dorsey & HiuvcHter Hake Co. v. Alursh.. « Fiuh. 387 IWK) 
 
 Dowling V. IJlUlngton R. 1'. C, vol. 7 '. 37, SO, 308 
 
 Uowueu V. Falcon VV«)rk8 11. 1*. C, vol. 2 288 
 
 Downtou V. Manufacturing Co 1) Fed. Kep 222 
 
 Downton V. Allen 1) Fed. Kep 222 
 
 *Doylu V. Kunaoniu Reported in Decisions of Minister 
 
 of Agriculture (Oogoode Hall 
 
 Li»)niry, Toronto) 387-38» 
 
 Draper v. Hudson 1 Holmes 208 30r> 
 
 Draper v. Wattles 3 B. & A OH 
 
 Drawhaugh, In re, Daniel 07 O. <i 329, 330 
 
 •Driggs v. Haird 13 U. C. Q. B. R <» 
 
 Dudgeon V. Thompson L. R. 3 App. Cos., 22 W. i' 298 
 
 Duer v. (Sorbin Cabinet Lock Co 0.0., vol. 03 40 
 
 Duffy V. Reynolds 24 Fed. Rep., 855 424 
 
 *Duggan V. London k Canadian Loan and 
 
 Agency Co 285 
 
 •Dumoulin v. Langtry 67 L. T. N. S 282 
 
 Dunbar v. Meyers 94 U. H 137, 238 
 
 Dunbar v. White 15 Fed. Rep 184 
 
 Dunham v. Railroad Co 7 Bissell 33 
 
 Dunham v. Indiana k St. Louis Ry 2 Ban. & Ard 233 
 
 Dunlap V. .Schotield 67 0. G 
 
 Duunechiff v. Mallott 7 C. B. N. S 280 
 
 
 
 E. 
 
 Eames v. Andrews 17 Brmlix 143, 174, 177, 193 
 
 Easterbrook v. G. W. R. Co .... R. P. C, vol. 2 107, 128 
 
 Edgeberry v. Stephens 2 Salkeld 87 
 
 Edison Electric Light Co. v. Columbia 
 
 Incandescent Lamp Co 0. G. , vol. 65 300 
 
 Edison Telephone Co. v. India RubberCo. L. R., 17 Ch. D 318 
 
 Edmunds on Patents (1890) 34, 79, 291 
 
 Egbert v. Lippmaun 104 U. S 66, 68 
 
 Ehrlich v. Ihlee R. P. C, vol. 5 146 
 
0A8E8 OITBD. 
 
 XXI 
 
 Ele-Foz. pAiiK. 
 
 KU'ctrio Oiu ( 'o. v. Hoiton Kleotrio Co. . 139 U. S IH.'l 
 
 Klectrio Tel. Vn. v. Nott 4 (). H 812, .TJH 
 
 KUiotric \Aght Co. v. Hulland 1(. l>. 0., vol S lOrt 
 
 KI«<otrloftl Aiicutinilatnr Co. v. Juli«n 
 
 Kleotric Co ().({., vol. fU K2 
 
 i:Uzal>t'tli V. Pavomont Co 07 U. S. 1 1 BdmUx rt(),67, 7fi, 147,252, •.»«« 
 
 Kllithorpo V. RoliDitBon 2 Fish SI 
 
 Kllwo...! V. Chiintie fl N. R., 18 C. B. (N.H.) 268 
 
 KiDuraon v. Simon 6 Fiili 202 
 
 • Kmeiy v. Irediile 1 1 U. C. C. P. R 42 
 
 •KiniTy V. »o.lgo II U. C C. ". R 42 
 
 KmiKli V. ( 'hnmherliiin 1 Riia 295 
 
 Kstey V. Burdett 1.5 Bro lix 137 
 
 (N.B,— Not Kiky aa in Iwdy of hook on I. 14, p. 137). 
 
 Kureka Co. v. Bailey Co II Wall 192 
 
 Evans v Harlow « Q. B 261 
 
 Evans v. UicH 2 Q. B 2H0 
 
 Everutt v. Tliatcliur 3 BMn. & Ard 209 
 
 F. 
 
 •JS5 
 '282 
 238 
 
 IS4 
 33 
 
 233 
 
 280 
 
 193 
 
 128 
 
 87 
 
 300 
 318 
 291 
 68 
 146 
 
 W. Bab 
 
 Farmers' Friend Mnfg. Co. v. Chul< 
 
 lunge Complantor Co 
 
 Farringtun v. (Jregory 
 
 Fn«sett v. Ewart Mnfg. Co . . 
 
 Feather v. The Queen 
 
 Fennessy v. Day 
 
 *Fire Extiuguishcr Co. v. N 
 uock Fire Extinguisher Co ... 
 
 Fisilier v. Dewick 
 
 Florsheim v. Schilling 
 
 Flower v. City of Detroit 
 
 Lloyd 
 
 Lloyd 
 
 Lloyd 
 
 Can. Per't L. & S. Co 
 
 Flower v, 
 J''lower V. 
 Flower v. 
 * Foley V, 
 
 Forbush V. Cook 
 
 Foote V. Frost 
 
 Forsyth v. Kiviere 
 
 Foas V. Herbert 
 
 Fowler v. Gaul .* 
 
 Fox V. Perkins et al 
 
 Fox V. Dellestable 
 
 Fox V. Kensington Electric Light Co . . . 
 Fox V. Kensington Electric Lighting Co. 
 Foxwell V. Bostock 
 
 ,128U. S 181 
 
 . 4 Fish 215 
 
 . 0. G., vol. 64 136 
 
 , 35L. J. Q. B 1«4 
 
 SSL. T. N. S 293 
 
 20 Grant 230 
 
 4Bing. N. C 312 
 
 O. G., vol, 53 ; 20Brodix. 126, 135, 138 
 
 ISBrodix 117, 174, 184 
 
 20 Sol'rs Journal 290,311 
 
 L. T. R., N. S 306 
 
 W. N. (1876) 309 
 
 4 0nt. R 28 
 
 2 Fish 46, 132 
 
 3 B. A; A 436 
 
 Chit. Prerog 62 
 
 2 Fish 127 
 
 R. P. C, vol.3 314,321 
 
 U. S. Ct. ofApp 46 
 
 16 W. R 86 
 
 L. B. (1892), 3 Ch. (App.) 120 
 
 L. B. (1892), 2Ch 106,198 
 
 4DeG.,J.&S 291 
 
XXII 
 
 0AIB8 OITBD. 
 
 Frt-Ctoo- I'AOR. 
 
 Frenr»..ii v. Uo L K., 9 Ch. I) .247, 29(1, 30H 
 
 Frtiuniaii V. AitnuM O. <>., vul. AB IM.1 
 
 Kremli v. Rokom , I VM\ fW 
 
 Fn.ii.ili V. Cftrtur 20 Hio.llx. i:»7, U. 8 \'.W 
 
 Kn.iit;»i V. Foley II Fi.l. R 4M 
 
 Fritz V. Holwoii UCIi. I> 'i4M 
 
 Fn«t on I'atuiita 221 
 
 Fuller V. Vuiitzor W U. H 90, 2.1M 
 
 o. 
 
 
 Oudd Jc Mmoii v. Mayor of Muiiolicitor. K. I*. C, vol. 9 1'iS, 144 
 
 Ouilil V. Mayor of Munuliuiitur T. I.. R., vol. 0, p. 42; R. V. C, 
 
 voU. 7, 9ttnil 10 41, 14.1, 2>to 
 
 (JaKt> V. HirrliiK 14 Mro<lix 19.1, 20.-I 
 
 Galloway v. lileiwluti I Web. I». C 67, 'Mli 
 
 (Julloway V. Findlay 12 Pot. '2M Hi? 
 
 (JamBwell Tel. Co. v. Urooklyn 14 Fed. R 2I«, 2.'<2 
 
 iiiiiidy V. Main Bolting Co (). «i., vol. flO Il!» 
 
 (iiirdner v. Hart/. 118 U. S I H> 
 
 (Junliier v. Hroadliumt 2 .lur. N. S 2'.»H 
 
 Gardiner V. Howe 2 Cliff 418 
 
 (Sarrar.l v. Kdgo tt 15. I'. C, M L. J. Ch :m 
 
 (Jate* Iron \Vk«. v. Froner .Sup. Ct, U. S. (Mny 14 I8W), 
 
 I hit. (»ff. NcwbI73 TH 
 
 Oaudut V. Palmer 10 Hlatch :«X) 
 
 (JarretHon v. Clark Ill U. S., ir» Blatoh. . 254, 2ti4 
 
 (Jaylor V. Wilder 10 How 215, 2I« 
 
 (}erm Milling Co. v. Robinson 06 L. J. Chy., .34 W. R, 1 R. P. C. UK) 
 
 (icrson, Kx p»rt« 110. G., 244 »7 
 
 Giant Powder Co. v. Vigoret Powiler Co. Hiiwyor \H'2 
 
 Gilbert k Barker Mnfg. Co. v. Bussing. . 12 Blateh 228 
 
 GHlett V. Wilby 9 Car. * P '.'88 
 
 •Gillies V. Colton 22 Grant 2.'}.-. 
 
 Gills V. Hiefner 19 Fed. R >:U 
 
 Gilpin V. Cousequa .3 Wash 'io I 
 
 *Girvin v, Burke 19 Ont. R 462, 4(5.3, 4<i4 
 
 •Goldsmith v. Walton 9 Prac. R. (Ont.) '275 
 
 Gooileve on Patents 40. 44, 70, 2')8 
 
 GcKMlyear v. Allen 3 Fish. '. 
 
 Goodyear v. Bishop 2 Fish '249 
 
 Goodyear Dental Vulcanite Co. v. Davis. 102 U. S 193 
 
 Goodyear V. New York Gutta Percha, 
 
 etc., Co 2 Fish 139 
 
 Goodyear V. Providence Rubber Co 2 Fish 233 
 
 i 
 
OABEfl OITBD. 
 
 xxiir 
 
 , im 
 
 iii- 
 , ja-.' 
 
 \\v 
 
 . \\» 
 . "jys 
 
 . 418 
 
 . -.m 
 :» 
 
 'Jtl4 
 •ilH 
 310 
 
 :i7 
 
 IH'J 
 
 'iHS 
 2:1-. 
 •234 
 251 
 3, 4(>4 
 
 27r. 
 0, 2r.s 
 
 24» 
 193 
 
 13U 
 233 
 
 Ooo-Hu- 
 
 ^ iiitxlyeiir v. RiiMi«r Co 
 
 (iiHNiyiwr V. Kiuli 
 
 (lottfrl..il V. Miller 
 
 Ooului'il V, LimlMty 
 
 (ioHlilV MiifK. » II, V. Cuwiiig 
 
 Uralmiii v. Miifu Co 
 
 < trAlMin V. Md ^nniiAck 
 
 <iruiit V. Kikyiiioiiil 
 
 *<imy V. Killiiigtoii 
 
 ( Jray v. .Iniiioii 
 
 •lirui'ii V. WiitMon 
 
 (ii'coiilunf V. Mnfg. (y'o 
 
 *iiri|> I'lililiitliiiig Co. V. |{uttvrtii!l<l .... 
 
 tfiovur Suwiiig Co. V. Williaiiii 
 
 •Guriiey Miifg. Co. v. A. Hiirrin, Son 
 * (^o 
 
 rAitK. 
 
 Wall, . .1 Hliitoh ih;», :M)7 
 
 3 Full -lilt 
 
 104 i;. S 222,2211 
 
 3MCh. M 20.% 
 
 14 KriHlix. lOS U. 8 2(l'> 
 
 1 1 K0.I. R IIM 
 
 A H«iu k Aril DM 
 
 « I'our. 17(1. IHI 
 
 21 U. C. C. I* 234, 2:iti 
 
 1 l'r.Mri* ft. < • 40;{ 
 
 2 Out. It., 10 i. K. (Out). , .217, 221t 
 
 17 Hlntuli 2.V. 
 
 II Nup. Ct. H.,'Ml, II App. K. 
 (Out.) 237, '2'M, 2:»0, .'I(t3. .'tOl 
 
 2 VM\ 2)t!» 
 
 Kopoi'tuiliii DuemioiiMof .Miiiitturof 
 
 A>{ricultiii'<t, OMgoodtt H.ill '{.ill- 
 rury, Toronto 3H2, .'b.'i 
 
 H. 
 
 Hiiiloi V. Albany Stove Co. 
 
 Hailea v. Vun Worniur 
 
 Hall V. \Vil«H 
 
 Hall V. ( 'ondor 
 
 Hall V. Itulliind 
 
 Hull V. Bir.l 
 
 Hull V. OrvU 
 
 Hiilnoy V. Krotherht)o<l 
 
 Hiiniilton v. Kingitbiiry 
 
 Hamilton v. Rullona 
 
 Hiiinilton v. Hey wnrd 
 
 Hainnionil v. Hunt . 
 
 Hiincock V. B«wloy 
 
 }{aiieook V. Moulton 
 
 Hapj{ootl V. Hewitt 
 
 HarrJH v. Itotliwell 
 
 Hai ri8on v. Anderaton Foundry Co 
 
 Hart V. Middleton 
 
 HartHliorn v, Saginaw Barrel Co 
 
 Harwood v. (ireat North -Western Rail- 
 way Co 
 
 Hagelden v. Ogden 
 
 Hankell v. Jones 
 
 Hivskcall V. Whitmore 
 
 HaBlani k Co. v. Hall 
 
 16 Fu.l. Rt'p., 17 Hrodix. I.3.\ 107, MH. 
 
 20N 
 
 20 Walkce, 7 Blotch. ... l.'W. 131, l:J2 
 
 2 BIfttch IIJS 
 
 2 C. B. N. S 234, 23.\ 2.10, 2H2 
 
 2.'» L. J. Kxch 31.'. 
 
 6 Blatch ftO 
 
 3') Iowa 2.'U 
 
 L R. ISChy. D 2(il 
 
 17 Bliitch., l5Bltttch..2H(, 22.%, 2.M0, 427 
 
 3 Ban. & Ard 222 
 
 (irirtin's I'litt-nt Cases 41, 123 
 
 4 Ban. & Ard 270 
 
 •lohnaon 31 
 
 Edmunds on Tatt-nts, p. 243 | IHJH)). 120 
 
 10 Brodix, 7 Sup. Ct. II 230, 2.32 
 
 R. P. C, vol. 3 I4(i, .TJI 
 
 L. R., 1 App. Cft8..3y, 44, 83, .S4, 2!tl 
 
 2 Car and Kir 170 
 
 16 Broilix 120 
 
 11 H. L. Goodeve .35, 120 
 
 3 Fish 06, 103 
 
 86 Pa. St 4(i7 
 
 19 Me 407 
 
 R. P. C. vol. 1 321 
 
 fi! ' 
 
 ;! 
 
 ■^ 
 
XXIV 
 
 OASES OITBD. 
 
 :; 
 
 "I 
 
 m 
 
 i < )?^ 
 
 1 1 
 !; 
 
 :ll 
 
 ;1 
 
 -1 
 
 t 
 ■ J 
 
 !' 
 i! 
 
 ■ I 
 
 Hay-Hou. 
 
 Hayes v. Hopkins 
 
 Hawes v. Washburne 
 
 Haynes v. Maltby 
 
 Hay ward v. Andrews 
 
 Hay ward v. Pavement Light Co. 
 
 Hazl liurst v. Rylands 
 
 Head v. Porter. 
 
 Heald v. Rice 
 
 Heap V. Hartley 
 
 Heatii V. Smith 
 
 Heath v. Unwin 
 
 Henthfield v. Greenway 
 
 Heer, Ex parte 
 
 Heiue, Ex parte 
 
 Helm V. First National Bunk 
 
 Hendy v. Golden State 
 
 Henry, Ex parte 
 
 Herring v. Gage 
 
 'Hessin v. Coppin 
 
 Heiigh V Magill 
 
 Higgins 
 
 Hill V. Thompson 
 
 (Not Hall as on 1. 13, page 298.) 
 
 Hills V. Evans 
 
 Hiude V. Osborne 
 
 Hindmarch 
 
 Hinks V. Safety Lighting Co 
 
 Hubbie v. Smith 
 
 Hoe V. Cottrill 
 
 Hoe V. Boston Daily Advertiser 
 
 Hoe V. Kahler 
 
 Hogg V. Emerson 
 
 Holden v. Curtis 
 
 Holland v. Fox 
 
 HoUidny v. Heppenstall Bros 
 
 Holliday v. Hunt 
 
 Hollister v. Benedict Co 
 
 Holmes Electric Co. v. Burglar Alarm Co, 
 
 Honiball v Bloomer 
 
 Hope Iron Works v. Holden 
 
 Hornblower v. Boulton 
 
 Hotchkiss V. Greenwood 
 
 Houghton V. Jones 
 
 Paok. 
 
 O. G., vol. 89, p. 187 
 
 , 5 O. G., 491 295 
 
 3T. R 240 
 
 . 14 Brodix, 12 Fed. R 216, 222 
 
 , R. P. C, vdI. 1 288 
 
 . R. P. C, voL 9 (1892) 120 
 
 . 0. G., vol. 60 416 
 
 .104U. S 177 
 
 42Ch. D 241,281 
 
 3E1.&B1 69 
 
 25 L. J., C. P., 10 M. & W., 1 
 Web. Pat Cas. ; 5 H. L. C. , . . 129, 
 292, 316, 317 
 
 , (1893), W. N., 170 317 
 
 . 41 O. G 95 
 
 O.G.,voL64 
 
 , 43Ind 467 
 
 ISBrotlix 
 
 , L. R., 8Ch 51, ')9 
 
 . 18 Blatch 
 
 , 17 Grant, 19 Grant 67, 103, 139 
 
 , W. N 298 
 
 31,47,67,97,298 
 
 . SMer 9Q8 
 
 31 L. J. Ch. Goodeve 143, 248 
 
 . R.P. C, vol. 2 348 
 
 . pp. 203, 204, etc 48, 97, 298 
 
 , 4Ch. D 101 
 
 . 17 Fed. Rep 234 
 
 . 17 Blatch 133 
 
 . 14 Fed. Rep 300 
 
 . 12 Fed. Rep 407, 408 
 
 . 11 How 95, 96 
 
 . 2 N. H 226 
 
 . 23 L. J. Q. B., 3 El. & Bl 262, 263 
 
 . R. P. C, vol. 6, C. A. 41, Ch. l\ 
 
 314, 320 
 . 70J.U 
 
 467 
 
 113 U. S., 15 Brodix 136, 416 
 
 33 Fed. Rep 105 
 
 10 Exch . . 318 
 
 88 Maine 226 
 
 8 T. Rep 84 
 
 11 How 138 
 
 1 Wall 226 
 
 Jacobs 
 
 James 
 
 James 
 
 Jenkiiisl 
 
 Johnson 
 
 Johnsor 
 
 Johnson! 
 
 JohnstoJ 
 
 *JohnsoJ 
 
 Jollife vj 
 
 Jones v.| 
 
 •Jones V. 
 
 Judson \| 
 
 Jupe V. 
 
 Kauland 
 Keach B4 
 
 Keller r. 
 o 
 
OASES OITED. 
 
 XXV 
 
 Hott-Kel- Paok. 
 
 Housohill Co. V. Neilson Goodeve, 1 Web. P. C. 719. . . .69, 67 
 
 Househokl v. Fairbalrn 61 L. T 261 
 
 Hovey v. Stevens 2 Robb 424 
 
 Howes • McNeal 3 Ban. & Ard 93 
 
 Ruber v. Nelson Mnfg. Co 63 O. G 80 
 
 Hullitt V. Hr--! 2 Ban. k An! 101 
 
 Huinpherson v. Syer 4 R. P. C 60, 144 
 
 (X.B.— Should read 4 Rep. Pat. Cas. instead of 4 Web. Pat. Caa., 1. 33 p. 144.) 
 
 Hunt, Ex parte 15 O. G 174 
 
 Hunt Bros. Fruit Packing Co. v. Cossidy. O. G. , vol. 62 240, 264 
 
 •Hunter v. Carrick 10 App. Rep. (Ont.), 1 1 Sup. Ct., 
 
 Can., etc. .38, 84, 130, 133, 134, 
 173, 176, 189, 202, 203, 204, 288, 326 
 
 Hunter v. Watson 12 Cal 224 
 
 •Huntingdon v. Lutz 13 U. C. C. P. R 10, 305 
 
 Hurlburt v. Schiliinger 19 Brodix 129, 268 
 
 Hussey v. Bradley 2 Fish 181 
 
 Hussey.v. Whitely 2 Fish 216, 301 
 
 (N.B.— Should read Whiteley instead of Whitley, 1. 11 and 12, p. 301.) 
 Hutton V. Brown 45 L. T. N. S 170 
 
 13, 248 
 34S 
 
 >7, 298 
 
 .. 101 
 
 . 234 
 
 .. 133 
 
 .. 300 
 
 |07, 408 
 
 95, 96 
 226 
 
 !62, 263 
 P. 
 
 114, 320 
 
 ... 467 
 
 .36, 416 
 
 .. 105 
 
 .. 315 
 
 .. 226 
 
 ,.. 84 
 
 ... 138 
 
 ... 226 
 
 Imheuser v. Buerk 101 U. S 124 
 
 Ingels V. Mast 2 Ban. & Ard 104 
 
 Iron Works v. Montague 108 Mass 296 
 
 Irwin V. McRoberts 4 Ban. & Ard 300 
 
 Jacobs V. Baker 7 Wall 
 
 James v. Campbell 104 U. S 
 
 James v. Pearce . 1 Web. P. C . 
 
 Jenkins v. Greenwald 2 Fish 
 
 .... 47 
 .182,416 
 .246, 247 
 .... 231 
 
 Johnson v. McCuUough 4 Fish 51, 116 
 
 Johnson v. Edge L. R. 2 Ch. App. 261 
 
 Johnson v. Root 1 & 2 Fish. Curtis, 4th ed., s. 270. 408 
 
 Johnston v. St. Andrews 3 App. Cas 282 
 
 •Johnson v. Martin 19 App. R., Ont 463, 464, 465 
 
 Jollife v. Collins 21 Mo 226 
 
 Jones V. Pearce 1 Web. P. C. . . 68, 288 
 
 Jones V. Berger 5 Man & G., 1 Web. P. C 313, 318 
 
 Judson V. Bradford 3 Ban. & Ard 253 
 
 Jupe V. Pratt 1 Web. P. C 72 
 
 K. 
 
 Kauland v. Sheriff 2 Fed Rep. . 
 
 Keach Receiver Duryee 
 
 Keller T. Stolzenbaoh 20 Fed. Rep. 
 
 D 
 
 51 
 226 
 231 
 
Jiiii 
 
 i 
 
 XXVI 
 
 OASES CITED. 
 
 Kel-Leg. 
 
 Kelly V. Heathman 
 
 Kelly V. Pditer 
 
 Kendall v. Winsor 
 
 Keiidrick v. Einnions 
 
 Kennedy v Ha/.leton 
 
 Kensington Electriu Lighting Co. v. Lane 
 Fox Klectrical Co 
 
 Kerby Bung Mntg. Co. v. White 
 
 Kernodle v. Hunt 
 
 Kemot V. I'otter 
 
 Kerr on Inj 
 
 Keystone Mnfg. Co. v. Adams 
 
 *Kidder v. Smart 
 
 Kill)ourne v. Bingham 
 
 Kimbroy v. Draper 
 
 King V. Anglo-American Brush Corpora- 
 tion 
 
 Kinsman v. Parkhurst 
 
 Kirby v. Armstrong 
 
 Klein v. Rogers 
 
 Klein v. Russell 
 
 'Knickerbocker Go. v. Ratz 
 
 Kneas v. Schuylkill Bank 
 
 Knox V. Quicksilver Mining Co 
 
 Koen V. Quint 
 
 Kurtz V. Spence 
 
 Paob. 
 R. P. C, vol. 7, 46 Ch. D. . . .108, 19» 
 
 17 Fed. Rep 231 
 
 21 How 143, 420, 42J, 426 
 
 2 Ban. & Ard 244 
 
 lOBrodix 88, 24.^ 
 
 L. K. (1891), 2 Chy., R. P. C, 
 
 vol.8 261, 3o;i 
 
 5 Ban. & Ard 29J» 
 
 14 Blackf. Ind 
 
 3 de G. F. & J 2<;3 
 
 424 
 
 2«« 
 
 8 0nt. Rep 180, 181 
 
 60 0. G 138 
 
 L. R., 3Q. B 274 
 
 .50, 10« 
 
 R. P. C, vol. 7 
 
 18 How 224, 301 
 
 19 O. G 264 
 
 QBrodix 101 
 
 19 Wall 66,67 
 
 16 Prac. R., Ont 293 
 
 4 Wash. 9 106 
 
 6 Sawyer 2()7 
 
 VoL 23, O. G 30 
 
 57 L. J. Chy., R. P. C, vol. 5 . . . . 53 
 
 L. 
 
 La Baw v. Hawkins 2 Ban. & Ard 255 
 
 •Uiner v. Collette 5 L. N 255, .336 
 
 Lalance Mnfg. Co. v. Mosheim 0. G., vol. 63 103 
 
 Lamb v. Nottingham Mnfg. Co Sctoa on Decrees, 4th ed., vol. 1 . . 314 
 
 Lane-Fox v. Kensington Electric Light- 
 ing Co R. P. C, vol. 9, 3 Ch. (1892) . .40, 123 
 
 Lane & Bodley Co. v. Locke O. G., vol. 65 232 
 
 Law V. Ashworth R. P. C, vol. 7. 320 
 
 Laurence v. Perry R. P. C, vol. 2 203 
 
 Le Fever v. Remington 13 Fed. Rep 238 
 
 Le Roy v. Tatham 14 How 256 
 
 Leadheater v. Kitchin R. P. C, vol. 7 , 280- 
 
 •Lean v. Huston 8 Ont. Rep 236 
 
 Ledgard v. Bull 11 App. Cas 313 
 
 Leev. Walker L. R.,7C. P. 
 
 Lee, Ex parte 18 O. G., 624 37 
 
 Lees V. Jones 3 Jur. N. S 31 
 
 Leggettv. Avery 101 U. S 193 
 
 Lyon 
 
 McCl 
 
 ain 
 
 (Xon 
 McComb 
 McComb % 
 McCorniic 
 McClurg 
 McDougal] 
 *McGurvej 
 McKay v. 
 MoKay v, 
 McKeever 
 *McKenzie 
 ^fcMillan 
 McMurray 
 McNamara 
 •McNeely 
 
OASES OITED. 
 
 XXVII 
 
 . . 2r)S 
 
 .. 424 
 
 .. 2t>G 
 
 50, ISl 
 .. 13» 
 ..274 
 
 50, 10« 
 >24, 301 
 ... 264 
 ... 101 
 . .66, 67 
 , . . 293 
 ... 106 
 ^ 2()7 
 30 
 53 
 
 1, 
 
 103 
 3U 
 
 .40,123 
 . 232 
 . 320 
 . 203 
 ,. 238 
 .. 256 
 .. 280- 
 .. 236 
 .. 313 
 
 .. 37 
 ... 31 
 ... 193 
 
 Les-McN. Paoe. 
 
 •Leslie v. Calvin 9 Out. Rep 269, 307 
 
 Lewes v. Purser 6 EL & Bl 234 
 
 Lewis V. Marling 1 \V. P. C 51 
 
 Lifeboat Co. v. Chambers R. P. C, vol. 8 (1891) 107 
 
 Lilley, Ex parte ,. . Vol. 53, O. G 9'> 
 
 Lister V. Leather 8E. &B...., 84, 290 
 
 Lister v. Norton R. P.O., vols. 1 &3 (1884, 1886).120,302 
 
 Lister v. Eastwood 2 Higgins Pat. Digest 263 
 
 Lister v. Leather . . , 8 EL & Bl 324 
 
 Lister v. Palmer 4 Allen ( Mass. ) 
 
 Littlefield v. Perry 21 VVaU. 224 227, 265 
 
 Lockwoocl v. Lockwood ... .'>.') Iowa 224 
 
 Locom. Safety Truck Co. v. Penn. R. Co 2 Fed. Rep 251 
 
 London & Brighton R. W. Co. v. The 
 
 London & Chatham R. W. Co L. R. 3 Q. B 311 
 
 London & Leicester Hosiery Co. v. Hig- 
 
 ham Higgins .313, 314 
 
 (N. B. — Should read London &■ Leicester, etc., instead of London & Lanca- 
 shire, etc., L 25, p. 314.) 
 
 Longbottom v. Shaw 43 Ch. D 319 
 
 Loom Co. v. Higgins 105 U. S., Merwin 46, 102, 107, 317 
 
 Losh v. Hague Goodeve 289, 1 Web. P. C. .40, 70, 
 
 122, 301, .307 
 
 Lovell Mnfg. Co. (Ltd.) v. Cary O. G., voL 62 120 
 
 Lowther v. Hamilton 17 Brodix, 124 U. S 136, 228 
 
 *Lusk V. Miller Mich. Term New Brunswick R. , 
 
 1872 288 
 
 Lyon V. Goddart Times L. R. , vol. 9 37 
 
 Mo. 
 
 McClain v. Ortmayer 57 O. G., 141 U. S., .^3 Fed. Rep. 
 
 46, 136, 287 
 (Note.— Should read Ortmayer instead of Oriniayer, 1. 2, p. 46.) 
 
 McComb V. Earnest 1 Woods 288 
 
 McComb V. Wood 1 Woocls 121 
 
 McComiick v. Gray Higgins' Digest 295 
 
 McClurg v. Kingsland 1 How 423 
 
 McDougall V. Partingdon R. P. C, vol. 7 230, 310 
 
 •McGurvey v. Town of Strathroy 6 Ont. R 305 
 
 McKay v. Dilbert 19 O. G 95 
 
 MoKay v. Jackman , 17 Fe<l. Rep. 231 
 
 McKeever v. U. S 23 O. G 164 
 
 *McKenzie v. McCloughlin 8 Ont, R 241 
 
 McMillan v. Conrad 16 Fed. Rep 300 
 
 McMurray t. Mallory Ill U. S 198 
 
 McNamara v. Hulse Car. & M. 105 
 
 •McNeely v. McWilliams 13 App. Rep. (Ont.) 236 
 
XXVIII 
 
 •It 
 
 Mac-Moo. 
 
 Machine Co, v. Murphy . . ,^ ,>>-„„ .... 
 
 Magic RijfHe Co. v. DouglaB. ....,..« 
 
 Magowan v. Packing Co 
 
 Mahn v. Harwoc a .- „ 
 
 Mallins v. Hart „. 
 
 MaHory Co. v. Hickok 
 
 Mann'a Patent 
 
 .Manufacturing Co. v. Sprague. 
 
 .Manufacturing Co. v. Ladd . .^. 
 
 Many v. Jagger 
 
 Marsden v. Saville St. Foundrj- Co. 
 
 Marsh v. Nichols Co 
 
 Marsh v. Dodge, etc., Co „ 
 
 Marston v. Sweet 
 
 Marvin v. Gotshall 
 
 (N. B. —Read Marvin for Murrin. U 
 
 Masseth v. Reiber - 
 
 Mathers v. Green 
 
 Matthews v. Flower „„ 
 
 Matthews v. Spangenburg „ 
 
 May V. Chafee 
 
 Maxwell on Interpretation of StututeE. . 
 
 Meadows v. Kirkman 
 
 Merriani v. Smith 
 
 *Merrill v. Cousins 
 
 Merrill v. Teonians „ 
 
 Merserole v. Collar Co 
 
 Merwin 
 
 Meyer v. Bailey .^ 
 
 Middleton Tool Co. v. Judd 
 
 Miller v. Clyde Bridge Steel Go 
 
 Miller V. Brass Co 
 
 Miller v. Eagle Mnfg. Co 
 
 Milligun V. Marsh 
 
 Mills V. Carson 
 
 * Mills V. Scott 
 
 Minter »". Williams 
 
 Mitchell V. Hawley 
 
 * Mitchell V. The Hancock Inspirutm (Dii 
 
 Moffat V. Rogers „..„ 
 
 Moody V. Taber 
 
 Moor V. Base 
 
 Moore v. Marsh 
 
 Moore v. Thompson 
 
 Pagk. 
 
 •»rr. a 124 
 
 •i FisJier 26r), 256 
 
 Mid. S. 119 
 
 liT Brodi.x, 112 U. S 178, 182, 211 
 
 ;rCar. & Kir 
 
 70 
 
 W Petl. Rep 294 
 
 7 P. (). R 79 
 
 * Sup. (Jt. R 68 
 
 I Ban. & Art! 99 
 
 I Blutch 81 
 
 :i Excli. R 89 
 
 L!» Brodix, 15 Fed. Rep. ... 429 
 
 II S. Y. Sup., 6 Fish 137, 234 
 
 .9&TS.Y 229 
 
 . 3« Fed. Rep 138 
 
 iT, p. 1.18.) 
 
 aio. (> 365 
 
 ICh. App 31 
 
 . 25Fetl. Rep 178,224 
 
 . 14: Fed. Rep 255 
 
 . IDiU 222 
 
 273, 274, 464 
 
 . -Jfl L J. Exch 308 
 
 . LL Fetl. Rep 225 
 
 . affir. C, Q. B. R 72 
 
 , tMi GT. S 184 
 
 . H Blatch 296 
 
 .-JB, 40, 44, 45, 46, 51, 131, 132, 133 
 
 •1 Ban. & Ard 188 
 
 . .JFish 187 
 
 B. P. C, vols. 8 & 9 290 
 
 .in4Jtr. S 177, 178,181,211 
 
 . rttip. Ct., 0. G., vol. 66 40 
 
 2.Mur. N. S 87 
 
 R. P. C, voL 9 230, 497 
 
 aU. C, Q. B 323 
 
 . EWeb. P. C 246 
 
 . rnWaH 216 
 
 VoL 2, Exch. Ct. R., Can., Appx. 
 H., 9, L. N., 17 R. L. . .362, 379, 382 
 
 MBrodix 184 
 
 B Ban. & Ard 233 
 
 Ellbwa 228 
 
 7. Waa 222, 279 
 
 Bt PC, vol. 7 307 
 
0A8E8 CITED. 
 
 XXIX 
 
 Moo-New. Paog. 
 
 Mo«.re V. Bennett 1 P. 0. R. ; Edmuntls on P -291 
 
 Moorew'od A Tapper 3 C. L. R 129 
 
 Morey v. Lockvood 8 Wall 141, 19*2 
 
 Morgan Envelope <*o. v. Albany Perfo- 
 rated Paper Co. P. 0. News, vol. 1 294 
 
 N.R— Foregoing caae has been reported in 67 0. G. p. 271, April 10th, 1894. 
 Morgan v. .Seawanl 1 Web. P. C, 2 M. & W., (^lood- 
 
 eve, p. 309, . . .flO, 123, 14 », 203, 238 
 
 Morgan's Patent, In re 24 W. R 223 
 
 •Morin v. herger 6 L. N., Quebec 2(i0 
 
 Morley Co. v. Lancaster 19 Brodix . . 128 
 
 Morris v. Mnfg. Co 20 Fed. Rep I.IO 
 
 Morton v. Jensen 49 Fed. Rep 101 
 
 M(«eley v. Victoria Rnbber Co 55 L. T., R. P. C, vol. 3 319 
 
 Moser v. Marsden Ct. of App, : Times L. R., vol. 9, 
 
 p. 584, R. P. C, vol. 9 (1892).. 
 
 41, 53, 280 
 
 Mosher v. Joyce 61 O. G 26(i 
 
 Mosler V. Mosler 127 n S 82 
 
 Mosler Co. v. M<j«ler, Bahmann & Co . . . 18 Brodix 135 
 
 Moss V. Molings 33 Ch. Div 318 
 
 •Muirv. Perry 2 L. C. R 43 
 
 Muntz V. Foster 2 Web. P. C 129, 247, 288, 297 
 
 Murray v. Clayton L. R., 7 Ch., Goodeve, p. 316, 
 
 L. R. 15Eq 44,84,263 
 
 Murray v. Ager 20 O. G 227 
 
 Myere, Fed., Dec 23 
 
 N. 
 
 D. 
 
 316 
 
 Nadin v. Basset 25 Ch. 
 
 National Cash Register v. American Cash 
 
 Register Co 0. G., vol. 62 128, 129, 133 
 
 National Hat Pouncing Machine Co. v. 
 
 Hedden 0. G., vol. 63 85 
 
 Needhamv. Oxley 8 L. T. N. S., 1 Hem. & M. . . .306, 312 
 
 Neilson v. Harford 1 eb. P. C 47, 72, 315, 317 
 
 Neilson v. Betta L. R., 5 H. L. 1 248 
 
 Neilson v. Thompsui 1 Web. P. C 303 
 
 Nettlefolds ▼. Reynolds R. P. C, vol. 8 312, 314 
 
 New Process Fermentation Co. v. Maus. 17 Broflix, 157 22 
 
 New York v. Raoaom 23 Howard 103, 252, 254 
 
 New York Phannical Ass'n v. Tilden . . 14 Fed. Rep 226 
 
 New York Gr^ie Sugar Co. v. Buffalo 
 
 Grape Sugar Go 18 Fed. Rep 225 
 
 New York Gr^ie Sugar Co. v. American 
 
 Grape Sugar Co. 10 Fed. Rep. 299 
 
'i ' I'll 
 
 il " pi 
 I 'I ;.■ i 
 
 ! ;l^i 
 
 XXX 
 
 OASES CITED. 
 
 New-Par. 
 
 Niwfll V. Elliott 
 
 Ney Mnfg. Co. v. Superior Drill Co . . . , 
 
 NiclioUs V. Newell 
 
 y ifkela Patent, In re 
 
 Nieoll V. Swears 
 
 Nohel's Explosive Co. v. Jones 
 
 *Xorth V. Williams 
 
 N. \y. Fire Extinguishing Co. v. Phil. 
 
 Extinguisliing Co 
 
 Norton V. Jensen 
 
 'Noxon V. Xoxou 
 
 *Noxon V. Patterson 
 Niinn V. (l'All)U(iuerque . 
 
 Paiik. 
 
 Higgins' Digest . '2t>5 
 
 O. G., vol. 64 301 
 
 1 Fish 453,454 
 
 1 Web. Pat. Cas 41H) 
 
 Times L. R., vol. 9 37 
 
 L. R., 17 Ch. D 247 
 
 17 Grant 140 
 
 1 Ban. kAiA 8» 
 
 49 Fed. R., O. G., vol. 60, p. 1326 
 
 (App.) 125 
 
 24 Ont. R.,Can. L. T., vol. 14. Can. 
 
 L. J., vol. 30, Jan., 1894 240 
 
 16 Prac. R. Ont., Can. L.T., vol. 14. .323 
 
 .34 Beav 262 
 
 O. 
 
 Ohio State v. Peck 25 Ohio St 407 
 
 Oltlham v. Longmead 1 Web. P. C 2.35 
 
 Oliphant v. Salem Flouring Mills 3 Ban. Sc Ard 453, 454 
 
 Oliver Co. v. Chemical Works 14 Brodix 230 
 
 Oliver v. Rumford Chemical Wks 109 U. S 232 
 
 O'Reilly v. Morse 15 How 54, 72, 141, 197, 205, 287 
 
 O'Shaughnessy v. Van Depoele 62 0. G 
 
 Otis Mnfg. Co. v. Crane 27 Fed. Rep 279 
 
 Otto v. Steel 31 Ch. D., R. P. C, vol. 2, R. P. 
 
 C, vol. 3 146,281 
 
 Oval Wood Dish Co. v. Sandy Creek 
 
 Mnfg. Co 66 0.G 140 
 
 ♦Owens V. Taylor 29 Grant, 29 L. T., vol. 1 235, 240 
 
 Oxley v, Holden - 8 C. B. N. S 69 
 
 P. 
 
 Pacific Iron Works v. Xewhall 
 
 1 Fish 229 
 
 Packet Co. v. Sickles. 19 Wall 
 
 Page v. Dickerson 28 Wis 
 
 Page v. Beamish 29 L. J. Ch 
 
 Page V. Telephone Co 17 Blatoh., 484. 
 
 Palmer v. Gatling Gun Co 8 Fed. Rep 
 
 Palmer v. Mills O. G., vol. 65 . 
 
 i' .1 inei ". Cooper 9 Exch 
 
 aker v. Stevens 6 Ch. Ap 
 
 252 
 2.34 
 274 
 
 99 
 
 300 
 
 .313, 316, 324 
 103 
 
 'M-tzr & Whipple Co. v. Yale Clock Co.l23 U. S.. 17 Brodix, 194 .117, 174 
 
 (cer V. Magnan Filtre Rapide Co R. P. C, vol. 5 320 
 
 Peaipoi 
 Peek v. 
 Peekove 
 
 Penn v. 
 Penn v. 
 
 Xote 
 Penningt( 
 }*ennock 
 Peiinsylva 
 Tiuok C 
 ^'eople V. 
 Perry v. C 
 Perry v. > 
 Peters v. j 
 Phelps v. ] 
 Pliiladelpli 
 Stimpsoi 
 Plielp V. Jf 
 I'liilips V. 
 Pickard v. 
 Pickering v 
 Pierce v. A^ 
 Pierrie v. Y 
 Pierson v. S 
 Pierson v. 
 Piggott v. A 
 Pilpott V, H 
 *Pinkerton t 
 Piper V. Bro 
 Pitts V. WJii 
 Pitts V. Hall 
 Pitts V. Weil 
 
0A8ES OITED. 
 
 XXXI 
 
 2*29 
 252 
 2»4 
 
 . 274 
 
 . 99 
 ..300 
 m, 324 
 I. . 103 
 L17, 174 
 1... 320 
 
 70 
 198 
 
 >8 
 
 Par-Pit. VMiK. 
 
 I»arker V. Hulme 1 Fish. 44 and 45 rtO, 139 
 
 I'tirkhurst v. Kcnsmuu I HIatch At 
 
 Parks V. Bootli 1(»2 U. S 141 
 
 raniell v. Most. Lid lell & Co 29 C'h. D .119 
 
 Patent Tvpo FDundint} Co. v. Walter . . John. 727 309, 310 
 
 Patent Tjim.' Founding Co. v. Lloyd .... a H. & N .S09 
 
 •Patric V. .Sylvester 23 (4nint 43, 126, 188, 189, 275 
 
 Patterson v. Commonwealth 11 Buah. (Ky. ) 467 
 
 Patterson v. IJas Light Co (ioodeve, p. ;i(l4 203 
 
 Pattee Plow Co. v. Kingman 19 Brodix, 129 U. S 183 
 
 Pattue V. Holland 4 Bliitch., 1 F ah 188, 191, 192 
 
 200, 231 
 
 Pearpoint v. Graham 4 Wash. (C. C. ), 232 
 
 Peek V. Frame 5 Fish. , 
 
 Peckover v. llowlands 10 R. P. C^. (1893), relates to p. 289, 
 
 290, see Index Infringement. . . . 
 
 Penn V. .Tack L. R. 6 Kcj 249, AVI, 
 
 Penn V. Bihby L. R 5Eq., L. R. 2Ch. Ap.,3L. 
 
 J. Eq 35, 40, 250, 297 
 
 Note— :?honld read Bihby for Bilby on p. .35, 1. 3.3. 
 
 Pennington v. King 7 Fed. Rep 61 
 
 I^ennock v. Dialogue 2 Peters 64, 330 
 
 Pennsylvania By. Co. v. Locomotive 
 
 Truck Co 110 U.S. 121 
 
 People v. Tibl>ets 4 Cowen Sup. Ot 274 
 
 Perry v. Corning 7 Blatch 216 
 
 Perry v. Mitchell 1 Web. Pat. Cases 312 
 
 Peters v. Active Mnfg. Co 15 Brodix 238 
 
 Phelps v. Brown 4 Blatch 405, 407 
 
 Philadelphia & Trenton R}'. Co. v. 
 
 Stimpson 14 Peters, 458 87 
 
 Phelp V. Nock 17 Wall 25.3,254,257 
 
 Philips V. Homfray 24 Ch. T) 269 
 
 Pickard v. Prescott Ap. Cog. , 1892, R. P. C, vol. 7. 144, 145 
 
 Pickering v. McCullough 104 U. S 133 
 
 Pierce v. Watson 34 Ala 2.34 
 
 Pierrie v. York St. Flax Spinning Co . . 31 L. R. Ir. & 10 R. P. C 123 
 
 Pierson v. Screw Co 3 Story 420 
 
 Pierson v. Eagle Screw Co 3 Story 424 
 
 Piggott V. Anglo-Amer. Tel. Co 19 L. T. R., N. S 309 
 
 Pilpott V. Hanbury R. P. C, vol. 2 (1885) 47 
 
 *Pinkerton et al & Cote Montreal Law Rep., 3 Q. B . .259, 260 
 
 Piper v. Brown 1 Holmes 264 
 
 Pitts V. Whitman 2 Story, 609 , 216 
 
 Pitts V. Hall 2 Blatch 256 
 
 Pitts V. Wemple 2 Fish., Walker, sec. 339 288 
 
 ■ 
 
 IR 
 
 i ' 
 
 PBEs 
 JWmtb 
 
 I 
 
 ^ 
 
 1 
 
 
 \ 
 
 
 ■* 
 
 
 t! 
 
XXXII 
 
 OASES CITED. 
 
 i': 
 
 PU-Red- PA(iR. 
 
 IMiuiing Mathino Co. V. Keith 101 U. S 14» 
 
 I'limptoii V. Wiiulow 14 Fed. Rep. . *. 68 
 
 IMIinptou V. SpiUer L. R. 4 4 6, Ch. D 101, 302, .103 
 
 304, 313 
 
 Plimpton V. Mftlculmaon 3 Ch. D., 4th ed., p. 3M, 44 L. J. 
 
 Ch., Seton on Decrees, 4th cd., 
 
 p. 354 lOti, 144, 145, '.>»8, 30« 
 
 I'lummer v. .Sargent 120 U. S 28 
 
 Pohl V. Anchor Brewing Co 20 Brodix SO 
 
 I'ollock on ContractH .'ith ed. , p. 270 464, 465 
 
 Pope Mnfg. Co. v. (Sormully 59 O. O. (1892) 22S 
 
 I'oppenhusen v. Falke i 2 Fish 299, '.V)3 
 
 Powder Co. v. Powder Works 98 U. S 184, Hh> 
 
 •Powell V. Ikgley 13 Grant 30, 102 
 
 Power V. Walker 3 M. & \\ 221 
 
 Price V. Jolinston 1 Ohio Nt 224 
 
 Price's Patent Candle Co. v. Bnuwen's 
 
 Patent Candle Co 4 Kay 265 
 
 Prince v. Brandon Mnfg. Co 4 Ban. & Ard 226 
 
 Prince v. CJagnon 8 App. Cas 282 
 
 Proctor V. Bayley H. P. C 307 
 
 Protheroe v. May et al Web. P. C 216 
 
 •Prouse V. Pagnuelo 2 L. C. R 312 
 
 (N.B.— Should read 2 L. C. R. instead of 2 S. C. R., 1. 28, p. 312.) 
 Pronty v. Ruggles 16 Peters 100, 238 
 
 Q. 
 
 •Queen v. Hall 27 U. C, Q. B 11, 334 
 
 •Queen v. LaForce (Exch. Ct. Can. ), reported Can. 
 
 L. T., vol. 14, p. 27, 4 Exch. 
 
 Ct. R. (Can).. 52, 56, 57, 104, 162, 
 
 201, 340, 405, 428, 460 
 R. 
 
 Raeyinaeckus, In re 0. G., vol. 60 439 
 
 Railway Co. v. Dubois 12 Wall 100 
 
 Railroad Co. v. Trimble 10 Wall 227, 232 
 
 Railroad Co. v. Turrill 15 Trodix 265 
 
 Railway Co. v. Stewart 95 U. S 324 
 
 Railway & Electric Appliance Co. , In re. 38 Ch. D 496, 497 
 
 (See note to Form 32ff. ) 
 
 Ralston v. Smith 13 L. T. N. S 24, 35 
 
 Ransomv.N.Y. 1 Fish 52 
 
 Rathbone v. Munn 9 B. & S 274 
 
 Read v. Bowman 2 Wall 222 
 
 Reckendorfer v. Faber 10 Brodix 1.32 
 
 Redmonds' Patent, In re 5 Russ 431 
 
 > 
 
0A8E8 OITED. 
 
 XXXIII 
 
 265 
 226 
 282 
 307 
 216 
 , 312 
 
 . 439 
 . 100 
 
 1 227, 232 
 . 265 
 . 324 
 
 i 496, 497 
 
 . .24, 35 
 ... 52 
 .... 274 
 .. 222 
 .. 132 
 .. 431 
 
 BM-Rnd. PAnit. 
 
 Kewl V. Story . 1 .Story 61 
 
 Ke«l V. Cutter 1 Story, 590 52, 54 
 
 •Regina v. .Smith 7 Ont. R 115, 333, 337, 338 
 
 Rogiiia V. County Ct. Jmlge of Halifav , R. P. C, vol. 8 281 
 
 •U«Hi«i»i V. I'iatue 5 Ont. Tiac. K 333, 33" 
 
 Regina v. Crampton R. P. C , vol. 3 
 
 KoiMner v. Sharp 16 Blatoh 458 
 
 Relter v. Jonea 36 Fed. Rep 13H 
 
 Uenard v. Leviniitein 2 Horn. AN 280, 298 
 
 Rennyson v. Mcrritt O. (J., vol. 63 167 
 
 Ronwick (1893) 138, 139 
 
 Rex V. Aires 10 Mod 334 
 
 Rex V. Butler 3 Lev 334 
 
 Rex V Wheeler 2 Ban. & Ard 90, 97, 105 
 
 Rice V. Ganihaat 34 Wis 
 
 Ridgea v. Mulliner 10 R. P. C 567 
 
 (See Index under License. ) 
 
 •Riech v. Hoerr (Unreported) Ont 106, 429, 432 
 
 Riley v. Bernard O. G., vol. 59, Coinr. Dec 416 
 
 •Ritchie v. Joly 12 L. C. R., Q. B 6 
 
 Roberts v. Roper 5 Fish 130 
 
 Robinson H. 58, vol. 3, p. 336.. 53, 54, 60, 138, 256 
 
 Rogers v. Alibott 4 Wash 298 
 
 Rolls v. Isaacs L. R. 19 Ch. D., Goodeve 70 
 
 Rollins V. Hinks 13 Eq 261 
 
 (N. B.— Should read Rollins instead of Rollers, 1. 23, p. 261.) 
 
 Root V. Third Avenue R. W. Co O. G., vol. 61 65, 67 
 
 Root V R. W. Co 105 U. S 306 
 
 Roper V. Manufacturing Co 20 Fed. Rep 294 
 
 Rothwell V. King R. P. C, vol. 3 302 
 
 Rowcliffe V. Morris 3 P. O. R 291 
 
 Rowe V. Blanchard 18 Wis 
 
 Rowell V. Lindsay 15 Brodix 129, 238 
 
 *Royal Electric Co. of Canada v. Edison 
 
 Electric Light Co Exch. Ct. R., Can., Appx. 2, vol. 
 
 2, 12 L. N. . . .26, 359, 360, 361, 362, 
 371, 372, .374, 376, 377, 379, 381, 389, 
 
 398 
 
 Royer v. Ross 19 Brodix 
 
 Royer v. Roth 20 Brodix 136 
 
 Rubber Co. v. Goodyear '. 9 WaU . . 187, 192, 230, 264, 265, 266, 279 
 
 Rubber Step Mnfg. Co. v. Metropolitan 
 
 R. W. Co 3 Ban. & Ard 139 
 
 Rubery'B Patent, In re 1 Web. P. C 431 
 
 Rude T. WostcoU 19 Brodix 263,264,265 
 
XXXIV 
 
 0A8E8 OITBD. 
 
 ^f 1 
 
 BuiBid. 
 
 UiMltton V. (JrawUy 10 Ei| 
 
 Kumitill, III rt! 2 do U. A J 
 
 llusM.ll V. Cowley I (.'. M. & H 
 
 IliiitNfll V. Ludmuii 12 L J. Kxdi., 14 M. & W 
 
 Paiik. 
 
 IW 
 
 SI 
 
 !» 
 
 7.\:n<i, 318 
 :tiu 
 »2I 
 
 KusuU V. Htttliold K. I'. (;., vol. 2 
 
 H. 
 
 •Siimiiflii V. Fiiiii^riovi) 'it Out. R 4«M>, 4«7 
 
 Snryoiit V. Miifg. Co 17 lUiitch '2M 
 
 .Sargent v, Suiigmvo 2 ( 'urtiH 21(9 
 
 Siiuiulers v. Alloii «7 C). (i., Miirch i;), 1M«4, Sup. Tt, 
 
 U.H. 
 
 Saxhy V. Kiiitorhrook 7 Kxch 2tl.'J, :U(> 
 
 SaxD V. Ilaiiiiiiiiiiil HolrnuM, 4.*>l» 
 
 Saxtoii V. Aultinan I ft Ohio 217 
 
 .Sayro v. Suott ().(}., vol. «3 101, 12!), 2(iH 
 
 .Sca.iiliiig V. Eylis U (i. » 274 
 
 Sohilluiiger v. Ouiithor IS and 17 BUtch 197, 2(MJ, 207 
 
 Sclineidor v. HusHott 13 Ked. Rep 194 
 
 Schnoider v. I'oiintiiey 21 Fed. Rep 294 
 
 Seabury v. Am. Kiule P. O. New», vol. 1 264 
 
 SearU v. Hontou 12 Fed. Hep 231 
 
 Sedgwick Sees. 1,212, 1,220, 1,228 253. 2fl4 
 
 Seed V. Higgins 8 H. L. CaaoB 127 
 
 Selden v. (ias Kurnor Co 9 Fed. Rep 187 
 
 Sellers V. Dickinson 8 Exch 261,290 
 
 Seaftions v. Romuaki 0. G. , vol. 69 2li(i 
 
 Sewell v. Jonea 91 U. S., 10 Brodix 103, 244 
 
 (N.B.— Should read Sewell for Sewall, 1. 3, p. 103.) 
 
 Seymour v. Osborne 3 Fish. , 1 1 Wall . . 62, 86, 139, 184, 
 
 185, 192 
 
 Seymour v. Wallace 11 Wall 
 
 Seymour v. McCormick 14, 16 and 19 How., 3 Blatch., 19 
 
 Wall . .205, 21 1, 250, 251, 252, 253, 256 
 
 Sharp v. Henrici 2 Ban. k Ard 66 
 
 Sharp's Patent, In re 1 Web, P. C 
 
 Shaw V. Cooper 7 Peters 64, 403 
 
 Shaw V. Leac Co 11 Fed. Rep 176 
 
 Shaw V. Soule 20 Fed. Rep 232 
 
 Shaw V. The Bank of England 22 L. J. Exch 308 
 
 Sheehan v. Gt. E. Ry. Co 16 Ch. D 33, 207, 246, 280 
 
 Sheets v. Shelden's Lessee 2 Wall 170 
 
 Shetly V. Brennan 4 Fish 300 
 
 Shillito V. Larniouth R. P. C, vol. 2 302 
 
 Siddell V. Vickers . R. P. C, vol. 7, 61 L T., W. N. 
 
 (1889) 108,266 
 
0A8B8 OITBD. 
 
 XXXV 
 
 .19 
 
 |253, 256 
 66 
 
 .64,403 
 176 
 . 232 
 . 308 
 
 1 246, 280 
 ,. 170 
 .. 300 
 .. 302 
 
 t. N. 
 .108,265 
 
 81e 8te. Vacu 
 
 Hii>t\m\» V. Hollort „ 17 HnMlix . . H'.', lOS 
 
 Sil^l.y V. F..ot.« 14 How :U4. 319 
 
 Siiii|miiii V. Hulliiliiy L. |{., I K. A I. App., H. L., L R. 
 
 I H. f 103, \(k\'2ia 
 
 Siiu|inoii V. WIIhoii 4 llowunl '2M 
 
 Siiigur V. WiilniHley 1 Kiilun- 205 
 
 .SIhn.hi V. (Jillwrt » Uliitoh til) 
 
 SkimitT k ('.>. V. Slmw * Co (1H03) I (!h 32<» 
 
 Sliittury V. SlmlK'iil>erf{ur Comr. I)«c. (). (1., vol. 62 157 
 
 slii/migur V. hVlthiuii (,'ntl«r'H ratuiit CiiseH (F.O.R.), 
 
 vol. 6, p. '2:Vi 122 
 
 .sl.iwHoii V. Kuilroutl 14 HrotUx 137 
 
 Sinit h V, Hiunnwurt 322 
 
 •Smith V. UoUUo ttHiip. ft. H. (Ciin.), 11 I'mc. It., 
 
 7 App. R. .3H. 40, 43, 55, 56, 57, 65, 
 
 72, .S4, 146, 282, 258, 250, 348, 3.-»3, 
 
 364,371 
 
 Smith V. Ooo.lyear Dontal Vulcimite Co.. 11 Brodix, 93 U. S 42, 4.'., 93 
 
 Smith V. NJoholU 21 Wall 85 
 
 Smitli k <)rigs{9 Miifg. Co. v. 8prague , . 17 BroiUx 100 
 
 •Smith V. Ball 21 U. C. f^. B. R 102, 104 
 
 •Smith V. llroey 10 Prac. R. , 1 1 Prao. II., Can. L. T. , 
 
 vol. 5. 43, 44, 151, 161, 276, 311, 321, 
 
 322 
 
 Smith V. Merriatn 6 Fed. Hop 175 
 
 Smith V. Mercer 3 Pen., N. J. Uep 188 
 
 Smith V. NieholU 21 Wall 205, 210 
 
 •Smith V. Mutchmore 10 & 11 U. C. C. P 102, 107, 221 
 
 Smith V. Buckingham 18 VV. R., 21 L. J. N. S 2;i5 
 
 Smith V. Neale 2 C. B., N. S 236 
 
 Smith V. CVopper 10 App. Cas 237 
 
 Smith V. London & N. W. R. R 2 El. & Bl. 76 288 
 
 Smita V. Lang R. P. C, vol. 7 315 
 
 Smith V. Upton 6 Mac. &G .3.35 
 
 Smith V. Walton 0. (i., vol. 61 452, 4.')5 
 
 Smith & DavJH Mnfg. Co. v. Mellon 0. U. , vol. 66 68 
 
 Smith Mnfg. Co. v. Sprague 123 U. H 68 
 
 Soladee v. Carriage Co 20 Fed. Rep 
 
 Solomon V. United States 20 Brodix 228 
 
 Somers, Ex parte 2 de G. M. & G 274 
 
 Spencer v. Jack 11 L. T. N. S 35 
 
 St. Paul Plow Works v. Starling 140 U. S 567 
 
 Stannard v. Vestry of St. Giles L. R., 20 Ch. D 307 
 
 Stead V. Williams 2 Web. Pat. Caa 145 
 
 Stead V. Anderson 2 Web, Pat. Cas 145 
 
 Steam Cutter Co. v. Sheldon 10 Blatoh 217, 228 
 
XXXVI 
 
 0A8B8 0ITBD. 
 
 
 li 
 
 1 ■ 
 
 8to-Tbo- 
 
 HtvAin Ntonu ('iitt«r (y'li. v. Hhnldon . 
 StMiii Ntoiu I /'utter (\i. v. Mnf)(. Co. 
 Ntrntii >St(»vu Miifg. Co. v. MnfK. Cu. 
 
 Htoiiiii ( ittiiKu (<'o. V. Miller 
 
 Ntflhbiiia (.'o. v. Stvbliina 
 
 Htoora v, Rogen 
 
 Hloiiittr Kiru KxthiKuUhiiig Co. v. City of 
 
 Ailrinn 
 
 Stuiiier V. HoaIiI 
 
 Ktuvitiia V. Ki'iiliiig 
 
 StovuiiM V. Huail 
 
 StovviiiM Co. V. Ntvvviim 
 
 Stiin|W(>ii V. !{()((ui'N 
 
 Ntiiii|Hit>ii V. I'onil 
 
 Storti Serviod (/'<>, v. Storu Horvico Co. . . . 
 
 Stow V. City of Chicago 
 
 Suffolk Co. V. Httyilon 
 
 •NumnuirH v. AImiII 
 
 Hwurt/ V. I)u la Uuo 
 
 Hwift V. Whfftcn 
 
 Sykua v. Howarth 
 
 *>Sylveatur v. Muaaon 
 
 pAor. 
 
 AFlah 231. 247 
 
 17 HUtoh 7M 
 
 17 lUfttoli WH 
 
 1 1 K«<l. Kep Ml 
 
 4 Fe.l. Rep. 448 M7 
 
 L. K., IN0>2,'J Ch. (App.) atilriiMMl, 
 
 H. L (IHU.'I), A. ('., '2;Vi . -M, '.'4.^ 
 
 O. <»., vol, (W I'W 
 
 a Kxch :jft 
 
 2iWuli. I'»t. V'. I Mfto. A U. . I'.»8, it)*.' 
 
 Vt 227 
 
 4 Fed. Itep., p. 44R 227 
 
 4 lliutcli Mil 
 
 aCurtie 4.'54 
 
 .11 <). (} 29tt 
 
 2 lliui. k Aril 130 
 
 a Wall 280, 'JflT 
 
 IflCinmt . .•«;, «7 
 
 n Kuaa 21W 
 
 ;j KiMhor, 2 Hoiul 104, 187 
 
 L. R., 12 K<|., 12 Ch. I) 318, 3r. 
 
 12 App. R,,Ont 141 
 
 T. 
 
 h 
 
 Talbot V. th la Roche 
 
 Tapping ou Maiulatnua 
 
 Tatlmin v. Lowber '. 
 
 Taylor v. Archer 
 
 •Tvlephono Mnfg. Co. of Toronto v. The 
 Bell Telephone Co. of Canada 
 
 18C.B 312 
 
 104 
 
 Mi 
 
 Templeton v. Macfarlane 
 
 Terrell on Patents (Eng.) 
 
 Thatcher Heating Co. v. Burtis 
 
 Thomas v. Fox well 
 
 Thomas v. Quintard 
 
 Thomson v. Macdonald 
 
 Thomson v. Moore 
 
 Thomson, Ex parte 
 
 Thompson v. Boissellier 
 Thompson v. Hughea. . . 
 
 SHlatch 199, 210 
 
 Exch. C. R., Can., p. 024, Appx. 2, 
 vol. 21, 18 Revue Legal, 9 I^gal 
 
 News (Que. ) H31 , .177, .'HU 
 
 1 H. L. C 203 
 
 84, 102, 249, 298, 318 
 
 17 Brodix 13: 
 
 Goodeve, p. 461 203 
 
 ODuer. (N. Y.) 2.30 
 
 R. P. C, vol. 8 324 
 
 23 L. R. Ir., 6 Pat. Off. R., 6 R. P. 
 
 C 130,290,308 
 
 Wi 
 
 ,114 U. S lie 
 
 , R. P. C, vol7 
 
 i 
 
OAISI OITBD. 
 
 XXXVII 
 
 Tll-U 8. I'AtiR. 
 
 rilt(hniaii V. MnrM fl llUtoh 40 
 
 TtlKliiimii V. I'nictor 17 liimlii SAI, 2A'i, !MA, 'Mn 
 
 rilghman v. MItih.-ll 9 HUtch 98B 
 
 I'oinkii.i* V. Itutt*<rtii<l<l itA Kmi. |U|» 4AS 
 
 'i'oiiilinir V. ( 'liAtiilxirM I? Kml, K«|> IW 
 
 'rouliuy V, lUnling t HiikIhis ]M7 
 
 Tool (•(.. V. .hiild l\ FUh !»4 
 
 loplitf V. Toplitt 146 U. 8., I'i Mup. Ct. H., U. S. ... 
 
 177, IMl. I(W 
 •I'oroiito Teli'|ihont' MnfK ('<>. v. ""ho 
 
 \M\ Tt)Io|ihoii<> Co. of C'miiiuIu (INNA), vol. 'i, Kiuh. <'t K., Can., 
 
 p. 49A 3fll, 37'i, 377, 3M7 
 
 'lowimond v. Hiiwortli . \'2 Ch. D 8W. 
 
 Troy lion * Nail Foctnry v. Corning. . . 14 How Si3S 
 
 IN. H - Shoiilil ri'iul Corning for Coming, 1. 13, p. 233). 
 
 'I'roy Kaotory v. < UWuuw 17 How 424 
 
 'I'liuk V. Itnunliiil « HUtch lOtt, 210, 32A, 32fl 
 
 Tiiclter V. Dana 7 Fed. Kep liK) 
 
 'I'urnvr, Kx parte U. Ci., vol. 06 2S 
 
 'I'urrill V. Uai!r.>aa Co 1 Wall 101 
 
 'i'lirroU V. Spnutii 3 Ban. * Ard 124 
 
 Tyler v. Crone 7 Fed. Hep 67 
 
 Tyler v Boston 7 Wall 129 
 
 Tyler V. (Jalloway 21 BUtoh 29A 
 
 312 
 
 :wr. 
 
 ), 210 
 
 Ivl 
 
 h, 37U 
 
 203 
 |8, 31 H 
 
 13: 
 203 
 230 
 324 
 
 ), 308 
 
 116 
 
 1. 303 
 
 u. 
 
 Underwood v. (Jerber 0. (J., vol. 63 211 
 
 Union Kdge Setter Co. v. Keith <.». O., vol A6 130 
 
 Union Metallic Cartridge Co. v. U. S. 
 
 Cartridge Co 2 Ban. & Ard 248 
 
 * Union Navigation Co. v. Kestony L. C. Jur. .306 334 
 
 Union Paper Bag Co. v. Nixon « Fisher 182 
 
 Union Sugar Hoflning Co. v. Mathieson. . 2 Fisher Al 
 
 United Horse Sh(»o and Nail Co. v. , 
 
 Stewart (1888) R. P. C, vol. 2, 13 App. Cas. H. 
 
 L 203,249,266 
 
 (N. B.— Should read United Horce Shoe and Nail Co., instead of United 
 States Horse Shoe and Nail Co., 1. 7 and 8, p. 203.) 
 
 U. S. V. Burns 8 Bro<lix, 12 Wall 416 
 
 U. S. ex. rel.. Fowler et al. v. Comr. 
 
 Pats 62 0. O . . 72 
 
 U. S. V. McKeever 14 Brodix 256, 266, 2A7, 416 
 
 U. S. ex. rel.. Electric Ltg. Co. v. Comr. 
 
 Pats C. D., 54 0. G 73 
 
 U. 8. ex. rel., Bourne v. Goodyeur .... 8 Brodix 75 
 
XXXVIII 
 
 OASES CITED. 
 
 I a 
 
 U. S-Wal. Paok, 
 
 U. S. V. Morris 3 Fish 463, 454 
 
 U. S. V. I'almer 19 Brodix 23 (1889) 228 
 
 U. S. V. The Ship Recorder 1 Blatch 170 
 
 U. S. V. Palmer 19 Brodix 228 
 
 U. S. Stamping Co. v. Jewitt IS Blatch 227 
 
 U. S. C'n lit System Co. . v. American 
 
 Indem. Co 63 O. G., p. 318 ♦. 38 
 
 United Telephone Co. v. Harrison & Co. L. R. 21 Ch 145, 2!M) 
 
 United Telephone Co. v. Walker 56 L. T 247, 250, 2.')4 
 
 United Telephone Co. v. Bassano R. P. C. , vol. 2 iWA 
 
 United Telephone Co. v. Sharpies R, P. C, vol. 2 67, 291 
 
 United Telephone Co. v. London and 
 
 Globe Telephone and Maintenance 
 
 Co 25 Ch. 1) 294 
 
 United Telephone Co. v. Dale 26 Ch. D .306 
 
 Useful Patents Co. v. Rylands 2 P. 0. R 50 
 
 Van Gelder v. Sowerby R. P. C, vol. 7 281 
 
 Vance v. Campbell 1 Fisher, 1 Black.. 46, 47, 196, 199, 23H 
 
 Valen \ . Langlois 5 App. Cas '2H'2 
 
 * Vannorman v. Leonard 2 U. C. Q. B. R S 
 
 * Vermilyea v. (ruthrie 9 Prac. Rep. , Ont 27H 
 
 •Vermilyea v. Canniflf 12 Ont. Kep 235, 262 
 
 (N.B. — Should read Vermilyea instead of Vermilya, 1. 35, p. 235.) 
 
 Vickers v. Siddell 1' Ap. Cas., 63 L. T 107 
 
 Vidi V. Smith 23 L. J. Q. B., 3 El. & Bl .... .308. 310 
 
 Vincent v. Rigby 64 O. G 287 
 
 Vose V. Singer 4 Allen, Mass 33, 233 
 
 Vulcanite Co. v. Wetherby 2 Cliff 194 
 
 W. 
 
 Wade V. Metcalf 16 Fed. Rep., 129 U. S. . .69, 420, 
 
 424, 425 
 (Note. — Should read Metcalf for Medcalf, 1. 15, p. 69.) 
 
 Wa' e*ield v. Duke of Buccleugh 11 Jur., N. S .302 
 
 Wai: . / Pages 23, 30, 32, 33, 50, 51, 65, 67, 69, 
 
 70, 93, 100, 101, 102, 103, 107, 121, 
 124, 127, 129, 133, 135, 137, 138, 141, 
 146, 150, 181, 197, 199, 203, 205, 206, 
 210, 228, 229, 251, 252, 253, 264, 255, 
 256, 267, 264, 265, 266, 267, 276, 298, 
 299, 301, 314, 317, 402, 408, 416, 417 , 
 420, 422, 423. 
 
 Walker v. Clark R. P. C, voL 4 303 
 
 .L 
 
OASES OITED. 
 
 XXXIX 
 
 >AtlK. 
 
 1,454 
 . 228 
 . 170 
 . 22H 
 227 
 
 .. 38 
 15, 290 
 «), 234 
 . . 293 
 57, 291 
 
 294 
 306 
 
 ... 281 
 199, 23H 
 
 . ... 2S2 
 
 •^ 
 
 .... 27H 
 235, 262 
 
 ... 107 
 
 1,308.311) 
 ,.. 287 
 33, 233 
 ... 194 
 
 1 420, 
 
 1 424, 425 
 
 . 302 
 
 }, 67, 69, 
 
 1107, 121, 
 
 1 138, 141, 
 
 205,206, 
 
 264,255, 
 
 276,298, 
 
 1 416, 417, 
 
 ... 303 
 
 Wal-WIc 
 
 Walker v. Hawkshnrst. 
 
 Wallace v. Holmes 
 
 Wallace 
 
 Paoe. 
 
 5 Blatch 434 
 
 QBlatch 294 
 
 !•> 
 
 Wallington V. Dale 7 Exch 136 
 
 Walton V. Batcman Gooileve 106 
 
 Walton V. Uvater 8 C. B., N. S 215. 292 
 
 Walton V. Lister." 29 L. J. C. P 23.") 
 
 •Wandby v. Hewitt 27 U. C. C. P. R 9«i 
 
 Washburn & Moen Mnfg. Co. v, Haish.. 4 Fed. Hep., 4 Ban. & Ard 42 
 
 Washburn v. Gooid , 2 Story 104 
 
 Washburn v. Gould 3 Story 191 
 
 Water Meter Co. v. Desper 101 U. S 23S 
 
 Waterbury ^rass Co. v. Miller 9 Blatch 287 
 
 Waterman v. McKenzie 20 Bro<lix 216, 217, 221 
 
 Waterman v. Shipman 0. G., vol. 64 221, 233, 280 
 
 Waterman v. Thomson ... 2 Fish 6»> 
 
 *Waterou8 v. Bishop 20 U. C. C. P. R 35, 102 
 
 Watson V. Cin. Ind. etc. R. W. Co . . , . 20 Brodix 135 
 
 Watson V. Cincinnati Ry. Co 20 Brodix 211 
 
 Watson V. Halliday 46 L. T., N. S 263 
 
 Webster Dictionary . 23, 24, 97 
 
 Webster v. Parkhurst O. G., vol. 60 
 
 Welcli V. Phelps 25 O. G 467 
 
 Wells V. Gill 6 Fish .300 
 
 Wenham Co. v. Champion Gas Lamp Co. R. P. C, vol. 5 312 
 
 N.B.— Should read 6 R. P. C. in 1. 17, p. 312. 
 Wenby v. The Manchester Steam Tram- 
 
 waysCo R. P. C 
 
 Werner v. King 96 U. S 
 
 W^estem Electric Co. v. La Rue 0. G., vol. 55 
 
 Weston V. White 13 Blatch. . 
 
 Wetherell v. Zinc Co 6 Fish. 50 
 
 White v. City of London Brewery Co. . . 42 Ch. D 
 
 White V. Manufacturing Co 24 O. G 197 
 
 voL 8(1891) 124 
 
 295 
 
 122 
 
 66 
 
 222 
 
 33 
 
 208 
 
 .229, 2.34 
 
 White V. Lee 14 Fed. Rep 
 
 White V. Citv of London Brewery Co . . 42 Ch. D , 
 
 Whitehouse Patent, In re 1 Web. P. C 
 
 Whitely, Ex parte Com Dec. 1869, p. 79 
 
 •Whitely v. Gowdey Can, L. T. vol. 5, Can. L. Journ 
 
 vol. 21 
 
 Whiting V. Graves 3 Ban. & Ard 
 
 ♦Whiting V, Tuttle 17 Grant 
 
 Whitneyv. Mowry 4 Fish., 14Wall 47, 266, 267 
 
 Whittemore v. Cutter 1 Gall 2.H 
 
 Wicke v. Ostrom 13 Brodix 129 
 
 431 
 
 179 
 
 33 
 
 235 
 
XL 
 
 OASES OITED. 
 
 
 I 
 
 i ni 
 
 ^S 
 
 Wic-Yal. 
 
 Wicks V. Stevens 
 
 Wilcox, Gibbs Co. v. Gibbons Frame Co. 
 
 * Wiley V. Ledyard 
 
 Wilkins v. Elliott 
 
 Williams v. Rome R. W. Co 
 
 Wilson V. Coon 
 
 Wilson V. Stolby 
 
 Wilson V. Rosseau 
 
 Wilson V. Chickering 
 
 Wilson V. Singer Mnfg. Co 
 
 Wilson V. Simpson 
 
 Wiman v. N. Y. & Harlem R. R 
 
 Winans v. Denniead 
 
 Window Cleaner Co. v. Bosley 
 
 Wintermute v. Redington 
 
 Wisconsin State v. Lockwood 
 
 Wise V. AUis 
 
 •Wisner v. Coulthard 
 
 * Withrow V. Malcolm 
 
 Wood V. Ferguson 
 
 Woodcock V. Parker 
 
 * Woodruff V, Moseley 
 
 'Woodward v. Clement 
 
 Woodward v. Morrison 
 
 W'ood worth v. Sherman 
 
 \A'oodworth v. Curtis 
 
 Wodlenseck v. Sargent & Co 
 
 W^ooster v. Simoudson 
 
 Wren V. Wield 
 
 Wright V. Wilson 
 
 Wright V. Hale 
 
 * Wright & Hibbert v. The Hell Telephone 
 
 Co. of Can 
 
 Wyckoff, Ex parte 
 VVyeth v. Stone ... 
 
 .1 :: 
 
 Yale Lock Mnfg. Co. 
 Y'ale Lock Mnfg. Co. 
 
 V. Berkshire Bank. 
 V. Natior al Bank . . 
 
 Paoe. 
 
 2 Ban. & Ard 182 
 
 17 Fed. Rep 449 
 
 10 Prac. Rep. (Ont.) 27« 
 
 108 U. S 
 
 ISBUtch 131, 132 
 
 ISBlatch 175 
 
 4 McLean .' 228, 233, 247 
 
 4 How 279 
 
 14 Fed. Rep 279 
 
 9Bis8 449 
 
 9 How., 109 234 
 
 4 Fish 51 
 
 66 U. S., Renwick, p. 6 138 
 
 15Brodix ISC. 
 
 IFish 22U 
 
 43 Wis 4«7 
 
 9 Wall 320 
 
 (Unreported), Ont., Sup. Ct. Rep. 
 (Can.), vol. 22, L. N., vol 16, 
 p. 281... 36, 38,45,83,84, 124, 
 
 126, 127, 130, 188, 202, 250 
 
 6 Ont. Rep 175, 176, 177, 181 
 
 7 Ohio St 224 
 
 Merwin, p. 218 137 
 
 17L.C. J 12 
 
 10 Ont. R ...126,281 
 
 1 Holmes 129 
 
 3 Story 224 
 
 2Robb 
 
 33 Fed. Rep., 0. G., vol. 66 . .180, 299 
 
 20 Fed. Rep., O. G., vol. 28 . .233, 257 
 
 L. R., 4Q. B. 261,314 
 
 11 Richardson (S. C. Law Rep). . . . 230 
 6H. &N 274 
 
 Reported in Decisions of Minister 
 of Agriculture, Osgoode Hall Li- 
 brary, and vol. 2, Exch. Ct. R., 
 
 Can., Appx. 2 383, 384, 385 
 
 0. G., vol. 60 60 
 
 1 Story 69, 139,208 
 
 20Brodix, 135 U. S 183, IKi 
 
 17 Fed. Rep 137 
 
0A8E8 ORED. 
 
 XLI 
 
 , 132 
 . 176 
 3,247 
 . 279 
 . 279 
 . . 449 
 .. 234 
 .. 51 
 . 138 
 .. 130 
 220 
 .. 407 
 .. 320 
 ep. 
 16, 
 24, 
 202,250 
 
 177, 181 
 . .. 224 
 ... 137 
 ... 12 
 126, 281 
 . 129 
 . 224 
 
 T«l-Zin. Paob. 
 
 Yale Look Mnfg. Co. v. Sargent 16 Brodix 206 
 
 Yale Ivock Mnfg. Co. v. Oreenleaf 16 Brodix, 1 17 U. S 136 
 
 •Yates V. Great Western R. W. Co 24 Grant, 2 App. R. (Ont.) . ,36, 83, 130 
 
 Young V. Lippman 6 Fish 301 
 
 Zane v. Penk 13 Fed. Rep. 
 
 Zinseer t. Goolidge 17 Fed. Rep. 
 
 253 
 302 
 
 Bter 
 
 )Li- 
 
 R., 
 |384, 385 
 
 . 60 
 
 |139, 208 
 
 |l83, 193 
 . 137 
 
I 
 
 XLII 
 
 cmnmaTa. 
 
 n 
 
 CONTEXTS. 
 
 ceipnEi!; 11. 
 
 Thu Pattiut Act of Ciinadu, ok untmttb<L to ilatu ; being Chapter 61, Revised 
 Statutes of Canada, "An Act reHjKimini^ Patunta of Invention," (A. D. 1886), as 
 amended by 51 Vic, c. 18 (1HH8) : W VTIu.. a 13 (1.S90) ; 54 and 55 Vic., c. 33 
 (1891); 55 and 56 Vic, c 24 (J-HHyj;; -TH^ Vic, c. 34 (1893), with annotations, 
 pages 21 to 467. 
 
 N.B. — The following are tht Hittt iiiit!H.f i-elatiug to the various sections of the 
 Revised Act and Acts amending: tlit mma with fet'erence to tiie pages on which 
 the various sections appeal. I^c umunitnunc was made to the Patent Act during 
 the session of 1894 of the Housr of tCiuununs ot Canada. 
 
 PAET DL.-Hpp. 21-25.) 
 
 tiBIBOI TITLE. 
 
 Page. 
 
 Section 1— Short Title— Tht- fftotn* Act; 21 
 
 Section 2. — Interpretatiou ctf ■'■• MniHter " ; " Commissioner " ; 
 "Deputy Commissiouer ' ; - Haven tion " ; "Legal Represen- 
 tatives" 21 
 
 PAET EL.— ^pp. 25-27.) 
 
 PATENT OFFICE AJsH) ^90INTMENT OF OFFICERS. 
 
 Section 3. — Patent Office CoiHniiiiiCBtl 25 
 
 Section 4. — Duties of the CkmmiijfiiDner 26 
 
 Section 5 & sub-sec. 2. — Dejurro (i'ommiasioner, etc., may be ap- 
 pointed, and the duties af aiiff Deputy Commissioner 26 
 
 Section 6.— The Seal 26 
 
 PAET Dm.— ('pp. 27-118.) 
 APiiacamnw wja patents. 
 
 Section 7. — Who may obtain ffhtHate ; aub-aec. 2,What may not be 
 
 patented 27 
 
 Section 8.— As to Inventioms ffoi- which foreign Patents have been 
 taken out ; Manufactui% iiii Cisnoda ; and expiry of Canadian 
 Patent 73 
 
leviBed 
 386), a8 
 ., c. 33 
 tations, 
 
 8 of the 
 in which 
 t during 
 
 CONTENTS. , XLIII 
 
 Paoe. 
 
 Section 9. — Improvements may be patented 83 
 
 Section 10. — Oath to be made by Inventor ; sub-sec. 2. Or by the 
 Applicant if the Inventor is dead; sub-sec. 3, Bt fo e whom 
 
 the Inventor may make oath 86 
 
 Section 11. — Domicile to be mentioned in the petition 91 
 
 Section 12. — Requirements with regaid to Application 91 
 
 Section 13. — What the Specification shall show ; sub-sec. 2, Place 
 and Date : sub-sec. 3, In the case of a Machine : .sub-sec. 4, 
 Drawings to be furnished in certain cases ; sub-sec. iy, Draw- 
 ings, how di.Hposefl of ; s»ib-sec. (i, Certain matters may be dis- 
 pensed with 98 
 
 Section 14. — Model to be furnished when required, or specimens ; 
 
 Preciiution.s to be taken with Dangerous Substances 114 
 
 Section 15. — Application not to be withdrawn without written 
 
 consent o** registered assignees .... 117 
 
 Page. 
 . 21 
 
 ben- 
 
 ap- 
 
 21 
 
 25 
 26 
 
 26 
 26 
 
 Itbe 
 
 27 
 
 jeen 
 lian 
 
 i« • • • • 
 
 PART IV.— (pp. 118-152.) 
 
 REFUSAL TO GRANT PATENTS. 
 
 Section 16. — Commis-sionei- may object to grant a Patent in certain 
 cases : (a) When not Patentable in law ; (6) When already in . 
 the posses^sion of the public with the consent or allowance of 
 inventor ; (c) When there is no novelty ; (f^) When described 
 in a book or other printed publication before date of applica- 
 tion, or otherwise in posses.sion of the public ; (e) When already 
 
 patented in Canada 118-119 
 
 Section 17. — Applicant to be notified of refusal to grant 150 
 
 Section 18. — Appeal to Governor in Council 151 
 
 PART v.— (pp. 153-162.) 
 
 CONFLICTING APPLIC.A.TIONS. 
 
 Section 19. — Arbitration in case of conflicting applications ; sub- 
 sec. 2, Failure to appoint Arbitrators ; sub.-sec. 3, In certain 
 cases Commiissioner may appoint ; sub sec. 4, Arbitrators to 
 be sworn — form of oath ; .sub--sec. 5, Powers of the Arbitrators ; 
 Proviso, sub-sec. 6, Their remuneration 153 
 
 
 'i;> 
 
Hi! 
 
 XLIV CONTENTS. 
 
 PART VI.— (pp. 162-172.) 
 
 grant and duration of patents. 
 
 Paoi. 
 Section 20, — What tlie Patent shall contain and confer ; sub-sec. 2, 
 
 Joint application 162 
 
 Section 21. — Form of issue of Patent ; sub-sec. 2, Patents may be 
 
 referred to the Minister of Justice 166 
 
 Section 22— Duration of Patent (18 years) ; sub-sec. 2, If partial 
 fee only in paid (6 or 12 years) ; sub-sec. 3, Etfect of second 
 and of further payment 168 
 
 PART VII.— (pp. 172-194.) 
 
 REISSUE OF PATENTS. 
 
 Section 2r. — 1 n cases new Patent or amended Specification 
 may be i5 o-sec. 2, Death or assignment ; sub-sec. 3, 
 Krtect of new Patent ; sub-sec. 4, Separate Patent for separate 
 parts of ;i \r:ition 172, 173 
 
 PART VIJI.— (pp. 194-211.) 
 
 DISCLAIMERS. 
 
 Section 24. — Patentee may disclaim anything included in Patent by 
 mistake ; sub-sec. 2, Form and attestation of disclaimer ; sub- 
 sec. 3, Not to affect pending suits ; sub-sec. 4, In case of death 
 of patentee ; sub-sec. 5, Effect of disclaimer 194, 195 
 
 PART IX.— (pp. 212-242.) 
 
 ASSIGNMENTS. 
 
 Section 25. — When representatives may obtain the Patent 212 
 
 Section 26. — Patents to be assignable ; Registration ; Assignment, 
 
 if not registered, null against subsequent registered Assignee. . 214 
 Section 27. — Assignment in case of joint application 241 
 
 PART X.— (pp. 242-343.) 
 
 niPEACHMENT AND OTHER LEGAL PROCEEDINGS IN RESPECT OF PATENTS. 
 
 Section 28. — Patent to be void in certain cases, or valid only for 
 
 part ; Copies of judgment to be sent to Patent Office .... 242, 243 
 
 Section 29. — Remedy for infringement of Patent 245 
 
 Section 30. — Action for infringement of Patent 269 
 
 Section 31. — Injunction may issue ; Appeal 286 
 
 li^t 
 
OONTENTS. 
 
 XLV 
 
 Pao». 
 
 2, 
 
 .. 162 
 be 
 
 .. 165 
 bial 
 )nd 
 ... 168 
 
 tion 
 c. 3, 
 arate 
 172, 173 
 
 ntby 
 sub- 
 eath 
 194, 195 
 
 ,. 212 
 lent, 
 lee.. 214 
 
 .. 241 
 
 PATENTS. 
 
 lly for 
 .242, 243 
 .... 245 
 
 269 
 
 .... 286 
 
 Pa«ie. 
 
 Section 33. — Court may discriminate in certain cases 325 
 
 Section 33. — Defence in actions for infringement 326 
 
 Section 34. — Proceedings for Impeacliment of Patent ; sub-sec. 2, 
 
 Scire facias may issue 331, 332 
 
 Section 35. — Judgment voiding Patent to be tiled in Patent Office. 341 
 Section 36.— Appal 342 
 
 PART XI.— (pp. 343-404.) 
 
 FOBPEITUUE OF PATE.NTS. 
 
 Section 37. — Conditions of Patent ; Manufacture in Canada ; Im- 
 {K>rtation into Canada ; Jurisdiction of the Exchequer Court in 
 such cases ; Jurisdiction of other Courts not ousted , 8ub-sec. 
 
 2, Term for Manufacture in Canada may be extended ; sub-sec. 
 
 3, Term for Importation may be extended ; Proviso 343, 344 
 
 PART XII.— (pp. 404-401).) 
 
 CAVEATS. 
 
 Section 38. — Intending applicant for Patent may file a Caveat ; sub- 
 sec. 2, Notice of application by another to be sent to person 
 filing Caveat ; sub-sec. 3, Duration of Caveat 404, 405 
 
 PART XIII (pp. 409-414). 
 
 PATENT PEES. 
 
 Section 39.— Tariff of Fees 409, 410 
 
 Section 40. — For copies of Drawings 413 
 
 Section 41. — Fees to be in full for all services 413 
 
 Section 42. — Application of Fees ; Exception 413 
 
 Section 43. — Return of Fees in certain cases only 414 
 
 PART XIV.— (pp. 414-445.) 
 
 GENERAL PROVISIONS." 
 
 Section 44. — Goveniment may use Patented Invention 414 
 
 Section 45. — As to use of Patented Invention in Foreign Vessels... 417 
 Section 46. — Patent not to aflfect a previous purchaser ; Proviso as 
 
 to other pei-sons 418 
 
 Section 47. — Inspection by the public of Specifications, Drawings, 
 
 Models, Disclaimers, etc , at the Patent Office 428 
 
 Section 48. — As to Clerical Errors 429^ 
 
 ii 
 
 41 
 
T 
 
 
 » 
 XLVI CONTENTS. 
 
 Paoe. 
 
 Hection 49. — Destroyed Patent may Im replaced 432 
 
 H«'cti()i» 50. — S«'h1 of Patent Office to Ite evidence 433 
 
 Section 51. — Orticers of Patent Offlco not to deal in PatentH 434 
 
 Section 52. — Hejiulations may he made and forms prescribed 435 
 
 Hfction 53. — Annual report for Pavl'anient 441 
 
 PART XV.— (pp. 445-455.) 
 
 OKFKNrES AND PKNALT1K8. 
 
 Section 54. — Patented article to l)e stamped or marked ; Penalty 
 
 for default 445 
 
 •Hection 55. — Falsely marking an article as patented, a misde- 
 meanour; Punishment 449 
 
 Section 5(i. — Making -artain false entries on copies a misdemeanour. 455 
 
 PART XVI,— (pp. 45C-460.) 
 
 PATENTS ISSUED UNDEU FORMEK ACTS. 
 
 Section 57. — Certain existing Patents to remain in force ; sub-sec. 
 
 2, Extension of such Patent 456 
 
 Section 58. — Duration of certain Patents 457 
 
 Section 59. — Extension to Prince Edward Island . 459 
 
 SECTIONS 8 i 9 of 55-56 V., c. 24 (1892). 
 Section 8. — Act of 1892 ; Examination of applications for Patents. 460 
 Section 9.— Act of 1892 ; The Patent Act amendment of 1892 only 
 
 applies to Patents issued after July 9th, 1892 4C0 
 
 CHAPTER III. 
 
 ON BILLS OR NOTES GIVEN FOR PATENT RIGHTS. 
 
 [pp. 461-467.] 
 
 ^.6. — The following are the side notes to sub-sections 4, 5 and 6, section 30, 
 " The Bills of Exchange Act," (1890), 53 Vic, c. 33. 
 
 Paue. 
 
 Section 30, sub-sec. 4. —Consideration consisting of purchase money 
 
 of a Patent Right, " Given for a Patent Right " to be printed 
 
 on the face 461 
 
 Section 30, sub-sec. 5. — Liability of transferer 461 
 
 Section 30, sub-sec. 6. — Penalty 461 
 
"n 
 
 1>A(1B. 
 
 432 
 
 433 
 
 434 
 
 , 435 
 
 . 441 
 
 CONTENTS. XL VI I 
 
 PATENT OFFICE RULES.— APPENDIX L 
 
 (471-47.').) 
 
 HIDE NOTKH RKLATINtJ TO HULKS OK THK CANAIilAN PATKNT OFFICE. 
 
 Rule 1. P«r8onnl apiK'umnce not rt'(|uirP(l ; llulo 'J. UeHponHihility 
 <»f applicant ; Rule 3. Correspondence ; Rule 4. Documents, how to he 
 prepared ; Rule 5. Docunients, how to he addreHHed ; Rule 0. Fortus 
 of proceedings ; Rule 7. Models, Hiitu|>leH ; Rule 8. Fees, how to 
 ho transmitted , Rule 9. Limit of time for perfecting application ; 
 Rule 10. Separate inventions; Rule 11. Protest, ett'ect of; Rule 12. 
 Caveat; Rule 13. Drawings, section lines, shade lines, Bristol or 
 t.-ardhoard, size of, etc. ; Rule 14. Reissue of Patents ; Rule 15. Pend- 
 ing cases; Rule 10. OtHce cannot respond to certain inipiiries ; Rule 
 17. Proceedings, how facilitated ; Rule 18. Transactions to be in 
 writing ; Rule 19. Assignments; Rule 20. Miscellaneous cases, how to 
 be decided. 
 
 456 
 457 
 459 
 
 [TS. 
 
 btion 30, 
 
 Paob. 
 
 ley 
 
 461 
 . 461 
 . 461 
 
i:.*t 
 
 llEVIEW O 
 IN THK 
 
 Before 
 touch briert 
 ing people. 
 Thoj'o i.' 
 of inventioi 
 not a rijrht 
 part of the 
 most probal 
 Part IV., 4C 
 Monopolies, 
 Prior, ho 
 of an exclus 
 realm, or of 
 and sell such 
 King's Bencl 
 In the CI 
 was held, bel 
 not the genc] 
 particular trf 
 new trade wi 
 expenditure, 
 time. 
 
 The found 
 dom is secti( 
 assent March 
 for English sp 
 declaratory of 
 
21 JAMES I, 0. 3, I. 6 (1624). 
 
 ClIAP'J'EPv 1. 
 
 Rbview of Legislation Rklatino to Patents of Invention 
 
 IN the Various Phovincks Pkioh to and SuBSEguENT 
 
 to Confedehation. 
 
 Before referring to our prior legislai on, it may be well to 
 touch briefly on the earliest patent enactment for Knglish speak- 
 ing people. 
 
 There is no common law right to the grant of Letters Patent 
 of invention, and the grant of Letters Patent in Great Britain is 
 not a right which may be (Icmaniled, but is discretionary on the 
 part of the Crown. This discretion was exercised during and 
 most probably prior to the reign of Edward III : See Year Book, 
 Part IV., 40 Edward IIL, and was preserved by the Statute of 
 Monopolies, 21 James I.,c. 3. 
 
 Prior, however, to " The Statute of Monopolies," a royal grant 
 of an exclusive privilege to manufacture playing cards within the 
 realm, or of an exclusive privilege, without limitation, to import 
 and sell such cards, was held to be void : See Darcy v. Allein, 
 King's Bench, 1602. 
 
 In the Cloth Workers of Ipswich Case, King's Bench, IClo, it 
 was held, before the Statute of Monopolies, that the Crown ha.s 
 not the general power to grant to a corporation a monopoly of a 
 particular trade ; but if a man has made a discovery or brought a 
 new trade within the kingdom, the Crown, in recompense of his 
 expenditure, may grant him an exclusive right for a limited 
 time. 
 
 The foundation of the present patent law in the United King- 
 Jom is section 6, 21 James I., c. 3, which obtained the royal 
 assent March 24th, 1624, and is the first positive patent enactment 
 for English speaking people ; the Statute of Monopolies was merely 
 declaratory of the common law existing at that time, which pro- 
 
tl JAMES I., c. 3, 1. « (laM). 
 
 
 vldcd ngalnst, monopolios and oxolusivi* rights to inaniifat^turo or 
 Hell, and thin Hootioti <K as an «<X(:«'|)lioti to the }{uiit>i'al r\\U\ enacts 
 as followH : 
 
 " Prnvideil, nliio, nnil Im^ it iliu^lnriMl and uiiuctcMl, that any il<*i'larntinn Itofora 
 mentioiiflil Rliutl not oxtvnd to any l.*itt«trN I'att'nt and ^mnta of iiriviK<)(o for the 
 tarm of foiirtuun yearH or nndiM', licritaftt'i' to hi> niadx for tint noIk working or 
 mftkinKof any nianniT of new luaniifactiircH within thix realm to thu trnu and llr«t 
 inventor or invvntora of hucIi nianufa4!tiiri>N, which othor*, at thx tiniv of mak- 
 ing itich Lottern Pati'iit iind ({iiintN Nhiill not iixc, ho hh they Nhall not Im contrary 
 to law nor miiichicvriuN to the State, )>y raiMing priccN of coninioditiua at home or 
 hurt of trade, or guncraiiy inconvenient. Thuiaid fourteen year* to Itv acoom|it«d 
 from the date of thu tirnt LctleiH Patent or ({runt of H.tch privilet^c hereafter to he 
 made, hut that thi; Munie itliail lie of mich fnrcv aa they hIiouIiI he if thia Act had 
 never heen nuulu, and of none other." 
 
 Undw tlio Statute of Monopolies, an iuipoiter or tirst intro- 
 ducer into the reahn wa.s considi'rtid tiie true and first inventor. 
 The present form of British patent t'oilows thf spirit of this 
 section and provides, that if the grant ije shown to lie contrary 
 to law or prejudicial r)r inconvenient to our suhjects in gonenil, or 
 that the said invention is not a new invention as to the public 
 use and exercise thereof within the United Kingdom of Great 
 Britain and Ireland and the Isle of Mati, oi that the said patentee 
 is not the first and true inventor within the realm, it shall be 
 void. 
 
 The British Patent Act, however, does not affect Canada, 
 except in so far as section 103 relating to International arrange- 
 ments lor protection of inventions.. 
 
 In Adams v. Ml et nl., I L. C. R,, 130, 1850, it was held, that 
 Letters Patent granted under Her Majesty's privy seal in England 
 are of no force in Canada, Letters Patent having no other force 
 than that given bj' our Provincial Statutes. 
 
 The history of legislation relating to patents of invention 
 dates hack in Lower Canada to 1823, and in Upper Canada to 
 182(). Previous to these dates, there do not appear to have been 
 any Acts |)a.s.sed relating thereto in either of these Provinces, 
 
 As very little is known on the subject of our patent laws, and 
 as seventy years have elapsed since the date of our first Patent 
 Act without any couunentary or text V)Ook of any kind on the 
 Canadian Patent Law, it may be of interest to briefly review 
 
 Th 
 
 „i!... 
 
ACT or 1823, L. 0., OF 1880, U. 0. 
 
 3 
 
 bion 
 
 to 
 
 )een 
 
 soiiiff of the It'iiiliii^^ fciitnn's of tlu' various pirvioMs Arts, nn«l to 
 show in soint> iui')isiii'*> how tlicy liiivf Ihtd ri'visiMl, luotlifuMl 
 liiiij ultfit'il )|o\vii to tlii> proM'iit tiiiir, luxi to Nt>t' ill wluit rrspcot 
 iiiiy of tlic ol<l t'luu^tiiicnts )i:iv(' lu'on rt'tniiiod in our proMuiit 
 Putulit Act uii*l Hiuundiiionts tlicroto. 
 
 4(lEo. IV..«,'. 2.-) (IH2:i), L. C. 
 Tho vtirliest Statute on I'ttleiits found in tin; Ic^iHlation of 
 tho Provincos now constituting the Dominion, is the Act of Lower 
 Canada, 4 (Jeo, IV'.. c. 2'), entitled " An Act toproinotu the progress 
 of useful arts in the Province." It appears to have been derived 
 from the United States Act of 1793. 
 
 7 Geo. IV., c. ■, (1820^, U. V, 
 
 The first Patent Act of the Province of Upper (,*anada was 
 7 Oeo. IV^, c. 5, pa.s«eil JlOth January, IM2G, heiii;; "An Act to 
 encoura<j(' tho proj^ress of useful arts within this Province." 
 
 This was tlie same Act as enacted in the Province of 
 Lower Canada, hy 7 Cleo. IV., c. .'), firstly referred to. 
 
 The preamble of the Act states : " Wlimcus it U expedient for the 
 encuutageineiit of guiiitiM ami of <irtfl in this I'roviiioc to ■euiiru an uxcltuive rigiit 
 *'.o the invention of any new lUxl uBeful art, inaciiinu, nianufnuture or composition 
 of matter," etc. 
 
 This definition of the subject matter of an iiivt>ntion is of the 
 same wording a.s that in .section 7 of our pre.sent Patent Act. 
 
 The Act of 182() requires that the invention should not 
 
 **be known or used before the ivpplieiition " while OUr present Act 
 requires that the invention should "not l>e known or used by any other 
 person before his invention thereof." 
 
 In Vannorman v. Leonat'(l,2 U. C. Q. B. R., p. 72 (1845), 
 Robertson, C J., points out the distinction betvveen the 6th 
 section of the English Act, 21 Jame.s I.,c. li, exempting patents of 
 invention from the sweeping provisions of the Act (The Statute 
 of Monopolies), and the 6th clause of the Provincial Act, 7 Geo. 
 IV., c. 5, and .shows that our Act does not, like the English Act, 
 speak of " new manufactures within this realm," but on the con- 
 trary, it requires the applicant in Canada to swear that he was the 
 true inventor or discoverer of the art, which no one could do who 
 merely imported the invention. 
 
 ;. 1 
 
 •lit''!, 
 
 1. 
 
 H; 
 
 i 
 
 
 If 
 
 m 
 
^ 
 
 :# 
 
 i;*' 
 
 
 
 4 ACT OF 1826, U. 0. 
 
 By this Act, 7 Geo. IV., "any aubjectof His Majesty, being an inhabi- 
 tant of thia Frovinco," could obtain a patent for an invention for a 
 term not exceeding fourteen years for the full and exclusive 
 
 right and liberty "of making, constructing, using or vending to others to be 
 naed, 'he said invention of discovery," which is the same wording a.S still 
 appears on our present Patent Deeds. 
 
 This Act also provided for the granting patents for improve- 
 ments on the principle of a patented article, but this did not 
 give the right to use the original invention, nor that the first 
 inventor shall be at liberty to use the improvement, and provides 
 that simply changing the form or proportion of any machine or 
 composition in any degree shall not be deemed a discovery. 
 
 "Any person making, manufacturing or making use of any machine or instru- 
 ment so invented without the coiment in ivriting of the patentle, etc., shall be liable 
 to such damages as shall be awarded by a jury, and the party injured shall receive 
 treble costs "(s. o). 
 
 This Act requires that the consent should be in writing, the 
 same as by section 29 of the present Patent Act, and it also pro- 
 vides Cor a jury trial and for treble costs ; both of which have no 
 part in our present practice. 
 
 By way of defence (section 6), it might be shown that the 
 patept contained more or less than the truth, which concealment 
 or addition shall have been made for the purpose of deceiving the 
 public, or that it was originally discovered by the patentee, but 
 had been in use or described in some work anterior to the sup- 
 posed discovery. 
 
 Provision was made (section 7) for the determining as to 
 interfering applications by three arbitrators ; one to be chosen 
 by each of the parties, and one by the Secretary of the Province. 
 
 A patent fraudulently, improvidently or surreptitiously ob- 
 tained, or o'otained upon false suggestion, or that the patentee 
 was not the true inventor or discoverer (section 8), might be im- 
 peached by any one within three years after the issuing of such 
 patent by sci. fa. in the Court of King's Bench. 
 
 The same fees were pa3'able as for other instruments under 
 the great seal ; one per cent, per folio of seventy-two words, and 
 ten shillings for afhxing the seal. 
 
 This Act, 7 Geo. IV., c. 5, for Upper Canada, was repealed by 
 Hand 15 Vic, c. 79 (1851), hereafter referred to. 
 
ler 
 knd 
 
 ACTS or 1829-31-36, L. 0., OF 18l9. OAK. 5 
 
 * 
 
 9 Geo. IV., c. 47 L. C. (182 9). 
 
 In 1829, 4 Geo. IV., c. 25, for Lower Canada, first referred to, 
 was continued by 9 Geo. IV., c. 47, and its benefits extended to 
 any subject of His Majesty, being an inhabitant of the Province, 
 who should in his travels in a foreign country have discovered or 
 obtained a knowledge of and be desirous of introtlucing into the 
 Province any new and useful invention not known or used in the 
 Province before his application. 
 
 1 Wm. IV, L. C.,c. 24, L . C. i 1 83 1 ). 
 
 In 1831, inventions in the United States and in His Majesty's 
 dominions in America (1 Wm. IV., L. C, c. 2'*), were withdrawn 
 from the operation of the last mentioned enactment. 
 
 In 1851, it will be seen that by 14 and 15 Vic, Can., c 79, 
 inventions in the United States and in His Majesty's dominions 
 in Europe and America were withdrawn from tho operation of a 
 similar enactment. And in this latter shape, it reappears in sec- 
 tion 10 of the Consolidated Statutes of Canada, c. 34 (1859), and 
 continued in force till repealed by the Patent Act of 1869. 
 
 6 Wm. IV., c. 34, L. C. (18.SC ). 
 
 In Lower Canada in 1836, the Act 6 Wm. IV., c. 34, " An Act 
 to repeal certain Acts therein mentioned, and to consolidate the provisions therein 
 made for the encouragement of useful arts," formed the Revified and Con* 
 solidated Patent Act for the Lower Province, 4 Geo. IV., c. 25, 
 and 1 Wm. IV., c. 34, L. C, just mentioned, were repealed, and 
 their provisions re-enacted. 
 
 Until after the union of the tw^o Provinces of Upper and 
 Lower Canada, there wjis no change in the patent law of either 
 of these Provinces. 
 
 12 Vic, c. 24 (1849), Ca n. 
 
 The next Act of the Province of Canada after the union, was 
 12 Vic, c. 24, passed 30th May, 1849, being " An Act to consolidate 
 and amend the laws and patents for invention in this Pruvinc?," which 
 recites that G Wm. IV., c. 34, was in force in Lower Canada, 
 and 7 Geo. IV., c 5, in Upper Canada, and that they differed, and 
 that it was necessary to assimilate the laws and provisions. 
 
^f 
 
 ACT OF 1849, CAN. 
 
 'W: 
 
 i i: 
 
 This Act provides (section 1), that any person a resident of this 
 Province and a subject of Her Majesty, who had discovered or in- 
 vented any new and useful art machine, manufacture or composi- 
 tion of matter, etc., or " the principle thereof," might obtain a 
 patent; this was erroneous, as a principle could not Vjc patented, 
 and, consequently, the words or " tlie principle thereof," were 
 struck out subsequently by 14 and 15 Vic, c. 79. 
 
 Under this Act, the invention must be one "not known or 
 used in thin Province by ottiers before bin or their invention or discovery thei. of, 
 And not at the time of the application for a p.itent in public use or on sale in <Am 
 Province, with his consent or allowance as the inventor thereof." 
 
 In Bernier v. Beauchemin, 5 L. C. J., 29 Q. B. (1859), held, 
 on appeal, that the plaintiff having sold a large number of stoves 
 before obtaining the patent, the patent was null and void. 
 
 In Ritchie v. Joly, 12 L. C. R., 49 Q. B. (1861), the patentee 
 must be the sole and only inventor of the thing patented. . 
 
 In DHgga v.Baird et al, 13 U. C. Q. B. (185^^ Robinson, C. J., 
 refers to 12 Vic, c. 24, and 14 and 15 Vic, c 79, and states 
 " that it appears to me to be the obvious meaning of the statute that the inventor 
 must be an inhabitant of Canada as well as a British subject when he made the 
 discovery, which certainly is not the case here," and intimates that the 
 
 invention having been first patented in the United States could 
 not thereafter be the subject of a patent in Canada. 
 
 The issue was to be tried by a jury, and the same provision as 
 to treble costs in addition to damages appears. 
 
 The following was introduced as a proviso (section 2) relating 
 to an action for damages, and subsequently appeared in Con- 
 solidated Statutes Canada, c. 34 (1859), sec. 25, viz. : " if the pat- 
 entee believed himself to l)e the tirst inventor, the patent shall not be void on 
 account of the invention or discovery, or part thereof, having been known or used 
 in a 'oreign country, it not appearin^f that the same or any material or substantial 
 part thereof had l>efore been patented or described in any printed publication." 
 
 This provi^?ion, by the Patent Act of 1869, disappeared from our 
 statutes, but in the United States now, a thing may be known 
 and used in foreign countries, but if not introduced into the 
 States or published in a printed publication, may be the subject 
 of a patent in the States. By the 15th section of the United 
 States Patent Act of 1836, a provision similar to the one referred 
 to in Consolidated Statutes Canada, c 34 (1859), sec. 25, was 
 
 enactei 
 United 
 
 Discu 
 Th( 
 (sectior 
 ground 
 invento 
 Court r 
 Pro' 
 Patent. 
 Reissui 
 A pj 
 inadverf 
 ceptive i 
 existing 
 Specific 
 By s( 
 any "sp. 
 which is 
 this wor] 
 Design 
 By t 
 seven yet 
 Mahkinc 
 Byse< 
 there was 
 or both, 
 mark the 
 These 
 hy sec 
 sci.fa. mi 
 patent or 
 not after : 
 solidated i 
 
 "An Ac 
 tion of this 
 and for other 
 
ACT OF 1848-51. OAK. f 
 
 enacted ; the Canadinn section was probably taken IVom this 
 United States Act. 
 
 DiSCLAIMEU. 
 
 There is also a provision as to disclaimer for the first time 
 (section H), for if the plaintiff fails to sustain his case, on the 
 trround that he claimed more than that for which he was first 
 inventor, but defendant had used part justly claimed as new, the 
 Court may adjudge and award as to costs. 
 
 Provision is made for legal representatives taking out Letters 
 Patent. 
 Reissue. 
 
 A patent maj' be reissued if error shall have arisen through 
 inadvertency, accident or mistake, and without fraudulent or de- 
 ceptive intention, and there might be a reissue for additions to an 
 existing patent. 
 Specific Machine. 
 
 By section 22, 12 Vic, there is a provision as to the use of 
 any "specific machine," prior to the application for a patent, 
 which is discussed and set out in full hereafter in the body of 
 this work under section 46. 
 Design Patents. 
 
 By this Act, 12 Vic, c 24, Design Patents were i.ssued for 
 seven years, which was a new provision. 
 Mauking Patented. 
 
 By section 16, for marking a patent wrongfully " as patented," 
 there was a penalty of fifty dollars or two months' imprisonment, 
 or both. And there were the same penalties for neglecting to 
 mark the article as patented. 
 
 These provisions as to marking appear for the first time. 
 
 By section 17, the proceedings for the repeal of a patent by 
 sci. fa. must be instituted within two years of the date of the 
 patent or on the term of Court next after the said two years, and 
 not after ; this provision appears again as section 20 of the Con-- 
 solidated Statutes of Canada, c 34 (1859). , ,, 
 
 14 AND 1.5 Vic, c. 79 (1851), Can . i ! 
 
 *' An Aoito enable parties holding patents for inventions confined to one seo- 
 tion of this Province to obtain the extension thereof to the other section thcirieof, 
 and for other purposes therein mentioned. " 
 
 i 
 
'f 
 
 6 
 
 ACT Cff Qffil, CAV. 
 
 S I I- 
 
 n 
 
 
 This Act was ]»as«ed In tAh Piurliament of Canada, and re- 
 lates to patents issueiJ undw ffWiwinciiil Acts prior to the union 
 between Upper and Lower Oimtbiti^ and authorized their exten- 
 sion to that pt)rti(>n of Cuina<i»ii not embraced by the patent 
 already issued. 
 
 There was a proviso as to ilfliom* uning the invention in other 
 parts of Canada before any a^ipiEifiLCion under this Act, that such 
 users may have the right to um fillH^pecitic machine, manufacture 
 or composition of matter ho utwuuUy constructed, purchased or 
 used. 
 
 The Upper (knada Act, 7 (tttioi DV., c. o (1826), and the Lower 
 Canada Act, 6 Wm. IV., v.. J>* fl"*W^, were repealed by this Act. 
 
 By section 3, i)atents wtut- <ffniviit€d for fourteen years, and 
 were examined by the law afiiutirf dt? Che Crown. 
 
 By section 7, any person niiilkih(|, manufacturing or using the 
 patented article without the wirimi»»acon.sentof the patentee, shall 
 be liable to damages and tieliit (U)Ht» aa taxed, as provided by the 
 previous Act. 
 
 By .section 8, the pat«nl mtaj be declared void, if the in- 
 vention had been in use or bail ftnea described in some public 
 work anterior to the suppofitid fiwiovery : this section is broad, 
 and requires novelty, both an ttia> (Canatla and elsewhere, in the 
 same way as the Act 7 Gea IIT;.,(e. .Ti, required. 
 
 First Introducer into CA«my»L. 
 
 By section 11 of this Act ttf I1!^I, there was a strange pro- 
 vision (analogous to the Eii|iiihAj J^fc), whereby the first intro- 
 ducer into Canada was ctnHofttued entitled to a patent; it 
 provided that travellers, BuTtijtKttf d^ Her Majesty and inhabitants 
 of Canada, bringing inventioin^ tbim foreign countries, not known 
 and not in use in the Provinnt priior to their '^.pplication for a 
 patent, might obtain a pat«m;: \hvb this was not to extend to 
 inventions made or discovered iiii Che United States or any part 
 of Her Majesty's dominions iu Einiope or America, or to prevent 
 the free importation from «DdL places ; and by section 12, the 
 traveller had to make a dedaiEfimisn; that he had obtained a know- 
 ledge of the invention while inavntilinjiip in some foreign country 
 other than the United SuEtet> >ir Mer Majesty's dominions in 
 Europe or America. 
 
ACTS OF 1862-S7, OAK., OF 1859, U. 0. 
 
 9 
 
 This Act of 1851 was subject to all the provisions in 12 Vic, 
 c. 24 '^1849). and the words "or the principle thereof in sec. 1 of 
 12 Vic. c. 24," were struck out. 
 
 16 Vic, c. 11 (18.52), Can. 
 
 By 16 \ ic, C 11, "An Act to provUle f(»r the cHtalilishineiit of a Bureau 
 of Afn^culture," etc. The Minister of A<,'rieulture wu.s to receive all 
 applications, specifications and models for patents and to keej) 
 the records; the jurisdiction was transferred from the Provincial 
 Secretary to the Minister of Ajjriculture. 
 
 20 Vic, c. 3.3 (1857)^_Can. 
 
 By 20 Vic, c 33, assented to June 10th, 1857, "An Act to 
 
 extend patents) for iiiventiouB gt.'tnted for one section of the Province to both 
 sections thereof on ct.cain conditious. " 
 
 By this Act, patents issued between the date of the union be- 
 tween Upper and Lower Canada (1840) and the Act of 1849 were 
 extended to the whole Province of Canada, and the privileges of 
 the Act of 1849, and of the Act* of 1851, were also extended to 
 them. 
 
 By the Act of 1849, provision had been made for extending 
 the protection of the patent laws to patents issued in Upper and 
 Lower Canada after 1849 to the whole Province of Canada. And 
 by the Act of 1851 those patents issued in Upper and Lower 
 Canada before the union in 1840 were also extended to the whole 
 Province of Canada. 
 
 But until this Act no provision had been made for those pat- 
 ents is.sued in the Provinces between the date of the union in 
 1840 and 1849. 
 
 C. S. C, U. C, c 21 (1859). 
 
 By C. S. of U. C, C 21,22 Vic. (1859), "An Act respecting the prac- 
 tice and procedure in suits instituted on Ijehalf of the Crown in matters relating 
 to the revenue and the repeal of Letter Patent," provided, that Supreme 
 
 Courts may issue writs of scire facias to repeal Letters Patent 
 and that the practice shall be the same as in England, and that 
 the fiat of the Attorney -General was to be obtained, and that 
 an exemplification of the Letters Patent was to be filed, on which 
 the writ of scire facias was to be founded. 
 
 ,'; fj 
 
 f ■ ,' « 
 
 \>A\ 
 
10 
 
 AOT OF 1859. CAN. 
 
 
 c.kS. (J.,c. ;u (1859). 
 
 Con. Stat. Cnnnda, c. 34 (1859), 22 Vic, "An Act reapecting 
 patents of inventi.m' (lepcaleil by Patent Act, 1872). The pro- 
 vision.s of 12 Vic, c 34 (1849) and of 14 an«l 15 Vic, c 79, wore 
 consolidated. And in the interpretation of the Act the expres- 
 sion "uBefiil art, nmohine, ninnufucturo or conipoHition of matter" includes 
 any such thing herein referred to, "whether it be made by hand or 
 machinery or by both of theue nieana." 
 
 The patent was issued for fourteen years. 
 
 There was a provision for extending the term of a patent by 
 a Board, consisting of the President of the Executive Council, 
 the Attorney-General and the Minister of Finance. 
 
 There was no power under this Act to grant an injunction or 
 to order the keeping of an account, which machinery, however, 
 was provided in Upper Canada by C. S. U. C, c 23 sec. 12 (1859), 
 
 "An Act respecting writ of mandamus and injunction. " Vide Huntingdon 
 
 V. Lutz, 13 U. C. C. P. R, p. 168. 
 Design Patents. 
 
 By section 4, there was a provision for obtaining patents for 
 designs and works of art as was the case in 12 Vic, c 24, ten 
 years previously, and this section 4 defines, for the first time, 
 what a design is ; whereas, in the " Trade Mark and Design Act " 
 Rev. Stat. Can. 49 Vic, c. 63 (1886), there is no such definition. 
 Definition. 
 
 By this section 4, the design relates to &ny " manufacture, whether 
 of metals or mixed metiils or other niatcrinls, or any new and original design for 
 the printing of woollen, silk, cotton or other fabrics, or any new and original 
 design for a bust, statue or bas relief, or composition in alto or bas relief, or any 
 new and original impression and ornament, the same being formed in marble or 
 other material, or any new or useful pattern in print, or print or picture to be 
 worked or cast, printed or painted on or otherwise fixed on any article of manu- 
 facture," etc. The wording of this section is similar to section 4,929 
 of the United States Revised Statutes, and should be retained or 
 re-enacted in our present Trade Mark and Design Act. Section 
 11 of the Trade Mark and Design Act of 1861 is still ii force in 
 Canada, and may be available for that definition of a Design 
 which is wanting in our present Act. 
 
 By sections 10 and 11, sections 11 and 12 of the Act of 1851, 
 
 relating 
 
 from fo 
 
 tants of 
 
 the Act 
 
 Secti( 
 
 portion 
 
 By s 
 
 sci. /a. V 
 
 of Queei 
 
 Q. B. 14 
 
 tion was 
 
 that pan 
 
 with the 
 
 The C 
 
 1872 so 1 
 
 to rights 
 
 force of \ 
 
 Pati 
 
 In 18 
 
 (assented 
 
 interferir 
 
 taken by 
 
 who cou 
 
 that any 
 
 meanour 
 
 rupt perji 
 
 question 
 
 The f( 
 
 them, anc 
 
 culture, t( 
 
 T 
 In 18 
 
 assented t 
 This\^ 
 
 federation 
 
 time. 
 
ACTS OF 1866-69. OAN. 
 
 n 
 
 851, 
 
 relating to the first introducers into Cantula of inventions brought 
 fronj foreign countries l)y subjects of Her Miijesty and inluibi- 
 tants of Canada, was re-eniietetl, which was finally repealed by 
 the Act of 18G9. 
 
 Section 21 provides that simply changing the form or the pro- 
 portion of any machine or composition is not patentable. 
 
 By section 22 the procee<lings on the repeal of a patent by 
 mi. fa. were to be according to the law and practice of the Court 
 of Queen's Bench in England. In The Queen v. Hall, 27 U. C. 
 Q. B. 14G, 31 Vic. (18G7), it was held that the effect of this sec- 
 tion was to introduce the Imperial Act. lo and IG Vic, c. 83, and 
 that particulars of the breaches .should have been delivered along 
 with the declaration. 
 
 The Con. Stat. Can., c. 34 was repealed by the Patent Act of 
 1872 so far as it was inconsistent with the Act of 1872, except as 
 to rights accrued or penalties incurred before the coming into 
 force of this last Act. 
 
 Patent Act Amendment (1866), 29 Vic, c. 19, Can. 
 
 In 1866 "An Act to iimeiid c. 34 C S. C, relating to putents of invention " 
 
 (assented to August loth, 1866), wa.s passed, and related to 
 interfering applications, and provided that an oath should be 
 taken by the arbitrators referred to in sec. 15 C. S. C, c. 34, 
 who could summon witnesses to give evidence on oath, and 
 that any wilfully false statement should be deemed a misde- 
 meanour and be punishable iti the same manner as wilful and cor- 
 rupt perjury ; but no witness should be compelled to answer a 
 question so as to lay himself open to a criminal prosecution. 
 
 The fees of the arbitrators to be paid by the parties naming 
 them, and those of the third arbitrator by the Minister of Agri- 
 culture, to be paid jointly. 
 
 T he Patent Act of 1869, 32 , 33 Vic, c. 11, Can. 
 
 In 1869 "An Act respecting patents of invention" was passed and 
 a.ssented to 22nd June, 18GU. 
 
 This was the first Canadian Patent Act passed since " Con- 
 federation," and the Patent Office was constituted for the first 
 time. 
 
 J; I' 'I 
 
12 
 
 ACT or 1869, CAN. 
 
 Is 
 
 The Minister of Aj^iicultuio was luudt' CoiniuiNsionur of 
 Patents of Invention, and his Deputy- was made Deputy ConuuiM- 
 sioner of Patents. 
 
 Section G ))rovi(led that >> Any ikthou having huvn a resident of C'aiiAiU 
 for at leant oitf yrar Ituforu \\'m ivpplicution, iiml huvin^ invented or (liacoverf«l nny 
 new and uaeful art, mauliini!, nianufiictiiro or uonipoiiition of matter, etc. , not 
 known or utted liy otherH in^fore hiii invention or dixronry thereof, and not Iniing 
 at the time of liin upplication for a patent in jnibliu nae or i»\ hk\v in any of the 
 Proriiin-M o/ Ihr. Uominiun, with the consent or allowance of the inventor or dis- 
 corercr thereof, may on petition to tiic (!oiiuni8Hioner, etc. ; l>ut no (wtent 8hall 
 iuuti for an invention or discovery having an illicit object in view nor for any 
 ■cientiKc principle or abstract theorem." 
 
 By thi.s Act aliens, as well as British subjects, provided they 
 have been residents of Canada for at least one year before 
 application, may obtain a patent ; this is enacted for the first 
 time ; and the Act required that the invention should not have 
 been in public use or on sales in any of the Provinces of the 
 Dominion, and that it should not be known or used by others 
 before the invention thereof. 
 
 So that the Act, apparently, required absolute novelty as to 
 the world, and did not permit of prior use or sale in any of the 
 Provinces of the Dominion, and therein differs from our present 
 Act, which admits of prior use or sale, with the consent or 
 allowance of the inventor, for a period of one year prior to 
 application. 
 
 In Bonatlian v. Boivmanville Furniture Manufacturing Co., 
 81 U. C. Q. B. R., p. 413, 1871— tried under the provisions of the 
 6th section of the Patent Act of 1869, 32-33 Vic, c. 11— it was 
 held that there had been public use of the invention with 
 plaintiff's consent or allowance before the plaintiff applied for the 
 patent, so as to disentitle him under the Act to a patent. And 
 in Woodi-uffw Mosely, 17 L. C. J. 306, S. C. (Que.), and 19 
 L. C. J. (Que.), and 169 Q. B. (1875), an importer of a device 
 patented in the United States by some other person is not an 
 " inventor or discoverer" under the Act of 1869. 
 
 The patentee was also not to be deprived of a patent by 
 reason of having taken out a patent therefor in any other country 
 at any time within six months of the filing of his specification 
 
 and dri 
 must be 
 first for( 
 
 An 
 Canada 
 resident 
 
 It pi 
 was to I 
 signed. 
 
 Then 
 and for i 
 
 The 
 wordintr 
 
 DUUATIO 
 
 By se 
 before th 
 five year; 
 all fifteer 
 in force. 
 
 Thep 
 were defe 
 of the prt 
 
 Manufac 
 In sec 
 facture, t 
 must be i 
 years fron 
 
 Importat 
 
 And t 
 
 eighteen n 
 
 part of his 
 
 into Canac 
 
 In this 
 
 time to mt 
 
 And a 
 
 four years. 
 
AOT or 1869, OAN. 
 
 18 
 
 ami (Irawinf^n. Now your application for a Cana<1ian patent 
 must be Hied within one year from the date of the issue of the 
 Hrst foreign patent. 
 
 An oath of nffirniation was to l)e made before a J. P. in 
 Canada that the applicant was the true inventor and had been a 
 resident of Canada for one year prior to his application. 
 
 It provided for filinj^f neat workinj^ models, and the patent 
 was to be examined by the Minister of Justice before it was 
 signed. 
 
 There were provisions as to disclaimer (section 20) and reissue, 
 and for registration of assignments. 
 
 The remedy for the infringement of a patent follows the 
 wording of .section 29 of our Revised Act of ISSO. 
 
 DuuATioN ()!<" Patent. 
 
 By section 17, patents shall be valid for five years, but at or 
 before the expiration of that time may be renewed for another 
 five years, and again a further extension of five years — making in 
 all fifteen years, being one year longe>" than the period heretofore 
 in force. 
 
 The patent was to be void in certain ca.ses if the specifications 
 were defective or valid as to part, as provided in the 28th section 
 of the present Act, R. S. C, c. Gl. 
 
 Manufacture. 
 
 In section 28, Act of 18G9, patents were conditional on manu- 
 facture, the .same as in the Act of 1872, except that there 
 must be manufacture by the patentee in Canada within three 
 years from the date of the patent. 
 
 Importation. 
 
 And the patent was to be void if after the expiration of 
 eighteen months the patentee or his a.ssignee, for the whole or 
 part of his interest in the patent, imports or causes to be imported 
 into Canada the invention for which the |)atent was granted. 
 
 In this Act of 1869, no provision was made for extending the 
 time to manufacture or of importation. 
 
 And a caveat umler this Act of 18C9 was void unless within 
 four years, application be made for a patent. 
 
; 
 
 1^!' 
 
 ! 'I' 
 
 14 
 
 NEW BRUNSWICK NOVA 800TIA. 
 
 The c()iiiinissi(»nt>r lind authority to correct clericftl urrorH 
 happening' in tlic iVaiiiiii)^' of any instrument of the patent office. 
 
 All patents issuetl hy the Province of i'anatla an<l of Nova 
 Scotia and N(!W Hrunswick, and all patents issued for the Pro- 
 vince of Ontario and Quc^hec hy the legislature of Canada to 
 remain in force for tlie same term and territory as if the Act 
 under which it had issued had not hcen repealed, hut suhject to 
 the provisions of this Act so far u.s applicahle. 
 
 NkW BUKNHWICK. 
 
 The earliest Act relatin;^ to patents in New Brunswick was 
 4 Wm. IV., c. 27 (KS34), and subsequent Acts were (I Vic, c. 34; 
 14 Vic. c :}•) ; IG Vic, c 82 : 19 Vic, c 21 ; 23 Vic. c 41 ; 26 Vic, 
 c 33— R. S. N. B, c 118. 
 
 New Brunswick and Prince Edward Island were the only 
 Provinces, in which, prior to the union, foreigners were admitted 
 to tlie advantaj^es of the patent laws of the Province (14 Vic, c 
 35), there was also provision as to disclaimer. Such as in the 
 Proviiu'c of Canada in the Act of 1849. 
 
 Chapter 118 of the Revised Statutes related to patents of 
 invention " not known or UHed by otiiera before the invention or diHuovery and 
 not then in public or coniinon use in the Province of New Brunswick." No 
 
 patent was refused because of a patent in a foreign country, but 
 the New Brunswick patent expired on the same date as the 
 foreign patent 
 
 In an infringement suit, three times the actual damage sus- 
 tained was recoverable, and the action was to be commenced 
 within six months of the Act complained of. And the patentee 
 had three years within which time he was to establish manu- 
 facture within the Province. This Act was repealed by the 
 Patent Act of 1872, sec. 52, so far as inconsistent with that Act 
 and excei)t as to rights acquired or liabilities incurred before the 
 repealed Act. 
 
 Nova Scotia. 
 
 3 Wm. IV., c 45 (1833), was the earliest Patent Act ; its bene- 
 fits were limited to inhabitants of the Province who had resided 
 there one year prior to the application for a patent In later 
 
 Acts, I 
 applicji 
 or disc 
 been u 
 printed 
 were V( 
 <I85I), 
 c 120. 
 In 
 parties 
 Act to 
 out of 
 cease if 
 three yt 
 In' J 
 restricto 
 other CO 
 the ainal 
 c 117. 
 
 By ( 
 any pers 
 a patent 
 proportic 
 patent, 
 the Patei 
 
 The 
 our pres( 
 being a 
 ing Acts, 
 when dea 
 Patent Ai 
 By th 
 terms as i 
 one year 
 being wit 
 
AOT or 1872, CAN. 
 
 18 
 
 uiui 
 
 No 
 but 
 the 
 
 sus- 
 nced 
 entee 
 ian li- 
 the 
 
 Act, 
 •e the 
 
 bene- 
 
 sided 
 
 later 
 
 Acts, the word rt'sidents is iimimI instoml of inhabitants. The 
 applicant fV»i- a patent had to dt(!liir«! thiit he was tlu' true inventor 
 or (liMcovercr, and that tlu* invention had not, to Ins knowh'dj^'o, 
 been used in Nova Scotia or any <»tlier cuiintiy ; if deserihed in a 
 printetl pnhhcation anterior to Ids invention, the Letters Patent 
 were void. The law passed thronj^h several revisions: K. S. N. S. 
 (1851), c. 120; R. S. N. S. (isr,4). c. 117; an.l R. S. N. S. (IS(JO), 
 c. 120. 
 
 In 1850-00-01, certain private Acts were passed to enable 
 parties who had complied witli the provisions of the Nova Scotia 
 Act to obtain LeLtei's Patent, notwitlistandinj,' that they resided 
 out of the Province, and the patent rijLjht was conditioned to 
 cease if the improved nianufacture was not introduced within 
 three years. 
 
 In 18(i2, c. 27, the ri^jht to apply for Letters Patent was 
 restricted to residents. And hy the Act of I80.>, resiilents of 
 other countries might obtain patents for inventions relating to 
 the amalgamation or separation of gold, etc., amending R. S. N. S., 
 c. 117. 
 
 By chapter 117, Revised Statutes of Nova Scotia (1864), 
 any person a resident in the Province for a year might obtain 
 a patent for the term of fourteen years. No change of form or 
 proportion was to be deemed an improvement on an original 
 patent. This Act was similarl}' repealed by the 52nd section of 
 the Patent Act of 1872. 
 
 Patent Act' or 1872, Can. 
 
 The Patent Act of 1872, 35 Vic, c. 26, is that on which 
 our present Act, c. 61, R. S. 0. 40 Vic. (18H6), is founded, 
 being a revi.sion of that Act (1872), and the subsequent amend- 
 ing Acts. It is more in place to discuss some of its provisions 
 when dealing hereafter with the various sections of our present 
 Patent Act. 
 
 By this Act, foreignei-s could obtain patents on the same 
 terms as Canadians ; the restriction as to residence in Canada for 
 one year as contained in the sixth section of the Act of 1869, 
 being withdrawn. 
 
 !5 
 
 . i 
 
 •is, 
 
 
 
 '* 
 
 i 
 
 ill 
 1 
 
 i:^ 
 
T 
 
 
 16 
 
 A0T8 or 1873 74 15, CAN. 
 
 Ohapter 34 C. S. ('. ; o. 117, K. S N. S. (:ii«l sorieK) ; c. 118, 
 R. S. N. H. I'atoni Onliiianot's 1807, British ('oliiiii)>ia and thu 
 Patent Act IH(JI) wi-n* iM^u-altxl, sd far as is inconsistent with the 
 Act of 1H72 or any Act aruentjiny them, or any other Act relating 
 to patents, except as to ri^^hts aequitud and penalties incurred, 
 hut not to aHect any pending suit. 
 
 Act Amkndino tick Patknt A<;t 1872, MG Vk;., c. 44 (187:i), Can. 
 
 The oath could he taken hetbio a Judge of a "Court of Record " 
 
 or tt " I'lihlio Notiuy," section 11; and section 14 was amended hy 
 
 a<ldin;{, "liuttlit> Hnid ('(uiuniMioner iniy (liH))onRo, in hU HiRcretion, with the 
 Uiiil (luplirtito H|K*citioiitioii niiil drawing, hikI in lieu therer>f cuius copic« uf th« 
 Mpeuitication niitl ilriiwinx in print or otherwiNt) to liu attuctiud tu the paUnt uf 
 which thvy ahull furin un eMmMitinl part." 
 
 m Vie, c. 44(1874), Can. 
 
 Section 2M of the Paf'-nt Act of 1H72 was amended by .subnti* 
 tutiiij,' the words, " Supreme Court in the Province of New 
 Brunswick " for the "Court of Queen's Bench in the Province of 
 New Brunswick." 
 
 .'t8 Vic, c. 14 (lH7o). Can. 
 
 An Act still further to amend " the Patent Act of 1872," and 
 to extend the same as amended to Prince Edward Island. Assented 
 to April 8th, 1875. 
 
 Section 1, of .section 19, of the Act of 1872, was amended, 
 by adtlinjj thereto after the word patent in the last line "and the 
 iionimisRioner may entertain Hcpiirate uppHcationH and cause patents to be iuued 
 for distinct and separate parts of the thing patented upon payment of the fee for 
 a reissue for each of such reissued patents," which addition is noW sub- 
 
 sec. 4, sec. 23. 
 
 By section 2, sub-section 2, secti(m 28, of the Act of 1872, 
 was repealed and a new one substitutetl. The commissioner nmy 
 extend the time for manufacture beyond two years, at an' 
 not more than three months before the expiration of that ,«i, 
 
 on proof that the patentee, for reasons beyond his contro. was 
 prevented from complying with the conditions. The substituted 
 .section being the .same as sub-section 2, of section 37, of the 
 Revi.sed Patent Act of 188G. 
 
 lopeale 
 Patent 
 Phinck 
 By, 
 its amei 
 
 By 
 of Priru 
 32 Vic. 
 inconsisi 
 By .« 
 remain i 
 ment of 
 Hy s 
 Kdward 
 Patents, 
 By cl 
 any in ha 
 year pre\ 
 Patent, 
 such inve 
 any othei 
 By 35 
 under 7 
 extends 
 Island. 
 
 Fioni 
 Patent Ac 
 
 By 45 
 
 ' .1. .it Ac 
 
 was exten< 
 
 l)e I de 
 
 months mi 
 
 Act of IH't 
 
 importatio 
 
 ttppear in t 
 
 3 
 
 ';: % 
 
PRINCE EDW. I. AOT OF 1882. CAN. 
 
 IT 
 
 1872, 
 I may 
 
 vas 
 
 luted 
 
 the 
 
 By section H, tlif 4!>tli Nrction of the I'liti'iit Act of 1H72, was 
 ropuulcd, mill a suction thf sunic an Hcction *>4 of the Huvisfd 
 Patent Act of 1SH(> suhstituttMl. 
 Phinck Kiiwaki) Island. 
 
 Hy si'cticMi +, the provisions of th«( Patent Act of IH72 and 
 its atnendin;; Acts were extended to Prince Kdward Island. 
 
 By section T), the following' Acts of the (Jeneral AssiMuhly 
 of Prince Kdward Island wore repealed, viz. : 7 Wni. IV„ c. 21 ; 
 32 Vic, c. 20, anu'ndin^'; and 33 Vic, c. V.) ; where they were 
 inconHistent, except as to rights acquired and penalties incn^red. 
 
 By .s(>(;tion 6, existing patents in Prince FMward Island to 
 remain in force, and might lie extended to the Dominion on pay- 
 ment of the proper fees. 
 
 By .section 7, the records of the Patent Office of Prince 
 Edward Island to be handed over to the Commi8.sioner of 
 Patents, Ottawa. 
 
 By chapter 21, Revised Statutes Prince Edward I.sland (1837), 
 any itdiahitant of the I.slan<l, or one who ha<l resided therein one 
 year previous to the passing of the Act, might apply for Letters 
 Patent, making oath that he was the true inventor, and that 
 such invention had n»)t been known or u.sed in the Island or in 
 any other country. 
 
 By 32 Vic, c 20 (18G9), a non-resident might obtain a patent 
 under 7 Wm. IV., c 21, if the country in which he resides 
 extends like privile^js to the inhabitants of Prince £dward 
 Island. 
 
 From 187G to 1881 inclusive, there was no amendment of the 
 Patent Act of 1872. 
 
 45 Vic, c. 22 (1882). Can. 
 
 By 45 Vic, c 22, sec 1, Stat, of Can. (1882), .sec 28 of the 
 I . it Act of 1872 was iimended, and the time for importation 
 was extended lor a period not exceeding one year, if application 
 l)e I le within three months of the expiration of the twelve 
 months mentioned in the tii-st sub-section of section 28 of the 
 
 Act of 1872; the words, "or any extension thereof," as applied to 
 
 importation, ar- from the context, evidently erroneous. They 
 appear in this .^.ct of 1882 for the first time. 
 
 
 M 
 
 i 
 
 ! 't 
 
I 
 
 ^ 
 
 • I 
 
 It i 
 
 18 
 
 A0T8 OF 1883 84-86. CAN. 
 46 Vice 19 (1883). Can. 
 
 By chapter 19, 46 Vic, of the Stat, of Can., 1883, sec. 17 of 
 the Patent Act of 1872, which provi«lo<i that patents shall he 
 valid for five, ten, or fifteen years at the option of the applicant, 
 but at or before the expiration of five or ten yearf the holder 
 may obtain an extension, was repealed, and thr following pro- 
 visions were substituted. Patents were issued for fifteen years, 
 but partial fees may be paid, but in such case the patent was to 
 lap.se at the end of five or ten years unless the remainder of the 
 fee is paid; and it was furthei provided that "Every patent hereto- 
 fore iuued by the Patent Office in r#»si>ect of which the fee required for the whole 
 or for any unexpired portion of the term of fifteen years has been duly paid 
 according to the provisions of the now existing law, hns Iteen and shall be deemed 
 to have ))een issued for the term of iifteen years, subject, in case a partial fee has 
 l)een paid, to vti^e on the same conditions on which patents her aafter issued are 
 to cease under the operation of this section. " 
 
 This last quotation forms section 58 of the present Patent Act, 
 with some slight alterations. 
 
 47 Vic, c. 38 (1884), Cax. 
 
 47 Vic, C 38 (1884), "An Act for the better prevention of fraud in 
 conn^ctior with the sale of patent rights," provitled that a bill or note, 
 
 the consideration for which consists in whole or in pat t of the 
 purchase money of a patent right, etc., shall have written across 
 its face " given for a patent right. " 
 
 The transferee to take subject to the equities between t^e 
 original parties. 
 
 Parties to be subject to imprisonr nt for not more than one 
 year, or to a fine not exceeding JJ^OO, on failure to write such 
 words across the face of the bill. 
 
 This Act was re-enacted with additions (as to the note being 
 void between the original parties if these words omitted, etc.,) 
 by .sub-sees. 4, 5 atid 6, sec. 30, of the Bill of Exchange Act of 
 1890, 53 Vic, c. 33, a.^ to which see the 1 \.st chapter of the book. 
 
 49 Vice. 25(1 886). Can. 
 
 49 Vic, c 25, sec 14 (1886). The Supreme Court of the North- 
 
 West Territories " to have all the righU. etc., .,f a Court of Record as exer 
 cued hy Her Majesty's Superior CourU in England on the 18th July, 1870." 
 
 ,■ i V, 
 
ACTS OF 1886. R. 8. O.-88-90. CAN. 
 
 10 
 
 rp 
 
 rm: PATKNT ACT. 
 
 49 Vic. C.61.R. S. C. (1886). 
 49 V-c, c. til ri886), " The Patent Act. ' By this Act, c. 26,35 
 Vic. (1872), and amendments thereof, were revised, and constitute 
 the present Act, where not amended or repealed subsequent to 
 revision. 
 
 5 1 Vic, c. 18 (1888), Can . 
 
 Chapter 18, 51 Vic. (1888), "An Act to amend the Act respecting 
 patents of invention," assented to 22nd May, 1888, relates to t: j 
 uppointment of a Deputy Coniniissiuner uf Patents and his dutie..i. 
 Section 5 of Rev. Stat. (1880), was repealed. 
 
 53 Vic, c 13 (1890) , Can. 
 
 "An Act to amend the Patent Act," assented to 24th April, 1890, 
 gives the Exchequer Court jurisdiction in the matter of the 
 repeal of Letters Patent by 8ci. fa. in addition to the other 
 Courts mentioned in sub-sec. 1 of sec. 37 of the Patent Act. 
 
 Sub-sec. 1 of ROC. 37 of the Patent Act was lepealed, and the 
 substituted section did awa}' with the jurisdiction of the Minister 
 of Agriculture or his Deputy, and the jurisdiction was extended 
 to the Exchequer Court, but was not to affect the jurisdiction 
 ♦'.at any Court, other than the Exchequer Court, pos.sesses. 
 
 The 39th .section of the Patent Act, relating to fees, was 
 amended, by adding After "assignment," "or any other document 
 relating to a patent." 
 
 The 49th section of che Patent Act wns amended by substi- 
 tuting "a certified copy thereof" for "another patent of like tenor, date and 
 erteot." 
 
 Bills of Exchanuk Act (1^ 90). Can. 
 
 The Bill of Exchange Act, c. 33, 53 Vic. (1890), provides 
 that bills and notes given for a patent right .shall be marked 
 " given for a patent right." 
 
 Section 30, sub-.sections 4, 5 and 6, being a re-enactment, with 
 additions of chapter 38, 47 Vic. (1884), "An Act for the better preven. 
 tion of frauda in connection with ihe sale of patent right*." 
 
 V\ 
 
20 
 
 ACTS OF 1890 91 92 93, OAN. 
 
 j 
 
 54 AND 55 Vic, c. 26 (1891), Can . 
 
 " An Act to amend th«s Exchequer Court Act," assented tO 30th 
 September, 1891, gives the Exchequer Court jurisdictic (sec. 4): 
 (a) In all cases of contiictiii^ applications for any patents of 
 invention, or the registration of any copyright, trade mark or 
 industrial design ; (6) in all ca'cs in which it is sought to impeach 
 or annul any patent of invention, etc. ; (c) in all cases in which a 
 remedy is sought respecting the infringement of any patent of 
 invention, copyright, trade mark or industrial design. 
 
 This is an important innovation, a decree of the Exchequer 
 Court, being a Dominion Court, extending over the whole of the 
 Dominion, proceedings in patent suits having heretofore been 
 instituted only in the Provincial Courts with respect to infringe- 
 ment, etc., occurring within the respective Provinces. 
 
 54 AND 55 Vie, c. 83 (1891), Can. 
 
 54 and 55 Vic, C. 33 (1891), "An Act to amend the Patent Act." 
 
 sub-sec. 1, of sec. 37, of c. 61, R. S. C, relating to the non- 
 manufacture and importation which was amended by 53 Vic, c 
 13, was again amended. 
 
 55 AND 56 Vic, c. 24 (1892). Can. 
 
 55 and 56 Vic, c 24 (1892), a.ssented to 9th July, 1892, 
 section 8 and sub-section 3, of section 10 ; .sections 14, 15, 22 and 
 sub-section 1 of section 37 of th Patent Act, were amended, and 
 section 39 wivs repealed and a new one substituted. By this Act, 
 patents were, for the 6rst time, granted for eighteen years, and vari- 
 ous other changes were made, which are commented on hereafter. 
 
 56 Vic, c 34 (1893), Can. 
 
 By 56 Vic, C. 34, "An Act further to amend the Patent Act," a&sented 
 to 1st April, 1893. 
 
 Provision was made in section 12 for sending in an additional 
 copy of the claim or claims, and in section 21, for the signature of 
 Letters Patent by the Deputy Commissioner of Patents. 
 
 In section 22, sub-section 2, provision was nade for the pay- 
 ment of the fees for eighteen years patents and for the payment 
 of partial fees for six year period.s. And in section 39, for the 
 payment of a two dollar foe on giving notice to the com- 
 miwioner under section 8 of the Patent Act. 
 
 I. 1 
 
 1 
 
 2 
 
 (a) T 
 
 (6) T 
 And the e 
 PatemU; 
 
 (c) T 
 manufacti 
 ■ny »rt, n 
 
 {d) T 
 niuiatrato 
 
 NOTI 
 
 1887. 
 
 NoTi 
 when th 
 Province 
 receive a 
 to keep 
 JProvinci 
 Patent 
 
8eoi.l,2,B.l.a,b,C,d.] INTERPRETATION. 
 
 21 
 
 CHAPTER 11. 
 
 The Patont Act (Canada) as amended, with annotations : — 
 Chapter 61, Revised Statutes of Canada, "An Act reapeoting 
 patents of invention" (A.D. 1880), as amended by 51 Vic., c. 18 
 (1888) ; 53 Vic, « ;3 (1890) ; 54 and 55 Vic, c. 33 (1891) ; 55 
 and 66 Vic, c 24 . 92) ; 66 Vic, c. 34 (1893). 
 
 PART L 
 
 Her Majesty, by and with the advice and consent of the Senate and House of 
 Commons of Canada, enacts as follows :— 
 
 Short Title. 
 1. This Act may be cited as " TA« Patent Act," 35 V., e. 26, s. 53. 
 
 Intkrprktation. 
 It In this Act, unless the context otherwise requires, — 
 (a) The expression " the Minister " means the Minister of Agriculture ; 
 (6) The expression "Commissioner" means the Commissioner of Patents, 
 
 and the expression " Deputy Commissioner" means the Deputy Commissioner of 
 
 Patents ; 
 
 (c) The expression "invention" means any new and usiful art, machine, 
 manufacture or composition of matter, or any new and useful improvement in 
 any art, machine, manufacture or composition of matter ; 
 
 (d) The expression "legal representatives" includes heirs, exscutors, ad- 
 ministrators and assigns or other legal represent tives. 
 
 Note to skc. 1. — The Act came into operation 1st March, 
 1887. 
 
 Note to sub-sec. (a), sec. 2. — By 16 Vic, ell, Can. (1852), 
 when the Bureau of Agriculture was first estaiblished for the late 
 Province of Canada, the Minister of Agriculture was directed to 
 receive nil n))plication8, specifications and models for patents, and 
 to keep the records, the jurisdiction being transferred fiom the 
 Provincial Secretary to the Minister of Agriculture, and the 
 Patent Office has been a part of the Bureau of Agriculture ever 
 since. 
 
 ')■ 
 
22 
 
 AM ASLt. 
 
 [Sec. 2, S.I. (c). 
 
 8m. 2, 
 
 I 
 
 - 
 
 ■ I! 
 
 !■ 
 
 NoTK TO SUH-SEC. (h}, Miic. *— Since 22nd May, 1888, the 
 Deputy of the Minister (if" Aj^niMiiture is no longer Deputy Com- 
 miMHioner of Patents liot a >gKuial otficer is now appointed as 
 such. See substitutt-d Htuitiioiii •* 
 
 Note TO suh-sec (r), wir * — ThiM defines what constitutes 
 an invention under secticm Z )ff thin Act and elsewhere, and is 
 the same wording; as that in niU rjniteil States Act. 
 
 An Art means, whes k iUscrilMis the subject of a patent, 
 " any new and useful art,' tir .uf uHually described — any new and 
 useful process ; in sectiau Jt id C'lirtis on Patents, 4th ed., this 
 
 term, as there stated, " wut* hainiiMi ut Hmhroce thoae inventions where the 
 particular apparatus or mattiriuk' (inQiiiyHii may unt be the CHHenne of the 
 discovery, but where thf eHHuuut umMHOf in iiHing apparatus or materials iu new 
 processes, methods or relatione hi> m tii tiinscitiite a new mode of attaining an old 
 result ; or a nio<le of attaining a utw mwult in a particular ilepartment of industry, 
 which result may not of itself Ih- um nuw muuhine, manufacture or composition of 
 matter ; or finally, an ei'tirtil\ new |}iyiiiH!Mt of making or doing something which 
 has not been uiatle or doui- btdort- iv. uiy process. ' It is a mode, or method, 
 
 or manner of accompliBhing nmut ceitain result in distinction from 
 said result. 
 
 As defined by the Sufirouit <Coixrt of the United States, an art 
 
 or process is " an ac^t or seriett ti! uiim performed upon the subject matter to be 
 transformed and reduced t4> a difitiMnc Matx or uhing, and if new and useful, it is 
 
 patentable." Coclirune \. 1^'ti'Mv. ',H U. S. 789, 11 Brodix, 396. 
 
 " An Art," is a " prooesh.' V id«i Xew Process Fermentation 
 Co. V. Mails, 17 Brodix, II »7 
 
 In Walker on Patents ^witiion .*J. it is stated "the word 'art' 
 haa a narrower meaning in tht- Sfiixnt: Laws than it has in the dictionariea." 
 In the latter, its significaJtutnt \w " che use of means to produce a result." 
 In the Patent Ljiws, it ccwwf <mly a certain limited meaning of 
 the word " process." Tbt ratrnmoii meaning of the latter word 
 is " an operation pei-f ormed fty nule to produce a result." 
 
 And in section 4 Waliiar., ihi Coming v. Burden, 15 How. 267 
 (1853), the Supreme Court oi} niiti tJoited States announced that 
 processes which consiHt iuih' ini bhe use of mechanism are not 
 patentable, and that all otihtir ouichods «)f producing asef ul results 
 are patentable as })rooeM«ef> o&tty being such processes &s are 
 covered by the word " iirt ' ihi she .statute. 
 
 The meaning of the Sitinai ' Airt» " is very fully described in 
 
 Curti.s 
 sec. 3 
 patent 
 Patent 
 proces-s 
 effect i.«. 
 tion of 
 anothei 
 Januar; 
 the me 
 in the 
 practice 
 but will 
 product: 
 operatic 
 of the P 
 state of 
 able. 
 
 AIM 
 tion 20, ( 
 
 mere func 
 mechanism 
 signed Vo a 
 
 Patent Lai 
 
 machine 
 an oil] el 
 arrangeni 
 
 A "u 
 tion of m 
 and prot 
 vol. 25, s( 
 
 A " 
 
 general, 
 const raine<l, 
 moditied, as 
 pulley about 
 Histing of a < 
 to constituu 
 or from anot 
 tion of some 
 
See. 2, 8.1. (e).] 
 
 A MACHINE. 
 
 worH 
 
 Curtis on Patents, 4th ed., sec. 9 et ae<j., and Walker on Patents, 
 sec. 3 et ^7. A process as distinguished fron» a machine is 
 patentahle and comes under the term " useful art " in the 
 Patent Law. See Myers' Ft.Jeral Decisions, vol. 25, sec. 5028. A 
 process is a mode, meinod, or operation, hy which a result or 
 effect is pro«Juced by ehomical action, by the operation or applica- 
 tion of some element or power of nature, or of one substance to 
 another : Myers* F. 1). vol. 25,. sec. 5080. Ex parte Turner, C. D., 
 January 12th, 1894. See O. G., vol. CO, p. 1592. An art, within 
 the meaning of the Patent Laws, must accomplish some change 
 in the character or condition of material objects. When the 
 practice of the alleged art will not produce any physical effect, 
 but will merely carry out a plan or theory of action without the 
 production of any physical lesults proceeding directly from the 
 operation of the theory or plan itself, it is not an art in the sen.se 
 of the Patent Law. The art of advertising which induces only a 
 state of mind in the purcha.ser of the newspaper is not patent* 
 able. 
 
 A Maolliiie is the next subject of Letters Patent. In .sec- 
 tion 20, Curtis, it is thus defined, " When the supposed invention is not a 
 mere function or abstract ino<le of operation, separate from any particular 
 mechanism, but a function or mode of operation is embodied in mechanism de- 
 signed V> accomplish a particular effect, it will be a machine in the sense of the 
 
 PtiUat Lkw' : Bin nchard v. Spvayue, 3 Sum. 535-540, and a 
 machine is rightfully the subject of a patf nt whenever a new or 
 an old effect is produced by mechanism new in its combinations, 
 arrangements, or mode of operation. 
 
 A " machine " includes every mechanical device or combina- 
 tion of mechanical powers and devices to perform some function 
 and produce a ceitain result: Vide Myers' Federal Decisions, 
 vol. 25, sec. 5029. 
 
 A " machine" in Web.ster's Dictionary, is defined to be in 
 
 general, "any combination of Iradies so connected that their relative motions are 
 constrainetl, and by means of which force and motion may be transmitted and 
 moditieil, as a screw .ind its nut, or a lever arranged to turn almut a fulcrum, or a 
 pulley about its pivot, etc., especially a construction more or less complex, con- 
 sisting of a combicatiou of moving parts or simple mechanical elements calculated 
 to constitute a prime mover, or to receive force and motion from a prime mover, 
 or from another machine, and to transmit, modify and apply them to the produc- 
 tion of some de«ire«l mechanical work or effect, " etc. 
 
 
 ii 
 
 
 m! 
 
 .- 1 "Mi 
 
 rt< 
 
 ■ i 
 
 II- 
 
 ■ ■ . ,' 
 
 ^ \ 
 
 . ;' 
 
 Ijlv 
 
 . 
 
 '■*^Hi 
 
 ,t . ( , 
 
 Ftn * [^ 
 
 
 111 
 
 
 mI> 
 
 !•' J 
 
 Wk 
 
 r ■ "IS-, 
 
 mt\ 
 
 : i.NI^ 
 
 t - * 
 
 . 1 ; 
 
 w\ 
 
 
 ii 
 
 
 V : j» 
 
 
 
 .4 
 
 
 ' "^ 
 
 
 ! 1 
 
 
 
 ,, • 
 
 
 
 
 
 
 A 
 
 
 
 
 
 
 
 
 
 
 
 J 
 
 y 
 
 1 
 
24 
 
 A MANUFACTURE. 
 
 [8«0. 2, 1.1. (o). 
 
 8eo. 3. 
 
 A Manufacture : In the note to section 27 of Curtis, the 
 definition of n " niaiuifacture" oh the sultject of a patent is, •• Any new 
 
 comliinntion of olii inaterinlH i-oiiatitutiiiK a new result or prniluctioii in the form 
 of ft vemlihle artielo not being niiichinery." 
 
 A " manut'nctnre " in Webster's Dictionary, is defined to be, 
 
 " Anything nimle from new materials hy tlie hand, l>y ninciiinery, or by art, aa 
 clothes, iron utenHils, Hhoen, machinery, t>a«lillery," etc. 
 
 It may be sometimes difhcult to determine whether one of 
 these classes does not ruit into another ; whether the invention 
 may be classed as a " machine " or a " manufacture " is not, how- 
 ever, matter of vital importance. 
 
 In England the term " manufacture " has a more extended 
 meaning than in the United States or Canada. 
 
 In the 6th section of the Statute of Monopolies, 21 James I., c. 
 3, it was declared that the operation of the statute "shall not 
 
 extenil to I^itters Patent ami grunts of privilege for the term of fourteen years or 
 under hereafter to lie made, of the sole working or making of any manner of new 
 manufacture within this realm to the true and tirst inventor and inventors of such 
 manufactures, which others at the time of making such Letters Patent and grants 
 shall not use," etc. 
 
 The term " manufacture " here has been defined to be 
 
 " something made hy the hand of man," and hrtS been held to include 
 
 the practice of making a thing or of producing a result: Vide 
 sec. 5, Cuitis ; Boulton v. linV, 2 Hy. Bl., 492. 
 
 By judicial decisions in Great Britain and Ireland, "new 
 manufacture " within this realm, covers all that is defined by the 
 word " invention " under our Act ; and by .sec. 46 of the British 
 Patent Act of 1883, an invention is defined to mean "any manner 
 
 of new mnnufucturc the subject of Letters Patent and grants of privilege within 
 the 6th section of the .Statute of Monopolies, '21 James I., c. 3." 
 
 In Ralston v. Smith, 13 L. T. N. S., Lord Westbury says 
 the word " manufacture " includes not only productions, but also 
 the means for producing them, therefore in addition to the thing 
 produced, it will comprehend a new machine or a new combina- 
 tion of machinery, it will comprehend a new process as well as 
 an improvement on an old process — by the definition in section 
 46, the first introducer into the realm may be the first inventor, 
 aa was the case before the Act of 1883, and the subject matter of 
 Letters Patent in the United Kingdom is the grant of the privi- 
 
 lege re 
 the realm 
 
 Co] 
 
 sition <) 
 
 the arts 
 
 separate 
 
 of matt 
 
 the proc 
 
 article I 
 
 mode or 
 
 " new CO 
 
 particulfi 
 
 The( 
 
 of matte 
 
 a machir 
 
 classed a 
 
 not come 
 
 Any n 
 
 facture o 
 
 patent. 
 
 ByC. 
 
 art, machir 
 herein refer 
 means." 
 
 Pi 
 
 3. The 
 
 thereof, an ( 
 Agriculture 
 0. 26, s. l,p, 
 
 NOTE.- 
 
 Patent Oi 
 culture wa 
 the Deput 
 
 Governor i 
 
 4 
 
 :r if' 
 
ung 
 ^ina- 
 111 as 
 ition 
 itor, 
 }r of 
 Irivi- 
 
 8ec. 3.] 
 
 COMPOSITION OF MATTEE. 
 
 lege relating " to the aolo wnrkinf; or making of uny nuw manufacture within 
 the realm." 
 
 Composition of Matter. — In .section 2H, (hirtis, "cuinpo- 
 sition of matter" is Hiiid to include niuilieinc.s.conipusitions u.sed in 
 the arts, and other combinations of suhsttince.s intended to be sold 
 separately, (•em-rally speakin}.,', a patent for a new cumponition 
 of matter covers tln' procos.s, for if the composition itself be new, 
 the process by which it is made must also be new ; but if the 
 article be not new, but the patentee has described merely a new 
 mode or process of producing it, then the patent will not be for a 
 " new composition of matter " but for a new " art " of making that 
 particular thing. 
 
 The distinction between a " manufacture " and a "composition 
 of matter" is not always ea.sy to define. That which is neither 
 a machine, a manufacture or a composition of matter, may be 
 classed as an " art " or " process," and there are things which do 
 not come under any of the foregoing heads. 
 
 Any new and useful improvement in any art, machine, manu- 
 facture or composition of matter, may also be the subject of a 
 patent. 
 
 By C«m. Stat. Can.,c. 34 (18.")9),22 Vic, the expression '"useful 
 
 art, machine, manufacture ov cnuipoHition of matter ' IncludeH any Huch thing 
 herein referred U>, whether it l>e made by iiaud or machinery, or by both of these 
 means." 
 
 PART II. 
 
 Patent Office and Ai»i»ointment of Officehs. 
 
 3. There shall be attached to the Department of Agriculture, as a branch 
 thereof, an office which shall Im: calli-d the " Patent Oitice ;" an<I the Minister of 
 Agriculture for the time being shall l>e the Commissioner of Patents. 35 V., 
 c. 26, 8. 1, part. 
 
 Note.— By the Patent Act of 1869, 32-33 Vic, c 11, Can., the 
 Patent Office was first established, and the Minister of Agri- 
 culture was made the Commissioner of Patents, and his Deputy, 
 the Deputy Commis.sioner ; the latter is now appointed by the 
 Qovemor in Council : Vide section 5, a substituted section. 
 
 k 
 
 
1' 
 
 li^ 
 
 I 
 
 26 
 
 OFFIOERB, etc. [fiecfl. 4, 6, 1.1. 2, S«0. 6. 
 
 4. The cnniiniMxionor Hliiill reoeivv all lipplicutionH, fecH, |m|M<ri. ducumenU 
 ami iikmIc'Im (or |>ntt'iitH, iiti<l ahnll pi-rforni ntxl do all uctH ami tliingii re(|uiaite for 
 the griiiitiii({ uiiil iMiuiii>{ of |)ittt!iiti4 of iiivfiitioii : and ht> Mhuli li»vu thti charge 
 ttiid L'liiitody of the Itookit, recordM, pupurM, iiioduU, tiiachiitfii mid other things be- 
 longing to the Fittent Ollice. [Mt V., u. '20, «. I, /•nif, 
 
 •f. 1'he (iovenior in Council iniiy appoint n Deputy (.'oinmiHHioner of Patenta 
 whose salary shall Im; two thousand eight hundrutl dollars per annum, and may, 
 from time to time, appoint miuIi otKuers and elerks \inder suuh Deputy Com- 
 misaioner as are necttssury for the purposes of this Act, and such Deputy Com- 
 missioner, otiicers and clerks shall hold office iluring pleasure. 
 
 2. The Deputy Commissioner of Patents shall, subject to the head of the 
 Department to which the Patent Office may be, at any time, attached, oversee and 
 direct the officers, clerks and employees in the I'atent Office and shall have 
 general contnd of the business thereof, and shall perform such other duties as 
 are assigned to him by thu Oovcrnor in Council. .'{•'> V., o. 2tf, s. 4, part ; The 
 Patent Act (18M(i), 51 V., u. 18, s. 1. 
 
 NoTK.— By 51 Vice. 18 (1«88), sec. 5, of "The Patent Act," 
 chapter Gl, of thu Revi.sed Statu tu.s of Canada, wa.s repealed, and 
 the foregoing subutituted therefor. 
 
 This change of otticers gave ri.se to the rehenring of a patent 
 case under the 37th section of the Act. In February 29th, 1889, 
 Mr. Richard Pope, the Deputy C()niini.ssioner of F^atents, in the 
 case of tlie Royal Electric Co. of Canada, Petitioners, and Edison 
 Light Co., Respondents, gave judgment annulling the Edison 
 Patent for non-manufacture and importation ; as at that date the 
 Minister of Agriculture or the Deputy of the Minister of Agri- 
 culture had jurisdiction under the 37th .section of the Act, and 
 doubts were entertained as to the jiuisdiction of the Deputy 
 Commissioner of Patents appointed under 51 Vic, c. 18 (1888;, 
 the case was reheard by Mr. Carling, the Minister of Agriculture, 
 associated with Sir J. Thompson, the Mini.ster of Jastice, when 
 the latter handed in a judgment on the 30th of October, 1889, de- 
 chiring that the patent was not void, and reversing the finding of 
 Mr. Richard Pope, the Deputy Commissioner of Patents : See 
 note under section 37 for report of case. 
 
 O. The commissioner shall cause a seal to be made for the purposes > 'f this 
 Act, and may cause to be scaled therewith every patent and other instrument and 
 copy thereof issuing from the Patent Office. 35 V., c. '26, s. 2, part. 
 
 Note. — This section is new. Under the 50th section of the 
 Patent Act, the seal of the Patent Oftice .shall be received in evi- 
 
 hi 
 
8«o. 1, 1.1. 2.] 
 
 APPLICATIONS. 
 
 27 
 
 (lencc in every Court, «tc., and copii'H aixl extracts certifaMl under 
 the Heal of tlio Patent Office shall ho receivahle in inidonce with- 
 out production of the ori};inal. The seal is attach«>d to certified 
 (!opieH of patents, assignments, ahstraets, agreenients and other 
 docunicntM on tile in the Patent Office. 
 
 PART ill. 
 
 Applications kok Patknth. 
 
 T. Any person (a) wlio hui inwiituii {h) any nuw imd iiieful art, machine, 
 manufactu*'e or composition of niattur, or any new unii iiHcfnl improvement in any 
 art, machine, aianufactiiru or compoaition of matter (r), which was nrt known or 
 used by any other puroon hi-forc his invention thereof (>/), and which has not 
 heen in public umc or on nale with the i^onHcnt or allowance of the inventor 
 thereof, for more thun one year previouHly to Iuh application for patent therefor 
 in Canada (''), may, on a petition to thutelFcct, prcHcnted to the comniissioner (/), 
 and on compliance with the other requirements of thia Act (>/), obtain a patent 
 ({ranting to such person an exclusive property in such invention (A) :' 
 
 2. No patent shall issue for un invention which hat* an illicit object in view, 
 or for any mere scientiKc principle or abstract theorem, .srt V., c. 'M, s. H, /nirt. 
 
 Note. — Thi.s .section 7 is a rearrangement of section G of the 
 Patent Act of 1872, it now reads better. For section C, Patent 
 Act, 1872, .see Form i>2, Appendix 2. 
 
 This abrogated .section 6 of the Act of 1872, has been split 
 up into four portions, and is now covered partly by section 7; 
 that portion relating to the sealing, by section (J ; while yeetion 
 21 directs the formalities of issue, and that part stating what 
 "may not be patented " becomes now sub-section 2 of .section 7. 
 
 Note (a) to Section 7. — The practic*' now is that the patent 
 be sealed with the Patent Office seal, signed by the L'omnus.sioner 
 of Patents and countersigned by the Deputy Commissioner ; 
 there is no specific direction that the Deputy Commissioner sign 
 the patents in the absence of theConuni.ssioner. 
 
 In the United States by the Act of 188S, under the direction 
 of the Secietary of the Interior, one of the Assistant Secretaries 
 may sign Letters Patent. 
 
 * NoTR.— While this woric is KolnK through tlie preiw, it i« Dialed that this section 7 is to b« 
 amended this Ression (18IM), to meet points which arosv in Thr i/iieen v. La Force, hereafter refsrrsd 
 In ; it «o, the new l)ill, annotated, will be added in the Appendix. 
 
 
2K 
 
 APPLI0ANT8. 
 
 [8«0. 7. 
 
 >t:l 
 
 I 
 
 i 
 
 III 
 
 (u) '* Any Person " includoM in ('anadu, both inon and 
 women, aiui aUo foinignors of all <IuHcri|)tions. In tho Intor- 
 prt'iation Act " jxTMon " incliides "any Ixxly corporate and 
 politic," hut hero the nieanin^^ i-t restricted, for a corporate body 
 could not invent. PatentH, liovvever, may he issiiod in tho names 
 of coi'porations and tirnis, provided the inventor make the oath 
 or atKrniution re(|uired in section 10, an<l asnij^n the alle^'ed inven- 
 tion prior to ibsuu to the corporation or tirni who petition for the 
 patent. 
 
 Infants. 
 
 InfantH under twenty-one years, of cither sex, may obtain 
 pate!it8 through tho Patent Otlice, Canada, without question ; there 
 is no express reference to them in our Act, as is the case in 
 England, nor have wo judicial decisions as to their status relative 
 to patents. A difficulty might arise with them in Ontario and 
 other Provinces relative to assignments, etc., and contracts relat- 
 ing to patent rights. In Foley v. Canada Permanent Loan «t 
 Savings Co., 4 Ont. R., 38 : — 
 
 Held, the rule is now well establiaheil that tho (iced of un infant ia not void 
 ah initio hut voithiblo on hU attaining majority. If lix wishes to avoid it, he inut 
 expreiwly repudiate his contract within a runHonuhlu time after coming of age 
 others iae his silence will be hi<ld to amount to an atKruiation of it. 
 
 Married Women (Can). 
 
 A married woman ma}' be a patentee in Canada ; and the 
 property in the invention would be her separate estate in Ontario 
 under R. S. O., c. 132, by this Act she may sue without her 
 husband, and any damages received would be her separate pro- 
 perty. 
 
 Under the Married Woman's Acts in British Columbia, 
 North- West Territories, Manitoba, Ontario, Nova Scotia and 
 New Brunswick, a married woman may be treated as if she were 
 femme sole so far as a patent is concerned, also in Prince Edward 
 Island. 
 
 Civil Code— Lower Can. (1866) Art. 177. 
 
 A wife, even when not conunon as to property, cannot give 
 nor accept, alienate or dispose of property inter vivos, nor other* 
 
8eo. 7.] 
 
 APPLI0ANT8. 
 
 21) 
 
 wiHo enter into contracts or oltli^ation.H iinluHH her huHliaml 
 liocomes a party to tlie ili>u<l or ^ivcN liin consent in writing. 
 
 If, however, she bo separato as to property, she may do 
 und make alone all nets iin*l eonlracUs connecteil with thu 
 ailiiiiriistrution of httr property. 
 
 So it appears that altiioiigli a married woman in the Pro- 
 vince of Quebec nuiy take out a patent in her t»\vn name, y«t 
 if she l)e not separate iin to property, .she cannot sell, assign 
 or license iim patentee, iniless her hiisbaml becomes a party to 
 the deed or gives his asnent in writing. 
 
 By Article ISO, if the husband l)e interdicted or absent, tho 
 Judge may authori/.e his wife to contract. 
 
 By Article 182, if the wife be a minor, the authorization of the 
 husband, whether he be of age or a minor, is sutticient for those 
 cases only in which an emancipated minor miglit act alone. 
 
 Disability of Minors in Quebec. 
 
 Minor.s, under twenty-one y<'ars of nge, in the Province of 
 C^uebec, although they may take out patents, by Article 9HG, are 
 incapable of contracting, as are also, those who are ins^tne, imbe- 
 cile or drunken. 
 
 By Article lOO.S, a person is not relievaV>le from a contract 
 made by him during minority when he has ratified it since 
 attaining the age of majority. 
 
 Married Women, Great Britain. 
 
 In Great Britain, married women by virtue of the Married 
 Woman's Act are under no disabilities with respect to patent.s. 
 
 Infants in Qreat Britain. 
 
 There does not appear any ca.se in KnglantI, which judicially 
 decidea, whether, before the Patent Act ''f 1S83, an infant may be 
 a patentee ; but, in the case of a grant to two persons, one of 
 whom wa8 an infant, the validity of the patent was not att'ected : 
 Vide Chevin v. Wallccr, L. R. 5 Ch. 1)., S5H. 
 
 Under the Patent Act of 1.SS3, section OU, provision is made, 
 for the guardian of an infant to make declaration and to act au 
 substitute, for the purposes of the Act. 
 
 I .. ' 
 
 u 
 
 ■i 
 
 I 
 
 i 
 
 ? 
 
 i 
 I 
 
f 
 
 80 
 
 APPLI0ANT8. 
 
 [Ste.7. 
 
 i i 
 
 r 
 
 • M fi 
 
 t ■ 
 
 Lunatic. 
 
 Thure In mo proviNiuii iti otir Aot for tlio f^riint of Letter* 
 Patent in th«' cuhu of our makini; un invtMition and liecuniiiii; 
 insane iMtturu nppliciition for ov olitainin^ LetturH I'atent. In 
 (Jreut Hritniii thiM in providinl for liy Moction U9 of the Act, 1H83, 
 iukI thu ConiniitlfK of tli(> liinutic can niiikt' any doctnration or du 
 any not ncccsHnry tot- tlu' |)urpoH4'>4 of tlu; Act and all ActM done 
 )>y iUii Nultstitutc, shall \tr ah utluetual ah if done by the pertioA 
 for whom ho in stilmtitutod. 
 
 Married Women in U. S. 
 
 In tho States, married womun, infants and lunaticH are liable 
 for damii^'i>N on infringement of patentH ; the only diHtinetion 
 bet\V(>en the liability of liitiatics and of sane persunM, seenis to be, 
 that the former can never be held liable for more than actual 
 damages on an action at law or profits in an action in e<|uity : 
 (Jooley on Torts, p. 102 ; A>rrtj v. Wihnu, 20 Ketl. Rep., 857, 1884. 
 Husbands are liable for infringement by their wives, committed 
 in their preHcnce, and for joint infringements: Vide Walker, 
 section 402. 
 
 A married woman, infant, or one under guardianship, may be 
 assignee, or may assign their inventions : Vide Walker, 2nd ed., sec. 
 275, and a married woman is a competent witness in interference 
 proceedings : Vide Koen v. Quint, O. (I, vol. 23, p. 1331. 
 
 A patent may issue in the name of any assignee or asttignecH, 
 provided the oath or affirmation referred to be made by the in- 
 ventor, and the invention be duly assigned by him before issue 
 to the petitioner ; in the event of their being joint inventors, the 
 oath and assignment should be made by all the inventors ; in all 
 cases the patent issues to the petitioner or petitioners. 
 
 A patent may also issue in the name of the assignee of a de- 
 ceased inventor, or to his legal representative, provided the 
 assignee or legal representative comply with the provisions of 
 Hub-section 2 of secticm 10 of the Act. 
 
 " Any person " under this section may mean a first and inde- 
 pendent inventor; in sectitms 16, 24 and 32, the term "first in- 
 ventor" is expressly used, although omitted in Patent Office 
 Forms relating to oaths, 17 to 22, inclusive. 
 
8m. 7.] 
 
 JOINT PATENTBB8. 
 
 tl 
 
 Two or tnoru porHoiis may make joint applicutinn for a patent, 
 and tho patt>nt niny JMsiin in tlit'ir joint nnnicM, whcthvr an joint 
 inventors, or an aHsi^^niM' or aNsij^inn's iin<l inventor, or as nsMi^neoM 
 an Htated, providetl ilio provisions of section 10 tnt foniplied 
 with ; irideetl, it is ji very coninion pnictice to issue putentH 
 jointly, whieli involves n soniewlint inipottiint tpifHtion as to tliu 
 respective interests of the parties : Viili' alsosuli-section 2, section 
 •JO, which speciaUy provides for joint applications. 
 
 Joint Patentees. 
 
 In Hi^'gins on Patents (1HH4), p. (Eng). joint patentees art 
 not in contemplation of law [wirtncrs, nnd each may us«> the inven- 
 tion without aecountin;,' to tlio other: Miifhern v. (iiern, I Chy. 
 App.. *JJ),and Daniels (ISM4), p. I is, lays down : " Wh«n a i^tfiit U 
 
 )jriinto<l ti> two or niortt partncm, niiy mu) of tliiMti may iin« tli« iiivfiition without 
 the uoimeiit of the (»tht<ni, without itucountinx to thvru or any of theui for thii pro< 
 tit* MO ohtaineii in thi> iiIimmk-u of any H|tucial agrettnient to that ulToot " : Seo 
 Mat/ic.)'n V. Gmn, L. K,, 1 Chy. App., 21); llamoek v. lU'wley, 
 Johnson, p. 001 ; Re Hustiell, 2 DeO. & J., 130; Lec» v. Jonett, 
 :i Jur. N. S., {K)4. 
 
 The forej^oing is still the law in England ; the Patent Act of 
 188!) and suhse(pient amendments having; made no alteration in 
 that respect. 
 
 The i|uestion has apparently never Wn decided in our 
 Canadian Courts, and doubtless, wc woulil follow the law as it i.s 
 in Great Britain. 
 
 Mathers v. Green, wa.s decided in 1805, under the Patent 
 Law Amendment Act of 1852, and was an appeal from a jud^;- 
 ment of the Master of the Rolls, who found the p.aintitf entitled 
 to an equal share in the profits attrihutable to the invention as 
 well as to an e<|ual share in the royalties arising from a license. 
 Lord Cranworth, L. C, deliverin<j the judgment of the Court, re- 
 versed this Hndinc]; and «iismissed plaintiff's hills, holding that 
 the defendants, as joint patentees, were not liable to account, and 
 that where a patent for an invention is granted to two or more 
 persons in the usual form, each one may use the invention with- 
 out the con.sent of the other. 
 
 Lord Cranworth cites He Rusaell, Patent 2 DeO. Si J., 130, 
 
 !:' 
 
JOINT PATENTEES. 
 
 [Sec. 7. 
 
 which had ulso coinc htfforo him in ]8')7, a «li.sputu between 
 rival invt'iilors which waH setthMl hy H^'r».'eiiinnt. 
 
 Ill the llniti><l Staten in Kcction *J!)2, 'Valkcr on Patents, it is 
 
 laid down " tiiuipcy in common " ; " in k |>atoiit right, wiki aHm when- 
 ever the Mtlc owner of hiicIi a right, in ul) or in purl of thr U'rritory of the United 
 StAtt'N oonviiyN to iiiiiithtM- an iiniliviiU><l i<>'<ireMt in the wliolo or in )i irt of the 
 right whiol. lie owim. Mutual ownt-rHhip of oouit! «ort urine* when a pjurnlity of 
 p«>raonit un; joint InvcnUirH of ii prtHruM or thing for whirh they olitain a joint 
 -^utunt ; uIni) when a phirulity of |K;rHonii olitain. I>y an ANiiignnivnt or grant the 
 uuitlvi'luil owniirMhip of a patmt or tlio unilividvil <»wnenihip <if u piittvnt right in a 
 par< of tUv territory of the Unitoil Statou." 
 
 Then it is tliscussed whether it may not he a "joint tenancy " 
 iiihtead uf "a tenancy in common" with a leaning; towards "tenancy 
 in common " although nev*-r judicially deUtrmined in the Supreme 
 Court, U. S, ; and to avoid the d«wtrine of survivorship in "joint 
 tenancy, ' which would deprive tJie lu'irs (»r devisees of a deceased 
 joint patfiilcf of any interest in the patent, conferring it v..i the 
 Nwr\ ivin;j joint patentee or patontoes, it is suj^gested (in si'ction 
 2!>*i \Vidl\«'r) when j(»in< iaNentors hi'conu' joint patentees — that 
 a j >int assi;;nment of tl<e patent he matle to a third person and a 
 separate re-assi«jfniin'nt to the patentees of their respective undi- 
 vided interest — this wouKl destvov tlio " unity of title " and 
 turn the holdinjjf into a "tenancy in comtnon," and if the separate 
 r"-ax.sij,'nmeMts are «'.\ecuted and delivered tmditiin cut days it also 
 d- ^4 oys the 'unity of time," another of the four unities of a 
 'joint tenaney." 
 
 Where a sole inventor sells an un<)ivide<l interest in his inven- 
 tin)n or liis patent, "joint tenancy " can l>o avoided V)y Himply 
 n.HHi(;nin;^ tliat undivided interest to tlic puiclia.ser ; instead of 
 doin<{ the common hut unscientific thing of assigninij the whole 
 patenr to himself an<l to the purcha-sei jointly. 
 
 W'lien a patentee assi;jjns his patent, or grants a territorial 
 fight thoreii\, to a plurality *>i' purchasers "j(»int tenancy " with 
 its iiu;onvonient circumstances can he avoided hy executing and 
 delivering a separate pa{.',r to each purchasj-r for his undivided 
 Mhavo — instead of making oii" document lor all. And thuH a 
 *' tenancy in conoiioti " can in all c»i.ses i<u ereateil. 
 
 Jn Ciuvi v. Jircivcr, 2 Curtis, C. C, .'lOti (Ihuiij, Curtis, J., says, 
 
[Sec. 7. 
 
 isputo l>etween 
 
 in Patents, it is 
 ht, will nriie when- 
 Ht«»ry of the llnit«l 
 a or in \) irt of th« 
 wh«» » jwurality of 
 ihtty oltUiik K joint 
 ginnunt or ^rant the 
 (f a jMitiMit right lii » 
 
 " joint tenancy " 
 owunls" tenancy 
 ,1 in the Supreme 
 .orship in "joint 
 A'.iiH of a tleceased 
 k'rnin^' it v.ii th*'. 
 reste«l (in section 
 t, patentees — that 
 liiil person antl a 
 respeetive unili- 
 iy r.f title" ami 
 I if the separate 
 nent (hiys it also 
 four unities of a 
 
 rest in his inven- 
 
 'oitletl l»y simply 
 
 msei ; insteuti of 
 
 igning the whole 
 
 lunt-i a territorial 
 nt tenancy " witli 
 )y j'xtcutin^; ami 
 f,,r his »n»<Uviiletl 
 all. An«l thus a 
 
 -»), Curtis. J., says. 
 
 860.7.] 
 
 JOINT PATENTEES. 
 
 88 
 
 "One t^nkiit in rnnimon lin* im (((mmI a rijKlit to n*e ami to licennc third |)er 
 Kona to uic tiin tiling |mtfnt4Ml n* the nthur ttinant Iuim, iiuithcr cnn aM<-rt a *u|N.-rior 
 <-i|uity iinluMN it linn Itccii crt'attMl liy Moinc contrnct nitMlifying the rights Itvloiigin^ 
 t>> thfiii HM tciiiiiittt in oonunon." 
 
 This is still the law in the United States : Vide Walker, 2ml 
 »«1., sec. 294. 
 
 No recovery of profits <»r «lanin;,'es can he h;itl a^'ainst any 
 licensee, at the suit of any co-tenant of a licensor; ItHnhmn v. 
 Hoilromi Co., 7 Hissell, Tin (IH70). 
 
 It st'cnis to Io<,'ically follow that no recovery of profits or 
 ilaiiia^res can li<> had ai^ainst one (*o-tei:ant who, without the 
 consent of the others, has nuide, us»'d, or sold spi'cimens of the 
 patented thini;. That tloetrin*! has heen nplu-ld in Whithuj v. 
 (iiaret, :\ Bun. & Ard. 1>*2.') n«7M), and in the SuprtHue Court of 
 Ma.isachust'tts in Vom- v. Sl)iif>-i\ 4 Allen (Mass.), 'Ji:i2 (lM«i2). and 
 \i\ the Sunreiue Ct>urt of Ni?\v York in Dt Witt v. M(i,,u/actur- 
 'ui<f ''(>., •) Hun.. N. Y.. 301 (IN?')). 
 
 In (}reat Hrit^iin one of several joint owners of >'. patent may 
 lirin<{ an action in his own name to restrain infiin^cment or for 
 ilanui}j[»'H without joininj^ his co-owners : Slnuliui: v. (jrmt Kant- 
 n-n li. W. rV... If) Chy. I>., 50 ; Dn,l v. Turf^in, 2 J. i: H., i:}9. 
 
 One eo-owner of a jiatent is entitled to woik it for himself, 
 whetluM his part ownership was acquired by a ji»int jjrant or hy 
 a>sii,'nment fn»iM a prior part owner, and is not liahh' to account 
 fur profits, to which as eo-owner he was tintitled : |'vi/»' Steers v. 
 Rollers, L. H ( f S!)2), 2 ( 'h. ( Ap.), I'.i ; It. P. ('., vol. !), p. 177 {WJ'2). 
 
 Go-owners' Rights. 
 
 The fact that the assi^Mie*' of on'? nujiety of » |.<^tv>nt Imppen.s 
 to he niortj^a^^ee of the other moiety, does not altt-r the general 
 nil*' that a co-owner of a pntent is entitle I to work It lor his own 
 I'tnefit. Held, tlierefore, in an action to redeem the mort<j;age'.l 
 moiety, that the n!(»rt<,'a;,'ef not havinj,( received royalties was not 
 i'lili;;e<l to account for the j)r(»fits nuide while he was ludder of 
 tile mort|,'a«,'e : Sten>i v. Jiiii/ern. C. A. (IS!>2), 2 Ch., l.'l ; aftirm-d 
 l.y H. I (IhlKl), \V. N.. 7'i (!«!>.•<), A. C„ 2M2. K. P. r, vol. l» 
 \SU'2), p, 177. 
 
 Tin- decision in Miith<'r,'< v. finrii, L. U,, I Ch., 29, approv»Ml, 
 See alh.i While v, City of London lircwery Co., 42 ( 'h. D., 2.S7. 
 5 
 
 U 
 
 I ' 
 
34 
 
 PATENTEES. 
 
 [860.7. 
 
 Seo. 7 
 
 w 
 
 Tlui Inw apprniN to U' sottlcd in thr same way in both Enjj- 
 lan«l an<i the lJnit»>(l Stiitcs, and involves a iiucstion of some 
 moment. In Canmla, however, the practice which shouM he 
 followed in onler to ensure a tennney in conniion " is more 
 honoured in its breach than in its observance, and the rights 
 ac({uired by joint partners nn^ usually either unknown or tt>taUy 
 diHreirarded until some complication has arisen. In all cases of 
 Joint ownership ot' a patent where it is not intended that each 
 individual should deal separately with the patent without refer- 
 ence or accountinLt to the other proprietors, a separate document 
 or agreement shouUI l»e executed by all parties detininj^ their 
 positions, which, beinj; n. "ilooumt'iit urtoctiiifj or rolatiiiK to » patent,'' 
 may, under the .'{Dth section of the Patent Act, be rej^iwtered at 
 Ottawa for 92. 
 
 Now the utmost latitude is allowed as to who may obtain a 
 patent in Cana<la. 
 
 We liave seen that orii,'in»lly under 7 (Jeo. IV., c. 5 (lH26t. 
 "Any Hultjuct of HU MajiHty In ing un iiiliii)>it«oit of Cminilii" mii^llt ol)tain a 
 patent for fourteen years, tins continued to be the ease luitil th«' 
 Patent Act of 18()}), c. IJ, Can. :\ii & 'M Vic, s, (], provided that 
 "Any person having Iwen a resident of Caniulii for at loaiit <>i»e year l>efore HIh 
 application might obtain a patent." 
 
 So that the privilege was extended to aliens as well as British 
 subjects, provided they luid resided in (!ana<la one year befoie 
 application. 
 
 And by the Patent Act of 1N72. the necessity for residence in 
 Canada for any term vyas struck )Ut, and the comlitions then 
 became the .same as now. 
 
 By .section 4 of the British Patent Act of IHH'A, \n\ p« rson, 
 whether a B«iti>li subject or not, may make an application for a 
 patent in (ireat Britain, but it is doubted whether the sovereign 
 or a *«eneticed cleryyman nuiy take out a patent under pr»»visiiin.s 
 of 1 & 2 Vic, c lOo, se(;s. 2H-.'l(), and jK'Hiaps also an alien 
 enemy : See Kdmunds on Patents, p. 42H. 
 
 Ai\d in the United Slates, under section 4HS(i Revised Patent 
 Statutes, matt.eis art! in the .>ain<f position, a^ here, in that respect. 
 
 (h) *' Who Has Invented " The U S. Act, se.-. 4.hh(;. R. p. 
 S., acids '* or discovered," thus distinguishing between an inven 
 
 tion a 
 V. S. 
 Stat. { 
 the (J,i 
 
 DisoG 
 
 Me 
 
 (liNCover 
 wlvanee 
 P<»lenl (i 
 For the I 
 
 mIi ' I Nt 
 
 ' itior 
 uiier Hail 
 
 invention 
 
 In( 
 Co Very. 
 
 Invent 
 
 The 
 He! * wh 
 
 of i.'ue; 
 pji,7e :iU 
 
 nient {h nii 
 < 'ourt liN>k 
 io thin so i 
 once the cl 
 inference ; 
 have not d 
 ral inferem 
 
 In H 
 
 iiufittell \ 
 S. 242; 
 Kxch.. (JO 
 l*»'ini V. 
 vV N.. as 
 On ni 
 suj.'portei 
 was nove 
 Hagai 
 
 ' ' that the s 
 rt»Hlt, uann 
 
 Pi 
 
See. 7.] 
 
 INVENTION 
 
 8ft 
 
 hiH 
 
 in 
 
 rsoii, 
 or a 
 
 liiMi 
 itrnt 
 
 pt'Ct. 
 
 U I' 
 
 IVtMl 
 
 tion aixl a disctivfi y. Our PnUnt Act of I NO}) wiim wopIcmI as the 
 V. S. Act is n(»\v, as was also 12 \ic., c. 24 (1849), un<l the (.'on. 
 Stat. Can., c. IH ( I.S.')J)), l»ut " dUcuveied " was ilropptMl out of 
 thi' Canu.la Act of 1M72. 
 Discovery and Invention. 
 
 Merwin (l.S8,"{), p. S : " Si.mftinuii h JM Hiiiil that tin- .lirtereiite ImjIwci-h 
 (liHCovnry iiiul iiiventiitii in one of ilegrcv Kiiiiply ; tliat ii iliHuovury iti n gruut 
 a4lv»iicf ill tlii> art, iiii invention ii xligiit Advance ; uinl therefore it ia aniil that a 
 pittent for u liiiicovery iiu-hi<h-M u ({leat tieul, l>ut that for an iiivvntioii very little. 
 For tiie I i-HHon, why a ilimoverer taken a great Rtep in the arta, aiul an inventur a 
 •liu'l' Hti'|i, In, tluit a iliticovery eoininonly remiltn In a now proceHH, whereiui an 
 i' ' iition ia (.'oiiunoiily hut an iiii|irovenient in miin** prooeHa. Thiia, Mr, iliiatice 
 Urier Haiti, ' A new proceait iit luuitlly the result of a iliaouvery ; a uiaohiiie, uf 
 invention,' ■ ComUHj V. Buiihtn, 1 .'» How., 2o'2. 
 
 In < 'anada wu have rcvi-rseil this and invention incUule.s dis- 
 covery. 
 
 Invention. 
 
 Tliui{uestion of what constitutes an invention openii ujialar^tt 
 
 He' i \vhu;h is very fully discus,sed in ' Merwin on Patentability 
 
 of i.i. tiitiuns," and a.s a deduction from the numerous cases on 
 
 pa,7e :\i) of MiM'wih, it is laid down : •• If, hy a flight change, an improve- 
 nieiit ia made, that aninuntH to a dcLitletl a4lvan<.c in aonie art or induatry, the 
 Court KmiUh on it with favour, and they ti::-.! invention in it, if they can, ea[)ouially 
 ia thia ao if the improvement etl'ect a reault which haa long heen dcfired. When 
 once tlie ciiange ia made, it aeeina, indfe<l, u perfectly ohvioua one— a natural 
 inference; hut, the fact that iiiany iniiida li.ive li«t;n il'rected to the auhject and 
 have not drawn the inference, ia atrong evideiic , at leaat, that it waa not a natu- 
 ral inference that invention waa retpiired to make it." 
 
 In WateroiiM v. Jiixhoft, iM) U. C. ('. P.. 29, Hij,'arty, J. reviews 
 liusttell v. Cowl,'!/, 1 ^' ^'- ^''^ '^ . ""*<»+; Sp,',H'er •, Jud', 11 L. T, N. 
 S. 242; UahtvH v. Smith, I'A F., T. N. S. ; Sfnnrr v. Healtl, 6 
 Kxch., 007 ; llarxood v. Uimt Xorthen, I{. W. Co., 11 H. L, 0o4 ; 
 I'nm \.liilh;i,\. R, 2 Cliy.Aiiii., li'T; li»oth v. Keunard,2 H. 
 vV N, ius lii'iinn^' on the (juestio.i of pateiitnliility and invention. 
 
 On motion lor a nonsuit . //*/</, that the verdict could not l»e 
 supported ; and, the proper ipurstion was, whether the invention 
 was ntivel and u.srlul. 
 
 Ha<,'arty, «' . who (h'li^rred judymi-nt of tlie Court, statin<,(, 
 " that the Having ol lalHiiir an i eK|N-iiM-, ,tnd the prtMluctiiMi of a new and iiaeful 
 result, cannot, ulune, aupport a patent, then* muat bv wmie invunttcn " ; this 
 
 ;, 
 
 I 
 
 i[i 
 
 lit 
 I 
 
 --5-1 
 
 ^ i 
 
^ 
 
 3C 
 
 il'fUa ' BM!! 
 
 [See. 7. 
 
 Sec. 
 
 I . 
 
 "I 
 
 i 
 
 fni 
 
 I 
 
 Htatoincnt is open t(» st hdUf «H>ji*«tii)n, and it is not clear how 
 it can Vk! nnivtMl ut from tli^ '{:u+«h !ib<)vi.> (|note(l ; a new nml use- 
 ful result is ali)iu> i nd icuLi vt oti iiLvtiotion where a mere saving of 
 oxpeUHe would not lie. 
 
 A patent must lie for u niiint; invi^nted, as well as new and 
 useful ; a process whidi iuii« dtiJIi^l nu'chanic or chemist would 
 .suggest when re<|uirfd. (H. ni^n itkhiiIc <>f judgment and skill in 
 the selt^ction and ada|itati(iii td' iiiiiCfnal.s is no invention ; to omit 
 one of the parts of an rK.iHt<injr: iiliinij, unless .such omission causes 
 a new mode of opiiation id nliit parts retaine<l, is no invention: 
 Viilf Allen v, lire,!, 14 g. L. BL, LUi, S. (,', 1888. 
 
 In Pourll V. li^filr,/. ]:{<Gtninfl. p. .'181 (1807), Vankoughnet, C, 
 states that tlie simplicity irf t HJitviuH ts no rea.^on why a patent 
 therefor shall not be proitKnitiii 
 
 In SiiiniuerH v. Ahrll. 1 T) iQtauir,, p. .");?2 (18(5})), it was held that 
 the sin>pli<Mty of a new e(iiiiirira:tnij»* wjus no ohjeetion to a party '.s 
 right to a patent for it 
 
 In Ynfen v. 77/r Gratut Iff^>»*.'7,f R. W. f/o., -24 ( I rant, p. 4})') 
 
 (1877), Spragge. V. C, m »irt.tH. • riiB jp-ent -implicity of an invention ia 
 not a i{roun<l of objection to u putuin idtMrufnr. It in rather a recomineiulation in 
 favour of it." 
 
 The correctness of tlit- ijiii'^i^ttnti of the Court of Appeal, 2 
 Ont. App., p. 240, revtriHinr >^rpu';.'e, V. C, has V)een doubted; 
 j>,nd, in the case of W i^itH.r w < oitlthinl, in which that Court 
 gave judgment on (he KHjIi Mty t>»!)2. Burton, J., states: "i took 
 p>. rt in the ease of )'a<<» v. Tin '."«« ii'-ituru R. W. Co, , but that deuision has 
 Ixtcn a good deal <|UC!Htioii<t(l. itiid J un iint: .iC all dt-ar if I was now adjudicating 
 on that caHu I Hhould coinc to tlic «uni* itimduHion." 
 
 In a previous jiidgmoiii iUt Boyd, ('., in Cui'ter v. Roue, tried 
 at Toront(), April ,'{()Lli., IhMOi Bi)yii, C, stated in hi.s judgment: 
 " CourtH of K<|uity are nov mom UiHivU; in prntucting patentH than they were in 
 Honiu of thf earlier can«'n in oui < 'UU«i»> Viitfn v. Tht t/rent Wmtt-ni, if it caniu 
 up now in the ,Supr<-ni<- < 'nurt u'otiUi ipviliiiitly be decided an it was originally by 
 the late Chancellor .'Spni^^c. wtio idiinnitii die validity of the patent. That waa a 
 thing that once you miiw iI duiK witi mi <ib«-iouH that one would Hay a child could 
 do it, it watt HI) Hiniplc. aud yul lot ':\viincy yi-ar.-i the railway world had lutcn 
 balllol by thia very Hiniplf tbiiii; nitii liu^ ( 'hant:eilor granted the patentee an 
 iiijunctiiiii. Tilt' ('ourt of ApfieUl mtvijrmd iiiui, one of the iludgen, I Imlieve, 
 diKHenting, .Mr. duatiie l'at;t«r.<Muu wtn< m very well akilled in the patent law. 
 However, I advert to tliat i'<«i tr 44iotw nhat tile ( 'ourtn now rather lean to uphold 
 the patent, if any reaHonubli- ^'t-niuiik- :ii» jhown, than to deatroy it. They are 
 
8m. 7.] 
 
 LAOK OF IMV£NT:oN. 
 
 37 
 
 not witute in timling out ohjectinna eitbor in tliu plii'iuiei>lo|{y of the siMiclflvutiona, 
 or tn the aulMtuiitiul nierita of tliu cnnu, iinil tliu huttvr hnu of KngliHli liit well aa 
 C«n«<iuui c««e« is moving in thiit direction." 
 
 A- tliis(lfcisi(jn of VatfH v. Gtrat \\'«-Htrrii It W. Co., in 2 Ont. 
 App. R.. 240, lias hofii (juou'd, and iiiiiy lu'ieafter W (|U(»tt'(l to 
 «h*^troy iiifritoricnis invt'ntiou.s — the fortj^oiiij^ cxtrncts from tlio 
 jmlginents of Bo}»l, C, ami of Hnrtoii, J., who took part in thr 
 Appeal Court judgment, are j,'iven, as well as the fact that 
 PuttenMm, .1., dissented, in order that it may appear that the 
 jndjjment has lH»en discredited. 
 
 A new method of using existing machinery is patf ntahle, if 
 it pnMluce a new an«l useful result : DuivUmj v. UlUnnjtov, H. 1*, 
 I'., vol. 7, p. 1J)1 (i;syi)). A steam jacket for keeping an inner 
 chamber hot in which articles were disinfected hy steam from a 
 high pressure holier, and which was prevented froui condensing, 
 h«'lda patentahle invention : Li/on v. (fo<^/aW, Court of App., June 
 27th. 189:J; Times L. R., vol. i). p. 540. 
 
 Lack of Invention. 
 
 The principle n( the use of a riding skirt of a seam so stitched 
 as tu free the skirt from the pommel in case of accident, ha<l l)een 
 for some tim»' well-known. The alleged invention consisted in 
 extemling the hurstable .seam up 'through the waistband of the 
 •skirt, so that the latly might tear her.self away from the skirt: 
 //</</, not patentable: Heo XicuU v. Swedt's, L'h. D. April 25th, 
 IHJI3; Times L. R., vol. 9, p. 420. 
 
 Recently patents have been refuse<l in the United States 
 Pati'ut Office where the patentiibility tUpends on the arrange- 
 ment of the printed matter, such us an application for a transfer 
 cjir ticket. 
 
 And in support of this is cited Ex parte Gcrnon, 11 O. G., 244, 
 dfcided February 5th, 1.S77, by the A.sslstant ( 'ommissioner, U. S., 
 in which it was held that '• New anun^jenientH of piinttii inntter on tii;kct», 
 ' :ir«U. t-tc-., the result of fiiiicy or xinipli; mcclianiiral nltill art) not proper mil'jects 
 tur i>atent«, however convoitiuiit such nrinngcnKMitH niny he." 
 
 Ex fxirte Lee, 18 0. G., 024, decided August .'U-st, 1880, by the 
 
 rommissioner of Patents, U. S. " l ho pntcMituhlo feutnreH of a niilwRy or 
 '•diet ticket, hke tliotte of tiiiy other mihaUintive thing, huih: depend upon pecu- 
 liarities of mechanical construction. 
 
 .^ 
 
 ;■ 
 
 
 
 i .: 1: 
 
 n 
 
 1 
 
 Mi 
 
 
 i 
 
I 
 
 it 
 
 ns 
 
 LACK OF INVENTION 
 
 [See. 7. 
 
 !'■ ») 
 
 A 
 
 I 
 
 li 
 
 " Tlif priiitcil iniittt'i ii|M>ti h tickft im nothing mure than an arhitrury direu- 
 tinii IM t<i how mivh ticket ia Ut )m luvil, ami cun have no Ixiuring iiiHtn th«! 
 |wt<nUl>ility <>f thi- tirki-t itmlf. " Also. h\r i>artc Hertohhfituev, C. 1). 
 (1S70;, p. W.\\ C. a. ('ti'<Ut Si/Htrni Cth v, Anttflran Indemnity 
 Co.. G.'J (). (J.. |. HIS. 
 
 Th«' t«)' low ill;; cast' vviw li'<ri(|«M| in the SupnMiuj Court (('an.), 
 an«l the iM-mlnoto is ns follows : WlniH't' v. (U)ullhard, Legal News 
 (Qwe.), vol. IG, p. 2S1. aixl 22 Sup. (!t. K. (Can.), p. 17.H >t ni-ti. 
 
 In iin application for a patent the invention claimed was : 
 " In a Needing mRi'hin<> in which inih-]MMi<li>nt drug ImrH an- ummI n curvitd Hpring 
 ttHtth di'tachahly I'oniu'ctitd to tlit- dntg Itur in condiinution with n l(M;king deviut^ 
 arrangi'd to lock tlic ncad hhick to wiinh tlic Hpring tooth w nttachcd a* and for 
 the |>ur|MiM« Hpfciticd. 
 
 "In an action for infringement of the patent, it waw admitted that all the 
 elcmeutM were old, hut it waa claimed that the Hubstitiition of a curved gpring 
 tooth for a rigid t<Nith waa a new combination, and patentahlv an lucli : — 
 
 " Htlit, in the Supreme (^ourt, Canada, attirming the decitiion of the Court of 
 ApfK'al (Ont.), ((twynrie, .1., diaHcnting), that the n<«re inHertioii of one known 
 article hi the place of another known article wnn not a patentable matter. Smith 
 V f.Wi/i. (1» ("an. S. (• R. 4«), ami //iiiihr v. Carriik (II C^an. M. C. R. 300), 
 referred to. Ap|H-al diMmiBHe<l, with costM. " 
 
 The bald propot^ition here enunciated, that you cannot have a 
 patentable combination by the Hub.stitutiun of one known clement 
 by another known element, would, /)<»• ne, seal the «loom of many 
 a usefid invention upheld by the higlKsst courts in various lands 
 — if it were merely the siihstitution of a known " mechanical 
 efpiivaUnt ' with no new result produced, then, in such a case, 
 the proposition may be true. As there may, undoul)tedly, be a 
 new combination of old elements producing' new or improved 
 residts which is j»atentable, uh many standard cases show, th( 
 certainty of eiror by Ri)pl)in^ the tbrc^oin^ eniniciation is obvious 
 — there is (lunger in relying' altu^'ether cm hciadnutcs. 
 
 It is conceived that tht; view taken by Mr. Justice Ferguson, 
 who uphehl the validity of the clium referred to at the oriji^inai 
 trial at Toronto, is more in accordance vvitb ii«>cid*.'d cases and the 
 principles of patent law. On Fei»ruary 7th, 1890, in delivfrin^' 
 jud^jment on the forejjoinj.,' eiaim, hi; states : •• i think it iiutticientlj 
 
 appeam tlwt tliiM combination cluinied by tin |il.,iiiiifl'ii atuudH on the fiM>tin^ 
 •imply of .: new I'ominiMtinn coni|x>iin<i ol old elemeiilM, and iih I i<av4> lieforc 
 ■aid, 1 think the "vulence abuoi'jwt to dhow that it prwtucod new an<i UMeful 
 
 8w. 7. 
 
 reaulta. i 
 the mou 
 fat'turin^ 
 "I I 
 Npring to 
 reMult. II 
 • •f the I, 
 I App. t' 
 Judjfe 
 
 The 
 appellai 
 nothing 
 the ar^'i 
 ment of 
 "'•7.), wl 
 who di.s) 
 the trial 
 plaintiff' 
 
 The 
 c(mclusi( 
 stated, it 
 other coi 
 
 Then 
 on p. ]Hi 
 at the tr 
 old culti\ 
 claim to I 
 cons id ere 
 well-kno' 
 cate this 
 On p. 
 
 altogether 
 
 attained ; 
 rhnt thert 
 and dissel 
 judgment, 
 'heir case. 
 
Sec. 7.] 
 
 LACK or INVENTION 
 
 lOUS 
 
 hson, 
 U tlu- 
 
 iiiHcful 
 
 romilU or the old ruitiltri in a more iim>ftil mid iMMicHcinl wiiy. It Hrurvvly lion in 
 the mouth i>f thu dcffiidiintit t<> deny thi* utility of it, whilu Ihuy irmiiit u|hiii iiiiinu- 
 I'lu-turing and vi-iidin^ thv uiticK*. 
 
 " I think tho fjit'iil u('i>;lit of rvidciicc in tliitt the inachiiit- with thin lurvcd 
 N|iring t<M>th, ho iipplird and )>ni|)li>ycd by tho iiliiintitl'ii, |irodiu'i>ii, if not u new 
 i-KHult, II kuoii'H rrxntf ill 11 iiiiirh iinirt uxr/nl nml firiiijiriiif way." ("Tlio wonia 
 of tliv Ijord Chancellor in the ciimu of 1 1 arrimnt v. AiuU.i'Hun Foniulrji <'«. , L K. 
 I App. Cua. .*t77. and of many li-urniil •liidgi-H in other cimc-n ") : lintl the triili 
 Juiltfo hulcisi the claim vulid iiidI that it wiis infrin^ecl. 
 
 Th«; majority of tlie Supronie Court, unfortunately for the 
 appellants, mi.snpprolHMidotl the facts in this case; there was 
 nothing in the evidence, the factnms, the previous jutli^ments or 
 the ar^'uments of ciunsel to warnint the facts set out in the juilg- 
 ment of Sed^^wick, J. (as reported in 22 Sup. Ct. K., Can., p. 17H f.t 
 Mff/.), who delivered the judgment of the maj( ity. Gwynne, J., 
 who dissented, ^ives the tacts eori'eetlv, as do also Fer«Mison, J., 
 the trial Judge, and Hurton, .1., of the Court of Appeal, wlio upheld 
 plaintiti's' claim. 
 
 The premi.seM of Sedgwick, J., being entirely erroneous the 
 ctmclusions arrived at nnist also he so; had the tacts heeii as he 
 stated, it would not have been possible to have arrived at any 
 other conclusions than he did. 
 
 There was no evidence of a prior similar combination (as stated 
 on p. 1S4), had this been so, the plaintiti's' case would have failed 
 at the trial ; he confounds plaintifls' device, appnrently, with an 
 old cultivator without locking mechanism: the plaintiffs did not 
 clainj to have invented " a conibined machine," which Sedgwick, J., 
 considered the subject of the c(mtroversy, for this was an old and 
 well-known form of machine ; nor was there anything to indi- 
 cate this anywhere. 
 
 On p. 188, Sedgwick, J., states that the question "would l)« 
 iiltogfthiT diiTcrent" if "» new or more Imnelicinl rt-Hidt " had been 
 attained ; there was, however, a large mass of evidence showing 
 that there was a guatly impfove<l result ; on this the trial Judge 
 atid dis.senting fFui'.ges founded their judgments (see extract from 
 judgment, anti' I. '.V.\, p. .*{.S to I. !>, p. .'{!) hereof), and the plaintiffs 
 their case, as appeals by thnir fatstum. 
 
 ; ; 
 
 ? 
 
 ?, 
 
 ii 
 
 ;| 
 
m 
 
 i 
 
 
 40 
 
 NEW USB OR DOUBLE USE. 
 
 [8ec. 7. 
 
 It iH not tliu result, cffcpt, or piirposi' to hv nccoin))liN)iiMl wliich 
 conNlitntcH inviiitioii or mtitliN a purty to a patent, Itiit tlic 
 iiierlianical nivalis or iiistniiufiitalitics )>y which tht> ohji'ct sought 
 IM atttiiii«'«l : MUhi rt til. v. h'<i;fh' Minm/drtui iv;f (!i>., Sup. ('t. 
 O. (}., vol. (K). p. .S4.j. Di'ciduci January Mth, 1H!)4. 
 
 A New Use or a Double Use 
 
 In what respect a "ni'W use" or a ' <l<iuhle uho" ronstitut) s inven- 
 tion is a fniitt'ui source of <li.scussion. A " new use," a use refer- 
 a)>lo to inventive ;;enius, u " nun-ann logons uhc," is putental)le : 
 Merwin, p. 2H1. 
 
 A " ilouhle use," a use* referahle to the skill of the workman, hu 
 "analo}^ous use," ih not patentable : Meiwin, p. '2H2. 
 
 CurtiH, section it'} ef hch., there is a very material difference in 
 applying a new contrivance to an old ohject and an old contri- 
 vance to a new object ; the fornier may be jtatentable, the latter 
 cannot l)e : Loxh v. Utnjuc, p. 'M){) Merwin, p. 2iS}j (]ou<ieve; also 
 Walker, .section IW. 
 
 In Tihjfnuun v. Mom; p. 2i)H, J) HIatch. 421, the "sandblaHt" 
 for cutting; ^lass was held patentable, altltou^h it had been used 
 on locomotives to drive cows oH" the track ; in one case the sand 
 canie in contact with the cow, iti the other with the glass : Held, 
 a n )n-iinalogous u.se an<l therefore paU^ntable. 
 
 I'rini V. Jl'thhi/ (A.I). I8(IG), L. U. 1 K(|. 548, p. 3(i(i fJoodeve. 
 The hardwood bearinj,' for shafts of screw propellers is also an 
 instance of a patentable double use or non-analogous use as 
 ref»>rred t«) in Siiiii/i v. (iold'w, 9 Sup. C't. Hep. (Can ), p. 5.'}, by 
 Ritchie, C. J ; also in IhiU v. Ciom/itov, r,\ Sup. Ci. Rep. (Can.), 
 p. 480, by Henry, J.; and in Sinlt/i v. Goldie, 7 App. Rep. (Ont.), 
 628, by Patterson, J., the principle laid down, there being relied 
 on and approvcnl of. 
 
 Patentable Invention and Non-Patentable Disooveries 
 Defined in Kv«»oent Bng.'.ish Cases. 
 
 In Lane-Ftt.r v. The Kenniuijton EU'dr'w l/ttjidiiuj Co., 18J)2, 
 3 Ch. at p. 4*29, Loid Justice Lindley states : " a man who .liacovcrii 
 thut a known uiuchine can proiluce etI'ectH wltich no unu Ixiforu him knuw could 
 Ih> produced )>y it, may make a great and nacfui diRcovery ; hut if ho (hM>s no more, 
 hi« diHcovery in not ii patcntiihlc invention. He Iiu8 aihlud nothing hut knowledge 
 to what previouHly existed. A patentee niuut do Nouiothing more ; he must make 
 
 ;i!" 
 
8eo. 7.] 
 
 INVENTION DEFINED. 
 
 U 
 
 uniiiii atlilitioii not only to knowliMl){e, liut to itrcvionaly known invmtioni, and 
 niiiitt NO UNA liii knowliiilfff lun' inxmuity iih to pioihici! uitliur n n<>w uml umtful 
 tliinK or i-i-niiU, or a new iin*l imrfiil nicthoil of priMliicing an olil tiling or ri'Mult, 
 itn till* ontt liitn<), thf iliMrovt-ry that a known tliinf{ nui'li, for inMlancf, an a 
 I'lantti Itatlt^ry can Ih- «>ni|>loyftl for a um-fiil |Mir|M>iH' for whicli it liaH ncvi-r iHvfn 
 iimimI iM'forii JM not alontt a |mtuntal)l« invt-ntion ; l>nt, on tht^ otiivr lian<l, tliti iliit- 
 covcry linw t<i iimu ituirli a tiling for itnt.'li a imrpoMv will Ik; a |iati>nta))li^ invt>ntlon, if 
 tliurn Ih novelty in tin- niiHli> of nning it, an iliHtin^iiiMlii>il from novelty of |inr|M>Nc, 
 or if any new mollification of tliv tliinK, or nny new applianco in nveeiiMary for 
 iminK it for itn new |rMr|M>ii(', ami if hiu'Ii motle of uxer <>r nuxlitit^ation or appliance 
 invnlvcH any appruoinlile merit. It iH often extremely ilillicult to draw tliu line 
 iNitwoen patentahlu invenlioiiK and non-patentalilu iliitnivfrifit," utc. 
 
 Si'o also HM\w definition n'itt'iatr'd in Momt v. Mdi'ndn), July 
 17tb, 1H!)3. Court of Appeal fKn^j.) Ti„,f.,s L. K., vol. !), p. oS^. 
 
 And in Ga<hl v. The J/a//or t)f Mo)\vhoHtn\ Titnos L. K. vol. i), 
 p. 42, NovcailMT 4th, 18!>2. Tlu' lollowinj^ rules are Inid down : 
 
 1. .\ |Nitent for the mere new tme of a known contrivance without any addi- 
 tional ingenuity it^ nvurcnming fretih ditlitMdtieit in Itad, and cannot Wu supported. 
 If the now uhi) involvcN no in({enuity, Itnt in in manner and purpone annlof{ouH to 
 the old uau, althtnigh not ipiite the mime, there in no invention, no manner of new 
 manufacture within the meaning; of tiie Ht4itute. 
 
 2. A patent for a new line of » known oontrivanc^e in kcmmI, and can lie Hup- 
 |)ort«id if the new UHe involveit practical ditHcultieH which the patentee hoM lieen 
 tlic HrRt to Hee and ovurcoinu hy Home infjcnuity of Imm own. An improved thing 
 pnMlucnd hy a new and inKuniouM application of a known contrivance to an oUl 
 thing, in a mannnr of new manufacture within the nieanin>,' of the ntutute. 
 
 If practically there are no ditlicultioM to Xw overcome in iidopling an old con- 
 trivance to a new purpimu, there can he no ingenuity in overcumiing them, and 
 there will lie no invention. 'Die same rule will apply when the nieanN are ho 
 oliviouH OM to he apparent to every one of ordinary intelligence." 
 
 liamiltoH V. Hcywiinl, Orirtiii's Pat. Ca.s. 11'), a patent for a 
 pavement iitrht, referred to as a ca.se where a patent was upheld, 
 the change heing merely the use of one well-known kind of pri.sm 
 for an(»ther. 
 
 (c) *' Any new and useful art, machine, maiiufaoture 
 or composition of matter, or any new and useful 
 improvement in any art, machine, manufacture or 
 composition of matter " 
 
 The foregoing is the detinition of the expression " invent -fm " in 
 sub-section c. of section 2 of thu Patent Act, and has been further 
 <leHned in the note thereto. 
 
 The definition occurs in the same words in 7 Geo. IV., o. .5 
 
 i t 
 1 • 
 
 i ,' 
 
 I . I 
 
 I •■ 
 
 
If! 
 
 P' 
 
 pli 
 
 ! t 
 
 
 4t 
 
 INVENTION DEFINED 
 
 [8«0. 7. 
 
 (1>^'J<»), till* t'Hi'litst i'liti'iit Act in I'ppiT (*iinn*lii, hihI whm iloul)t- 
 )«'MM liiktM finm tlii' IJ. S. hiti'iit Act of \7U'\. wliuiv it occmiih in 
 till' siiuH! wonls, I'xci'pt tliHt "on " tiikrs tin* pIncM of " in'" nfU'i 
 ini)>rov<>iiit'nt, iin<l tin- Niinic tli-tinition oi an invention iNcontiniicil 
 t)irou;{li ull, pi'itvioiiN ('iintiiliiin I'atcnt Act.s ilown to tliM prcncnt 
 «lay. 
 
 The inNcntion niu.Ht Ix* " m-w an<l iisi-ful." iin<l •^ttncmlly Np«*ak- 
 in^ liny coniliinnt ion wliicli proiJiieeH u new un*i UHcfiil result is 
 patcntalilc ; mxl provi<l<>i| it Ih> new. when utility is found to cxi^t 
 in any •It'i^iff, a HufHcicncy of invention U» nupport the patent 
 must Ik! pit'sUMM'il : r/(/»; Smitli v. (rixuliffur Dt'ntnl Valffinite I'o., 
 \)H (J. S. (Sup. ('t ), p. +!)•. ; .S*. a., 11 Hnxlix, p. I. 
 
 AntI in WnHlihuin dud Moen (Jo. v. HaiMli, ♦ FeW. Rep. (1880), 
 the (/OUI't n>inarkei|: "in tlw altm-ruc of imy otiior U^hI tli« CoiirtN httvt- 
 NciMiKiil l<i iwMiiiiif, that tlu> fiict of the iic<'i-|itiiiii-i> of li lu'w ilt'vii'v or coinliiiwtion 
 hy th« |>iil>lir, uml putting it into vxtiniiiivu iimi wm uviilimoo tliitt It whm th« pro 
 limit of invi'iitioii ; or hn onu of tin; coiiiini^I of tliu pluintitf ifxprt'Mtcil it ' utility i« 
 ■tiggi'Ntivo of originality 
 
 Kach eUtnient of a eoniliination may lie either a new one or an 
 ol<l one, and so lonj^ as the cuml>ination produces a new and 
 useful result, it is a patentahle conihi nation. 
 
 In I'Jiiuri/ V. Iirdith; and /'hiwri/ v. Uoilijc, 11 U. C. C. V. R. 
 (1S6I), tried under the provisions of (.'on. Stat. Can, c. 34 (1859). 
 An action for the iMfrin^^'enient of a patent fur tlie manufacture 
 of eave-troui^hs. 
 
 The elements were proved to have heen known an<l used 
 before. ' The plaintilfhad comhined tliese well-known parts, viz.: 
 the spindle to put a head to the tin, and the hiock shaped .so that 
 hy heatiny the tin or Iron j)Iate upon it, tin; re<piisite shape was 
 given, and the use of pre.ssure instead of heating to force the 
 plate upon the Mock. 
 
 The patent was upheld, and Rule vih'i for new trial dis- 
 charged. 
 
 Draper, ('. J., stat«;s that it does not follow, that hecauso the 
 dirt'erent parts uncomhined had heefi in use hefore ; that their 
 combination may not be the subject of a valid patent, and quotes 
 Lord i\ .1. Abbott, in lirttidou v. lldirhrH, 4 Han. & Ard. p. 550, 
 " ft p«t«nt fur a niAchiue , uauh part uf which wan in ua« before, but in which thv 
 
 8«c. 7.1 
 
 • onibinati 
 In<ciium< tl 
 
 In .1 
 ment ill 
 ;;reater 
 In / 
 ment ol 
 drills. 
 
 The 
 inclined 
 wedge ai 
 and a t 
 proper SI 
 
 deliver!'! 
 an ' lutt I 
 Spraggo, 
 on the J 
 granting 
 
 Held, 
 of old cl« 
 
 Thort 
 case, tha 
 was ()ld, 
 one niach 
 action of 
 
 In a 
 
 before Ml 
 
 conibinat 
 
 sieve, the 
 
 through 
 
 »)r brushe 
 
 was a con 
 
 Smith's al 
 
 such as Si 
 
 of w«M)| h 
 
 thu boltin 
 
8«c. 7.] 
 
 INVENTION 
 
 (lis- 
 
 •■oinltiniitioii of lhi< <litri'n'iii iNiitn In imw, itml n ii)>w nmili in |iiiMliuu'«i, m |{<mmI, 
 iMH-itiiiM' tlitiru i* iHivi'lly III till) I'fiiiiliiitittitiim." 
 
 Ill Mnif V. I'iriff, 2 \. ( '. It., p. MO.'i, S. C. (Is.'i'i .iin improve- 
 iiinit ill tiri' i'ii(;iiirs, Wy h tu^w rniiiliiiiiitiiMi of old puitis, wlicri'liy 
 
 ;,'l'i>Hti*r I't'sults Wi'l'i' olitililH'tl, WHH liclil patrliliililr. 
 
 Ill i'litiic V. Sf/hruhr, 2'\ <Jiiiiit, p. .')7M I l<S7«ij, for iiifrin^t>- 
 iiK'iit of a pntciit fur iii^w iiinl *is«-ful iinprovfiiiriits in mcimI 
 .hills. 
 
 Tile iiuiiiImt of iiit'i'huiiicul pown.s an- liiiiit«*i| ' vi/., tlif 
 iiiclilii*<l plane, tliu level*, ilie pulley, tlie wheel iiihI axle, th« 
 weil^^e uikI Ntrew), yet their eoiiiltiiiatioii'i may he very iiiiinerouM, 
 aiKJ a new <;oiii)'iiiatioii of previously known elements is the 
 proper Muhject o( a patent. 
 
 Smith V. iinlihv. !» Snp. Ct. Kep. (Can j, p. 4<». jiiil^'iiioiH 
 deliveretl June l!>tli, IH.s;i, reversinj; 7 Out, App. Kep , p. •)2N. 
 (»,*« ' not ti(fiiiniiiif it us on p. l'>f!»ot the Ontario Digest, INHO-JM). 
 SprHj,{>,'e. ('., who ori^'inally tried ih« ease, d ism isHed the action, 
 on the ^onnd of iinportntion, after twelve months fruin the 
 ;rrai)tin){ of the patent : — 
 
 lit hi, in the Supreme Court, to have Ikmui a new eomhinatioii 
 of old elements, whi'iehy a new and useful result was ohtained. 
 
 There is nothing to wnnaitt the heathiote to Supieine Court 
 case, that it eonsistetl (»f three elements, A, H, C. eaeh of which 
 was old, andofwhii'li A had previously heeii coiiihined with It in 
 one machine and Hand C in another machin«*, hut the united 
 action of which produeed a new an<l useful result. 
 
 In a Buhse«|U -nt suit of Smith v. Gvfeif, tried at Torcmto, 
 Iw^fore Mr Justice Proudfoot. in J.SSd- it was shown that the 
 eon)hinati<in of Smith's Middlin;,'s I'miHer, viz., — the leeiprocating 
 sieve, the fan and air chamhers and the upward draft of air 
 through the holtin^ cloth of the sieve, and tht; travelling hriish 
 or hrushes arranged U> traverse the under sid«' of the holt, etc., 
 wits a comhination which had heeii in use in the States prior t<j 
 Smith's alle^red invention. In a mill in Ohio, insteiul of a hrush 
 such HH Smith's, there had hiuni the same comhination, and a tieecu 
 of wool had heen employed to aiitomntieally keep the meshes of 
 the bolting cloth clear of dust. 
 
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 IMAGE EVALUATION 
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 44 
 
 NEW COMBINATION. 
 
 [Sec. 7. 
 
 I ■■ 
 
 Although Smith's patent had been upheld in the Supreme 
 Court, Canada (18S3), there was no novelty in it; by .some fatal- 
 ity the evidence was not adduced, although at that time available, 
 aud so the Supreme Court had no evidence before it showing 
 anticipation, etc. 
 
 On p. 60, vol. 9, Sup. Ct. Rep. (Can.), it was stated to have been 
 admitted in the Court of Appeal that no one before Smith had 
 u.sed the combination ; and again on p. 57, vol. 9, Sup. Ct. Rep. 
 (Can.), it was admitted that Smith was the real inventor of 
 the art or process of purifying middlings, neither of which state- 
 ments were correct ; and in some way Smith was credited in the 
 factum of appellants with having revolutionized the trade of 
 flour manufacture, which was also incorrect. 
 
 Although the principle aftirmed i ^*^e Supreme Court is cor- 
 rect tha^. a new combination of old eiwinent: producing a new and 
 useful result is patentable, yet had the 'science been before the 
 Supreme (Jourt it can hardly be dout <* ?ihe patent would not 
 have been sustained — as it had clearly ^eii anticipated as shown 
 in Smith v. Chrey, in Ontario and in the Slates. 
 
 Harrison v. Anderson Foundry Co., I App. Cas., 574, in the 
 Lords, affirms the proposition that there may be a new combina- 
 tion of old elements, producing, if not a new result, a known 
 result, in a much more u.sef ul and beneficial way. 
 
 And in Beiini v. Merner, 14 O. R., p. 423, where the validity 
 of the patent was unquestioned. Cameron, C. J., .says: "The 
 combination was diflerent from that in other machines to accomplish the same 
 purpose, though each of the things was old and in use before the patent." 
 
 In Murray v. Clayton, L. R. 7 Ch., 570, on p. 316, Goodeve, 
 James, L, J., citing Crane v. Price, 4 M. & G,, 580, says : " Neither 
 
 I, nor, so far as I am aware, any other Judge, has questioned the prin- 
 ciples upon which that case was decided and which are thus laid down in 
 the judgment of the Court, delivered by I'indal, C. J. ' We are of opinion 
 that if the result produced by such a combination is either a new article, or 
 a better article, or a cheaper article to the public than that produced before 
 by the old method, such combination is an invention or manufacture, intended 
 by the statute, and may well become the subject of a patent. ' " 
 
 The same general principle is also sustained in the United 
 States. 
 
 In section 119, Mei-win lays down the general proposition that 
 
Sec. 7.] 
 
 NEW OOMBINATION. 
 
 45 
 
 a patentable combination must produce either a new mode of 
 
 operation, or a new result. 
 
 In section 120, Merwin, Mr. justice Curtis, in Forhush v. 
 
 Vook, 2 Fisher 668 (when a combination of machinery was the 
 
 subjett of a patent), says : " it iu decisive evidence, though not the only 
 evidence, that a new mode of operation lias been introduced, if the practical efTect 
 of tlje new combination, 18 either a new effect, or a materially better effect, or as 
 good an effect more economically attained, by means of the change made in the 
 combination of the patentee. A new, or improved, or more economical effect, 
 attributable to the change made by the patentee in the mode of operation of exist- 
 ing machinery proves that the change has introduced a new mode of operation, 
 which is the subject matter of a patent ; and when this is ascertained, it is not a 
 legitimate subject of enquiry, at what cost to the patentee it was mode, nor does 
 the validity of the patent depend upon an opinion formed after the event, respect- 
 ing the ease or difficulty of attaining it." 
 
 New Combination Defined. 
 
 Mr. Justice Ferguson, in Wisner v. Coulthard, tried before 
 him in Toronto, in his judgment (unreported) of 7th February, 
 1890, relating to a combination in a seeding machine, states : 
 " As I understand the law upon the subject, a new combination may be composed 
 entirely of old and well-known elements, though it must be a combination and not 
 a mere juxtaposition of narts or elements. If from an old and well-known combi- 
 nation an element is taken away, and an element which is itself new is introduced 
 in its place, forming a combination with the remaining old elements which in its 
 operation produces new and useful results in a more useful and beneficial way, I 
 suppose this would undeniably be a good combination ; and so long as a good new 
 combination may be composed of elements that are all old ones, I fail to see the 
 difference between such a combination and the one claimed by the plaintiffs. Nor 
 do I see the difference between an old element that has been used in a combination, 
 and an old element that has not been so used. " 
 
 In Smith v. Dental Vulcanite Co., 93 U. S. 495, (1876), 11 
 Brodix, p. 1, it was held that where other facts leave the ques- 
 tion of invention in doubt, the fact that the device has gone into 
 general use, and displaced other devices which had previously 
 been employed for analogous purposes, is sufficient to turn the 
 scale in favour of existence of invention. 
 
 But in Fox v. Perhins et al. (decided October 5th, 1892), U. 
 S. C. Ct. of App., Off. Gaz., vol. 62, p. 160, it was held that 
 large sales of a patented machine, while evidence more or less 
 cogent of value and usefulness are not conclusive evidence of 
 patentable novelty, and are of little weight when it appears that 
 
 ?li 
 
 i'if', 
 
 B 
 
 i ' 
 
 ■ ;'l) 
 
 M 
 
 n 
 
49 
 
 NOVELTY UTIUTY. 
 
 [Seo. 7. 
 
 * 
 
 \, 
 
 Huch sales are the result of active and energetic efforts by means 
 of circulars and travelling agents : McClain v. Orlmayer, 57 O. G., 
 1129; 12 Sup. Ct. Rep., 76 ; 141 U. S., 427, followed. See also 
 Duer V. (Jovhin Cabinet Luck Co. (May 1st, 1893), Sup. Ct. U. S., 
 vol. 03, O. G., p. 1060. 
 
 In Loo7ii Company v. Hie/gins, 105 U. S., 580 (1881), Merwin, 
 p. 470, as bearing on the question of invention, Mr. Ju.stice 
 Bradley, delivering the opinion of the Supreme Court, says: "It 
 may ))e laid down as a general rule, though perhaps not an invariable one, that if 
 a new uonihiniition and arrangement of known elements produce a new and useful 
 result never attainetl before, it is evidence of invention." 
 
 This case related to improvements in looms, which consisted 
 in combining well-known devices, which defendants claimed were 
 an " aggregation." 
 
 Examination as to Novelty, etc. 
 
 In the United States there is a very strict examination as to 
 the novelty of the alleged invention, with appeal from the deci- 
 sion of the Primaiy Examiner to the Board of Examiners, from 
 the decision of the Board to the Commissioner of Patents, and 
 from his decision to the Supreme Court of the District of 
 Columbia. 
 
 In Canada there is a preliminary examination as to novelty : 
 Vide section 8 of the Patent Act Amendment, 1892, c. 24. 
 
 In England the examiners merely ascertain whether the appli- 
 cation is in proper form, this investigation does not extend to 
 novelty, and the same is the case as to most foreign patents. 
 
 In Canada and the United States the production of the Letters 
 Patent in Court is pHmd facie evidence of novelty. 
 
 Utility. 
 
 Utility must exist in some degree, the thing or process must 
 be able to perform its functions and produce a result. Patents 
 are not held void for want of utility because they perform their 
 functions but poorly : Vance v. Oamjyhell, 1 Fisher, 485 (1859) ; 
 Ganover v. Roach, 4 Fisher, 16 (1857). 
 
 In Britain the invention must have .some utility or there is a 
 failure of consideration, though there is no express proviso in 
 the Statute of Monopolies that it must be useful. It is sufficient 
 
 Sec. 7.] 
 
 to show 
 V. Hnrfc 
 
 A ve 
 patent : 
 
 As tc 
 
 A pa 
 hell, 1 Fi 
 resolved 
 (1870). 
 
 The 
 nianufnctur 
 in an art, n 
 
 be classec 
 a patent 
 upheld. 
 
 In th( 
 
 20 Brodi 
 
 iinproven 
 
 either for 
 
 matter, ai 
 
 a patent i 
 
 In thi 
 
 'ntei'pose 
 
 stage of 
 
 The m 
 
 a distance 
 
 there was 
 
 Gochro 
 
 Jacobs V. . 
 
 (d) " ^ 
 
 person I 
 
 ThePfi 
 
 invention 
 
 it is before 
 
 The U. 
 
 as our Act 
 
 no limit as 
 
Sec. 7.] 
 
 NOVELTY UTILITY. 
 
 47 
 
 to show by experts that the invention woultl be useful : Neihon 
 V. Harford, 1 Web. P. C, 202. 
 
 A very slight amount of utility is necessary to support u 
 patent: See Pilpott v. Hanlmry, R. P. C, vol. 2. (1885;, p. 37. 
 
 As to Kn<i[lish cases on Utility : See Hiirgiiis, p. 14.M. 
 
 A patent is prhn.i fticie evidence of utility : Vance v. Camp- 
 hell, 1 Fisher, 48o (18.59). And doul»ts relevant thereto sliould be 
 resolved against infringers: Whitney v. Moivry, 4 Fisher, 215 
 (1870). 
 
 The invention must come under tlie hearling of "an art, machine, 
 nianufacturn or a composition of matter," or «'any new and useful improvement 
 in an art, machine, manufacture or composition of matter." ror II it cannot 
 
 be classed under any of the headings of subject matter for which 
 a patent may be granted under our Act, the patent may not be 
 upheld. 
 
 In the County of Fond du Lac {Plaintiff in Error) v. May, 
 20 Brodix, p. 500 (1890); 137 U. S. 395, in a patent for an 
 improvement in the construction of prisons, it was held not to be 
 either for an art, a machine, a manufacture, or a composition of 
 matter, and did not come under any of the lieadings under which 
 a patent might be granted. 
 
 In this case, the novel idea set forth in the patent was to 
 interpose a grating between the jailor and the prisoners at every 
 stage of opening or shutting a door. 
 
 The mechanism was old in its use to move a door or a gate at 
 a distance, and the mechanical operation was the same, whether 
 there was a grated iron barrier or not. 
 
 Cochran v. Diener, 94 U. S., 789 ; 11 Brodix, 396, cited ; also 
 Jacobs V. Baker, 7 Wall, 295 ; 7 Biodix, 483. 
 
 (d) " Which was not known or used by any other 
 person before his invention thereof." 
 
 The Patent Act of 1826 for Upper Canada, required that the 
 invention should not be known or used "before the application," now 
 it is before "his invention thereof." 
 
 The U. S. Acts of 1790 and 1793, contained the same wording 
 as our Act of 1826, " not known or used before the application," there was 
 
 no limit as to place, 
 
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4S 
 
 NOVELTY UTILITY. 
 
 [Sec. 7. 
 
 
 f' 
 
 In the Patent Act of 1849 (Can.), 12 Vic, c. 24, the invention 
 
 to be |)»itentable must bo one " not known or used in tliiH Province by 
 others hoforu liis or their iliscovury or invention thereof, un<l not ut the time of 
 the upplieation for i\ patent in piihlio use or on sale in thit* I'rovince witii his con- 
 sent or allowanco as the inventor thereof," 
 
 And ill tbe said Act of 1849, the following sin<^ular proviso 
 to a section relatinjj to an action for damages was inserted, 
 which subsequently appeared in the Con. Stat. Can., c. 34, 1859, 
 
 " If tlie patentee l)elicve(1 himself to be the first inventor, the patent dhall not be 
 void on account uf the invention or discovery thereof having been known or used 
 in a foreign country, it not appearing that the same or any material or substantial 
 part thereof hud been patented or described in any printed publication. This 
 was evidently taken from the 15th section of the U. S. Patent 
 Act of 1836, where it occurs ns a proviso, the intention of our 
 Act of 1849, being to make the requirements the same as in the 
 U. S. Act of 1836, in this respect. Our Act of 1849 was more 
 liberal to patentees than the U. S. Act of 1836, in that, in the U. 
 S. Act, there was no limit as to place, as to knowledge, or use, if 
 not within the proviso of .said 15th section. 
 
 By 5 and 6 Wm. IV. c. 83, the Privy Council, England, on 
 petition, might confirm a patent when the patentee has discovered 
 that he was not the true and first inventor, pi-ovided the patentee 
 when he obtained his patent was unaware of ^hat fact and that 
 the invention had not been publicly and generally used before 
 the date of his patent : Viile Hindmarch, c. 8, p. 201. This Act 
 is not now in force. 
 
 The proviso referred to has disappeared from our statutes 
 since the Patent Act of 1869, repealing the Con. Stat. Can., c. 34, 
 1859, but is still retained in the United States as section 4923, 
 Rev. Stat. U. S. 
 
 In the U. S. Rev, Pat. Stat,, sec, 4886, taken from the Act of 
 1870, the meaning of the Act of 1836 was extended in the interest 
 
 of patentees, and now reads " not known or used by others in this country 
 and not patented or described in any printed publication before his mention or 
 discovery thereof." These added words, and section 4923 Rev. Pat. 
 Stat. U, S„ relating to prior knowledge or u.se in a foreign country 
 without the knowledge of the patentee, make the United States 
 requirements more liberal to patentees than those in our present 
 Act. 
 
 8eo. 7.] 
 The 
 
 known or 
 
 follows 
 
 (1)] 
 "not kno 
 
 1826, an 
 United I 
 
 (2)1 
 extendec 
 United J 
 oath tha 
 
 belief, beet 
 
 (3) P 
 inventior 
 
 covery or ii 
 public use ( 
 
 And the 
 
 lieve that i 
 however, 
 as to knc 
 
 (4) B 
 " not know 
 any printed 
 corery then 
 
 his applicati 
 
 obtain a ] 
 
 (5) Se 
 provision 
 States cas 
 that it wa 
 or use was 
 might refe 
 to the exc( 
 
 Novelt 
 invented, ] 
 ancicipate( 
 pating eve 
 
 H 
 
See. 7.] 
 
 NOVELTY. 
 
 49 
 
 The different changes bearing on the cognate expression " not 
 known or used " etc, in the Statutes of the United States are as 
 follows : — 
 
 (1) By section 1 of the Act of 179ii, the invention must be one 
 "not known oi used before the application," as in the Canadian AcL of 
 1826, and the application may only be made by a citizen of the 
 United States. 
 
 (2) By section 1 of the Act of 1800, the privileges were 
 extended to all aliens who had resided for two years within the 
 United States ; and it was provided that the applicant must make 
 oath that the invention "hath not to the best of his or her knowledge or 
 l)elief , been known or used in t' is or any foreign country. " 
 
 (3) By section 6 of the Act of J8J0, it was provided that the 
 
 invention must be one " not known or used by others before his or their dis- 
 covery or invention thereof, and not at the time of his application for a patent, in 
 public use or on sale, with his consent or allowance, as the inventor or discoverer." 
 And the applicant must also make oath, "that he does not know or be- 
 lieve that the same was ever before known or used." There is a proviso, 
 
 however, in the loth section as to bond fide inventors in the States, 
 as to knowledge or use in foreign countries already referred to. 
 
 (4) By section 24 of the Act of 1870, the invention must be one 
 " not known or used by others in this country, and not patented, or described in 
 any printed publicatio;< in this or any foreign country befor.' his invention or dis- 
 covery thereof, and not n public use or on sale for more tl:an two years prior to 
 his application, unless the same is proved to have been abandoned," may, etc., 
 obtain a patent therefor. 
 
 (5) Section 4886 of the Rev. Stat. U. S., contains the same 
 provision as section 24 of the Act of 1870. In referring to United 
 States cases bearing on this question it must be borne in mind 
 that it was not till the Patent Act of 1870, that the knowledge 
 or use was confined to the United States ; befoi'e the Act of 1870 it 
 might refer to knowledge or use anywhere in the world, subject 
 to the exception in section 15 of the Act of 1836. 
 
 Novelty in the States is not negatived by anything which was 
 invented, patented or described prior to the patent sought to be 
 anticipated, nor prior to the application therefor, unle-ss the antici- 
 pating event was prior to the date of the invention : Cochrane v. 
 
 
 Hi 
 
 Mil 
 
 7 
 
 11 
 
 i '■ 1 
 
 u 
 
60 
 
 NOVELTY. 
 
 8eo. 7.] 
 
 Sec. 7.: 
 
 
 Deiner, 04 U. S. 701 (IH7G) ; tJlizahcth v. Parement Co., 07 U. S. 
 130(1877). 
 
 In Knj,'lan»l, when an invention is known prior to tbo date of 
 tlie patoiit by persons under no obligation as to secrecy, the patent 
 is invalid as well as where it had previously been publicly used: 
 See JIumplun-Hon v. Si/er, R. P. C. vol. 4, (18S7), p. 'I'O?, but a 
 knowleuge of an invention privately or confidentially coniiuuni- 
 cated is insutticient: Morr/an v. Scaivard, 2 M. »Sj W. 544; Useful 
 Patents Co. v. Rylands, 2 P. O. K. 3o5 ; and American case, Hall 
 v. Bird, C^ Blatch, p. 439. 
 
 When no article had been produced in a number of years 
 from an allegeil anticipating speciHcation it is a strong argument 
 against anticipation : DoivUng v. BUUngton, R. P. C. vol. 7, p. 
 204 (1890). 
 
 A machine complete but not proved to have been used, held 
 not sufficient as an anticipation : Parken v. Hnlme, 1 Fish. 45. 
 
 If a prior patent was an anticipation it does not matter 
 whether the invention in it was used or not: King v. Anglo- 
 American Brash Corporation, R. P. C. vol. 7, p. 440 (1.890). 
 
 Id Canada we have retrograded from the position taken up 
 by the Act of 1849, where the knowledge, use, or sale, was 
 confined directly to the Province, and the provision as to 
 knowledge and use in foreign countries existed, and in the respect 
 just discussed it is more difficult in Canada to sustain a patent 
 now than in 1849. The addition of the words "in this country" 
 refers the knowledge or use to within the United States, and 
 correspond with the words "in this Province," in our Act of 1849. 
 
 A patent granted in England (or elsewhere) before the United 
 States patentee made his invention negatives the U. S. Patent : See 
 Walker, s. 55. In section 5G Walker, it is suggested that a draw- 
 ing without descriptive v/ords may be held to be a printed publi- 
 cation. The U. S. Act appears very sweeping as to publication 
 before the U. S. invention, and refers to the States or anv foreign 
 country. . 
 
 First Inventor. 
 
 To determine who was the first inventor in the case of rival 
 applicants involves some nice points. 
 
 In, 
 
 inventc 
 
 invontii 
 
 in a rac 
 
 po.sitivc 
 
 EUithoi 
 
 man, 1 
 
 Reed V. 
 
 Wh* 
 
 Sugar i 
 
 Mer' 
 
 ivill ant 
 
 It is 
 
 rejected 
 
 A drawi] 
 
 (18,59); 
 
 see also 
 
 Garpentt 
 
 V. Ming 
 
 McCalloi 
 
 V. Marli', 
 
 Drawin 
 
 Makii 
 prior dat 
 Sheriff, 2 
 In the 
 the first a 
 tion: Pen 
 Walker. 
 
 Thefo 
 rival invei 
 U. S. Act 
 to the U. t 
 it has to b 
 of 1836, e; 
 U. S. A. w 
 
See. 7.] 
 
 FIRST INVENTOR. 
 
 61 
 
 III section .'i08 Meiwiii, the ri<,'lit to a |nitt'iit as l)ctween rival 
 inventors depends on thnm thing's: (I) Conception of the 
 invention (2) reduction to practice (.*}) reasonal)!*! diligence. And 
 in a race of diligence ho who first reduces his invention to a fixed, 
 positive, and practical form, hiis a priority of riyht to a patent. 
 EilUhorpe v. Robertson, 2 Fish., «:i (18')!)) ; Po.i-khavHl v. KIuh- 
 man, I Blatch. 4SS (IS49) ; Many v. Jag<jei\ 1 Blatch. 372 (J 849) ; 
 Reed v. Story, 1 Story, 590. 
 
 What is required is a practical working machine : Union 
 Sayav Refining Co. v. Mathieson, 2 Fisher, p. 626. 
 
 Merwin, sec. 250 : Wluit is such a reduction to practice as 
 ^vill anticipate a suhseqaent invention ? 
 
 It is well established that an application withdrawn or 
 rejected will not suffice : Corn Planter Pat. 23 Wall. 181 (1874). 
 A drawing will not suffice : EUithorpe v. Robertson, 2 Fish. 83 
 (1859) ; Wiman v. Neiv York it- Harlem R. W. Co., 4 Fish. 1 ; 
 see also English Cases, Ex parte Henry L. R. 8 Ch. 170, and 
 Carpenter v. Smith, 1 W. P. C. p. 534; or even a model: Cahoon 
 V. Ring, 1 Fish. 397, Walker, sec. 61 (1859) ; Johnson v. 
 McCuUough, 4 Fish., p. 175 n870) : See also English Cases Leivia 
 V. Marling, 1 W. P. C. 49. 
 
 Drawings, Proof of Conception. 
 
 Making drawings and sketches is sufficient evidence as to 
 prior date of conception, section 310, Merwin : Kneeland v. 
 Sheriff, 2 Fed. Rep. 901, sec. 380, Robinson, 
 
 In the absence of other evidence of the dates of invention, 
 the first application must be taken to represent the first inven- 
 tion : Pennington v. King, 7 Fed. Rep. 462 (1881), sec. 69, 
 Walker. 
 
 The foregoing cases bearing on priority of invention between 
 rival inventors and the race of diligency were decided before the 
 U. S. Act of 1870, when knowledge or use is expressly limited 
 to the U. S. A., and in this respect, are similar to our law ; but 
 it has to be borne in mind that by the 15th section of U. S. Act 
 of 1836, exception is made in favor of bond fide inventors in 
 U. S. A. who had no knowledge of similar foreign inventions, etc. 
 
52 
 
 FIRST INVENTOR 
 
 (S«.7. 
 
 8«c. 7.] 
 
 .. ii 
 
 'J 
 ■ I 
 
 1 1 > 
 
 i 
 
 ' :r 
 
 I : 
 
 The nilo.H fts to priority of invoution as Ix'tween rival iarm- 
 tors in U. S. A. are : 
 
 1. Ho is the first inventor who has first eoneeiv#»(l tine 
 invention in a (infinite form capable of reduction to pnrtw?*, 
 provided ho follows it up to reduction to piactice with r«i.«»»- 
 able diligence. 
 
 2. He who first conceives, hut is not diligent in rt^dutauig to 
 practice, will he postponed to another independent inventor wh*> 
 was subsequent to conceive but who first, with due diligetucif, 
 reduces to practice. 
 
 3. Where dates of conception cannot be deternnned l>y ii«rtioo 
 of conflicting testimony, he who first reduces to practice waED be 
 adjudged the first inventor. 
 
 See liansoTYi v. Neiv York, 1 Fish. 252 ; Re«'<J v. CtuMier^ I 
 Story 590; Seymour v. Osborne, 11 Wall. 516. 
 
 In The Queen v. La Force, decided Januaiy, IfsHi, in tlse 
 Exchequer Court of Canada, Mr. Justice Burbidge, is of cifmkM, 
 that it was not the intention of the Legislature that tbe floo- 
 struction placed on the U. S. Patent Law beat ing on iht nt^ 
 of diligence just mentioned should be followed, that in tluM 
 respect the U. S. Act diflfered from ours (see extract froma jnnnig- 
 ment, infra). He also states therein "It appears to mt ihui vht 
 
 doctrine that he who tirst conceives an invention is to be prefurrad in bun 
 who first reduces it to practice and gives it tlie public, leads of utKHHrnnrji &> 
 an enquiry as to what men miiy have done in secret, and 0|>enB wide and duifjKr- 
 ously a door to perjury and the fabrication of evidence," but Burbidg>f , 4^ i* 
 
 of opinion that the one who first makes known the inveutioo ko 
 the world should be preferred. 
 
 First Applicant in Britain— Inventor. 
 
 And in Britain, where two persons independently cIudbiib to 
 have invented the same thing, the person who first maktui 
 application for the patent is held in default of ooiikdla»iTt^ 
 evidence to tlie contrary to be the first inventor : Vicie DMiamdi 
 Case, cited in Boulton v. Bvll, 1 W. P. C. 432, Hy. BflL 4m ; 
 Forsyth v. Reviere, Chit. Prerog. 182. 
 
 True 
 
 Ap 
 
 of the 1 
 
 ho simp 
 
 true ani 
 
 improve 
 
 Sec 
 
 L. R., vi 
 
 Thei 
 
 the reali 
 
 Caiiudia 
 
 In cf 
 
 tion, the 
 
 fact that 
 
 of grant 
 
 Ch. 238. 
 
 In Ai 
 
 the prior 
 
 in the ca 
 
 and lawf 
 
 or not. 
 
 Britis 
 are confl 
 troller m 
 second ap 
 A .sub 
 true inve: 
 
 First Ie 
 
 Thed 
 invention 
 
 The ef. 
 entitled t( 
 
 Priority 
 
 Thefo 
 Circuit, de 
 
8eo. 7.] 
 
 FIRST INVENTOR. 
 
 True and First Inventor (Bng). 
 
 A party is tlit; true and first invi-ntor within tlu; nu'itnin^ 
 of the Patent Act (l<SS.'l), wlu-tlitT lie invents hiniHoll' or wht-thor 
 }io .simply imports a f()rci;;n inv(>nti()n. IIi> is nono thu Ichh the 
 true and Krst invuntor it' he huth imports a foreign invention and 
 improves it. 
 
 See Moser v. MarsJen.iX of App., July 17th, 1893; Tinuis 
 L. R., vol. 9, p. .584. 
 
 These Enj^lish cases which recojrnize the first introducer into 
 the realm as the true and first inventor arc not applicable to 
 Canadian case.s of the present day. 
 
 In case of two j^rints to diflerent persons for the .same inven- 
 tion, the Court is not bound by the dates of the patents or by the 
 fact that the rival patentees had contested their claims to priority 
 of grant before the law officer : Kurtz v. Spence (No. 3), ')7 L. J., 
 Ch. 238. 
 
 In Austria-Hungary, the day and hour of application settles 
 the priority of the announced discovery or invention, and, oxcept 
 in the case of imported inventions, the first applicant is the true 
 and lawful owner of the invention, whether he be the inventor 
 or not. 
 
 British Patent Act of 1883, sec. 7, .sub-sec. (5: Where there 
 are conflicting applications for the same invention, the Comp- 
 troller may refuse to seal a patent on the application of the 
 second applicant, subject to appeal to the law officers. 
 
 A .subsequent patentee is at liberty to prove himself a first and 
 true inventor : Kurtz v. Spence, R. P. C, vol. 5, 179 (Eng.). 
 
 First Inventor. 
 
 The date of the application is ^^Wwio facie the date of the 
 invention : Vide, sec. 372, Robinson. 
 
 The earliest conceiver, if he acts with reasonable diligence, is 
 entitled to the patent : Section 383, Robinson. 
 
 Priority of Invention— Reduotion to Practice. 
 
 The following U. S. case in the Circuit Court of Appeals, 6th 
 Circuit, decided March 22Dd, 1893, bears directly on the question 
 
 7. 
 
 -' i 
 
 f' ' 
 
 1 Mk 
 
 •1 
 
 f 
 
 TMt- 
 
 
 ;■■ < 
 
 !'■ 
 
 ''i\ 
 
 '■'^ 
 
 ■ I: 
 
 »l I 
 
 ■3 
 
 I 
 
 * 
 
A4 
 
 FIRST INVENTOR 
 
 [8«0. 7. 
 
 i It 
 I' ii ;i 
 
 " 1 
 
 i 
 
 of tilt' ravt' of (lili^«'i)'i« : St'«> (!/iri»tir v. .SV^W«/, O. G,, vol. 04, 
 p. IM'iO. 
 
 1. Thu iiiHti who tii'Mt rt!<liiC(>N an invention to practice in 
 prlmd focln i\\v first inventor un<ler tlio Act of July 4th, IH.'JO 
 (which Act has the same provision as the present ('anadinn 
 Patent Act as to knowht'l^o or uhc, not limiting either to the 
 country, suhject, however, in U. S. A. to the proviso in Hcction 
 Ii> u;« to prior knowIe<l^'e or use in forei^'ii countries, etc.); hut the 
 nmn who first conceives the invention may date it hack to such 
 conception if ho uses «lue <liligence in reducing it to practice, an<l 
 he niuiit u.se such <lili^a>nce hefore, as well as after, the second 
 conception of the invention : Reed v. Cutter, 1 Story, 600, 
 followed. 
 
 2. A rougli sketch of an invention is not such a reduction to 
 practice as nuikes its author the original inventor : S. C. 
 
 The date of the application for a patent, if containing thu 
 description, is taken as the date of conception : Vide Dane v. 
 Chicago Manufacturing C^a, (187-), 6 Fisher, 130; also section 
 132, Robinson. 
 
 Suggestions from Others. 
 
 Morse's right to the title of inventor of the telegroph was 
 
 challenged, and thereof the Supr. Ct. said ; "Neither can the enquiries 
 he (Morse) made, nor the inforniatit<n he received from men of science in the 
 course of his researches, impair his right to the character of an inventor " : 
 O'Reilly v. Morse, 15 How., 62. 
 
 And again the Supr. Ct. U. S. held : "Where a person has discovered 
 an improved principle in u machine, manufacture or composition of matter, and 
 employs other pciHons to nsHittt him in currying out that principle, and they, in 
 the course of experiments, arising from that employment, make valuable dis- 
 coveries, auxiliary to the plan and preconceived design of the employer, such 
 suggested improvements are, in general, to be regarded as the property of the 
 party who discovered the original improved principle, and may be embodied in his 
 patent, us part of his ipvention " : Agaivam Co. V. Jordan, 7 Wall,, 583. 
 
 Burden of Proof 
 
 The burden of proof of want of novelty is on him who avers 
 it, and every reasonable doubt should be resolved against him : 
 Cojffin V. Ogden, 18 Wall., 120 (1873), and must be beyond reason- 
 
 Sec. 7.] 
 
 ul)l«> do 
 Kip l\} 
 li>C 
 iniporte 
 patente< 
 
 of tilt) I 
 
 patefit, ( 
 the inv 
 lietteiTj . 
 
 Absolu 
 
 As t( 
 pre-reijii 
 judginen 
 that part 
 a patent in 
 A prior pat 
 action by i 
 not requiri 
 defendant ( 
 
 The si 
 1,5+7, pai 
 V. Oolilie 
 copied in 
 from the 
 and is en 
 judgment 
 more thai 
 been prev 
 The h 
 .scribes tli 
 Patterson 
 The s 
 Canada or 
 J. A., on J 
 of the 6th 
 in force, ai 
 Vice 11, 
 
Seo.7.] 
 
 riEST INVENTOR. 
 
 •6 
 
 al)l(! tloiiltt : dofidin^ey Manuf'ttctnrhuf Co. v, Wfnntoii, iH Foil. 
 
 Ill Ijit'ut Hi itiiiii tlu> nctual iiivcntot' or the tiint iiitnulucer or 
 iiiiportor of tlic iiivnition into llit> ifiilni, \s t'lilitlctl to \iv tliu 
 patiMitiie. In Kiiropt'un foiuitrii's, j^oiieiiilly, tlie tiist iiUnxluccr 
 of tilt) invention into thu coiititiy is ciititletl tu tiiku out tliu 
 patent, oxct'pt in Norway, Swi-tjun, Switzt'iiatid and Italy wlieio 
 the inventor, ur Iiih legal rupivscntativt', in alonu entitlud to 
 liuttei's Patent. 
 
 Absolute Novelty— First Inventor. 
 
 As to the ((uestion of absolute novelty the world over lieing a 
 pro-re({iiisite for a patent in Canada, there is nothing in the 
 judgnient in Smith v. (Hodlie, !) Sup. C't. K, (.'an., p. 40, to justify 
 that part of the headnote which kg Htates, viz. : "To ho tntitlofl to 
 a piitoiit ill ('aiiatln, tliu putciitct! imiNt lie tlio firct iiivi-iitor in Ciiiiatla or I'liewlieru. 
 A |iri(ir |)att>iit to a purNoii wlio in not tliu true invuntor iH no ilufeiicc agaiiiHt in 
 action hy tliu ti'iio invuntor uiidur a patent iHttiicd to him Hulmt'(|iiciitly, niid kjS 
 not ruciuiru to hu oaiicullud or rupealud hy ^ri. /ci., whuthur it in vuHted in the 
 tlofendant or in a purMon not a ', .. ! to tliu ttuit. " 
 
 The .same headnote appears in the Ontario Digest, 1880-90, p. 
 1,547, part 1 — First Inventor — erroneously referring it to Sniitlt 
 V. Goldie, 9 Sup. I't. R., 40. It also forms part of the headnote 
 copied into Cassels' Digest of Supreme Court Decisions, l87''-93, 
 from the headnote of Smith v. Ooldie, 9 Sup. Ct. R. p. 40-47, 
 and is erroneous both as to the reference to the Supreme Court 
 judgment, and also to the description of the invention, there being 
 more than three elements ; and it is also erroneous in not having 
 been previously combined, as stated. 
 
 The headnote in Smith v. Goldie, 7 Out. App. R. 028, de- 
 .scribes the invention accurately, as does also the judgment of 
 Patterson J., p. 029. 
 
 The statement that a patentee must be the first inventor in 
 Canada or elsewhere, is derived from the remarks of Patterson, 
 J. A., on p. 640-041, 7 Ont. App. R., who compares the language 
 of the 6th section of the Act of 1872, 35 Vic, c. 20, at that time 
 in force, and the corresponding section of the Act of 1809, 32-33 
 Vic, c. 11, sec. 6, which differs from the Act which had been pre- 
 
 h 
 
 .. M 
 
 Ui 
 
 I 
 
 i 
 
 ; 
 
 t I. 
 
 ii 
 
5fi 
 
 FIB8T INVENTOR. 
 
 [Sec. 7. 
 
 III 
 
 viously in force in the Province of Canada. Con. Stat. Can., c. 
 34, sec. 3 (18.59) : Patterson, J. A., .stat- s: 
 
 * ' T)ie last named Act authorized the granting of a patent to the inventor of a 
 new and UBefiil art, etc. The same not l>eiiig known or nsod in this Province by 
 others before his discovery or invention thereof. While that Act was in force no 
 one was entitled to a patent under it, except a subject of Her Majesty. 
 
 " The Act of 1869 extended the privilege to any person who had been a resi- 
 dent of Canada for one year Itefore his application, and tiiat of 1872 (not 1876 as 
 on p. 641) removed the restriction as to residence, thus in all respects placing 
 foreigners on the same footing with subjects, but at the same time and as a coni- 
 plement of this extension of the prvilege, required absolute and not merely novelty 
 within the Dominion in the invention. The language is, therefore, more general, 
 as used in the two later statutes, ' the same not being known or used by others 
 before his invention thereof.'" 
 
 The reference to the sci. fa. proceedings in the headnote of 
 the Supreme Court case appears to be suggested by the statement 
 of counsel on p. 4S of 9 Sup. Ct. R. Can. ; there is nothing in the 
 judgment itself bearing on this question. 
 
 If the headnote attributed to the Supreme Court case of 
 Smith V. Qoldie, 9 Sup. Ct. R. Can., 46, be the interpretation of 
 our Patent Law by our highest Court, and to be entitled to a 
 patent in Canada the patentee must be the first inventor in Can- 
 ada or elsewhere, as would appear to be the case from judicial 
 expressions of opinion and from the judgment in The Queen v. 
 La Force, Exch. Ct. Can. (1894), hereafter mentioned, then the 
 position of a patentee in Canada is more precarious in this respect 
 than that of any other patentee in any other country in the 
 world. In no other country is there such a sweeping provision 
 by statute ; in all other countries, so long as the invention be 
 not " known or used " in the country in which the patent is 
 sought to be obtained, it suffices. 
 
 In most European countries, the " inventor " is taken to be 
 the first introducer into the country. 
 
 Suggested Amendments to our Act. 
 
 The words "in this country" should be again inserted after 
 
 "not known or used by any other person," as it is in section 4886 of the 
 
 R. S. U. S., and there should also be restored the clause of C. S. C, 
 C. 34 (1859), before referred to, viz. : " If the patentee believed himself to 
 be the tirst inventor the patent shall not be void on account of the invention or 
 
o6C» (• J 
 
 FIRST INVENTOR. 
 
 57 
 
 tliscovery having been known or UHed in a. foreign country, it not appearing that 
 the same or any material or substantial part thereof had been patented or described 
 
 in any printed publication," which is the provision now of section 4923, 
 
 R. S. U. S. It should also be expressly provided that the printed 
 
 patent or publication referred to in our Consolidated Act (1859) 
 
 should be shown to have reached and been accessible to the 
 
 public in Canada before the Canadian invention had been put in 
 
 practical working form. 
 
 The fact that the words " iu thia Province " of the Patent Act 
 of 1849, &s well as that the whole of the last quoted section had 
 been expressly dropped out of our Patent Act of 18G9, affords 
 ground for arguing the harsh proposition that a Canadian inven- 
 tion, to be patentable in Canada, must have absolute novelty both 
 as to Canada and the rest of the world. 
 
 In Smith v. Goldie, 7 Ont. App. Rep., it would appear that 
 Smith's Canadian and U. S. patents were later in point of date to 
 the Canadian patents of Lacroix and Sherman, yet Smith's patent 
 cut theirs out, as he was a prior inventor in U. S. A. (See p. 634.) 
 
 The Queen v. La Force, Reported in Can. L. T., vol. 
 
 14, p. 27. To be reported in full in 4 Ex. Ct. R. Can. 
 
 In The Queen v. La Force, decided in the Exchequer Court of 
 Canada, by Mr. Justice Burbidge, 9th January, 1894, he opened by 
 
 statiug, that " the main question in this case is, whether under the Patent Law 
 of Canada, a prior foreign invention, of which the public had no means of know- 
 ledge, is saflScient to defeat a patent issued to an independent Canadian inventor. 
 The question arises npoii issues joined in a proceeding, wherein Thomas B. Jeffery, 
 of the city of Chicago, U. S. A., cycle manufacturer, has sued out a writ of scire 
 facitm to repeal Letters Patent No. .37,890, for an improvement in pneumatic tires, 
 granted to the defendant." 
 
 In a very elaborate judgment he finds in favour of the defen- 
 dant on all the issues. 
 
 As this is the first Canadian judgment which bears directly on 
 the meaning of the words in section 7 of the Patent Act " Which 
 was not known or used by any other person before his invention thereof," 
 and involves matters of great moment ; extracts from this judg- 
 ment, which covers 100 folios, appears to be called for. 
 
 The effect of the judgment is, that the knowledge or use 
 referred to in section 7 is a knowledge or use by the public, and 
 
 
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58 
 
 FIB8T INVENTOR. 
 
 [Sec. 7. 
 
 not a secret knowledjje or use, such as a cuinmunication to one's 
 own partner or to a patent solicitor etnployed by the inventor. 
 The invention m dispute was a pneumatic tire. 
 
 Date of La Force's Invention. 
 
 La Force struck on the idea in the latter part of April, 1891, 
 and during the week preceding the 25th May, following, he com- 
 municated his invention to his brother. On that day, with the 
 latter's assistance, he made, as an experiment, a section of such a 
 rim or tire, and within two weeks thereafter, a rim and tire com- 
 plete. In July he consulted Mr. Ridout, his patent solicitor, who, 
 on or about the 3rd of August, applied for a patent, which was 
 granted on the 2nd of December, 1891. 
 
 Date of Jeffery's Invention. 
 
 About the 9th of March, 1891, JefFery made some cloth and 
 tin models, and on the 15th of the same month, a drawing, showing 
 three tvays, one of which was the same as shown in the patent in 
 suit. This drawing was shown to his partner, Mr. Gormally, on 
 the same day, and the models to his patent solicitor a few days 
 after. 
 
 About the last of March, 1891, Jeffery made a model of a sec- 
 tion of a tire, such as La Force's, now in question ; on the 4th of 
 July he made a sketch and description which he explained to his 
 patent solicitor on the 13th of July, who, on the 27th of July, 
 1891, applied for a patent in the Patent Office (U. S.), which was 
 granted 12th January, 1892 ; on the 5th February, 1892, Jeffery 
 applied for a Canadian patent, and obtained a Canadian patent, 
 Ist June, 1892, or six months after La Force, in Canada. 
 
 It was a contest between rival independent inventors. 
 
 The Judge states : " The simple question is, must La Force's patent be 
 set aside in favour of Jeffery's because the latter, an American citizen, residing at 
 Chicago, had two months earlier than La Force invented and disclosed in confi- 
 dence to his partner and to his patent solicitor the improvement for which the 
 patent issued, although his application for a Canadiau patent was not made until 
 after La Force's had been granted." 
 
 The Meaning of " Known or Used " Defined. 
 
 He then refers to the 7th and 10th sections of the Act and 
 shows that La Force was in a position to make the oath required 
 
Sec. 7.] 
 
 FIRST INVENTOR. 
 
 59 
 
 in the 10th section : — As stated in the judgment, "Prior to his appll- 
 
 cation, tlie invention had not l)een ' in public use or on sale ' in (Canada, or for 
 that matter, elsewhere ; and prior to his invention, which, regarded us a concep- 
 tion, may be taken to have been complete aa early as the last of May, 1891, it was 
 not known or used by any other person, within the, true meaning of these words, 
 which have reference not to a secret use or the knowledge of an earlier inventor, 
 or of those to whom in confidence he may have disclosed it, but to such a publica- 
 tion or use as affords the public the means of information or knowledge of the 
 indention. The improvement had not been used in public, had not, in fact, been 
 used at all, and any knowledge there was of it, was not in any way open or acces- 
 sible to the public. Jeffery knew of it, of course, for ho had in March preceding 
 invented it, and he had communicated his knowledge to Gormally and Burton, 
 both of whom, however, stood in a confidential relation to him and were interested, 
 the one as a partner and the other as a solicitor, in keeping such knowledge from 
 the public." 
 
 He then deals as he puts it, "with the contention on which the pro- 
 secutor mainly relies, that under the Patent Act of Canada, he, who the world 
 over, first invents anything, is entitled to a patent therefor, and to have set aside 
 ill his favour any Letters Patent for the same thing that may, prior to his applica- 
 tion have been granted to a subsequent independent inventor." 
 
 That this contention rests on the provisions of the Patent Act 
 as set out in the 7th, 16th, 24th (disclaimer) and 32nd sections. 
 Burbidge, J., states : "And it is said that the words of the 7th section 'any 
 person who has invented ' read with the other sections in which the term ' first 
 inventor ' occurs, mean absolutely and without qualification the person who any- 
 where has first invented a new and useful thing." 
 
 He then points out that the law of England and that of the 
 United States of America is different on the question as to who 
 is " the first inventor " and gives reasons why English rather than 
 United States precedents should govern ; that under the Statutes 
 of Monopolies (21 Jac. 1, c. 3) one may be a first and true inven- 
 tor, though he has, in fact, invented nothing, it suftices if he is the 
 first introducer into the realm, and quotes Househill Co. v. 
 Neihon (1 Web. P. C. 719), where Lord Lyndhurst states that 
 
 "the first peraon who discloses that invention to the public is considered as the 
 
 inventor"; also ex 'parte Henry (L. R. 8, Ch. 167) Lord Selborne 
 
 says : " If such applicant were the true inventor, the circumstance of something 
 having taken place somewhere else which was r ')t disclosed to the world, and -^i 
 to which no prior application had been made, would be no answer to him." 
 
 That in the patent laws of the United States the words 
 " original and first inventor " do not mean absolutely the person who 
 first invents, for no prior invention in a foreign country stands in 
 
 I : 
 
«() 
 
 PUBLIOATION. 
 
 [Sec. 7. 
 
 il 
 
 
 the way of an independent inventor within the United States of 
 America unless the result of the foreign invention had been pub- 
 lished in a patent or printed book. (See sec. 4,886-4,923 U. S. 
 Rev. Stat.) If the foreign inventor of something which has not 
 been so patented or published goes to the United States or 
 entrusts his secret to an agent, the date of his arrival there or 
 that of his agent will be taken as the date of his conception. 
 (See Robinson on Patents, sec. 382). 
 
 And as between two independent inventors in the United 
 States of America, he who was the second to invent will become 
 the original and first inventor, if he is the first to reduce the 
 invention to practical form by embodying it in a machine capable 
 of useful operation, and if the first inventor fails to use reason- 
 able diligence, in reducing the invention to practice. (Robinson 
 on Patents, .sec. 370.) 
 
 And that one may by the laws of the United States be the 
 first inventor of a lost art. (Robinson on Patents, sees. 322, 323.) 
 
 As to Publication. 
 
 Burbidge, J,, says: — "What the applicant for a patent of invention 
 offers to the public for the grant thereof, is the knowledge of his invention ; but 
 the public may have no means of knowledge until he publishes or discloses the 
 
 invention, and publication forms an essential part of the consideration." And 
 the learned Judge considers that when La Force filed his application 
 in the Patent Office at Ottawa, it was open to the inspection of 
 the world. (R. S. C, c. 61, sec. 47.) 
 
 [Note by Editor. — " Although this section on its face indi- 
 cates this, yet the specifications therein referred to are the specifi- 
 cations on file after patent granted. It is not the practice in the 
 Canada Patent Office, nor that of . the United States, nor of the 
 United Kingdom (before acceptance) to throw pending applica- 
 tions open to the public, and Rule 15 Patent Office Can. (see App. 
 1) shows this to be the case ; so merely filing an application for 
 a patent can hardly be a publication." Ex parte Wyckoff, 60 
 O. G., 1104.] 
 
 On the other hand, Mr. Justice Burbidge points out, that when, 
 on the 5th February, 1892, Jeffery applied for a Canadian patent, 
 
 R 
 
 K 
 
Seo. 7.] 
 
 KNOWLEDOE OR USE. 
 
 61 
 
 he had nothing to offer to the public, for on the previous 2nd of 
 December, 1891, La Force's previous patent for the same invention 
 had already been granted and the invention disclosed. 
 
 He could merely affirm that in a foreign country he knew of 
 the thing two months before La Force knew of it, and that 
 he had not in the interval, anywhere, given the invention to 
 the public. 
 
 As to the Public Knowledge or use in a Foreign 
 Country. 
 
 Mr. Justice Burbidge states :— "One can untlerstand how the Parlia- 
 ment of Canada, going further, it is true, in that direction than the Parliament of 
 the United Kingdom, or the Congress of the United States has yet gone, has, in 
 what was deemed to be the interests of the general public of the Dominion, made 
 prior public knowledge or use of an invention anywhere, a bar to a Canadian patent 
 therefor. But one fails, I think, to apprehend why it should in favour of a foreigner, 
 on the ground only of his earlier conception of the invention, make void a patent 
 issued for good cause and consideration to an independent Canadian inventor, for 
 an invention that prior thereto had not been used in public anywiiere, and of 
 which the public in no part of the world had any means of knowledge." 
 
 Burbidge J., then argues that the words "inventor" and 
 "first inventor" used in our patent laws have not always meant 
 absolutely and without qualification the person who, the world 
 over, first invented some new thing — and with infinite trouble 
 investigates nearly all the Acts relating to the various Provinces 
 mentioned in the first chapter of this work, commencing at 4 Geo. 
 IV., c. 25, 1823 for L. C. to the present time. 
 
 Burbidge, J., refers to the American origin of our earliest 
 Patent Acts in Upper and Lower Canada (taken from the U. S. 
 Act of 1793) and of other Provincial Acts derived from the 
 same source, which leads to the inference tiiat where English 
 and American decisions do not run on the .same lines, as in con- 
 troversies between rival inventors they do not, the latter and not 
 the former should in the construction of Canadian patent law be 
 followed, but in his careful rev^ow of pre-confederation statutes, 
 he makes out the contrary, and cites incidents which, as he puts it, 
 " tend to show that it was the intention of the legislatures of the several Provinces 
 of Canada, while adopting in a general way the language of the Patent I^aws of the 
 United States, to adhere, in respect of this question, to the principles and doctrines 
 of the English law." 
 
 !■,"! 
 
 I ' 
 
 I i 
 
 ■ f, 
 
62 
 
 RAGE OF DILIOENOE. 
 
 [Sec. 7. 
 
 ^3 
 
 li :s 
 
 The Race of Diligence as between Rival Inventors. 
 
 Burbidge, J., .states : "There Ih nothing in our Htatutes to give ua a BUg- 
 gestion or hint as to whether, in the oivso of rival inventors within the Province, 
 the one who Hr^t cleiiriy conoeivuH the invention, or the one who reduces it to 
 practice and coinniunicutcs it to the public was to be preferred, but having obtained 
 tlie patent, it was ccrtaiidy good against any knowledge or use of the invention 
 outside of the Province, and not accessible or open to the public, as well as against 
 linowledge or use of a rival inventor within the Province. 
 
 " There is, liowevor, one important clause of the 15th section of the Act of 
 1836 (U. S. ) which has never found a place in any Act of any Province of 
 Canada. Dealing with the subject of defences to actions for infringement, it was 
 there provided ' inter alia' that the defendant might set up as a defence and prove 
 that the plaintiff had surreptitiously or unjustly obtained the patent for that 
 which was in fact invented or discovered by another who was using reasonable 
 diligence in adapting and perfecting the same. Hero we have what has been 
 thought to be a distinct recognition of the doctrine that a patent issued to one who 
 was an independent inventor might be defeated by a prior undisclosed invention 
 by another who was using reasonable diligence in adapting and perfecting the 
 same. 
 
 " The corresponding defence, as described in the statutes of the Province of 
 Canada, was that the patent should be void if the patentee had surreptitiously 
 obtained it for the invention or discovery of another person." 
 
 From this he concludes that the legislatures of the several 
 Provinces did not intend to incorporate in such Acts the con- 
 struction as to rival inventors which the Courts of the United 
 States had placed thereon. 
 
 And on reviewing the various Patent Acts of Canada up to 
 1869, and of the Provinces of Nova Scotia, New Brunswick, or 
 Prince Edward Island, he finds that they did not demand that the 
 patentee be absolutely the " first inventor," but that he should be 
 a true inventor; and, that the invention .should be one that had 
 not been in use or described in sojue public work prior to his 
 invention ; and, that the term " first inventor " in these sections, 
 means now (referring to the present Patent Act), as in the pre- 
 confederation statutes, the person, who, being a true inventor of 
 some useful thing, first discloses his invention to the public. 
 
 And referring to the Canadian Patent Act of 1872, when for- 
 eigners were admitted to the privilege of the Patent Laws of 
 
 Canada, he can find "no indication of any intention, on the part of Parlia- 
 ment, to confer upon them any special privileges. " 
 
See. 7.] 
 
 QUEEN ▼. LA FORCE. 
 
 6S 
 
 [Note hy Editor. — It is the law in Kngland, tluit where two 
 persons, independently, claim to have invented the same thing, 
 the person who first makes an application for the patent, is held, 
 in default of conclusive evidence to the contrary, to he the first 
 inventor ; and, though the patent nmy be granted to both, if the 
 exauli^^)er does not notice the coincidence, and no opposition be 
 made to the second, yet, the owner of the patent of earlier date 
 has the sole right to the new matter claimed, and the second 
 cannot use it without the permission of the first.] 
 
 Finding. 
 
 He concludes : " In the result, I am of opinion, thatumlcr the Patent Law 
 uf Canada, a prior foreign invention, of which the public had no knowledge, or 
 means of knowledge, is not sufticient to defeat a patent issued to an independent 
 Canadian inventor. Whether the same rule should apply in the case of conflicting 
 applications for patents, is another (luestion. In tlie present case, the patent 
 having been issued, the Crown's power or authority in respect thereof is exhausted. 
 If the patent be good, if there be no ground of impeachment, it must stand, and 
 
 the second patent is waste paper " ; and he finds, on all the issues raised, 
 in favour of the defendant and judgment with costs. 
 
 Note in the Queen v. La Force. 
 
 The foregoing judgment is a very important one and a step in 
 the right direction, as liberalizing the Canadian Patent Law, and 
 although Mr. Justice Burbidge holds that under our Patent Act a 
 public knowledge or use, anywhere, of an invention, prior to the 
 invention of an independent Canadian inventor, may avail to 
 defeat his patent, it is to be hoped that, some day, we may have 
 legislation to assimilate our Patent Law, in this respect, to that of 
 the United States, already referred to. See U. S. R. S., 4886, 
 4923. Even if an application filed in the Patent Office, in 
 (yanada, is not open to the inspection of the world, it was un- 
 jc 'jb^dly the case that La Force was the first to publish the inven- 
 i,. hi he obtained his Canadian patent 2nd December, 1891, 
 »\'i .• :as, JefFery obtained his earliest or United States patent on 
 :! .2th January, 1892, and Burbidge, J., points out that an ap- 
 plication filed in U. S. Patent OflSce is not a publication, so the 
 basis on which Burbidge, J., rests his judgment still holds good. 
 
 Still the difficulty remains, what constitutes a public know- 
 
 IS 
 
 M;''. 
 
 I ,'. 
 
 I ;■ I 
 
 . > ; t. 
 
 f 1 
 
M; 
 
 64 
 
 KNOWLEDGE OR USE. 
 
 [8eo. 7. 
 
 ledge or use f The learned Judge clearly states that a prior 
 public knowled^'o or use, anywhere, suflicoM to defeat a Canadian 
 patented invention ; would a prior public knowledge cr use in, 
 for instance, the Sandwich Islands, Madagascar or Persia suffice ? 
 or is it confined to the United States, the United Kingdom, 
 France or Germany, etc. ? Where are we to draw the line ? 
 The whole difficulty could begot over by amending the section so 
 as to make it read (as formerly was the case) •• not known or uml 
 
 by any other person in thiH country before his invention thereof," and putting 
 US on the same footing as to knowledge or use as the United 
 States, the United Kingdom and other principal countries of the 
 world. 
 
 The words "known or used" in our Act are in the disjunc- 
 tive, so if the invention be publicly known, even though not 
 publicly used, this may suffice to defeat a Cana<lian patent. 
 
 The American interpretation of the words " known or used " 
 which first appear in the U. S. Act of 1793, and are retained to 
 the present day, mean " known or used by the public." See 
 Pennock v. Dialogue, 2 Peters, p. 17 (A.D, 1829), and Sfiaw v. 
 Cooper, 7 Peters 318, 319 (A.D. 1833), strongly support the view 
 taken by Mr. Justice Burbidge in his exhaustive judgment; for 
 the old U. S. statutes, under which these old cases were decided, 
 run on the same lines as our jiresent Canadian section, which was 
 derived therefrom, and were b'.iore the U. S. Act of 1836, which 
 diverges from our present Act, as already pointed out. 
 
 It is also to be noticed that Burbidge, J., is of opinion that 
 the legislatures of the several Provinces did not intend that the 
 construction which the Courts of U. S. A. had placed on their 
 Patent Acts in the matter of the race of diligence between rival 
 inventors, should be adopted, but that as between two inde- 
 pendent inventors in Canada, the one who first applied for and 
 obtained his patent and discloses the invention to the world 
 should be preferred. 
 
 (e) "And which has not been in public use or on 
 sale with the consent or allowance of the inventor 
 thereof, for more than one year previously to his 
 application for a patent therefor in Canada." 
 
 H 
 ■ 
 
 i !• 
 
 i ;i ■ i 
 
8eo. 7.] 
 
 PUBLIC USE OB ON BALE. 
 
 aa 
 
 The meaning of this portion has boon materially changed for 
 the worse ho far an patunteus are concorni'd by the removal of the 
 comma in the Revised Patent Act in front of " in Canada," thus 
 making it read " application in Canada," instead of as formerly 
 hijld " public use or on sale in Canada " ; the invention would now 
 appear to bo one which has not been in public use or on sale 
 anywhere in the world with the consent or allowance of the 
 inventor for more than one year previous to his ap;^)lication. 
 This exposes a Canadian patent to still another danger since the 
 revision, rendering it still more attackable than formerly. 
 
 In Smith v. Oohlie, 7 App. Rep. (Ont.), p. C41-C*2, counsel 
 endeavoured to refer the words " in Canada " to the application, 
 as is now the case, although the comma was, at that time, before 
 the words " in Canada," so as to make it appear that there must 
 not be public use or sale, anywhere, more than one year before 
 the application in Canada, and thu i fix the plaintiff Smith with 
 public use, or having the invention on sale in the United States 
 so as to invalidate his patent, but the Court of Appeal, per 
 Patterson, J., held, that the " public use " or '* on sale," referred to 
 in the Act, was use or on sale within Canada, and that the policy 
 of the Act of 1872 was the same as that of the Act of 1869, 
 which expressly mentioned use or on sale in any of the Provinces 
 of the Dominion. 
 
 As an inventor has in the United States two years within 
 which his device may be in public use or on sale before his appli- 
 cation for a patent, an inventor might procure a patent under 
 section 8, and still his patent may be voided by more than one 
 year's prior use or being on sale in the United States. 
 
 Prior use or offering for sale for more than one year in any 
 foreign country may invalidate a Canadian patent, but it is more 
 likely to occur with reference to the United States than else- 
 where. In the United States they are in the same position as 
 here ; for a public use or sale after invention, but more than two 
 years before application occurring in any foreign country, has the 
 same effect as occurring in the States : See Walker, sec. 101 ; Root 
 V. Third Avenue R. W. Co., Sup. Ct., U. S. (November, 1892) ; 
 61 O. G., U. S., p. 1947. 
 
 r 
 ' ■i 
 
 N 
 
 i. » 
 
 . t 
 
 ■lit 
 
 "i i! 
 
66 
 
 PRIOR USB. 
 
 [Im.7. 
 
 ■:|i 
 
 Ul 
 
 Such publio UNO or boing on Hale must be '"wiA dm cnaamt or 
 •llowanofl of the Inventor," anything (lunu in fraud of Li^ right, and 
 without hin knowIn<Ige, could not toll against hiniL 
 
 The time is litnitud in Canada to one year liefot^t tK* applica- 
 tion, and was first introduced in the Patent Art o^ IH72 — in 
 analogy to tho U. S. Act which litiiitN the titiM! tu tvo years — 
 and wari % step in the right direction. 
 
 Publio Use.— Ah to tho meaning of " ]taUit m^": Vide 
 Walker, hoc Hi. 
 
 In Egbert v. Lippman, 104 U. S., 333, the S^pTetne Court 
 
 held that, ** if an inventor, having made hid device, givo* %n mU* it to another, 
 to be uied by the donee or vendee, without limitation or rtMrtncnnoa, or injunction 
 of Becreoy, and it is so used, such use is public, even though th* iim uul knowledge 
 of the use may be conflned to one person." 
 
 Prior User. — Unless the prior use be in puMic, <o<r in a way 
 accessible to the public, it is not an invalidatiiTii^ prior use : 
 Cahoon V. Ring, 1 Cliff., 592 ; Haaelden v. Oydcn, 3 Fish., 
 P. C, 378. 
 Prior Use Galls for Strong Proof. 
 
 In Cluett V. Clafiin, 30 Fed. Rep., 921, the f?)nipTOme Court, 
 
 U. S., has said : " The burden of proof is on the defemduus . * mtahliah this 
 defence. For the grant of Letters Patent is pnmd faw wTkiATnatt that the 
 patentee is the first inventor of the device described in thf Ltftniw^ Patent and of 
 its novelty. Not only is the burden of proof to make good tlm <&tt'«nce upon the 
 party setting it up, but it has been held that ' every reaecuniilAi- (Ambt should be 
 resolved against him.'" A Circuit Court has said : " IM* .fefenoe (of prior 
 use) must be established by proof as explicit and convincing; .» nftAtt required to 
 convict a person charged with crime, proof which prepoudt>riLi«ft s&« complainants 
 testimony not only, but which satisfies the mind beyond a rti«t»iaable doubt " : 
 
 See also Cantrell v. Wallick, 117 U. S., G89. 
 
 If a genuine prior use has occurred, and is fimlDj proved, a 
 subsequent disuse thereof will not prevent it from Wimg an inval- 
 idating prior use : Waterman v. Thomson, 2 Fifsli,,-!^! ; Shaiy v. 
 Henrici, 2 Ban. & Ard., 249. 
 
 Prior use is not proved by a prior patent: Weft,»n y. White, 
 13 Blatch., 361; nor by incomplete and imperfeict experiments 
 made by others at an earlier date : American Wmndl Paper Co. v. 
 Fibre Disintegrating Co., 23 Wall., 566 ; and it imeams a prior 
 use by another prior to the patentee's inv-^ntaon: Klein v. 
 
8m. 7.] 
 
 PUBU0U8E. 
 
 •T 
 
 Huaaell, 10 Wall., 4.')3 ; nor is it provtul by a prior concoption, 
 although it proceed to a patent prior in point of date to that in 
 Huit: Tyler v. Crane, 7 Ke«l. Hop., 775. 
 
 An invalidating public use in the U. S. A. for two years prior 
 to the application, may be by the inventor or another and may be 
 with or without the inventor's couHunt: See Andrews v. Ilovey, 
 a U. S. Rep., 670. 
 
 If the inventor allows bin invention to be used by other per- 
 sons generally, either with or without compensation, then it will 
 he in public use within the meaning of the ti^atute : Elizabeth v. 
 Pavement Co., 97 U. S., 135 (1877) ; Andrews -, Itovey, 16 Fed. 
 Rep., 393 (1883); Root v. .ird Avenue R. W. t\ ., Sup. Ct., 01 O. 
 G., p. 1947 ; Walker, sec. {)4. 
 
 If the inventor uses his invention for profit and not by way 
 of experiment, thaf is also a public use: Elizabeth v. Pavement 
 Co., (supra) ; In re Adamaon's Patent, 26 L. J. Ch., 456, and 
 other cases on p. 147 Higgins on Patents (1884); The Househill 
 Co. V. Neilaon, p. 265 Goodeve. 
 
 As to public u.se and not an experimental use voiding a patent : 
 Vide Heasin v. Coppin, 17 Grant, 629. 
 
 Experimental use is never a public use : Vide Walker, sec. 95 ; 
 and Summers v. Abell, 15 Grant, p. 532 (1869). 
 
 In Great Britain a patent is not destroyed by prior experi- 
 mental user : Vide Oalloway v. Bleaden (1839), 1 Web. P. C. 621, 
 Goodeve p. 207 ; Bentley v. Fleming, Goodeve 42. 
 
 User of a pirated article for the purpose of experiment and 
 instruction to pupils of an English electrician is a user for advan- 
 tage and is an infringement of the patent : United Telephone Co. 
 V. Sharpies, 29 Ch. D., 164. 
 
 A public use of an invention means a use of the invention in 
 public not by the public : Belts v. NeUson, L. R, 3 Ch., 429. 
 
 A trifling use not long continued will be treated as experi- 
 mental: See Cornish v. Keene, 1 Web. P. C, p. 511. 
 
 On Sale. — Walker, sec. 96, defines the meaning of " on sale " 
 within the meaning of the statute. 
 
 A single instance of sale of one specimen constitutes putting 
 the invention on sale : Consolidated Fruit Jar Co, v, Wright, 94 
 
 
 r 1 
 
 1. 
 
 i 
 I' 
 
 : 
 I 
 
 I 
 
m 
 
 OHIALB. 
 
 ! 
 
 \V\ 
 
 [8M.7. 
 
 U. 8., 94 (1H70). And a <l«<vio> will U* on siilt- wilhin thu muaii- 
 ing of the Act if oH'orixl for hhIo. h )i<*th<<r nny N|H*cnnun Lk) noUI or 
 not: IHimiUon v. W/kw/om-, U Ff-i. K.-p.. J)2I (IHH!}). 
 
 A Halo for cniciul t>x|>(<rinii>nt In not oltnoxioUH to thu law : 
 Vidfi Gnhavi V. Atiinnt'iictiiriruf Co., W K««.|. Kop., 142 (IH80); 
 Orahain v. AfcConnaek, 5 Ban. & Aid.. 244. 
 
 Tho term "on huIo" nicant an oHcrin^ oi (>x|)o.Hin(; for nbIu. 
 
 A Sale f04' Profit not Always a Public Use- 
 
 A hand Jidr cxporiniental us« lM>yon*i tho statutory luuit is 
 allowahlo. As a rulo such use for profit is a fatal oiw : Drapi'V v. 
 Wattleti, 'A Ban. k, Anl, 018; l>ut in Munufaitarinij Co. v. Spviiguf, 
 8 Sup. Ct. Hop., U. S., 122, hold that this rule is not iiivariahlu, for 
 if tho main motive of this usf Ite test, trial or oxporimont, thu in- 
 cidental taking of profit is not nocos.sarily fatal ; hul where tho 
 UHo \h mainly tor the purposes of tmlo and profit, and the experi- 
 ment is merely incidental to tliat, the principle and not the inci- 
 dent must give character to its use : See also to same effect tho 
 English case Jones v. Pearce, 1 Web. P. C, 12 4 
 
 But in Smith <L Davin Alunufaduritiff Co. v. Mellon, decided 
 October 30th, 1893, 66 O. G., p. 173: Where a manufacturer 
 places an article on the market in the usual and accustomed lino 
 of business, and sold a considcrablu number over a lenj^thened 
 period, more than two years before applying for a patent, to see 
 what his customers think of it, it cannot be said to he an experi- 
 ment within tho moaning of the statute : " It ia a tradei'^s, not an 
 inventor's experiment." The experiment was not a testing for 
 the purpose of discovering defects and perfecting the invention, 
 but a testing of the market. 
 
 Egbert v. Lippman, 104 U. S., 333, was referred to, the Sup- 
 reme Court, U. S., said : •' We observe, in the Hrst place, that to constitute 
 the public use of an invention it is not necessary that more than one of thu 
 patented inventions should be publicly used." 
 
 The proof on the part of the patentee as to the use being an 
 experimental use should be full, unequivocal and convincing: 
 See Smith Manufacturing Co. v. Sprague, 123 U. S., 249. 
 
8m. 7.] 
 
 PUBLIC UBB. 
 
 " With the oonsent or allowanoe of the inventor." 
 
 TIiIn coMMMit (;lnUN(> liiiN sinct^ 1M7() hvvu tlroppml out of thu IT. 8. 
 Act, Although Ntill ivtiiinud in C!n!in(hi, hcforo ttiat (hito in thu 
 (Jnitud HtAtcs thu consent of tho invuntor wus a nucesNuiy uleniout 
 of thu fiictH upon which thu oM hiw raisud a oonMtructivu ahan- 
 (lonmunt: Wifith v. Stone, 1 Story, 2HI,an<l other caHcn inuntionud 
 ill Noction 1U2, Walker. That consent nuu«l not be ^\ven in 
 writing or ovun in words. Ac(|uiusctince Hurtiuen to prove it. 
 Sinnon v. GiUjert, 9 Blatch., 188 (1871). 
 
 ThiH consunt clausu has formed a portion of our Act Hinuu 12 
 Vic, eh. 24(1840). 
 
 No patent right covers any usu or sale of any Mpeciinon of the 
 thing patented, which was purchased of the inventor or made by 
 another with his knowleilge or consent before his application for 
 a patent therefor: Wade v. Medcalf, 1(5 Fed. Rep., 130 (1888). 
 This is specially provided for in .section 4899 Ilov. Stat. U. S. 
 
 Whore another than the inventor, .surreptitiously obtains 
 knowledge of an invention, and without the consent of the 
 inventor, makes a specimen of the invented thing before the 
 patent thereon is applied for, that .specimen i.s covered by a patent 
 for that invention as truly and fully as it would be by an infringer 
 after the date of that patent : See Walker, sec. 168. 
 
 The reference throughout is to a completed invention. 
 
 "For more than one year," means "earlier than one 
 year " : Vide Consolidated. Fruit Jar Co, v. Wright, 94 U. S. 
 
 94 (1876). 
 
 As to Publio Use in Great Britain. 
 
 A patent is invalidated in Great Britain if, prior to the grant, 
 the article is offered for sale although no sale is actually effectod : 
 Oxley v. Holden, 8 C. B. N. S., 6GC ; Morgan v. Seaward, 1 Web. 
 P. C, 194 ; Heath v. Smith, 3 El. & Bl, 256. 
 
 Patent for locks invalidated by prior manufacture in England 
 of seven and a-half dozen of the locks for exportation to 
 America : Carpenter v. Smith, 1 Web. P. C, 530. 
 
 6 ■. 
 
 ■ h 
 
 U 
 
 Ijii f 
 
1;!-' 
 
 1 
 
 1 
 
 I 
 
 i 
 
 70 
 
 REQUIREMENTS. 
 
 [See. 7. 
 
 The publicly making and selling an article to one individual, 
 though there was no demand or use for it by the public, held to 
 have invalidated a subsequent patent: Loah v. Hague, 1 Web. 
 P. C, 205. 
 
 A patent may be invalidated in England by the prior deposit 
 of the patented article in a warehouse for sale, although no sale 
 has taken place : Mallina v. Hart, 3 Car. and Kir., 297. 
 
 Prior " public user " in a British Colony does not invalidate 
 a patent in Great Britain, provided the thing be a new invention 
 within the realm : Vide Rolls v. haac (1881) L. R. 19 Ch. D. 
 268, Goodeve, p. 404-. 
 
 {/) " May on petition to that effect presented to 
 the Commissioner." 
 
 Note. — The form of petition referred to is I to 5 in the 
 annexed Appendix No. 1 of Forms, still in use in t^ic Patent 
 Office, Ottawa, and recites the wording of the old Act of 1872, 
 " not known or used by others (in the present Act it is by • any other 
 
 person ') before his invention thereof and not being (' now, which has not 
 
 been ) in public use or on sale with his consent or allowance aa such inventor 
 
 (' now, with the consent or allowance of the inventor thereof ' ) 
 
 for more than one year previous (now, previously) to his application for a 
 patent therefor in Canada." 
 
 A petition following the wording of the Revised Act would 
 now be more in form, the foregoing portions in the brackets show 
 the portions substituted in the Revised Act. 
 
 {g) " And on oompUanoe with the other require- 
 ments of this Act." 
 
 Note.— The 8th, 9th, 10th, 12th, 13th and 14th sections of 
 this Act are more specifically referred to, and the subject matter 
 must not come under any of the disabilities referred to in the 
 16th section of the Act. 
 
 (h) "Obtain a patent granting to such person an 
 ozolusive property in such invention." 
 
 A Patent Prima Facie Evidence of Validity. 
 
 In the United States where a preliminary examination is 
 made. Letters Patent are primd facie evidence of their own 
 validity : Vide Walker, sec. 491. 
 
Sec. 7, 8.8. 2.] 
 
 VALIDITT. 
 
 71 
 
 But in Allen v. Reed, 14 Q. L. R. 126, S. C, the Court held in 
 Quebec that there waa no presumption in law in favour of the 
 validity of a patent, which is opposed to the practice in Ontario, 
 where the production of the Letters Patent is primd f'lcie evi- 
 dence of novelty and validity, the onus is on the opposing party 
 to show the contrary. 
 
 The term " exclusive " property has a somewhat misleading ap- 
 plication here, for under the 37th section of this Act, the patentee 
 has only for two years strictly an exclusive property in his inven- 
 tion ; after that period he must carry on in Canada the manufac- 
 ture iu such a manner that any person desiring to use it may 
 obtair it or cause it to be made for him at a reasonable price, etc., 
 as commented on under that section. 
 
 In the United States there is no such provision, as in our 
 section 37, and a patentee may be said to have an exclusive pro- 
 perty ; he is under no obligation to manufacture his patent at all, 
 as is the case with us, as well as in France, Germany, Austria, and 
 some other foreign corntries, where manufacture is imperative. 
 
 In Great Britain under section 22 of the Patent Act of 1883, 
 licenses c. ^e compulsory. 
 
 (M 'I 
 
 
 1 
 
 I'! 
 11 
 
 Note to Sub-seo. 2 of Seo. 7. 
 
 Very many machines, articles and compounds can be put 
 to both a lawful and unlawful or illicit use ; for instance, a 
 burglar's tools may be very good and useful tools in the hands of 
 an honest workman ; no person need set out the illicit object he 
 has in view when he is obtaining a patent; so a burglar now may 
 obtain a patent for his " jemmy." 
 
 A " scientific principle " or abstract theorem per se cannot be 
 patented. The "hot air blast" for furnaces may be taken as 
 illustrative ; it was found that heated air blown on to the fire in 
 a smelting furnace instead of cold air, by interposing a receptacle 
 between the blowing apparatus and the furnace, produced a much 
 better article. While the patentee could not obtain a patent for 
 the "PTuiciple," he could for the means of carrying that 
 principle into effect, and being a pioneer patent, the first in the 
 field, the means covered all other means of carrying the principle 
 
 i;; 
 
 \ % 
 
 .It 
 
 I 
 
r| h 
 
 )i 
 
 11' 
 
 inw ^' 
 
 7S 
 
 INVALIDITY. 
 
 [Sec. 1, 8.8. 2. 
 
 into effect : Vide Neilson v. Harford, 1 Web. Pat. Cas., 2/3-373 ; 
 this ca.se went to the House of Lords and is discussed in sees. 135, 
 138, and elsewhere in Curtis. 
 
 Baron Aldei*8on in Jupe v. PratU 1 Web. Pat. Cas., 146, lays 
 
 down, as now recognized, " You cannot take out n patATtt for a principle ; 
 you may take out a patent for a principle coupled with the mode of carrying the 
 principle into effect, provided you have not only discovered the principle, but in- 
 vented some mode of carrying it into effect ; if you have done that, then you are 
 entitled to protect yourself from all other modes of carrying the same principle 
 into effect, that being treated by the jury as piracy of your original invention." 
 
 Of the same nature were the telephone patents, fiell had a 
 broad claim for the " electric transmission of speech " by means 
 of certain defined instrumentalities, he could not claim " the 
 principle " by itself, but having a pioneer patent, he made all 
 modes of carrying the principle into effect tributary to his. 
 
 The "principle of raising water from wells for animals by 
 means of their own weight not patentable : Mei'i'ill v. Cousins, 
 26 U. C. Q. B. R., p. 49. 
 
 The Patent Act of 1849, 12 Vic, made a principle patentable, 
 through .some mistake ; this was repealed by 14 and 15 Vic, c. 79, 
 expressly. 
 
 In the electric telegraph patent, Morse claimed not only the 
 machinery &s a new invention but also by the 8th claim the 
 principle of using the motive power of the electro magnetic fluid 
 for the purpose generally, the majority of the Judges of the 
 Supreme Court, U. S.,held that the 8th claim was void, because it 
 was too comprehensive ; it was virtually a claim for an abstrac- 
 tion : See O'Reilly v. Morse, 1 5 How., 52. 
 
 In Boalton v. Bull, 2 Hy. Bl., 463 (referred to in p. 62, Smith 
 V. Ooldie, 9 S. C. R., by Henry, J.), it is stated : 
 
 "A mere principle is an abstract discovery incapable of answering the term 
 ' manufacture,' but a principle so far embodied and connected with corporeal sub- 
 stances as to be in a condition to act and produce effects in any art, trade or 
 manual occupation, becomes the practical manner of doing a particular thing and 
 is no longer a ' principle,' but a ' process.' " 
 
 An abstract theorem would cover Newton's discovery of the 
 law of universal gravitation — or Kepler's Laws. 
 
 Abandoned Applications. 
 
 U. 8. Ex. rel Fowler et al. v. Commissioner of Patents, decided 
 June 23rd, 1890, 62 O. G., 1968. 
 
Sec. 8.] 
 
 APPLI0ATI0N8. 
 
 78 
 
 On petition for a mandamus to inspect " the abandoned cases 
 in the U. S. Patent Office." Held, that no such broad right exists 
 to the public, and the writ refused : U. S. Ex. rel U. 8. Electno 
 Lighting Co. v, Gommiaaioner of Patents, C. D. (1891), 271 ; 54 
 0. a, 267, cited. 
 
 If, however, the petitioners shall make request for certified 
 copies of one or more abandoned applications, accompanied by a 
 reasonable suggestion of their necessity for the purpose of 
 evidence, the request will be granted under authority conferred 
 upon Commissioner by Rule 179. 
 
 The request for such copies must be presented in the form of 
 a petition properly verified, as appears by Form 52, U. S. Patent 
 Office. 
 
 When defendant wishes to make out that the plaintiff is rely- 
 ing on a patent, as to which there had been an abandoned appli- 
 cation, which had not been prosecuted for the past two years and 
 upwards, and that a suit was pending against the petitioner based 
 on said patent, and that to enable the petitioner to prepare 
 and conduct his defence, it is material that he be allowed access 
 to and copies of files of such abandoned case, he may obtain 
 copies as indicated. 
 
 It may often be material in a Canadian suit to obtain copies 
 relating to an abandoned application in the U. S. Patent Office. 
 
 8. Any inventor who elects to obtain a patent for his invention in a foreign 
 country before obtaining a patent for the same invention in Canada (a), may 
 obtain a patent in Canada, if the same be applied for within one year from the 
 date of the issue of the first foreign patent for such invention (6) ; and, if within 
 three months after the date of the issue of a foreign patent, the inventor gives 
 notice to the commissioner of his intention to apply for a patent in Canada for 
 such invention, then no other person having commenced to manufacture the same 
 device in Canada during such period of one year, shall be entitled to continue the 
 manufacture of the same after the inventor has obtained a patent therefor in 
 Canada, without the consent or allowance of the inventor (c) ; and under any 
 circumstances, if a foreign patent exists, the Canadian patent shall expire at the 
 earliest date on which any foreign patent for the same invention expires (d). 35 
 v., c. 26, 8. 7, The Patent Act (1886) ; 55 and 56 V., c, 24, s. 1 (1892). 
 
 Note. — The foregoing was substituted by 55 and 56 Vic, 
 c. 24, s. 1 (1892), for sec. 8 of the Patent Act, ch. 61, Revised 
 10 
 
 If 
 
 )!f 
 
I 
 
 f 
 
 f 
 
 f 
 
 11 
 
 74 
 
 APPLICATIONS. 
 
 [See. 8. 
 
 Statutes, which wa» repealed, and aimed at getting over a 
 difficulty and danger to patentees experienced in the former enact- 
 ment, whereby any one who had commenced to manufacture in 
 Canada an invention between the date of a patent in any other 
 country foi such invention, and the application for a patent 
 therefor in Canada, such person would continue to have the right 
 to manufacture and sell the invention, notwithstanding the issue 
 of the subsequent Canadian patent ; now by giving notice as 
 stated in the new section 8, a provision is made. 
 
 This section only relates to patents issued after iihe 9tb 
 July, 1892. 
 
 Inventor and Suggested Improvement. 
 
 (a) The term " inventor " in this section 8 is too restricted, 
 for we have seen, under section 7, that an assignee, a firm or 
 corporation may petition for and obtain a patent ; also that an 
 assignee or a legal representative of a deceased inventor may also 
 obtain a patent, provided the oath be made as required under 
 section 10. The same terra " inventor " was, in the Act of 1872, 
 and in the Revised Statutes, it certainly does not cover an 
 assignee or a firm or a corporate body, or an assignee or a legal 
 representative of a deceased inventor, it is suggested that " any 
 person entitled to obtain a jiatent in Canada " be substituted. 
 
 Again, the section relates only to a patent in a " foreign 
 country " which excludes Great Britain and Ireland and British 
 Colonies and possessions, so that a British or an Australian or an 
 Indian patentee, etc., would not, it appears, be embraced in this 
 section ; but query whether he should not notify the Commis- 
 sioner in order to obtain the protection of the section with 
 reference to any other person manufacturing his invention in 
 Canada; both the Revised Statute and the Act of 1872 state 
 that an inventor shall not be entitled to a patent for his invention 
 
 " if a patent therefor in any other xountry shall have been in existence in such 
 country more than twelve months prior to the application for such patent in Can- 
 ada," which, of course, covered all countries outside of Canada, 
 including Great Britain, etc. ; now there is no restriction as to 
 Great Britain, the Colonies, etc. The change from " in any other 
 country to " in a foreign country is express. 
 
8eo. 8.] 
 
 APPLICATIONS. 
 
 76 
 
 (b) The year is, of course, a calendar year, and the date of the 
 isHue of a foreign patent is in France, Austria, Hungary, Italy, 
 Spain, Norway and Sweden, and in some other foreign countries, 
 the date of filing the application, though not invariably so. In 
 Germany the term commences the day following the day of appli- 
 cation. In the United States patents are generally dated and 
 issued after allowance, on the third Tuesday after the applicant 
 pays the final Patent Office fee. 
 
 In the United States, if the invention be previously patented 
 to another in any foreign country under section 4886, it cannot 
 be lawfully patented in the States. In Smith v. Goodyear D. V. 
 Co., 11 Brodix, 1, the prior filing of a provisional specification did 
 not invalidate the U. S. patent, though the filing of the completed 
 specification would. But contra, if U. S. invention were prior to 
 the foreign invention: Vide Cochrane v. Diener,94! U. S., 791 ; 
 Elizabeth v. Pavement Co., 97 U. S., 130. 
 
 Under the Canada Patent Act of 1869, application might be 
 made within six months of the date of the foreign patent ; since 
 the Canada Patent Act of 1872 the time has been extended to 
 one year. 
 
 When does this year expire ? For instance, if a U. S. patent 
 were dated May 20th, 1892, would it be in time to make the 
 application in Canada on May 20th, 1893 ? It would appear 
 from the following English and U. S. authorities that the day of 
 the date of the U. S. patent must be reckoned inclusively. 
 
 In Russell v. Ledsam, 14 M. & W., 647, it was held that when 
 the original Letters Patent were dated on the 26th February, 
 1825, and renewed Letters Patent were dated 26th February, 
 1839, the day of the date must be reckoned inclusively, and that 
 the former term expired 25th February, 1839 : See Wallace on 
 Patents (1884), p. 36. 
 
 On 15th June, 1844, a patent was issued to Charles Goodyear 
 for India rubber fabric, reissued December 25th, 1849, and 
 extended by the Commissioner of Patents as reissued June 
 15th, 1858, and again reissued to defendant's executor November 
 20th, 1860. The extension sought to be vacated expired June 
 14th, 1866 : See U. S. Ex rel. Bourne v. Goodyear, 8 Brodix, p. 
 209, April 23rd, 1870. 
 
 i ! 
 
re 
 
 APPLIOATIOKS. 
 
 [Sec. 8. 
 
 ■I I 
 
 * i! 
 
 l( iir. 
 
 f 
 
 I 
 
 I I 
 
 This suit was commenced June loth, 1865. Defendant de- 
 murred because the extension having expired before the bill was 
 filed, there was no equity to support the bill. The Court below 
 sustained the demurrer affirmed by the Supreme Court. A pre- 
 sent iDtere.st commenced June 15th, 1858,and, therefore, June 15th, 
 1865, when this suit was commenced, was excluded from the term 
 of seven years : Pearpoint v. Oraham, cited, 4 Wash. (C. C.) 232. 
 
 (c) The "three months" referred to in section 8 are calendar 
 months under the Interpretation Act; and the "foreign patent" is one 
 to the same inventor. The notice to be given the Commissioner of 
 Patents is not stated to be a written notice, so it is open to the 
 contention that the notice may be either verbal or written ; the 
 onus would be on the inventor to prove that he had given the 
 requisite notice, which, in the usual course of business, should be 
 a written communication. The notice afi*ects every person manu- 
 facturing, of whatever nationality. Rule 18, Can. Pat. Office (see 
 Appx. 1); provides that all business with the Patent Office should 
 be transacted in writing. 
 
 As the section now reads, it is only inferentially and by refer- 
 ence to the repealed section, that we understand that failure to 
 give the required notice within three months of the issue of a 
 foreign patent,entitles an unauthorized person, who has commenced 
 to manufacture in Canada the article so patented abroad, within 
 the date of the foreign patent and of the application for a patent 
 therefor in Canada, to continue to have the right to manufacture 
 and sell such article notwithstanding the issue of a Canadian patent 
 therefor. 
 
 Although this, no doubt, is the intent of the new section, it is 
 open to question how far that intent has been carried into effect. 
 
 It may be also noticed that the new section refers only to a 
 right to "continue the manufacture," without conferring a right also 
 "to sell" as was the case in the old section, although it might 
 be argued, that, here the right to continue the manufacture im- 
 plied also the right to sell, otherwise the right would be nugatory. 
 The O? 1 wording " shall continue to have the right to manufacture and sell 
 <c ' in much better and should have been retained. 
 
 1st ^)to absence of express enactment, as in the repealed section, 
 
 m I. a 
 
 11m 
 
•^M 
 
 See. 8.] 
 
 APPU0ATI0N8. 
 
 77 
 
 it is difficult to see how this new section clothes an authorized 
 person with any right ; the specific articles manufactured prior to 
 the issue of the Canadian patent would be covered by section 46. 
 
 The consent or allowance of the inventor referred to as en- 
 titling to continue the manufacture after the issue of the Cana- 
 dian patent, should be a written consent or license, and should have 
 been so expressed, for section 29 enacts that every peison, who, 
 without the consent, in writing, of a patentee, " mttkes, constructs or 
 puts in practice any invention," etc., shall be liable in an action of 
 damages. 
 
 The specific articles manufactured during the year prior to 
 the issue of the Canadian patent would be covered by section 46, 
 which enacts that : " Every person who, before tlie issuing of a patent, has 
 purchased, constructed or acquired any invention for which a patent is afterwards 
 obtained under this Act, shall have the right of using and vending to others the 
 specific article, machine, nuvnufacture or composition of matter patented and 
 so purchased, constructed or acquired before the issue of the patent therefor, with- 
 out being liable to the patentee, etc., for so doing," unless the invention 
 
 had become public property within the meaning of the section. 
 
 IiX France and her colonies, a patent cannot extinguish rights 
 already existing at the date of the patent, consequently, if any 
 person be in po.s8ession of the patented invention, and using it at 
 the date of the patent, though such use will net invalidate the 
 patent, he can continue to use it during the entire period of the 
 patent in defiance of the patentee. 
 
 Prior Issue of a Foreign Patent. 
 
 (d) The effect of a prior issue of a foreign patent, may have 
 an important bearing on the life of the Canadian patent, and the 
 provisions of this section are more in the interests of foreign 
 patentees than of Canadian patentees, for the latter, now that the 
 life of a Canadian patent has been extended b}' section 22 to 
 eighteen years, would generally obtain their patents in Canada 
 first ; otherwise, for instance, as an United States patent has 
 seventeen years to run from the date of issue, a Canadian patent 
 might be so applied for, subsequently, as to shorten its life from 
 eighteen years to less than sixteen years. 
 
 The same shortening process of the life of the Canadian patent 
 
 
 i . 1 
 
 I' H 
 
 I 
 
 I: 
 
 ■ i 
 
 
 J 
 1 ■ 
 
 
 1 i 
 
 
 i ! 
 
 11 
 
78 
 
 INTERNATIONAL OONVENTION. 
 
 [8eo. 8. 
 
 may alno take placo with mspoct to patents for the same inven- 
 tion firHt issued in (among others) the foreign countries mentioned 
 in Form 50 Appendix 2, except Belgium and possibly Spain ; the 
 expression, "if a furuign pntont exista" in this section indicates that 
 reference is made to a prior foreign patent, and not one subse- 
 quently issued. 
 
 There is a danger always to be borne in mind in taking out 
 with Canadian, a batch of foreign patents, viz. : that in Britain 
 and France and most other countries, notably in Qermany, there 
 are very strict conditions as to publication ; in Germany, prior to 
 application there the invention must not appear in any printed 
 work in any country in such a manner that it may be constructed 
 or made therefrom ; so that a German patent cannot be legally 
 obtained if applied for after the issue of an United States patent 
 or the printing and publication of the English final specification. 
 
 For fees payable when notice is given under section 8, see note 
 to section 39. 
 
 The International Convention. 
 
 Belgium, Brazil, France, Great Britain, Guatemala, Italy, 
 Holland, Norway, Portugal, Servia, Spain, Sweden, Switzerland, 
 Tunis, the United States, and the Colony of Queensland, have 
 formed themselves into a union for the protection of industrial 
 property, '• with power to add to their number." Of these, Holland, San 
 Domingo, Servia and Tunis have as yet no patent laws ; they are 
 more concerned in trade marks. 
 
 An international office is maintained at Berne at the expense 
 of the Union. 
 
 Patentees can import their patented articles from one country 
 of the Union into any other country of the Union, and publish 
 them there without forfeiture of pat?nt rights during the six or 
 seven months hereinafter mentioned ; and the application for a 
 patent for an invention in any country of the Union by subjects 
 of that country gives pro*''.sional protection in all the others for 
 six months, or seven months in the case of countries beyond the 
 ocean. In England, the time begins to run from the date of 
 application for the foreign patent. 
 
^y{ 
 
 i' > 
 
 8eo. 8.] 
 
 nVTBRNATIONAL OONYBNTION. 
 
 7fl 
 
 Tho Convention of Borno wax cuncludud at PariH, 20th March, 
 1883, approved of by Lord Lyons, 17th March, 1884, with express 
 understanding that power is rosorvcd to Hur Britannic Majesty 
 to accede to this Convention on behalf of the Isle of Man and the 
 Channel Islands and any of Her Majesty's possessions, on due 
 notice given through Her Majesty's Oovornment. 
 
 There is an important provision in section lOH of the British 
 Act of 1883, which by Order-in-Council (see section 104), may 
 
 be made applicable to "any Rritiah poaHoaaion." The only British 
 possessions that have come within tho provisions of said section 
 103 by British Order-in-Council are New Zealand and Queens- 
 land ; Canada has not yet become a party to the International 
 Convention at Berne to which section 103 relates; through apathy 
 or neglect an Order-in-Council has never been sought. 
 
 In Mann's Patent, 7 P. O. R., p. 13 (1890), Webster, A. G., 
 held that an applicant was entitled to have his English patent 
 antedated, although his foreign application was made before the 
 country in which it was made had come under section 103 : See 
 Edmunds, p. 517. 
 
 In order to antedate an application in England (see Form 
 A' British Patent Rules), a certified copy of the original specifica- 
 tion must be obtained from the Patent Ottice of origin and the 
 British patent dates from the date of application in the foreign 
 country. 
 
 A person to whom an invention has been communicated from 
 abroad cannot claim, under said section 103 of the British Act, 
 rights under the International Convention, as a patent can only 
 be granted to the person who has made the foreign application. 
 
 In the case of designs and trade marks, application must be 
 made within four months of the date of applying for protection 
 in the foreign state. 
 
 The Effect of Expiry of a Foreign Patent. 
 
 In Canada we have no judicial decisions as to the effect of 
 allowing a prior foreign patent for the same invention to lapse 
 by non-payment of fees, or not working or manufacturing in the 
 foreign country, but in the United States, under a similar pro- 
 
80 
 
 EZPiRT or roREiov PATcrr. 
 
 [860.8. 
 
 vision in Pohl v. Anchor Brcivlruj (Jb. (Sapi Ct;, 20 Rro<lix, p. 
 186 (October, 188!)) ; 1.M4 U. S., HHi : //W.</. tkal there is nothing 
 in the Htatutu (Ruv. Stat., nee. 4887), wliicli a/lmitM of the view 
 that tho duration of tliu U. S. patent In to be limit«<l by anythiniy; 
 but tho duration of thu \u^a\ term of the fore-ii^ patent in force 
 at tho time of thu issuin^j; of thi; U. 8. patens, or that it is to be 
 limited by any lapsing or forfeiture of any fXiniBon of the term of 
 such foreign patent by muaiis of the openuioo of the condition 
 subHoquent according to tho foreign statute. 
 
 Bate Hefriyeratiwf Co. v. Ilnmntomi. Ii9 U. S., 151 (19 
 Brodix, 281), decided January 2lKt, 1889. wk«re a ('anadian 
 patent was held not to have expired in fiv* ytmr*. the extension 
 for fifteen years being entirely of ri<;lit arj<i ax lK»^ option of the 
 patentee on payment of a fee, the U. S. ftuiitut 'loen not expire 
 before tho end of the fifteen years of the <^''iiiii«i<lian patent, and it 
 does not afi'uct tho validity of a U. S. t a' mt if the limitation 
 due to tho foreign patent does not appear on iv^ fact*. 
 
 And a repeal of a foreign patent, whieSn mi^^ht otherwise 
 limit the life of a U. S. patent, restores it tc# it* fall term of seven- 
 teen years : Bate Refrigerating Co. v. GiiUtK, 20 Fed. Rep., 192 
 (1884). 
 
 In Huber et al. v. N. 0. Nelson Man vfadlm ring Co., 6.3 0. 0. 
 (U. S.), p. 311 (decided March 27th, 1893)*. Sop. Ct., IJ. S. 
 
 A United States patent applied for an4 -granted after the 
 expiration of a foreign patent for the samt- invention never had 
 any force or validity. The delay in applj-ing f(or the U. S. patent 
 until after the foreign patent expired auiountied to an abandon- 
 ment of the right to a U. S. patent. Tliiw Kkewion destroyed 
 Edison's quadruplex telegraph patent aniJ bis microphone 
 patents. 
 
 Bate Refrigerating Co. v. Hammond, emprOr was cited, and, 
 although not exactly iti point, for the Canaida patent was in force 
 when uhe U. S. patent was granted ; yet it wa* betd in the Court 
 below, OS a logical conclusion from thifs 4e<iftion, that a U. S. 
 patent which was issued subject to the provt«aio«k» of section 4887 
 of the Revised Statutes, whereby it remainwidl in force no longer 
 than the foreign patent having the shoi'test tenn^ Had this section 
 
B60» 8«j 
 
 EZPXET or rOEBIOM PATENT. 
 
 81 
 
 4HH7 tuok etroct upon it, an<l if tho prHvioiiN foreign [lattint had 
 Ixtcn allowed to expire l)efore the application, that nectlon 4887 
 caiiHod it to expire tho same instant in which it wan created, and 
 that tho patent wan .stran^^led in itH birth. 
 
 Pufd V. Anchor Jirewing Co., utipi'a, wan also cited, but in 
 this caMo the foreign patent wa8 aUo in force when tho U. S< 
 patent was granted. 
 
 How tho expiry of a foreign patent, which Im relied on to 
 curtail the patent in Huit, i.s to be proved, HUgge.sts a difficulty. 
 Ill Ontario it \h a usual practice for solicitorH to mutually agree 
 to admit aH evidence uncertified copieH of printed firitish and 
 foreign patents, .so as to savu the expense of certitication at ho 
 much per folio of printed matter ; and little or nothing is usually 
 said as to proof of publication in Canada. Although the seals of 
 Patent Otticcs are not cognizable in our Courts in tho same 
 manner as seals of foreign Courts of Record, certified copies have 
 continually been admitted as evidence ; at any rate, for the 
 purposes of the trial they would doubtless be admitted, and any 
 further proof, that might bo deemed nece.ssary, could be secured 
 after the trial, if insisted on. 
 
 Expert evidence would bo admissible in Ontario to show that 
 the foreign patent is for the same invention as the Canadian. 
 Such is the practice in the States : Biechoff v. Wethered, 9 
 Wallace, 812 (1869) ; if no evidence is offered it is the practice in 
 the United States for the Court to determine the matter by 
 inspection of the documents : cfo Flm'ez v. Raynolde, 17 Blatch., 
 4.']9 (1880). 
 
 A British patent is dated and sealed as of the day of applica- 
 tion (see sec. 13, Pat. Act, 1883), and has fourteen years to run 
 except in the case of incomplete description, when the Comptroller 
 may post date the application as of the day the corrected specifi- 
 cation was received at the Patent Office; while in India, New 
 Zealand, Australasia, Ceylon, Cape of Good Hope, British Guiana 
 and Honduras, the term is also fourteen years, and the law is 
 based on the British law. 
 
 In Great Britain, by section 25 of the Patent Act of 1852, 
 Letters Patent obtained in the United Kingdom for patented 
 11 
 
 \ \i 
 
 i 
 
 11 
 
 Hit 
 
 . 1.: 
 
 ! 
 
 fi 
 
 i 
 
EXPIRY or rOREION PATENT. 
 
 [8M.8. 
 
 I' 
 
 foreign invcntioiiN woni not Ut cuiitinut) in furui! afit*r the expira- 
 tion of th« torv'ufu patont. Tliis iwction wan (irop|HMl out of the 
 Act of IMM.'t, aiitl now no UritiMh patent IxJConiuH invalid by thu 
 expiry of a forfi^^ii patent. 
 
 If thero !)(> prcvioiiH foreign patents, an Aiiiertcnn patent 
 expiroH at the Miiine time as thu one having the shortest term, in 
 the name manner as in < 'anadii. 
 
 To determine whetlier a prior foreijjn patent exists, the com- 
 parison should l*e iiiNtitiiteti lietween the domestic patent aH it 
 was issued, and not witii tlie domestic patent as it may after- 
 wards exist after hejn^ cut down hy dischiimer and lindtcd hy the 
 state of the art. If a patent, wlien i^ranted, covers an invention 
 which lias hoen previously covered hy a foreign patent, it expiree 
 with the foreign patent, notwithsl.ndin^ the fact tliat it haN 
 subsequently been pared down to cover only one method of 
 practising thu invention or restricted to a single claim : Seu 
 Electrical Acemmdator Co. v. J alien Electric Co. et al., U. S. 
 Circ. Ct, 5th Dist, New York, decided July 18th, 1893 ; 64 
 O. 0., p. 559. 
 
 Though the domestic patent claims the product and the 
 foreign patent claims the process, still where the process makes 
 the product and the product can <mly be made by the process, 
 the product and thu process constitute one discovery, and the 
 patents are for the same invention: Electrical Accumulator Co. 
 y.Julien Electric Co., supra; Mosler v. Moaler, 127 U. S., 354; 
 Plummer v. Sargent, 120 U. S., 442. 
 
 Where in comparison of an American with an English patent, 
 they described the same thing in all essential particulars, the 
 English specification being more detailed and its drawings more 
 minute and full, and having but one claim sufficient under the 
 English to entitle patentees to their entire invention and at least 
 as broad and comprehensive as all four of the American patent 
 claims, and the American patent contained improvements not 
 exhibited in the English patent, they were held identical within 
 the purview of Acts of 1861, section 16, and 1839, section 6, 
 limiting the term of a domestic patent to that of the prior foreign 
 patent of the same invention : Siemens v. Sellers, 17 Brodix, p. 
 284, U. S. Sup. Ct., November, 1887. 
 
Sm. 0.] 
 
 UfPROVBMBNTS. 
 
 83 
 
 In the foregoing comi*. tho ditrurunco iM^tworm tho Atnerican 
 and Englinh syMtoinM of innkin^ clnimn im iiottul. 
 
 Tho to8iH of iUontity for the purposoH of section 4887 U. 8. 
 Statute collattid from Siavieun v. Sdlern, Huprd, and C^ytnmercia^ 
 Manufactuiniiff Co. v. FairUtnk Cnnnimf Co., 13ft IJ. S., 176, 
 are: (1) Ir tho principal invention of thu doinoHtiu patent found 
 in tho foreign patent ? (2) Ih tho Nuhject matter of tho one the 
 same in all essential pai i iiularH as that uf the other? (8) Would 
 a Ntructuro made purnuant to tho foreign patent infringe the 
 (lomoHtic patent 7 (4) Could both patentH have heon granted in 
 IhiH country. A domestic patent for a product and foreign patent 
 for tho proco.sii may bo for tho same invcntionH : MonUr v. AtoaUr, 
 127 U. S., 354 ; Plumvier v. Hargent, 120 U. S., 442. 
 
 V. Any person who hoa invontod any inipruvoinent on any patented inven* 
 tion, miiy obtain a imtent for ruuh iniprovuinuni ; l>ut he iihall not thereby obtain 
 the right of vending or iming tlie original invention, nor ihall tho paten' for the 
 origin*! invention confer the right of vending or uaiug the patented improvement. 
 35 v., c. 28, a. 9. 
 
 Note. — This provision was in the first Upper Canada Patent 
 Act of 182C, which was copied from section 9 of the U. S. Patent 
 Act of 1793, also in section 4 of tho Patent Act of 1851-52, 
 continuing to the present date. The original provision contained 
 the addition that " aimply changing the form or proportion of any machine or 
 uompoaition in any way, shall not be deemed a discovery." 
 
 Additions of improvements might bo made to existing patents 
 without taking out a new patent ^^y section 19 Con. Stat. Can., 
 c. 34 (1859), the original patentee filing a duplicate model and 
 drawing ; this provision, disappeared in tho Act of 1869. 
 
 We have discussed, under section 7, that "a new combination of 
 old elements producing a new result, or a known result in a much more useful and 
 beneficial way," is patentable : Harrison v. Anderson Foundry Co., 
 L. R., 1 App. Cas. 677, was quoted by Ferguson, J., in an Ontario 
 suit of Wianer v. Coulthard, in his judgment of February 7th, 
 1890, as being one of a number of authorities in this respect, 
 which English case was also discussed and approved of in Yates 
 V. Great Western R. W. Co., 2 App. Rep. (Ont.), p. 226, and by 
 
 I r 
 
 i i. 
 
 i 
 

 84 
 
 IMPROVEMENTS. 
 
 [Sec. 
 
 I. 
 
 k' 
 
 Ihik 
 
 Ritchie, C. J., in the Supreme Court judgment of Smith v. Goldie, 
 9 Sup, Ct. Rep., p. 51, as well as by Hagarty, C. J., in Hunter v. 
 Carrick, 10 App. Rep. (Ont.), 449. 
 
 Indeed, a new arrangement of old parts may be patentable, and 
 Hagarty, C. J. (Ont.), in his judgment of 10th May, 1892, in Wisner 
 V. Coulthard, in the Court of Appeal (Ont.), quotes Lord Hatherly 
 in Hartnaon v. Anderson Foundry Co., as to claiming a new com- 
 bination, that the inventor may say : " I take all these M-ellknown parts 
 and I adjust them in a manner totally different from that in which thoy 
 have ever before been adjusted — I have found out just what it is that made 
 these parts — though they may have been used in machinery, fail to produce 
 their proper elfect, and it is this, that they have not been properly arranged. I 
 have, therefore, reconsidered the whole matter and put all these several parts 
 together in a mode in which they never before were arranged, and have produced 
 an improved effect by so doing. I apprehend it is competent to that man so to do 
 and that it would be perfectly impossible for him to say what is new and what is 
 old, because ex concessia it is all old, nobody ever before used it in the manner in 
 which he has used it." 
 
 The foregoing quotation was also cited in approval by Henry, 
 
 J., in Smith v. Goldie, 9 Sup. Ct. R., p. 67. 
 
 And in Smith v. Goldie, 7 App. R., 628, Patterson, J., discussing 
 
 Murray v. Clayton, L. R., 7 Chy. 570, says : " I am willing to accept 
 the doctrine that a new process, carried on by known implements or elements acting 
 upon known substances and producing some other known substance in a cheaper 
 or more expeditious manner, or of a better or more useful kind, is patentable ; but 
 the process or combination must be new. " 
 
 The difficulty of this section is, that the invention of an 
 improvement on a patented device may change the result and 
 the whole mode of operation, when the improver would not be 
 subject to the original inventor ; but one cannot conceive how 
 the proprietor of the prior invention could legally appropriate to 
 himself the improvement, without the consent or remuneration of 
 the improT f*''. 
 
 Any adc" tion to or substraction from any known machine or 
 process causing the old machine or process to accomplish an 
 object in a more speedy, perfect or economical manner, is 
 evidently the subject of a patent : Terrell on Patents, 1st ed., p. 
 27; Lister v. Leather, 8 El. & Bl., p. 1017; Hornblower v. 
 Boulton, 8 T. Rep., 104. 
 
 lu Allen V. Reed, 14 Q. L. R, 126, S. C. (1888), the Court 
 
 l«t I,; 
 
 ; 
 
See. 9.] 
 
 niPBOVEMENTS. 
 
 86 
 
 held that it is no invention to omit one of the parts of an existing 
 thing unless such omission caused a new mode of operation of the 
 parts retained : Vide also, Supreme Court, U. S. (decided April 
 3rd., 1893) : The National Hat Pouncing Machine Co. v. 
 Hedden et al, 63 O. G., p. 466. 
 
 But the fact that a machine is capable of doing more work 
 and at a less expense than prior devices, while persuasive, is by 
 no means decisive, and is only available to turn the scale in cases 
 of grave doubt respecting the validity of the invention : S. C. 
 
 In the case, for instance, of a new folding device on a 
 patented piinting press, the inventor of the new folding device 
 would not, by attaching his device to the printing press, obtain 
 the right to vend and use the press without being subject to the 
 patentee of the press, nor would the patentee of the press have 
 the right to discard his old folding apparatus and adopt the 
 improved one, without reference to the inventor of the improve- 
 ment. This w^ould be a case to which the section is applicable, 
 but it is so obvious that it hardly required a special section to 
 impress it. In Fox v. Delleatahle, 15 W. R., p. 195, "no doubt a man 
 
 may make an invention which is partly covered by an existing patent, but he can- 
 not use it without the license of the patentee." Malins, V. C. 
 
 It does not detract from the validity of a patent that the 
 inventions of others are made use of in carrying out the patented 
 invention. One invention may include within it :nany others, 
 and patents for each and all be valid at the same time, but in 
 such case, each inventor would be precluded from using the 
 inventions made and patented prior to his own, except by license 
 from the owners thereof : Cochrane v. Deiner, 11 Brodix, p. 289, 
 Sup. Ct U. S. (March 19th, 1877). 
 
 Mr. Justice Swayne, of Supreme Court, U. S., in Smith v. 
 Kicholls, 21* Wall, 118, states : 
 
 " A new idea may be engrafted in upon an old invention, be distinct from the 
 conception which preceded it and be an improvement. In such case, it is patent- 
 able. The prior patentee cannot use it without the consent of the improver, and 
 the latter cannot use the original Invention without the consent of the former. 
 But the mere carrying forward or new or more extended application of the 
 original thought, a change only in f'rm, proportions or degree, the substitution of 
 equivalents doing substantially the came thing in the same way, by substantially 
 the same means with better results, is not such invention as will sustain a patent. 
 
 i; 
 
' t 
 
 I f :i 
 
 ! 1 
 
 tr 
 
 I' 
 
 86 
 
 OATH. 
 
 [8eo. 10. 
 
 These Rules apply alike, whether what preceded was covered by a patent or 
 rested only in public knowledge and use. 
 
 The foregoing was quoted by Ritchie, C. J., in Ball v. 
 Cronipton Corset Co., 13 Sup. Ct. Rep. (Can.), p. 477. 
 
 1 0. Every inventor shall, before a patent can be obtained, make oath, or, 
 when entitled by law to make an affirmation instead of an oath, shall make an 
 affirmation, that he verily believes that he is the inventor of the invention for which 
 the patent is asked, and that the several allegations in the petition contained are 
 respectively true and correct : 35 V., c. 26, s. 11. 
 
 2. In the event of the inventor being dead, such oath or affirmation shall be 
 made by the applicant, and shall state that he verily believes that the person 
 whose assignee or legal representative he is, was the inventor of the invention for 
 which the patent is solicited, and that the several allegations in the petition con- 
 tained are respectively true and correct : 35 V., c. 26, s. 11. 
 
 3. Such oath or affirmation may be made before a minister plenipotentiary, 
 chargi d'affaires, consul, vice-consul or consular agent, a judge of any court, a 
 notary public, a justice of the peace, or the mayor of any city, borough or town, 
 cr a commissioner for taking affidavits, having authority or jurisdiction within the 
 place where the oath may be administered. 35 V. , c. 26, s. 11 ; 36 V., c. 44, s. 3 ; 
 the Patent Act (1886), 65-56 V., c. 24, s. 2 (1892). 
 
 ||- 
 
 Informalities. 
 
 Note. — We have no judicial decisions as to what effect infor- 
 malities as to the oath may have on a patent in Canada ; but in 
 the United States the oath is but a prerequisite to the granting 
 of the patent, and is in no way essential to its validity. It is not 
 a condition precedent without which the patent fails : Crompton 
 V. Belknap Mills, 3 Fisher, 536 : Vide also Curtis, sec. 274a. An 
 irregularity in the form of oath will be cured by the issuing of 
 the put^^^nf., and it seems that a patent would be valid when issued, 
 although the oath might not be taken at all : Vide Curtis, 4th 
 ed., sec. 274. 
 
 A direct recital in the patent that the oath was taken before 
 the lisane was granted, in the absence of fraud, is conclusive 
 evidence that the necessary oaths were so taken : Seymour v. 
 Osborne, 3 Fisher, 555, and 11 Wall., 616. 
 
 The ombsion of the date in the "jurat" does not afiect the 
 validity of the patent : French v. Rogers, 1 Fisher, 133, and other 
 cases on p. 156, Bump. 
 
Sec. 10.] PATEITTS OF OOMMUNIOATION, ENO. 
 
 87 
 
 In the United States a suplemental oath is required if foreign 
 patents have been issued since the original application or as to 
 added patentable matter if omitted in the original application. 
 
 Letters Patent in the United States with the oath duly taken 
 are prmid facie evidence that the patentee was the first inventor 
 of the thing patented: Philadelphia and Trenton R. W. Co. 
 v. Sti/mpson, 14 Peters, 458. 
 
 In Great Britain, since the Patent Act of 1883, sec. 5, an 
 application must contain a declaration to the effect that the 
 applicant is in possession of an invention whereof he claims to be 
 the true and first inventor, etc. 
 
 Patents of Communioation. 
 
 This raises the important question as to whether " patents of 
 communication " have been abolished by the Act. " Patents of 
 communication " were, and still are, obtained by agents and persons 
 residing in Great Britain and Ireland, in their own names, for 
 inventions communicated to them from abroad. 
 
 Before this Act of 1883, and many years ago, the first 
 introducer into the realm was always held to be the true 
 inventor within the meaning of the Statute of Monopolies, 21 
 James I. : Vide Edgeh6rTy v. Stephens, 2 Salk., 447 ; Carpenter 
 v. Smith, 9 M. & W. 300 ; 1 Wels. Pat. Gas. 7, 535 ; but Milligan 
 v. Marsh, 2 Jur. N. S. 1083, pointed the other way. 
 
 Since the declaration required in the British Act of 1883, 
 there have been no judicial decisions, but Form A', provides for an 
 application for inventions communicated from abroad, and the 
 practice is still for the Patent OflBce in England to issue such 
 patents. 
 
 The matter is fully discussed in Note to section 5 Daniel on 
 Patents. It is contended that one of several joint inventors 
 suffices to make the declaration in Great Britain. 
 
 Letters Patent taken out in the name of agents as communi- 
 catioas frou xbroad, are open to this objection ; that if allowed 
 to remain in tne agent's name, insolvency or death may compli- 
 cate matters, for in the absence of assignment or documentary 
 evidence, the foreign inventor, who really was entitled to the 
 
 I 
 
 II 
 
 ■ '■>' 
 
i! 
 
 m 
 
 88 
 
 OATH. 
 
 [See. 10. 
 
 patent, may have difficulty in proving title. It is always better 
 for the foreign inventor or patentee to take the patent out in 
 his own name (Form A), and merely authorize the English agent 
 to act for him. 
 
 The several allegations in the Canadian petition are, that the 
 alleged invention was not known or used by others before his 
 invention thereof, and was not in public use or on sale with his 
 consent or allowance for more than one year previous to his 
 application in Canada. 
 
 The applicant is not required in Canada to make oath that he 
 is the first inventor, but that he believes himself to he tfte first 
 inventor. 
 
 In the United States, the oath is also on belief as to being 
 
 the "original, first and sole (or joint) inventor," etc., a subsequent section 
 
 of the U. S. Patent Statute provides for a case in which the 
 patent shall be valid if issued to an applicant who believed 
 himself to be the first inventor or discoverer, although he was 
 not so in point of fact, where the invention had been previously 
 known or used in a foreign country, but had not been patented 
 or described in any foreign work, and the patentee was ignorant 
 of that fact : Vide section 4923 R. S., this first appeared in 
 section 15 of the U. S. Act of 1836. In Canada, we have no 
 such legislation at present ; a similar provision was in our Con. 
 Stat. Can., c. 34 (1857), but was dropped out in the Patent Act of 
 1869. 
 
 A patent which is not supported by the oath of the inventor, 
 but collusively by that of another person who applies for same, is 
 unauthorized by law and void : Vide Kennedy v. Hazleton, 19 
 Brodix, p. 124. 
 
 This section provides for an affirmation as well as an oath. 
 Under the Interpretation Act, the expression " oath " includes a 
 " solemn affirmation or declaration." 
 
 Note. — Form 5, Appx., shows the form of petition to be made 
 by an executor or administrator, which will do also for an assig- 
 nee ; in the Patent Office forms (Canada) there is no form of oath 
 for the assignee or a legal representative, nor any form of petition 
 for the assignee referred to in the 10th section, but it may be 
 
See. 10.] 
 
 PATENT TO ASSIONEE. 
 
 89 
 
 made following the wording of the Act and Form 5, under Rule 6. 
 Form 16 shows the form of Letters Patent taken out by a legal 
 representative or an assignee, inutatis mutandis. • 
 
 Probate of will or letters of administration should be btained 
 before applying for Letters Patent under this clause anc fded in 
 the Patent Office. Any assignment should also be there Bled. 
 
 In United States no Provision for Assignee. 
 
 In United States, sec. 4896 Rev. Stat, provides for an issue of 
 Letters Patent to the executor or administrator of a deceased 
 inventor, but nothing is said about an assignee, as in Canada, 
 which defect in the U. S. Act is mentioned in Walker, sec. 171, 
 and commented on, and where the assignee may obtain it through 
 the legal representative who holds in trust for the heirs or 
 devisees, and they in turn in trust for the assignee. 
 
 If the patent be issued to the personal representative of a 
 deceased inventor he would hold it in trust for the heirs, or the 
 devisees under a will. In the United States a patent may issue 
 to a " legal representative " without any declaration that he holds 
 it in his representative capacity : Vide Stimpson v. Rogers, 4 
 Blatch., 336 (1859); North-West Fire Extinguishing Go. v. 
 Philadelphia Extinguishing Co., 1 Ban. & Ard., 177 (1874). 
 
 In Great Britain. 
 
 In Great Britain, by section 34 of the Act of 1883, a patent 
 may be granted to the legal representative of a deceased inventor, 
 but application must be made within six months of the death and 
 contain a declaration that such person was the true and first 
 inventor. 
 
 No provision is made for the " assignee " of a deceased 
 inventor. This is a new provision in Great Britain ; before this 
 no patent was obtainable in the event of death : Vide Marsden v. 
 Saville Street Foundry, 3 Ex., 203. 
 
 In sub-section d of section 2 of this Act, " legal representative " 
 includes an " assignee," but both are expressly mentioned in sub- 
 section 2 of section 10, when referring to a deceased inventor. 
 The provision for a legal representative in Canada obtaining a 
 18 
 
 1 I 
 
 I 
 
 I ■ : 1 
 
I • 
 
 !! i 
 
 hi 
 
 I 
 
 
 90 
 
 PRAOTIOE ON DEATH. 
 
 [Sec. 10. 
 
 patent for thu invention of a deceased inventor first appears in 
 12 Vic, c. 24 (1849). 
 
 Praotioe in United States in Bvent of Death. 
 
 In the States, when an inventor dies, his executor or adminis- 
 trator tiles a new application for the same invention, and the new 
 application may be given the same status in the order of examin- 
 ation as the original by order of ii}.Q Commissioner : Vide Rule 63. 
 
 In the event of a Canadian inventor dying after having made 
 application in the States, and filed the oath, etc., no new oath 
 is requisite ; but letters of administration are procured for the 
 purpose of obtaining the U. S. patent preferably in the name of 
 a U. S. agent, or probate of the will would have to be filed in 
 the U. S. Patent OfRco, and the proceedings go on in the name of 
 he executor. 
 
 Praotioe in Cai . . .^i Event of Death. 
 
 In Canada in the event of the death of an inventor after appli- 
 cation, no new oatli wc M be uisite, but probate of will would 
 have to be filed, or letters of administration obtained and filed, 
 and proceedings would then go on in the name of the legal repre- 
 sentative on his application. 
 
 The third sub-section of section 10 of the Patent Act was 
 repealed, and sub-section 3, section 10, of the Act of 1892, 
 substituted. 
 
 Note. — Before this, the only person who could take the oath in 
 Canada was a justice of the peace, which was very inconvenient ; 
 this oath before a justice of the peace was handed down without 
 change from 14 and 1.5 Vic, c. 79, sec. 5 (1851) ; now it is 
 usually taken by a commissioner, but may be taken by a 
 notary public and all the others, mentioned in sub-section 3 of 
 section 10. 
 
 If the applicant be not in Canada, the oath is presumably to 
 be taken before a Minister Plenipotentiary, Gharg4 d' Affaires, 
 Consul, etc., though no special provision is made as to the mode 
 of taking the oath when applicant is abroad. The old section 
 has been jumbled ; it could hardly be the intention, that the oath 
 in a foreign country should be taken before a justice of the 
 
 
 :5 ;m UI 
 
ip" 
 
 Seoi. 11-12.] 
 
 DOMIOILE TITLE. 
 
 91 
 
 peace or a comuiiMsionur. The oath may now bo taken before a 
 Judge of any Court ; before this, it was " any Court of Record " 
 by the Act of 1873 ; the seal of the Court over which the Judge 
 presides must be affixed under the rules of the Patent Oflice. 
 
 1 I. The applicant for a patent shall, for the purposea of this Act, elect his 
 domicile at aoine known and spuoiKed place in Canada and shall mention the same 
 in his petition for a patent. 35 V., c. '26, s. 12. 
 
 Note. — This provision is inserted, so that in the event of 
 British or foreign patentees, a post office address may be available 
 for address of letters, etc. The place of domicile appears on the 
 face of every patent. 
 
 " Domicile " (Black's Law Diet.), is a man's legal residence, 
 as distinguished from his temporary place of abode ; or his home, 
 as distinguished from a place to which business or pleasure may 
 temporarily call him : 29 Conn., 74. 
 
 " Domicile " and " residence " are not synonomous. The 
 domicile is the home, the fixed place of habitation; while 
 residence is a transient place of dwelling : 5 Sand., 44. 
 
 1 ti. The applicant shall, in his petition for a patent, insert the title or name 
 of the invention, and shall, with the petition, send in a specification in duplicate 
 of the invention and an additional or third copy of the claim or claims : 35 V., 
 c. 26, 8. 13, The Patent Act (1886) ; 56 V., c. 34, s. ?. 
 
 Note. — By the Patent Act Amendment (1893), sec. 12 of the 
 Patent Act was repealed, and the foregoing substituted, the 
 words " and an additional or third copy of the claim or claims " being added 
 
 tc the old section. 
 
 This requirement of an extra copy of the claim or claims has 
 been in vogue since 1891, and is intended for use for the Patent 
 Office Gazette, which is issued monthly by the Patent Office. 
 
 The application should be by petition following the Revised 
 
 Act : " not known or used by any other person before his invention thereof, and 
 which has not been in public use or on sale with the consent or allowance of the 
 inventor thereof for more than one year previously to his application therefor in 
 Canada." 
 
 il 
 
 ■I 
 
92 
 
 APPLIOATIONS. 
 
 [Seo. 12. 
 
 \f Si 
 
 And the oath .shall be made as pi'Ovidu<l for in Hoction 10, and 
 foUowinpr .sonto of thu forms in thu Appendix. And when forniH 
 are not provided, a form conformaltlu to the letter and Hpirit of 
 the law may bo accepted : Vide Rule C. 
 
 And when the patent i.s to be taken out by a solicitor, the 
 power of attorney (Form 11 Appx. I.) Hhould be u.sed. Corre- 
 .spondenco will only bo carried on with one person, the applicant 
 or his agent, and will be conveyed through the (^anadian mails 
 free of charge : Vide Rule 3, Appx. I. 
 
 All documents must be legibly and neatly written or printed 
 on foolscap paper (18 inches long and 8 inches wide) with an 
 inner margin of one inch and a half wide : Vide Rule 4, Appx. I. 
 
 All communications are to be addressed " To the Commissioner 
 of Patents, Ottawa, Canada." 
 
 Papers forwarded to the office should be accompanied by a 
 letter, and a separate letter .should be written on every subject : 
 Vide Rule 5, Appendix I. 
 
 The specifications are to be in duplicate, and drawings in 
 duplicate are to be attached to the duplicate specification when 
 capable of illustration. 
 
 The Commissioner may dispense with the duplicate specifica- 
 tion and drawing under sub-section 6 of section 13. 
 
 The fees should accompany the application, as set out in 
 section 39 — usually $20 is paid for the first six year.s — but the 
 fees for the twelve or eighteen years' term, $40 and $60 respect- 
 ively, may be paid if so desired. 
 
 !:.j 
 
 m 
 
 Application to be Perfected within Two Years (Can) 
 
 An application must be proceeded with and perfected within 
 two years after the lodging of the petition, or it may be deemed 
 abandoned and the fees paid with respect thereto forfeited : Vide 
 Rule 9, Appendix I. 
 
 It would, therefore, be desirable to pay only the $20 fee instead 
 of the $40 or $60 fee. 
 
 Under section 43, when petition is rejected, the invention not 
 being patentable, or when the petition is withdrawn, the fee may 
 be returned, less $10. 
 
S^o. 12.] 
 
 APPLICATIONS. 
 
 9a 
 
 Applications in U. S , when to be Complete. 
 
 All application.s in I J. S. aru to he coinplutod nnd ready for 
 examination within two yoars of Hlinjj; ttu; application. 
 
 Applications aro doomod dliandonud if two years are allowed 
 to lapse by applicant after notification of an action in the Patent 
 Office, U. S., without prosecuting his application, unless the Com- 
 missioner be satisfied that the delay was unavoidable : Vide 
 II. S. R. S., sec. 4894. 
 
 Actual abandonment may not follow from the withdrawal of 
 the application ; if the intention is to file a new application, and 
 the applicant does so without being guilty of laches : Vide 
 Bowes V. McNeal, 3 Ban. & Ard., 370 (1878). 
 
 Nor does an abandonment follow after a rejection by the 
 Patent Office (U. S.) nnd the applicntion lie dormant. If a new 
 application for the same invention be mndo and a patent issue 
 thereon, the two applications are considered continuous. The 
 applicant first applied for a patent in 18.5.5, which was granted 
 in 1864, delay caused by ill-health and poverty held to be no 
 abandonment: Vide Smith v. Ooodyear Dental V. Co., 11 Bro- 
 dix, p. 1. 
 
 The final fee in U. S. must be paid within six months after 
 the patent is allowed and notice .sent, or the patent is withheld. 
 
 Months are Lunar. 
 
 The months are " lunar " months, not calendar " months," 
 which is important to observe so as to avoid the issuing in U. S. A. 
 of a patent, voidable for want of jurisdiction : Vide Walker, 2nd 
 ed., sec. 125, but recent U. S. cases hold them to be " calendar 
 months " : Vide infra. lu Canada, by the Interpretation Act, 
 they are calendar. 
 
 Two Inventions in One Application. 
 
 Two or more separate inventions shall not be claimed in one application, nor 
 included in one patent. But if separate matters are represented as so depend- 
 ent on and connected with each other as to ))e necessarily taken together, to 
 obtain the end sought for by the inventor, the Commissioner of Patents shall be 
 the judge whether or not the pretensions of the applicant in such respect can be 
 entertained : Rule 10, Appendix I. 
 
 This Rule appears to give the Commissioner discretionary 
 
 power; it is a question more relating to revenue than anything 
 
 T 
 
 II 
 
 I ]■■ 
 
 il 
 
 I 
 
 ;: 1 
 ■f! .11 
 
 ■■If 
 ll 
 
 m I 
 
i 
 I 
 
 
 H i 
 
 ^^ 
 
 in •' 
 
 04 
 
 APFLICATIOnu 
 
 [8«0. 12. 
 
 elfle. In tho Caniula Patent Offire r>o« inrention in usually only 
 allowed in a patent, althou^'li ' a iua<lii«D«," "the pro<luct," and 
 " tho proeosH " Ih NotnctiiiieM itieludfd in oike patent : ViUe Canada 
 Patent, .'{()(i40, " Ini()n)vemeiitH in twine- and devices for making 
 tho same." 
 
 After the Canada Patent has >ie»eo tMiM*] it would hardly bo 
 competent to hold that thf patent wa« Toi*I a-n including more 
 than one invention. 
 
 If several inventions, claimed in m «mgte application, be of 
 such a natun; that a single paU^nt riuy no4 be isnued to cover 
 them, the inventor will bo re(juir«w| to limit the description, 
 drawin}^, and claim of the pendiu^: apfilicalion to which over 
 invention he may elect. The other inrention.'^ may be made the 
 subjects of .separate applications, wliielii ina4t ctinform to the rules 
 applicable to orijiiiuil ap|)licationH. 
 
 If the independence of the iiiventiMtt*; bie^ clear, such limitation 
 will be made before any action on lb*- m^^ril:* ; otherwi.se it may 
 be made at any time before final actiuu tluereon, in the discretion 
 of the examiner. 
 
 Tho foregoing is Rule 42 in T"'^, SL Palent Office, and it is in 
 effect the practice of the Canada Patent Office, under Rule 20. 
 
 In England Only One Invention to Baoh Patent- 
 In the English Patent Act of IH^Z, *e«. 33, there is a new 
 
 section : " Kvery patent, etc., bIiuU l>e gi-aii-Uid im <%ae invention only, but may 
 contain more than one claim ; hut it shall uut bt- cnnpctent for any person in on 
 action or othnr proceeding; to take any ubjttc^coi 1k> * patent on the ji^round that it 
 comprises more than one invention." 
 
 Owing to the foregoing proviso in the English Act, the 
 practice is very common of combinintg^ two or more inventions 
 in one patent ; if the British Patent OifRcit p<i,SHea it, the patent is 
 all right. 
 
 Four Classes of Inventions. 
 
 The Canadian Act as well as the U- ik Act speak of " an krt," 
 " a machine," " a manufacture " or " a <eo>mipi08ition of matter," dis- 
 junctively separating inventions into f<*rar d!a.>iHie&. 
 
 We have some decisions of the Coamuissnoner of Patents in the 
 
 II 
 
8eo. 12.] 
 
 APPLI0ATI0N8. 
 
 96 
 
 Status, aiitl dicta in the IJ. S. CuuitH bfariiigon tho Hubjuct which 
 nre contradictory. 
 
 [ii Kx parU' Bliftin; Hi) O. (J. (11. H.). p. IH'il. An applica- 
 tion for a patunt for a nmchinu procf hs and product, Tho Coui- 
 miHsioner of i^ltt!llt■H Htatos : "SuppoNo there l>u invfututl NoniulliiiiK in KD 
 art, or m it is in onlinary callud * a proooHH,' or niutlxxl, aliid n niaoiiinu for carry- 
 ing out thu pnicoaa, and aUo tho niantifaoturu or nrticlo iirodiicttd in tiio o|H)r>- 
 tion of tlio procoM by tlu; ninchinu -titoru can Itu no doulit tliu Htatutu uallit for 
 threv patenti. [ am coni|)«llt>d to hold thu plain proviiiir>ni of thu Htatutu as well 
 ai tho weight <. ' judicial authority, and the diutatow of what noeniH to in« uoninion 
 iieniu, tho application Mhould Imi niadu the HuKjoct of Hoparatu imlupundont (wtuntii." 
 
 In McKaif v. DiUm-t, 19 O.G.(lJ.S.), p. 1351, it is held that 
 patontH for inichino, process and protiuct represent <listinct inven- 
 tions, which live or die without regard, each to tho other. Each 
 patent must, therefore, be fo i. complete invention. 
 
 In Barrett v. Hall, I Mason, 447, Story, J,, says a patent 
 under the Act cannot embrace various distinct improvements or 
 inventions, but, in such case the parties must take out separate 
 patents. 
 
 In Ho<f(f V. EmertiO'^., 11 Howard, 587, it is stated there are 
 said to be numerous dicta — that a patent embracing more than 
 one invention would be void. 
 
 In Ex parte Heer, C. D. 105, 41 0. 0. (U. S.), p. 468. "It must 
 
 bo regarded oh settled by the highest authority that ' an apparatus ' and ' process ' 
 are separate and diHtinct inventions, claim for a machine or apparatus and a claim 
 for a process should be prosecuted in separate applications." 
 
 And Ex parte Atwood. July 12th, 1888, 44 O. G. (U. S.), 341. 
 The relation between " process " and " apparatus " is not that of 
 genius and species, but of independent inventions. 
 
 While in " Ex parte Lilley " (decided by Commissioner of 
 Patefits, December 6th, 1890), 53 O. G.,p. 2041, the opposite view 
 is taken ; where the application, as filed, discloses an apparatus and 
 also a patentable process, and the relation between them is such 
 that they could be joined in one application, and the apparatus only 
 is embraced in the statement of invention or claims as '^^ij^inally 
 " invented," there is no reason why claims for the prutens may 
 not be incorporated, if seasonably presented and supported by 
 supplemental oath. 
 
 When a process can produce no other product, and the 
 
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 THE TITIA 
 
 [8m. 12. 
 
 |)ru<liiet can !•«! |iri)<lii('<-(| Ity no other proccsN, thu proc'ONM and 
 pru<luct lire parts of oiu' iiivuiitiuii, aii*l <liviHion NhouM not Ite 
 roqiiinid : Kx padti Drineny, dcviiluti SuptunilKir L8th, 1803, 64 
 O.U.,p. 104!). 
 
 A division lu>twf<<ii proccsn iind product iH not rc<|iiircd, l)Oth 
 may bu niiulc in one iippliration : Sve Kx ^Mirta Thonwon, 
 ducided January lOth, lH\H, m (). Li., p. 05.'), and tliu otHco will 
 not concern itself whctlnT tlie proeesM will necesHarily rcult in 
 thu particular product or not, tluN unciuiry licing no ^uidf 
 
 The Title or Name- 
 
 The title or name of the invention '\h in Kui^landof much nioi-e 
 vital importance than it is in L'anada or thu Htatt;^. In the 
 StatuH, the specification controlH the ^^enurality of the turniH of 
 patent of which it tonus part, and thu specifications may unUr^u 
 thu recitals of the invention; Vide Hoytj v, EinevHon, ii How., 
 437, 470. And in (.'atuidu (as well as in the U. S.), under Hcction 
 13, the specification and «lrawin<^s arc annexed to and form an 
 essential part of tl<(> patent and are explanatory of the title. In 
 Canada, the title appears on the petition, power of attorney and 
 specification, but not on the drawing. 
 
 In Great Britain, the title .summariice.s the invent nd 
 
 must correspon<l with it ; a.s the title has to be advertised before 
 granting the application, some ingenuity has to be evinced in 
 order not to inform tival inventors before protection has been 
 obtained. 
 
 The following are some cases in England where the titles 
 have been held defective and the patents bad : 
 
 " An improved method of lighting cities, towns and villages," 
 it was in reality an improved street lamp : Lord Cochrane v. 
 Smitkhurst, 1 Stark. R., 205. 
 
 " A new or improved method of drying and preparing malt," 
 it was really for colouring beer : Rex v. Wheeler, 2 Ban. & Ard. 
 345. 
 
 In Canada and U. S., this would not void a patent, so we 
 must apply English case.s on this branch with some care. 
 
 In Wandhy v. Heivitt, 27 U. C. C. P., 571 (1877), there was 
 
Sao. 12.] 
 
 POWERS OF ATTORNEY. 
 
 »7 
 
 |if| 
 
 ail u^^i'fciiierit to noII iukI iiso " i\u) Nitw hoiiiinioM Stovr I'ipt- 
 Cullui- " without (Irt'cmliiiitH conuiirrenoo ; it wus ili-xcrilit'd in tlni 
 patent iiM " VVuiihy'M Improved Stovu l*ip« StoiU!." 
 
 l)t>f(>ii(laiit rufiisiMl to carry out tho purchase. Ila^'arty, .)., 
 ijiiotin^ MiH'iion l.'i of th<> Act of IH72, from whicli thin section 12 
 was taken : llfltl, plea ^ood, for the name was a miilurial part of 
 tho contract; c'\i'u\<t llindmaivli, 40, !'»!>, 100; Htix v. W/n'chi', 
 2 Man. & Aid., 'M'i ; and HiK«ins I)ij,'eHt V. ('., [4H,et ncq, ; Welwtcr 
 L. P. of Inv., .'IMJl, 07H. The change of name must he coUHidcred 
 a matter of suhstancu. « 
 
 Powers of Attorney. 
 
 There are no .special ulos in Canaihi an to powers of attorney, 
 except the form, and Huh! 3, wliich provides that corre.spoiuUaico 
 may he carritnl on with the applicant or his aj^ent, but only with 
 one pei'.sun. Tho usual practice is to name one of a firm setting 
 out the individual names of tho nicmberH of tho iirni, although 
 the names of all tho memherH of tho firm may bu inserted as 
 iittorneys. 
 
 In tho United States a power of attorney purporting to have 
 heen given to a firm or co-partner.ship will not bo recogni/od, 
 either in favour of tho linn or of any of its members, unless all 
 its niendjers shall bo named in the jmwor of attorney. 
 
 In the United States, .substitution or as.sociution may be made 
 l)y an attorney upon the written authorization of his principal, 
 hut such authcrixation will not empower the second agent to 
 appoint a third : it is not the practice in Canada to insert a sub- 
 stitution clause in a power, though on tiling such a power, pro- 
 l)ably the same rule wouhl prevail as in tho States, although by 
 Rule 3 correspondence is to be with only one person. 
 
 Powers of attorney may bo revoked at any stage in the pro- 
 ci-edings of a case upon application to and approval by tho coni- 
 iiiissioner, and when so revoked, the office will communicate 
 "lireetly with the applicant or any such other attorney as he may 
 ai>j)oint. An attorney would be notified of the revocation of his 
 power of attorney. 
 
 In the United States the o-ssignment of an undivitled interest 
 13 
 
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 fi) 
 
 Hi 
 
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 £j.i 
 
 98 
 
 SPEOITIOATION. 
 
 [Sec. 13. 
 
 will not operate as a revocation of tlie power previously given ; 
 but the assii^nee of the entire interest may be represented by an 
 attorney of his own selection. It is conceived the sumo rule 
 would apply in Canada in so far as Rule 3 will permit. 
 
 I 
 
 
 I o. The specification shall correctly and fully describe the mode or mo<lc8 
 of operating the invention, as contemplated by the inventor ; and shall state 
 clearly and difltinctly the contrivances and things which he claims as new and 
 for the use of which he claims an exclusive property and privilege : (a) 
 
 2. Such specification shall ))ear the name of the place where, and the date 
 when it is made, and shall be signed by the inventor, if he is alive, and if not, by 
 the applicant, and by two witnesses to such signature of the inventor or appli- 
 cant : (ft) 
 
 3. In the case of a machine, the specification shall fully explain the principle 
 and the several mwles in which it is intended to apply and work out the same : (e) 
 
 4. In tiie case of a machine, or in any other case in which the invention 
 admits of illustration by means of drawings, the applicant shall also, with his appli- 
 cation, send in drawings in duplicate, showing clearly all parts of the invention ; 
 and each drawing shall bear the signature of the inventor, if he is alive, and if not 
 of the applicant, or of the attorney of such inventor or ap^dicant, and shall have 
 written references corresponding with the specification ; but the connnissioner 
 may require further drawing or dispense with any of them, as he sees fit : {d) 
 
 O. One duplicate of the specification and of the drawings, if there are draw- 
 ings, shall be annexed to the patent, of which it shall form an essential part, and 
 the other duplicate shall remain deposited in the patent office : (e) 
 
 G. The commissioner may, in his discretion, dispense with the duplicate 
 specification and drawing, and in lieu thereof cause copies of the specification and 
 drawing, in print or otherwise, to be attached to the patent, of which they shall 
 form an essential part. (/) 35 V. c. 26, 8. 14—36 V. c. 44, s. 4. 
 
 Specification. 
 
 (a) The terra " specification," whevever it is used, without the 
 word claim, covers both the "claim" and the description; and, when- 
 ever it is used with the word claim it covers the description only. 
 
 The specification consists of (1) a preamble, giving the name 
 and residence of applicant, the title of the invention ; (2) a state- 
 ment of the nature and object of the invention; (3) a description 
 of the drawings, if any, and what each view represents ; (4) a 
 
Sec. 13.] 
 
 CLAIMS. 
 
 90 
 
 ilotailed ilescription of the invcMition, explaining its constrnction 
 and mode of operation, if it is a thing, and Jie iuihIuh operandi 
 if it is a process ; (5) the claim or claims ; (6) the signature of the 
 inventor, or if dead, his assignee or legal representatives ; (7) the 
 signature of two witnesses. 
 
 Claims. 
 
 The claims are the most difficult part of the whole to draw 
 properly, and require the skill and experience of years to do in 
 an artistic manner. The broadest possible claim, or claims, con- 
 sistent with the nature of the invention, must be aimed at by the 
 draftsman, and the thought, ever present, must be, how it will 
 stand the test of a lawsuit — all redundancy and surperfluous ele- 
 ments should be carefully eliminated — though in a well-drawn 
 claim the function of the combination may be judiciously inter- 
 woven. 
 
 Functional Claim. 
 
 Claims which literally purport to cover a result, rather than a 
 process or thing, are construed to cover only the process or thing 
 which produces that result, otherwise such claims would be void: 
 Fidler v. Yantzer, 94 U. S., 288 (1870) ; Coesv. Collins Co.,d Fed. 
 Rep., 905 (1882); Palmer v. Gatlimj Gun Co., 8 Fed. Rep., 513 
 (1881) : Vide also Curtis, 4th ed., sec. 242a. But see contra: A 
 functional claim is not always a nullity., the Court construing and 
 treating the claim as being for the device or compound, instead of 
 the function thereof: Manufacturing Co. v. Za(M,2Ban.& Ard.,488. 
 
 Words, rather than reference letters to the drawings should 
 be employed, for language is more elastic, while reference letters 
 to the drawings, are calculated to confine you to the exact illus- 
 tration which may unduly limit your claim. 
 
 One should study carefully how the claim is apt to be avoided, 
 and should provide accordingly ; an intimate knowledge of the 
 patent law and of litigation relating to inventions, and experience 
 in the Courts is an absolute necessity to ensui'c the best class of 
 work. It is always easier to criticise and pick holes in the work 
 of another than to do a thing in a perfect manner yourself — 
 indeed, criticism which tells in our Courts of law often does not 
 
 111 
 
 
 
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 100 
 
 OLAIMS. 
 
 [Sec. 13. 
 
 call for much knowledge or experience on the part of the critic. 
 A patent solicitor should have a universal knowledge of art, 
 science and mechanics ; should have learnt to make drawings him- 
 self, and should also be trained as a lawyer and to practice in the 
 Courts. In the United States there is a distinct class of specially 
 trained lawyers who make a specialty of patents of invention 
 . and patent litigation. 
 
 The invention should be claimed broadly from as many stand- 
 points as possible, and all subordinate parts should be separately 
 claimed : Vide Railway Co. v. Dubois, 12 Wallace, 47 (1870). 
 Some of the latter may be preferably claimed with reference to 
 the letters on the drawings. In cases where the description sets 
 forth a manufacture, there ought to be a claim for each of its 
 patentable features; for if there is but one claim, and if all 
 those features are carried by it, then those persons who manage 
 to dispense with even the least of them, incur .^^ liability by 
 making, using or selling, articles which possess all the others : 
 Vide Walker, sec. 118, and Prouty v. Ruggles, 16 Peters, 336 
 (1842). 
 
 The applicant may, if he will, apply for and receive a patent 
 for each of the combinations and sub-combinations — each claim 
 representing a patentable feature — Corn Planter Patent 23, Wall, 
 234 (1874). 
 
 In Smith t& GHgga Manufacturing Go. v. 8pragv£, 17 Brodix, 
 p. 243, Oct., 1887. In a patent claiming combinations and sub- 
 combinations of old elements, the defence of public use for more 
 than two years prior to the date of filing the application may be 
 made to a single one or more of the claims as separate and dis- 
 tinct inventions, and that the two years' limitation will run 
 against such claim or claims irrespective of the fact that other 
 claims joined in the same patent were not affected. 
 
 In construing claims, the state of the art to which the inven- 
 tion belongs must be considered ; those which are " primary 
 inventions " are entitled to have a broader interpretation of the 
 claims than those which are of a " secondary " nature : Vide 
 sec. 184 Walker, and U. S. Sup. Ct. cases there referred to ; and 
 
Sec. 13.] 
 
 SPEOIFIOATION. 
 
 101 
 
 vide Brush Electric Light Co. v. Electric Importation Co., of St. 
 Jose, decided Oct. 3rd, 1892, 62 O. G., p. 1651, and Morton v. 
 Jensen, 49 Fed. Rep., 859. 
 
 While a claim should not be so construed as to expand it, on 
 the other hand it should not he given a narrow interpretation 
 which would defeat the patent unless absolutely required by the 
 state of the art : See Sayre v. Scott, U. S. Cir. Ct. of App., 3rd C, 
 May 23rd, 1893, 63 0. G., p. 1818. 
 
 Patents for invention are to receive a liberal construction and 
 under the fair application of the rule, " ut res magis valeat quam 
 pereat " are, if practicable, to be so interpreted as to uphold and 
 not destroy the right of the inventor : Turrill v. Railroad Co., 1 
 WalU 491 (1863). 
 
 In Hinks v. Safety Lighting Co., 4 Ch. D., 607, Jessel, M. R., 
 
 states : " I am anxious, as I believe every Judge is, wlio knows anything of the 
 patent law, to support honest, bond fide inventors who have actually invented 
 something novel and useful, and to prevent their patents being overturned on 
 mere technical objections, or on mere cavillings with the language of the specifica- 
 tion so as to deprive the inventor of the benefit of his invention." 
 
 And in Hullitt v. Hague, 2 Ban. & Ard., 370, and p. 269, Good- 
 eve, Lord Tenterden said : •« I cannot forbear saying that I think a great 
 deal too much critical acumen has been applied to the construction of patents, as 
 if the object was to defeat and not to sustain them." 
 
 And in Plimpton v. Spiller, L. R. 6 Chy. D., 422 : " Thr Judge 
 is not to be astute to find flaws in small matters in a specification with a view to 
 overthrow it" : Vide also Walker on Patents, sec. 185, and Klein v. 
 Rogers, 9 Brodix, p. 244. 
 
 These remarks might be borne in mintl by some of our Ontario 
 Courts, the tendency of the legal mind is to destroy rather than 
 to sustain. 
 
 The draftsman of a specification fills a much more difficult 
 position than a solicitor of the Courts who draws pleadings ; the 
 latter has the utmost latitude as to amendments, which can be 
 made at any stage of the suit at a trifling expense, and even at 
 the trial on terms imposed by the Courts ; while a mistake or 
 omission by the former has the most serious consequences, and 
 can only be remedied by the slow and expensive process of a 
 
 
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 102 
 
 SPEOIFIOATION. 
 
 [Sec. 13. 
 
 reissue of the patent, and not even then, if the omitted parts do 
 not appear in the body of the specification or drawing ; if there be 
 no formal claim, or if the claim be fatally defective, as is often 
 the case, infringement cannot be miiintained. 
 
 Letters Patent, to Whom Addressed. 
 
 Letters Patent of invention are addressed to those skilled in 
 the art to which it appertains, it is not necessary that the descrip- 
 tion should be intelligible to every intelligent, or to every skilled 
 mechanic : Vide V/alker, sec. 174 ; Loom Co. v. Higyina, 105 U. 
 S., 278. They are addressed to people who know something 
 about the invention, and who could supplement a defective 
 description : Plimpton v. Malcolmson, 3 Ch. D., 568 ; Terrell on 
 Patents, 1st ed., pp. 74-5. 
 
 In Powell V. Begley, 13 Grant, 381 (1867), relating to a 
 wooden force pump, " the chair-backed pump," it was contended 
 that the specifications were not sufficient to describe the inven- 
 tion, Vankougl)net, C, in holding the Letters Patent sufficient, 
 
 says : ^ They are uot very artificially prepared, and the language is somewhat 
 obscure and vague ; but, probably not so much so to mechanics and farmers as to 
 those accustomed to more choice and accurate expressions." 
 
 In Smith et al. v. Ball, 21 U. C. Q. B. K, p. 122 (1862), the 
 invention was claimed to be, the direct application of steam power 
 or water power by a connecting rod or shaft to drive a circular 
 saw. The novelty consisted in dispensing with one shaft and one 
 pulley. At the trial, Di'aper, J., thought the specifications and 
 drawings did not sufficiently describe the invention, although the 
 wUneiises had no doubt as to ivhat ivas intended '>?/ the descrip- 
 tion. On a motion for a new trial, Robinson, C. J., delivered the 
 judgment of the Court and held that the plan and specifications 
 annexed must be taken together, and that they sufficiently 
 described the invention which appeared by the evidence to be one. 
 
 The above specification was also held sufficient in Smith v. 
 Matchm.ore, 11 U. C. C P., 458, and Wateroas v. Bishojj, 20 U. C. 
 C. P., 89. 
 
 A description is not fatally defective merely because it omits 
 
Sec. 13.] 
 
 SPEOIFIOATION. 
 
 103 
 
 to mention something which constitutes only to the degree of 
 benefit, provifled, the invention will work beneficially without it : 
 Sewall V. Jones, 91 U. S., 185 (1875). 
 
 But the omission of anything absolutely material to the utility 
 is fatal, unless that omission would naturally be supplied by any 
 person skilled in the art : Vide Walker, sec. 175 ; Carr v. Mice ; 
 1 Fisher, 204 (185G). 
 
 A specification is not fatally defective, if one skilled in the 
 art to which it pertains, could supply an apparent insufficiency of 
 description : See Lalance and Grosjean Manufacturing Co. v. 
 Moaheim, U. S. Cir. Ct. of App., 2nd Circuit (April 18th, 1893), 
 03 O. G. (U. S.), p 1816. 
 
 In Hesain v. Goppin, 19 Grant (Ont.), p. 629, Blake.V. C, states 
 
 " The full and ample disclosure is not found in the specification, there is nothing 
 said about putting the starch boxes in contact with the aprons and working the 
 rollers at did'erent rates of speed, which Daniant says are valuable and important 
 parts of his invention." And refers to Simp8on v. Halliday, L. R. 1 
 E. & I. App., 315 ; Parker v. Stevens, L. R. 6 Ch. App., 36, as to 
 requirements of specifications. 
 
 As to Drawings and Specifications Interpreting 
 Claim. 
 
 In construing a patent, the Courts, in the first place, 
 generally look to the claim, which, by law is required to be a 
 summing up of the particulai's of the invention for which the 
 applicant desires a patent. If that claim is vague and uncertain, 
 then reference is made to the specification and drawings, together 
 with such other exhibits as may aid in giving construction to the 
 patent: Haselden v. Ogden, 3 Fish., 378, and other cases on 
 p. 40, Bump., 2nd ed. 
 
 In order to determine what the patentee claims as his inven- 
 tion, the Court must look to the specification annexed to the 
 patent. In referring to the construction of the claim, it is proper 
 that the Court should refer to the whole specification and 
 consider the whole of it in connection : Neiv York v. Ransom, 
 23 How., p. 487, and 25 other cases on p. 40, 2nd ed.. Bump. 
 
 The patent, the specification and the drawings may be 
 
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 8PE0IFI0ATI0N. 
 
 [Sec. 13. 
 
 referred to in ascertaining the extent of the patentees claims. 
 While it is true the Court looks to the summing up to discover 
 what parts of the machine he claims to have invented, still if 
 anything is needed to enable it to determine the proper meaning 
 of the expression used in the claims, it myst refer to the previous 
 portion of the specification for such explanations as may be 
 necessary to understand the office and purpose of that which is 
 claimed as new : See Iiigels v. Mast, 2 Ban. & Ard., p. 24 ; Bump. 
 2nd Ed. p. 40. 
 
 The drawings are to be deemed a part of the specification, and 
 may be referred to for the purpose of adding anything to the 
 specifications or claim not specially contained therein : Waahhurn 
 V. Ooold, 2 Story, 122. 
 
 In 27ie Queen v. La Force, decided in the Exchequer Court 
 (Can.), January, 1894, Mr. Justice Burbidge, states: ••There can, I 
 think, be no doubt that the drawings may be looked on an explaining and illustra- 
 ting the specification," and he quotes the remarks of Robinson, C. J., 
 in Smith v. Ball, 21 U. C. Q. E., 122, where they may be mode 
 to satisfy a deficiency in the wording of the specification. 
 
 It has been settled that the drawing constituted a part of the 
 specification when annexed thereto, and may be used to explain 
 or help out the otherwise imperfect description in the specifica- 
 tion. So that it is not necessary that the description should be 
 wholly in writing, but it may be partly in writing and partly in 
 drawing, and if by comparison of the words and drawings the 
 one w^ill exfdain the other sufficiently to enable a skilful mechanic 
 to perform the work and to show what is the invention claimed, 
 the specification will be sufficient: Bloacam v. Elsie, 1 Car. & 
 Payne, 558 ; Brunton v. HawJcs, 4 Ban. & Ard., 540 ; Sivift v. 
 Whesen, 3 Fisher's Patent Cases, p. 343; also vide pp. 315-16; 
 Curtis, 4th ed., sec. 262, p. 315. 
 
 Abandonment through Failure to Claim in a Patent. 
 
 An invention disclosed but not claimed in a patent cannot be 
 covered by a new application for an original patent, or for a 
 reissue filed long after the is.sue of the patent, which discloses 
 without claiming. 
 
Sec. 13.] 
 
 SPEOIFIOATION. 
 
 105 
 
 " Wlion a patent fully dcscrihca nn invention which couhl bo claimed therein, 
 and makes no rcHcrvation and gives no warning to the puhl:., a second fHitent 
 granted on an application tiled months afterwards, which claims simply and solely 
 the invention thus made public, is invalid." See HolmeS Electric Co. V. 
 
 Biirrjlar Alarm Co., 33 Fed. Ref>., 254. 
 
 One Claim may Cover a Machine and Process. 
 
 That whicli is in form a single claim may cover a machine and 
 also the process ifc makes use of, and, on principle, any tangible 
 and patentable product thereof. 
 
 The most important claim of Bell's telephone covers both a 
 process and a machine, and has been upheld by the Supreme 
 
 Court. It reads: "The method of, and apparatus for, transmitting vocal or 
 other sounds telegraphically, as herein described, by causing electrical undulations 
 Himilar in form to tiie vibrations of the air accompanying the said vocal or other 
 sounds substantially as set forth." See Dolhear V. Telephone Co., 8 Sup. 
 Ct. K, (U. S.) 778. 
 
 A Specification must not be Ambiguous. 
 
 For instance, if it be stated that a whole class of substances 
 may be used to produce an effect, when in fact, only one is 
 capable of being so used .successfully, an ambiguity is at once 
 produced : Bickford v. Skewes, Wels. Pat. Cas., 218. 
 
 A specification which casts on the public the expense and 
 labour of trial and experiment is undoubtedly bad : Bex v. Wheeler, 
 2 Ban. tSs Ard., 345 ; Macnamara v. Hulse, Car. & M., 471. 
 
 When the specification of a patent for a chemical process 
 applies equally to several isomeric substances and but one would 
 produce a useful result, and it can only be ascertained by experi- 
 ment which that is, the patent is invalid : See Badische Anilin 
 and Soda Fahrih v. Levinsken, 29 Ch. D., 360. 
 
 In Simpson v. Holliday, 1 H. L. 315, p. 429, there was des- 
 cribed two processes in obtaining a dye, one of which, without 
 the agency of heat, produced no practical result ; it was held in 
 the House of Lords that the patent was void, although a 
 skilful workman might know that one could not be acted on. 
 
 Specification Sufficient. 
 
 A specification is sufficient if the invention is described in 
 language clear and intelligible to educated men conversant with 
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 106 
 
 8PE0IFI0ATION. 
 
 [Seo. 13. 
 
 tho Hubjocfc and capaM*^ of j,'ivin^ diroctions to workint^n : Khif) 
 V. Avylo- American lirash Corp., II. V. C, vol. 7, p. i^'i (IHDO). 
 
 A spt'ciflcutloii hold sniHeient tlionj^'h it did not state that (ns 
 was tho fact) at ono staj^e tho apparatus lefiuiiod to ho assisted 
 by the hantl of tlio woi kman : Miller v. The Clyde liridye Steel 
 Co., H. P. C. volH(l.Sf)l), p. :>01. 
 
 The specification must contain tho best information within tho 
 knowledge of tho patentee: W(dton v. Baicman, p. 490, Ooodovo 
 and other cases tliero referred to. 
 
 Clerical Errors. 
 
 A mere mistake of ono word for another in writing or prin- 
 ting or a mistake in lettering if explained by other parts of tlic 
 patent and specification has boon held inunaterial in the Ontario 
 Court on an appeal from a judgment of Ferguson, J., to the 
 Ch. Div. Ct., in an unreported suit of Riech v. lloerr (188!)), relat- 
 ing to pianos : Vide also Kneas v. The Schuylkill Bank, 4 Wash., 9. 
 
 Not Necessary to Describe the Whole- 
 
 In describing the improvement of a machine, it is not nece.ssaiy 
 to state in detail the structure as a whole, but merely tho improve- 
 ment by showing the parts of which it consists and tho effects 
 which it produces, and its relation and connection with the whole 
 machine : Vide Curtis, 4th ed., sec. 241. 
 
 When the description is silent as to the philosophical princi- 
 ples which cause the invention to produce the improved annealing : 
 Held, that the description was sufficient, and that the patentee 
 ought not to lofse the statutory benefits of his invention because 
 he was not perhaps aware to what the improvements effected by 
 his device were due : See Dixon Woods Co. v. Pfeifer (decided April 
 18th, 1893), U. S. Circ. Ct. of App., 2nd Circ, G4 0. G., p. 156. 
 
 The specification .should be so described as to enable the 
 public to practice it from the specification alone : Vide section 
 252, Curtis, 4th ed. 
 
 Description Insufficient. 
 
 A patent is void if the specifications are insufficient to enable 
 an electrician of ordinary skill and competence to carry it out 
 without further invention and experiments : Fox v. Kensington 
 Electric Lighting Co., L. R. (1892), 3 Ch., p. 424; Electnc 
 Light Co. v. Holland, R. P. C, vol. 5., 459 (1888). 
 
Sec. 13.] 
 
 SPEOIFIOATION. 
 
 107 
 
 Whoro thn machine constructed, acconling to tlin specifica- 
 tion, is incapable of acconiplisliin}^ tlio purpose spocificil, the 
 piitont is void : K((»terhruuk v. Crtrat Wvitt'rn U. W. Co., 11. 1'. C., 
 vol. 2 (1885), p. 210. 
 
 An omission or aml)it,'uity in the specification of sucli a 
 nature as an ordinary .sliipbuildcr could, witliout nuudi ilifliculty, 
 supply or obviate for himself : Held, not to invalidate a patent : 
 Lifeboat Co. v. Cknvibers, R. P. C, vol. 8 (1891), p. 421. 
 
 How to Attack Defective Description. 
 
 If a specification is to be attacked in a suit, it should bo 
 pleaded that the specification was defective, and witnesses 
 nhould be called to show that workmen enijajjed in the business 
 to which the invention pertains, could not make the article from 
 the description in the specification. 
 
 Whether a patent does so fail on account of a defective 
 
 description, is a question of evidence, and not of construction, and 
 
 should be specially pleaded : £00771 Co. v. IIi(f(/inn, 10.5 U. S., 
 
 580. The evidence must be that of persons skilled in the art to 
 
 which the invention pertains : Vide Walker, sec. 519, S. C. Also 
 
 British Dynamite Co. v. Kriba, in the House of Lords, per Earl 
 
 Cairns, Goodeve oij^atents, p. 91-94: "i fiml no woiknmn, skillod or 
 unskilled, produced on the part of respondents, who statcH that ho lias been, or 
 would bo misled by the specification, or unable to make dyn.imite by following tho 
 directions." 
 
 " I therefore come to the conclusion, there is no insulficicncy in the specifica- 
 tion." Vide p. 93, I. 13, et seq., Goodeve. 
 
 In Smith v. Mutchmore, 11 U. C. C. P. R. (1862), p. 459, rela- 
 ting to the direct application of steam or water power by tho 
 connecting rod or shaft to drive a circular .saw ; on a motion to set 
 aside a non-suit by Draper, C. J., who thought the invention not 
 new and not sufficiently described ; Richards, J., says : "If the jury 
 lind that the actual improvement is novel and useful, thou it appears to me that 
 tlie defendant not having attacked the specification cannot successfully contend 
 that it is inaufiiciently described," etc. 
 
 Claims. (Eng.) 
 
 In Great Britain since the Patent Act of 1883, there should be 
 a distinct statement of the invention claimed. But in Vickera v. 
 Siddell, 15 App. Gas., 496, 63 L. T., 590, it was held that the enact- 
 
 - ^;.H 
 
 J 
 
 ! ! 
 
 ' i- m 
 
TT 
 
 
 108 
 
 OLAIMS. 
 
 [See. 13. 
 
 inent in section i), siih-srction '> of Art f4 iVi.'i, that a coniplot)! 
 Npocitication must end with a <liHtin<i •»(*ti>rni»<nt of tlio invention 
 claimed, is (liro(;tui-y only, and it<^-cu<»pltancu with it docn nut 
 invalidate a patent. 
 
 The rei|iiir('inent in sccti(»n 5 of iht? Patent Act, 1883, 
 that the complete Hpecitication '^liouM •eit«l in a distinct claim is 
 ono of form mtuely and noii-conijiJiamcie' rlo«M not vitiate the 
 patent: Hidddl v. Vkkcrx, R. P. C^ xtA. 7, p. 292; Kelly v. 
 Heathman, K. P. C, vol. 7. |). .'UH. 
 
 The insertion in the provisiormJ ¥()i«^citication should bo the 
 same as in a complete speeifiiation . IV^ynj v. Siddell, supra. 
 
 Difference between English and American Claims 
 Noted. 
 
 See Siemeufi v. Sellnrn, 17 BroJix, p. iM. U. S. Sup. Ct, Nov. 
 14th, 1887. In patents for the saiac invention, one claim of the 
 English patent wa.s st/ited to be a^i ijvxMi'l and comprehensive as 
 all four of the American patent clajmft;,an<'l the difference between 
 the English and American system of cBatminj; an invention is 
 noted. 
 
 Patents in Great Britain to be Construed Liberally. 
 
 In British Letters Patent it is expf^w»lly stated that, "Theseour 
 Lottora Patent ahall be coiistruuil in the muKt iMnittiiisstl icnue for the ailviintagu of 
 the said patentee." This is nil expreshi KiDrv.-ettoa to the Courts to 
 be liberal in their construction of BrituJn Letters Patent. 
 
 (6) The signature of the applicant itinon^i have the Christian 
 name in full, as should also be tboM: of the witnesses ; and all 
 must be written legibly. 
 
 The witnesses should not sign Wfore the applicant, as they 
 attest the signature and not the spaciifiication : the document may 
 be void if the witnesses sign fir»<: Wharton on Evidence, 
 sec. 888. 
 
 The term " applicant " here may mean the assignee of a 
 deceased inventor or his legal repnewniAiive : Vide sub-section 
 2, section 10. 
 
 The way this is worded in the case of joint inventors, it 
 would require two witnesses to each ^agnalare. The same two 
 
8eo. 13.] 
 
 DRAWINGS. 
 
 100 
 
 w itncsHiiH liiiiy attcNt till tlu; si^'iiatut't'.s, luit it would lio irregular 
 for ono witnt'SM to attest tlu! Hi^iiaturu of one joint inventor and 
 niiotlioi* to attest tliu Hignature of the otlicr of two joint 
 iiiventorH. 
 
 (c) This docs not nucussarily nu.'un, that all tlu^ altcrnato niodofl 
 of operation an; to lie illiistmtfd and descrilted, for tlii'i'c niijjht 
 lie many ; tlu* lirst nit^tliod of a|>|>lyiii<{ an*l working out thu 
 ))rincipl(; of the machine is the one to hv. de.serilted. SometimoH 
 nil additional and alternative way is illustrated and doscrilied, 
 liiit the one would necessarily include the other, uthurwiMo it 
 would he the suhjeet of another application. 
 
 The words "with or without" a certain element are some- 
 times admissilile in claims. 
 
 Note. — The letters a, b, c, d refer to sub-.sections of section 13. 
 
 ('/) Drawings. 
 
 The drawings for a Canadian patent must ho made in dupli- 
 cate, with India ink, on tracing linen, eight inches by thirteen 
 inche.s over all, nothing is said about a marginal line, though one 
 is generally put on, and an extra drawing must be supplied to be 
 photo-lithographed for the Patent Office Record, on a slieet of 
 Bristol board, eight inches by thirteen inches, without any writing 
 on its face, merely the usual lettering, no title certificate or signa- 
 tures : when there are several figures, that ono which gives the 
 best general idea of the invention will suffice for the cardboard 
 drawing. 
 
 The general directions, a.s to the drawings and shade lines, 
 must be adhered to: Vide Rule 13, Appx. I. 
 
 The drawings are usually perspective drawings, as they are 
 better adapted for illu.stration than elevation and plan drawings ; 
 and sectional elevations, partly broken away, in order to expose 
 to view a material part, is a favourite mode of representation : 
 the drawings need not be drawn to .scale. 
 
 In Austria-Hungary there is an objection to the reception 
 of perspective drawings. 
 
 When a Canadian invention is to be patented in foreign coun- 
 tries the drawings are usually lithographed. 
 
 # 
 
 i' 
 
 
 
 ii 
 
 15 : 
 
 ; ! 
 
 :!, 
 
 f ,1 
 
 i 
 
 i 
 
 t 
 
 h 
 
 ! 
 
T 
 
 
 ill] 
 
 ] ' it 
 
 
 liiif 
 
 n 
 
 110 
 
 DRAWINGS. 
 
 [8eo. 13. 
 
 Inti^rliiiontioiis or (•rasiirrs in th*) spcciticAtiotiH nIioiiIiI Iii> 
 can fully iiiitJtiioil \»y tli<« witrifssiM, utul if, in tlio oath Ity thi> 
 comtnissioiH'r •)r Jiofjiiy puMii", wlionttrHts tht^ oritli. On tho tiac 
 ingtt is written "('urtiii<!<l to Iw tlio <lruwin){ii rcfurnul to in tho iiwcitlotitinn 
 
 huruiiiitii liitiiuxeil." tliu plucu iiikI ilat*> iit'i! iti tlu> (>«!nti'(> iit tlio liottoni, 
 and tli»' si'^natiirr of tlir inveiitur or liis attorney in the lower 
 rijjlit-haiiil cornor, and of tlu! witness in tho lower loft-haiul 
 corner. 
 
 WJKMi tl»(» invention consists of an itnprovcinent on an old 
 iniK'hine, the drawing should exhibit in onu or more viewK, the 
 invention itself disconnected from the old structure, ami also in 
 aiiotluu" view, ho nnieh only of the old structure as will sjiHice to 
 show the connection of the invention theniwith. 
 
 'i'he lii^ht always is supposed to cojut' from tho upper l(»ffc- 
 liand corner, and shade lims slnmld Ix; as few as possihle. 
 Sectional shading; should he nuide l»y ohli(|Ue parallel line.s not 
 less than n'o th of an inch apart. 
 
 The piano on which u sectional view is taken should be 
 indicated on the general view liy a broken or dotted lino. 
 
 The dith'rent views should be coiLsecutively niniibered. Uefer- 
 onco letters should be one-ei;,'hth of an inch in heijjht, and should 
 not cross or mingle with the lines ; where ifrouped, they should lie 
 placed at a little distance and connected to tho part to which 
 they refer with short broken lines. They must not appear on 
 shaded surfaces, and when this cannot be avoided, a blank space 
 must be left in tho shading where the letter occurs. Numerals 
 are preferable to letters, particularly in complicated drawings. 
 
 When views aro longer than the width of tho sheet, tho 
 sheet should bo turned on its side, the signatures, etc., will bo on 
 tho loft, occupying tho same space as in tho upright viow.s. 
 
 Additional views are often called for, especially in tho States, 
 if tho Patent Office considers them necessary. 
 
 No title or name is put upon the duplicate drwvin^ ''itaQbed 
 to the applications. 
 
 In tho U. S., tho drawing must be oi oard, 10 in les by 
 
 13 inches, with 1 inch margin; tho «, ving must not come 
 within 1^ inch of the top marginal line, so h.h t' leave room fur 
 
Sec. 13.] 
 
 POWERS or ATTORNEY. 
 
 Ill 
 
 iiilo, (Into nnd nuinV>or of |mi(<nt ; if tlm cnrdtxmiil nIiow a 
 pitikish tint whcMt li<«l<l up to tl)i> li;{lit, tli«> <li'awiii;;s woulii liu 
 rcj«ct«'<l iti tilt' n. S. I'at«'iit Ollu't) us not snitiild*' for tin- inoccss of 
 |ilioto-litho;,'nipliy. Since .liinunr}' 2'>tli, 1.SD+, it \n nrci'ssmy to 
 furnish with thu ori;;inals ii l)lu(> piint or othttr photo^Miiphic 
 copy «)f all «hnvvin;,'s fortninij part of an application, 
 
 Thu sain*) ;;cn(>ral rules provall as in ('anadu as to thu manner 
 of «xecutinj( «lra\vin<^H. 
 
 No title is put on the dravvinj^s l»y tlio applicant, hut it is 
 iiiHcrtod in the Patent Ofhce, hoiow t\\f top niarj^'inal line. 
 
 Powers of Attorney for the Canadian Applicants in 
 the following Countries : 
 
 For Kranceaiul Colonies thirn) is a power of utturney in Fn;noh 
 merely si;,'netl hy applicant, no le;,'ali/,ation. 
 
 (icrmany. — There is a j)()vver of attorney in Ocrman, signed 
 liy the applicant, no lenrali/ation. 
 
 •Austria. — F'owor of attorney in Gorman, signed hy applicant, 
 and legali/od hy the Austrian Consul. 
 
 Belgium and Jjuxembourg. — Power of Attorney in French, 
 .signed hy applicant, no legal izatiftn. 
 
 Denmark. — Power of attorney in French, signed hy applicant, 
 rm legalization, there are no annual taxes. Patent from three to 
 ten year.s. 
 
 Finland. — Power of attorney in French, signed hy applicant, 
 legalized hy Russian Consul. No annual taxes. 
 
 *irungary. — Power of attorney In Magyar, signed hy applicant 
 and legalized by Austro-Hungarian Consul. 
 
 Italy, Sicily and Sardinia. — Power of attorney in French, 
 signed hy applicant and legalized hy Italian Consul. 
 
 Norway. — Power of attorney in Norwegian, signed by appli- 
 cant and legalized by Norwegian or Swedish Consul. 
 
 Portugal. — Power of attorney in French signed by applicant, 
 and legalized by Portuguese Con-iul. No annual taxes. 
 
 Russia. — Power of attorney in French, signed by applicant, 
 no legalization, no annual taxes. 
 
 Spain and Colonie.s. — Power of attorney in Spanish, signed 
 by applicant, no legalization. 
 
 * SInco lot J.inimry, 18IM, Austria and Iluni^ary havu each sci)aratu patuiit laws, and a separate 
 application il now nvcearary in each country. 
 
 .rl- 
 
lis 
 
 POWERS OF ATTORNEY. 
 
 [Sec. 13. 
 
 I 
 
 Sweden — Power of attoriu^y, in Swedish, legnlize«l by Swedish 
 Consul. 
 
 Swit'/LM-lund. — Power of uttonicy in Frencli, signed by appli- 
 cant, no legalization. 
 
 Turkey. — Power of attorney in French, signed by applicant, 
 legalized by TiirUish Consul. 
 
 For the United States only one copy of the specittcations need 
 be executed and Hied, Thf oath is usually taken before a notary 
 public, under his otKeial seal, and the specification is accompanied 
 by a petition which usually includes a power of attorney to the 
 solicitor of patents. 
 
 For the Colonies v>f Australasia, the s|)ecifications are executed 
 in dujdicate, declarations, etc., taken before a notary public. If 
 .specifications be type-written, they must be first or ribbon copies. 
 
 For tho United Kingdom, one copy of the specification is sent 
 to England, to an agent with an authorization to take out the 
 Letters Patent as a connmini cation fiom abroad ; or may be 
 executed by applicant who must declare that he is the true and 
 first inventor, and that the same is not in u.se by any other person 
 or persons to the best of his knowledge and belief. The complete 
 opecification should be in duplicate upon wide nn^d foolscap 
 paper thirteen inches by eight inches (on one .side only) with a 
 margin of two inches on left-hand of jmper. Or there may be 
 a " provisional specification " which is not a protection against 
 infringement but enables the inventor without detriment to use 
 and publish the same. Care must be taken that the complete 
 specification correspond with the pv-, v isional. 
 
 For Au.stria, a power of attorney in German must be executed 
 by the Canadian applicant and witnessed by a notary public, 
 under seal, and legalized by the Austrian Consul at Montreal. 
 For Hungary the power of attorney is in Magyar, similarly ex- 
 ecuted and legalized. 
 
 The same mode applies to a Norwegian power of attorney, the 
 Norwejrian Consul has to legalize the signature of the Canadian 
 notary public, who signs and .seals the document. 
 
 For other foreign countries the power.s i>f attorney are executed 
 by the applicant without special formalities. 
 
 These foreign forms of powers of attorney in the foreign Ian- 
 
Sec. 13.] 
 
 PUBUOATION. 
 
 113 
 
 guago, arc usunlly kept by .solicitors of patpnts, and are filled up 
 and completed in the countries to which they are sent, after hav- 
 ing been signed in blank, by the Canadian applicant. 
 
 A full copy of the Canadian specification is sent to the foreign 
 countries, when it is translated into the foreign language of the 
 coun^.ry in which the patent is required, and where it is taken out 
 by the agent, usually, in duplicate ; triplicate copies of the speci- 
 fications are required in Italy and Luxembourg and five in India, 
 further details may be obtained in special works on the subject, 
 or on applying to solicitors of patents, the foregoing is a bare 
 outline. 
 
 The foreign countries enumerated are those in which patents 
 are usually obtained by Canadians. Of course there are a ii <mber 
 of other countries which have patent laws, and where patents are 
 obtainable, information as to which is also obtainable through 
 patent solicitors. 
 
 As to Publication of Patent Record (Can), Abroad. 
 
 It should also be borne in mind, in the event of applying for 
 foreign patents (especially as Canada is not yet a party to the 
 International Convention, relating to the protection of industrial 
 property, referred to), that copies of " The Canadian Patent Office 
 Record," are mailed to the free libraries of the British Isles and 
 other European countries within two or three days after the 
 regular subscribers are supplied. This may have an important 
 bearing on the question of {publication abroad, as tiic receipt of this 
 "Canadian Reconi" (should the claims and the photo-lithograph 
 copy of the drawing afford sufficient information to describe the 
 invention), might invalidate a patent granted in Great Britain or 
 foreign countries, it is, therefore, often advisable to withhold the 
 isrsue of the Canadian patent until the United States application 
 is allowed. 
 
 
 i 4 
 
 >'-'* 
 
 Applications. 
 
 (e) This would read as if the specification only formed an esen- 
 tial part, it should rather be " of which they shall form, etc.," the 
 drawings is as we huve seen in note (a), a part of the specifiea- 
 15 
 
 b.T 
 
- . ; ^ 
 
 ■ n 
 
 III 
 
 « 
 
 I 
 
 i' J 
 
 lU 
 
 COST OF OOPIiSS. 
 
 [Sec. 14. 
 
 tion, they are merely a method, other than words, of conveying 
 thought. 
 
 (/) This clause has been '(aw since 1873, but has never been 
 acted on ; it would be very desirable if the drawings an^. specifi- 
 cations, in Cantida, were photo-lithographed and printed as in the 
 States. 
 
 Note. — The letters (^) and (/) refer to sub.-secs. of sec. 13. 
 
 In the United States single numbers of Letters Patent can now 
 be obtained for ten cents, and books containing fifty coupons are 
 issued with which to obtain copies of patents and gazettes. Three 
 several editiorjs of patent drawings are printed and published, of 
 the size attached to patents, six inches by nine and a half inches ; 
 another of half that size, four to a page, to illustrate the volumes 
 distributed to the Courts, and one reduction for the OiBcial 
 Gazette. 
 
 In Canada it costs $4 to obtain a copy of a specification, and 
 twenty-five cents for each sheet of drawings in blue print. 
 
 In England the price of blue books (copies of patents), has 
 this year been reduced to a uniform price of fourpence, no matter 
 what the length. 
 
 :il 
 
 
 1 4. In all cases in which the invention admits of representation by model, 
 the applicant, if reciiiired by the commissioner, shall furnish a model of convenient 
 size, exhibiting its several parts in dtio proportion ; and when the invention is a 
 composition of matter, the applicant, if required by the commissioner, shall furnish 
 specimens of the ingredients, and of the composition, sufficient in quantity for the 
 purpose of experiment. If such ingredients or composition be of an explosive or 
 dangerous character, they shall be furnished with such precautions as are prescribed 
 in the requisition therefor. 35 V., c. 26, s. 15, Tlie Patent Act ; 55-56 V., c. 24, a. 3. 
 
 Note. — Section 14 of the Patent Act was repealed, and the 
 foregoing substituted therefor by sec. 3, 55-56 Vic, c. 24. 
 
 The present substituted section follows the wording of sections 
 4891 and 4890 of the R. P. S. And as to explosive or dangerous 
 materials, the wording is an adaptation of the latter part of the 
 old repealed section. 
 
 The repealed section was imperative, viz. : " The applicant shidl 
 4«UTer to the commissioner, unless the rame is specially dispensed with for some 
 
Sec. 14.] 
 
 MODELS. 
 
 115 
 
 goml roaaon, a neat working model, etc.," and gave I'ise tO litigation both 
 in Ontario and Quebec. 
 
 Regina v.Smith,7 Ont. R.,p. 440, was a "8ci./a."actiontodecIare 
 a patent void, on the groun \ that defendant had not furnished a 
 model prior to the issue of his patent. The patent was dated 
 13th October, 1879, but was not received till the 30th April, 1880, 
 having been withheld by the Patent Office till the model was 
 furnished. 
 
 Held, by R^- J., 23rd Jan., 188.5, that the statute (1872) does 
 not require the livery of a model prior to the issue of the patent ; 
 the delivery ot it\o model unless dispensed with is imperative, 
 and the time of delivery is left to the discretion of the Commis- 
 sioner. 
 
 In Quebec, on the contrary, on the merits of an information 
 by the Attorney- General of Canada, <lemanding the issue of a 
 writ of "sci. fa ": Held Cunder Act of 1872), that the omission to 
 file a model of an invention for which Letters Patent are applied 
 for without a dispensation from the Commissioner, is fatal to the 
 validity of the patent: Vide Attorney-General and Bate, 6 L. N. 
 227, S. C. (1883). 
 
 While again, on the contrary, in Quebec, in Camphell and Bate, 
 15 R. L., 467, S. C. (1886), it was held (under Act of 1872), that 
 the omission to deposit the working model of an invention in the 
 Patent Office before the issue of the patent is not, even if proved, 
 an essential invalidity annulling ipso facto such patent. 
 
 It does seem a hardship, that an inventor should have been 
 liable to be deprived of his patent because the Patent Office did 
 not demand a model. Now the iuregoing contradictory decisions 
 are settled by the new section, and no model or composition of 
 matter is required to be furnished unless asked for by the Com- 
 missioner. 
 
 When the Patent Office Examiner finds it impossible to pro- 
 perly make out the alleged invention by means of the specifica- 
 tion and drawings, a working model, to aid him, may be called 
 for ; in this respect the practice is the same as in the States. 
 
 The model room in the Patent Office shows a mass of models 
 not worth preservinfj ; and when it is considered that, in tliQ 
 
 ,!,J 
 
11G 
 
 MODELS. 
 
 [Sec. 14. 
 
 i' 
 
 United States, in the year cndinfj Juno, 1893,39,539 patents were 
 applied for, and 23,471 issued ; and, that in Canada, in the year 
 1892, 3,416 patents were issued, the law dispensing with models, 
 unless required by the Commissioner, is a wise one ; in the States 
 it was found impossible to house them ; 87,000 models were des- 
 troyed in the Patent Office fire at Washington, in 1877. 
 
 Models, only when Required. 
 
 In Canada, models, when required by the Commissioner, must 
 be neat and substantial working ones, not exceeding twelve 
 inches on the largest side, unless specially permitted ; if the 
 machine be complicated a larger model would be permitted. 
 
 Ingredients required must be in glass bottles, but dangerous 
 and explosive substances must not be sent, unless as directed in 
 the requisition therefor from the Patent Office. 
 
 Models and bottles must bear the name of inventor, title and 
 date of application: Rule 7, Appx. 1. 
 
 Models should preferably be made of metal, if made of wood 
 should be painted or varnished ; glue should not be used to con- 
 nect the parts, and they should be so connected as to resist the 
 action of heat and moisture. 
 
 Models in United States arc the same sizes as in Canada, but 
 may be larger than a cubic foot where the machine is complicated. 
 
 On abandoned or rejected applications models in United States 
 may be returned to the applicant, the same rule would, doubtless, 
 apply in Canada. Models, exhibits in suits, may be returned to 
 applicant. 
 
 The production of a model does not negative the newness 
 required under section 7 of this Act, according to U. S. decisions : 
 Cahoon v.. Ring, 1 Cliff., 593 (1861) ; Johnson v. McGullough, 4 
 Fish., 170 (1870) ; section 61, Walker ; for to use a model or a 
 drawing, is not to use the machine or manufacture which it 
 represents ; to hold that a mere model negatived novelty would 
 afford a strong temptation to perjury. 
 
 In the case of a reissue, where the matter sought to be intro- 
 duced, and claimed does not appear in the original specification 
 or drawings, a model filed in the Patent OflSce, showing the new 
 matter, would not justify a reissue. 
 
Sec. 16.] 
 
 APPLIOATIONS WITHDRAWN. 
 
 117 
 
 The rule in Parker and Whipple Co. v. Yale Clock Co., 123 
 U. S. (1887), 17 Brodix, 104. affirmed that the Patent Office 
 model alone is not to be considered the basis for a reissue in 
 which a change of *he iiivcntion of the original patent is sought : 
 Flmver v. City of Detroit, 18 Brodix, p. 621 (October, 1887). 
 
 But an applicant may amend his specitication on reference 
 to the model filed relating thereto. No new matter should bo 
 admitted not shown in the original specification, drawings or 
 model. 
 
 Models are rarely required to be filed in foreign countries. 
 In Oermany, models are required when they relate to skates or 
 fire-arms, and two models, one of which must be sectional, if for 
 spools, spindles or shuttles. Samples are required for chemicals 
 or dyes. 
 
 In Switzerland, filing a model is obligatory when the invention 
 is for watch movements or fire-arms, and samples, when the com- 
 bination of substances is difficult to determine. 
 
 1 •>. No application for a patent shall be withdrawn without the consent 
 in writing of each and every registered assignee of such patent or any part 
 thereof : 35 V., c. 26, s. 38, pari. The Patent Act, 55 and 56 V., c. 24, s. 4. 
 
 Note. — The foregoing was substituted in 1892, for the old 
 section lo of the Patent Act, which provides t'nat in the case of 
 withdrawal of any application, a fresh application would be 
 necessary to revive the claim. 
 
 We have seen, under section 7, that, provided the inventor 
 make the oath, sign the specification and duly assign before issue, 
 the assignee can petition for and obtain the patent: Form 
 3, Appx. I., provides for exactly such a case as this. 
 
 In the event then of there being a sole assignee, no one but the 
 sole assignee would have the right to withdraw the application. 
 
 In the event of a series of mesne assignees, which is unusual 
 in Canada, the whole interest being in the last assignee, the last 
 assignee would also alone have the right to withdraw. 
 
 This section then is alone applicable when a number of 
 interests are extant, either by the inventor assigning to several 
 
 J 
 
 4 
 
 1 
 
 ^ 
 
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 118 
 
 APPLICATIONS WITHDRAWN. 
 
 [Sec. 16. 
 
 J . 
 
 ^1 
 
 
 f- 
 
 
 
 HA 
 
 \ '4 
 
 parties each an undivided interest in the invention with a 
 direction to the Commissioner to issue the patent jointly to the 
 inventor and assignees, or when the inventor assigns his whole 
 interest to several assignees (Form 24, Appx. I.), or when the 
 latter, or some of them, again assign partial interests to several 
 assignees. 
 
 Under Note (a), section 7, we have seen that each of several 
 joint patentees may use and deal with the invention in the 
 absence of special agreement, without accounting to the others or 
 any of them and without their consent ; in the same way, joint 
 assignees have each separate and distinct interests, and if they 
 are registered, the Patent Office takes official notice of them. 
 
 In the United States, where there has been an assignnent of 
 an undivided part of an invention, amendments and other actions 
 in the Patent Office requiring the signature of the inventor must 
 also receive the written assent of the assignee, though this rule is 
 not strictly adhered to in the States ; but official letters will only be 
 sent to the inventor, unless he shall otherwise direct. The assijrnee 
 of an entire interest can correspond with the Patent Office to 
 the exclusion of the inventor. When an attorney shall have filed 
 a power of attorney duly executed by those interested in the 
 invention, the correspondence will be with him ; a double 
 correspondence ia not generally allowable. 
 
 When a Canadian application is withd'awn, ten dollars of the 
 fee is retained, by virtue of section 43, and a fresh application 
 would be necessary to revive the case. 
 
 PART IV. 
 
 Refusal to Grant Patents. 
 
 1 w. The commissioner may object to grant a patent in any of the following 
 cases : — 
 
 (a) When he is of opinion that the alleged invention is not patentable in 
 law ; 
 
 (b) When it appears to him that the invention is already in the possession of 
 the public, with the consent or allowance of the inventor ; 
 
Beo. 16.] 
 
 REFUSAL TO GRANT. 
 
 119 
 
 (c) When it appoari to him thut there ia no novelty in the invention ; 
 
 (a) When it nppearii to him that the invention hoa lioeu (leacribed in a Ixiok 
 or otlier printed publication before the date of the application, or is otherwise in 
 the posaession of tliu public ; 
 
 {a) When it appears to him that the invention has already been |>atented in 
 Canada or elsowhere, if the case is one within the eighth section of this Act, 
 unless the commisHioiicr has doubts aa to whether the patentee or the applicant ia 
 the flrst inventor. 35 V., c.26, a. 40. 
 
 (1) Should the Commissioner object to grant a patent for any 
 of the causes covered by this section of the Act, his decision may 
 be appealed from to the Governor-in-Council as provided in the 
 18th section. 
 
 In order to sustain a patent, there must be invention as 
 well as novelty and utility, under the meaning of section 7 of 
 our Patent Act, which is in effect the same as that of the 
 U. S. section, after wiiich ours is framed : Vide Allen v. Reid, 
 U Q. L. R. 126; S. C. (1888): Held, v, patent must be for a 
 thing invented as well as new and useful. The evidence showed 
 that the processes and composition claimed by plaintiff were 
 known and in use before the i.ssue of his patent. 
 
 Dompierre v. Basil, 18 11. L. 597, Q. B. (1889) : When an 
 alleged invention does not constitute either a new process, or a 
 new combination producing a result unknown Ijelbre, it cannot be 
 the subject of a patent: Vide also Thompson v. Boisselier, 114 
 U. S., 11 (1884) ; Gardner v. Hertz, 118 U. S., 191 (1885). 
 
 If a device is clearly inoperative, it is not the proper subject 
 for a patent. 
 
 In Oandy et al. v. Main Belting Co., 59 0. G., p. 1106, Sup. 
 Ct. U. S., March 7th, 1892: One who has adopted and u.sed in 
 the manufacture of an article some feature covered by a patent is 
 estopped from afterwards denying the utility of the invention. 
 Public favor is held sufficient evidence of novelty and utility : 
 Vide Magowan v. Packing Co., 141 U. S. 332. 
 
 Dederick v. Gardner, U. S. Circuit Ct. N. D. New York, 59 0. 
 G., p. 790 (April 19th, 1892) : The fact that a device has gone 
 into extensive public use is entitled to great weight in determin- 
 ing the question of patentable novelty. 
 
 
 m 
 
 
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 120 
 
 MON-ANALOOOUS USE, ETC. 
 
 [8ec. 16. 
 
 ' 
 
 ! 
 
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 Note (n) ** An alleged invention is not patentable in 
 law if it be the mere application of a known machine 
 process or material thing to an analogous purpose 
 without novelty in the application thus constituting 
 a double use." 
 
 In Hanvooil v. Great Northern Railway, 11 H. L. Ca., 682; 
 Ooodcve, p. 225 : The .nibject of suit was ti.sh-plateH for connect- 
 ing rails, grooved or channelled ho as to prevent the nuts of the 
 bolts from turning, the same grooved plates having been previ- 
 ously used as a fish plate for the timbers of a bridge. Held, to 
 be a mere analogous use and not patentable. This English case 
 was reviewed by Henry, J,, in Smith v. Goldie, 9 Sup. Cl, R. 
 Can., p. 67, also by Gwynno J., S. C, p. 70, ami by Henry, J., 
 again in Ball v. Crovipton, 13 Sup. Ct. R. Can., p. 486, and the 
 principle approved of. See also Hazlehurnt v. Rylanda,^.. P. C, 
 vol. 9 (1892), p. 1 ; Baker v. Kennell, R. P. C, vol. 9, p. 441. 
 
 Non-analogous Use. 
 
 An invention is not the same thing as a discovery, and if a 
 man does nothing more than discover that a known machine can 
 produce effects which no one before him knew could be produced 
 by it, his discovery, however great and useful, is not a patentable 
 invention. 
 
 But the discovery how to use such a thing for such a purpose 
 will be a patentable invention, if there is novelty in the mode of 
 using it, as distinguished from novelty of purpose, if such mode 
 of user involves any appreciable merit : Fox v. Kensington 
 Electnc Liphtno.,L. R.,3 Ch. (App.) 1892, p. 424. 
 
 Application of old material to new use with a new result, held 
 patentable : Lister v. Norton, R. P. C, vol. 3 (1886), p. 199: The 
 question is, if an analogous use, it is not patentable, if not analogous, 
 it is. 
 
 It is not a patentable invention to apply old and well-known 
 devices and processes to new uses in other and am logous arts. 
 A " better result " or " a wider range of use " does not confer patent- 
 ability : Vide LoveU ManufactuHng Co. (Ltd.) v. Cary, Sup. Ct. 
 U. S. (decided March Cth, 1893), 62 O. G., p. 1821. An improve- 
 
8eo. 16.] 
 
 ANALOGOUS USE. 
 
 121 
 
 ment in the mode of tompcriiig Hprin^H, in Nubjoctini^ thu Hprings 
 to a t«mp«raturo of GOO" : Held, in vi«!w of the prior <levolopniunt 
 of the saniu principle in the niaiiufactun^ of wire hells for clookN, 
 and of hair balance springs, to he invalid on thu ground of "dou- 
 ble use " : Blatchford, J., delivered the opinion of the Court. 
 AriHonia Co. v. Klectrieal Siippli/ Co., .')8 0. G., 1092— 14*. 
 U. S., p. 1 1 , was specially referred to. In the opinion in that 
 case the cases were .reviewed which establish : (1) that the appli- 
 ciition of an old process or machine to a similar or analogous 
 subject, with no change in the manner of application, and no 
 result substantially distinct in its nature, will not sustain a patent, 
 even if the new form of result had not before been contemplated ; 
 and (2) that on the other hand, if an old device or process be 
 l>nt to a new use, which is not analogous to the old one, and the 
 adaptation of the old process to the new one is of such a charac- 
 ter as to rec^uire the exercise of the inventive faculty to produce 
 it, such new use will not be denied the merit of patentability : 
 See fiho Blake V. San Fran('ifieo,lVA U. S., 682; Pennsylvania 
 Railway Co. v. Locomotive Truck Co., 110 U. S., 490. 
 
 "An AnalogfOUB Use" means a use between which and 
 that alleged to anticipate there is a logical connection of such a 
 character that the second use is fairly to be referred from the 
 first by one familiar with it. 
 
 In Brian v. Piper, vide p. 319, Merwin, the Supreme Court 
 
 (U.S.), says of an analogous use " Tlie tiling was within the circle «)f what 
 was well-known before, anil belonged to the pii'ilic. " 
 
 A plurality of patents cannot be granted for different uses of 
 the same invention : McComh v. Wood, 1 Woods, 153 ; also 
 Walker, section 180. 
 
 An old and well-known contrivance applied to an analogous 
 purpose is not patentable ; this suit related to an improved 
 gearing for driving the cylinder of thrashing machines, but it 
 appearing that the same gearing had been previously used for 
 other machines, though no one had before applied it to thrasliing 
 machines, it was held that the novelty was not sufficient under 
 the statute to sustain the patent : Vide Abel v. McPheraon, 17 
 Grant, p. 23 (1870), affirmed on appeal, 18 Grant, p. 437 (1871). 
 16 
 
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 122 
 
 ANALOGOUS USE. 
 
 [8«C. 16. 
 
 Pollock, ('. H., in U'imJ, v. fW. 9 Ex. R, C:>1, rolnting to 
 iinprovtMiKiiits in tlit> incaitH uf luiil in th« Appiiratiis for huildin^ 
 and working umlur water, and the %(knu: <l«>vicu having huon 
 oinployod for sinking sliaftN on laiKl. ^mj^ in «lir(n;ting tho jury ; 
 
 " Now, if tliu coiutrMctioii of thU <uuiM<4i ■• t<» Im looked upon im old, ami Ihu 
 ohjtiut of till) |Mvtiiiit id for api'lyiiiK it Uj » imw p«trp<MM, thitt in not a inuiiu- 
 facture. 
 
 " I think if onu inun invent* » nrw Bf idt '4^ Innkin^ at thn miNin, loinnlnMly 
 else cannot tivku out n patent for iiHin^' ih« «««<^ aamU to 'look at the aim, nor any 
 moru appliuntion of it for a ditfurent pur^^Mtt. li a man were to take out a patent 
 for a telosunpo, to Im; imud for inakinji; (•liee<r t utuotM on land, f do not tliiak anyone 
 could «ay ' I will take out anotliiT |tat«ut f«r iiius uleacopc, to Im> uaud for making 
 obaorvationa on the Mea.' " 
 
 Held, to 1)0 not patentaMe, bein^f men^ly a "double use." 
 
 This ruling was affirnieil iu titt Exchr:«|uer Cbainber and in tho 
 
 HouBO of Lords. 
 
 In liouUon V. nail. 2 Hv- BL, 487, Buller, J., said: 
 
 "SuppoHothe world were iK^tt^r iufumttid l^ka it now in, how to prepare Dr. 
 James' fevor powder, and an ingcnioui pbrmrika were to find that it was aitpeciHo 
 cure for u consumption, if given iu partai^uliur i^maatifiiee. Could he liav«f a patent 
 for the solo use of James' {lowderi* iu aciitMiuBipfliooii, tn be given iu particular 
 quantities ? I think it must lie couottdod thkit »it:h a patent would Im^ void." 
 
 Vide also a large number of ca**e^ mn^it^r section 38, Walker. 
 
 In Losh V. Hague, 1 Weljs. Pal Ckf^en 207, Lord Abinger, C.said: 
 " It would be a very extraordinary thing tu Mjr nftttt, h«i:anse all mankind have Imjcu 
 accustomed to eat soup with a spoon, that s teuita ooold take out a patent because 
 he says you might eat pons with a spuuxL 1\m Uw on the subject is this, that 
 you cannot have a patent for applying a vdQ 'kaemM thing which might be applied 
 to 50,000 difTcront purposes, for applying- it to aa op«ration which is exactly 
 analogous to what was done before. " 
 
 See Brett's Commentaries, Laws of England (1890), vol. 1, p. 282; 
 Slazenger v. Feltham, R P. C, y^A. 6, p. 232, in Ct. of Appeal, 
 in which roughening the handle and making a knob at end of a 
 lawn tennis bat, was held not paitentalile. 
 
 TFn. Electric Co. v. La Hwe (April 1891), Sup. Ct. U. S., 55 
 O. O., p. 571 : the adaptation of a device to a similar sphere, 
 where it performs substantially th<e «iame function, is a double use 
 and not invention. 
 
 Steiner Fire Extinguishing Co. t. City of Adrian, 62 O. G., 
 p. 1065, October, 1892, relates to diemical fire engine — appli- 
 cation of old device to new use held not patentable. 
 
 ; i'.- 
 
860. 16.] 
 
 NONANALOOOUB USE. ETC. 
 
 12:) 
 
 If thoro aro no ilifficultion to Itn nvorcotno in adapting' nn old 
 eontrivaiicu to n nuw purpose, theru will ho tio inveiition, or 
 wluTo tliu so-onllud ditHi'ultifs nn; ho olivioiiH nn to pivsent no 
 ditKculticH : (j)i<l<l it Mdnon v. Mdj/or of M(i)i<fifnttr, 1) K. I'. C, 
 524 ; vide Lane Fox v. Kenaiinjloii Klcdvic Lhjid Co., 9 K. i*. C, 
 413. 
 
 In llamilton v. FI(U/ward, Oiiffin's Patent ('anos, p. 115, how- 
 ever, in which all that wivn done was to usu onu well-known form 
 of prism instcivd of another, the result heing an improved pave- 
 ment ii^'ht — the patent was upheld. 
 
 Pio'i'u; V. York Strcd Flax Splnuiufj Co., '.U L. H. Ir., 3; 10 
 R. P. C, 34 (1893) : Held, that the introduction of thin paper tubes 
 into wet spinning was an application of a principle well-known 
 in the process of dry spinning to the achievement of a result not 
 previously attained in wet spinning, viz., the adhesion of the 
 yarn, during the process of «lrying, to that on which it ha-i been 
 wound, and that the use of paper tubes in diy spinning W(ih not 
 8o amdoyoua to the use of them in wet spinning us to deprive the 
 plaintiff's invention of the merit of novelty. 
 
 The invention consisted of a thin Hexiblo paper tube ouiside 
 of a rigid tube, in substitution for rigid tubes of various kinds 
 previously u.sed. 
 
 If an invention is injurious to the health, morals 
 or good order of sooiety, it is not patentable : Bed- 
 ford V. Hunt, 1 Ma.son, 301. 
 
 In Great Britain, a grant of a patent altogether useless is 
 void : Morgan v. Seaward, 2 M. & W., 5G2. 
 
 By section 6, 21 James I., c. 3, " The Statute of Monopolies," 
 that wh ich is contrary to the law or mischievous to the Slate, by 
 raising prices of commodities at home, or hurt of trade, or 
 generally inconvenient, does not come within the provLso of the 
 Act, and is not patentable. 
 
 See also note to sub-.section 2, of section 7, ante. 
 
 Meohanioal Equivalency. 
 
 If an alleged improvement be merely the substitution of a 
 mechanical or chemical equivalent in the place of part of the 
 
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 124 
 
 MCOHANIOAL EQUIVALENTS. 
 
 [8m. 16. 
 
 oM comhiimiidn, it in not pniontAMc : Vih, raHCN colliictod in 
 
 WiilliuM', oil p. 4(». 
 
 Ill Winnn- y.(.\niJthanl, H. ('. .1. Q. H. 1).. tiio.l nt Toronto, 
 
 Out., in I)t'C<!iiilM!r, ISS!) (iiiii'cportu«l), Mr. Justice Ferj^uson tiiiih 
 
 ({('fines a " liM'cllHniciil (Mpiiviiluili " : "Whim itn« iuah Iiim an Invuntlon 
 ami niKithitr iniiii wiyi lit< Iiim invi>ritiMl tlii< «ain« lliiii)( or unt the aaiiiu olijtiut in 
 aiirithur way, if it tiirint out that tho ><i'con<l tnuii hiiN tii;('(ini|tiiiihuil thi* mamui thiii^ 
 without invi'ution, hut lucn-ly taltcii one iniH'huiiical ui|uiviih'iit for iiiiother, ami 
 oiMiriitin^ for the »niw |(ur|M>M!, th<! Hfcoiul is not invention, ho in iiini|ily ttniploy 
 inK a known nit'ohimlcal i-<|uiviilunt, itn<l it haii to Iki no known an to Imi ({ciiutrally 
 known At'i'orilin^ to Monit* authoritif* ; the itniploynit'nt of that to operate what 
 hiM iHitMi inviMitud itvforir will n<>t Ihi an invention, hut will Ut an infrinKuniunt. 
 It ia for inuchaniim to wty or ■killi'l niun to Hay whuthtir tliu particular thing in a 
 inuuhanical <>(|uivah'nt. " 
 
 Vide also, (Uirter v. Halev, 4 Fish., p. 40!), for definition. 
 
 The <|ii(!Htion of mechanical e<iuivalency is very fully iliscuHsed 
 in Walker, 2nd ed., sees. 352, JJ.'i.S, .*J54, et Wf/., with numorouH 
 coseH. Mr. .Justice Clifford, of Uie IT. S. Sup. Ct, in Machine Co. 
 V. Muiyhj, U7 W S., 12') (1877), formulated this definition of an 
 
 G(|[UlValent : " Authoritii-H concur that tim HulMitnntial equivalent of a thing 
 ill thu Hcnitu of the patent law is the laniu an the thing itself ; mo that if two 
 devices do the sanu; work in sulMitantially the same way and accomplish 
 substantially the same result, they are thu same, even though they (lilFer in name, 
 form or shape." 
 
 One thin«» may be an c(|uivalcnt for another if it performs 
 the sair.e function in substantially the same way, producing 
 substantially the Hamo result. 
 
 One mechanic may furnish the pcwer by means of a lever 
 and another by means of a screw, yst the lever may be an 
 equivalent for the screw, though they are difTeront elementary 
 mechanical powers : Tarrell v. Spaeth, 3 Ban. & Ard., 458 
 (1878). 
 
 Springs and weights are equivalents if they perform the same 
 functions in substantially the same way : See Inificuaer v. 
 Biierk, 101 U. S., GoG (1879). 
 
 A spring was held to be a " mechanical equivalent for a 
 lever " : See Wenby v. The MaTichester Steam Tramivay'a Co., 
 R. P. C, vol. 8 (1891), p. 67. 
 
 The elementary mechanical powers are "the inoUned 
 plane," "the lever" and "the pulley"; "the wheel and 
 
8«c. 16.] 
 
 MBOHAMXOAL F.QUIVALE19T8. 
 
 I2A 
 
 axle," " tho wcmI^u " mid " tho Mcrew," liein^' iiKxIiHcAtioMM thi^ro- 
 of, mid out of tliuso, with cotint'ctioiiH uiid Npritim'H, all known 
 fuiniH of nuicliinuH IxH^onio ovolvod. 
 
 Thu olunuuitury nu^chanieul poWfi'H uri) all to Ik) t'uund in tho 
 aninml tVanm ; man civatrs notiiin}^, lu) only invontM. 
 
 Thfit) are two testN of t>(|iiivalency : (1) identity of function ; 
 (2) Nulmtantial identity of performing that function : Vide 
 VValkor, hoc. :i<l2. 
 
 One thing may be an eiiuivalunt for another, thongli it doeH 
 more than that other, hut it cunnot be such an etjuivalent if it 
 does lesM : See Walker, .sec. .').')2. 
 
 In Atlantic Oiant Powder Go. v. Gttodi/ear, 3 Ran. & Ard., 
 IGl (1877), Judge Shepley held a certain gunpowder to be the 
 equivalent of infusional earth, becuuHO it perform<.><l every 
 function of tho latter suUstance (a matrix for tho nitroglycerine), 
 though it also performed tho additional function at the time of 
 the explosion of tho compound of co-operating with tho nitro- 
 glycerine in rending the rock, instead of remaining like 
 infusional eaith, an inert .substance. 
 
 Tho doctrine, that one ingredient is an equivalent of another, 
 if it performs tho .same function, even though it also perform 
 another function which that other is wholly incompetent to 
 accomplish, approved of: See also U. S. (Jir. Ct. of App., 9th 
 Dist. ; Norton v. Gensen, (JO O. G., p. 1820 (March, 1802). 
 
 BUhs v. IlaigJd, 3 Fi.sher, C2C (1860), an iron ho.se coupling 
 patent in dispute. Tho roller in the plaintiff's performed two 
 functions, one to make a light joint, and tho other to provide a 
 swivel : Held, not infringed i)y a coupling having a pin with a 
 conical face which perforiied the first function, but not the 
 second : See also Cawood Patent, 94 U. S., 700 (1876). 
 
 And on p. 109 of Goode've, we have Cannimjion v. Nuttall, 
 in the House of Lords, in which Lord Hatherlcy indicates the 
 
 same doctrine : " But we all very well know that if you are obliged to adopt 
 a uonibination of machinery which originally is directed to one purpose, before 
 you can ninke it minister to another and additional purpose, the uner of it for thit: 
 additional purpose is an infringement of the patent which first introduced that 
 combination." 
 
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 J 26 
 
 MEOHANIOAL EQUIVALENTS. 
 
 [Sec. 16. 
 
 In the Unturiu CoiirtH, in tho important suit of Wisner v. 
 Cotdthar(f (unreported), relating to " covihined needing machines," 
 Mr. Justice Ferguson, in his judgment of 7th February, 1890, 
 unanimously approved of by the Court of Appeal (Ont.), 12th 
 May, 1S92 : J lei I, that two (|uadrant plates and a lower Ixjlt 
 eotmocting them were a " mechanical equivalent " for a strap, 
 for the purpose of holding a notched projection on a d;Ul hoe 
 against a pivot pin on the drag ba., altlmugh the quadnmt plates 
 and bolt performed the a Ulitionnl function of affording means of 
 adjusting the angle of the drill hoe or tooth, and of affording a 
 place of attachment for the braces of the locking device. 
 
 Ill ratric V. Sijh.'ester, 2:1 Grant, 57.'^ (1870), Proudfoot, V. C, 
 in a suit relating to seed drills: Ifeld, that the difference was 
 only one of uieehanical arrangement or a mere substitution of 
 " mechanical equlcalerUn," ami not a difference in principle ; in 
 the plaintiffs there was a lever of the first class, the point of 
 attachment was below the junction of the draw l)ar with the 
 hoes and operated by tension, while the defendant attached his 
 above, tlie powei- operating by compression and the lever being 
 one of tho third class. 
 
 In Ball v. Compton, 9 Ont. R, p. 229 (1884), it was held, that in 
 a corset, the substitution of continuous coiletl wire springs for 
 India rubber springs, os previously used, the coilo<l wire springs 
 were a mere medianical equ'ivtdcni for the Indix rubber. This 
 was afHrmed in the Court of Appeal (Ont.), and again in the 
 Sup. Ct, 13 S. C. R., 409 (1880). Tho U. S. patent in this ca.so 
 was also set aside in Florshehn v. Schilling, Sup. Ct., 53 0. 
 G. (U. S.), p 1737, November, 1890, affirming 20 Fed. R., 2r)6 : 
 Vide for further illustrations note (a), sec. 10, "Aggregation and 
 Change of Material." 
 
 In Woodivard v. Clement, 10 Ont. R., p. 348, November 11th, 
 188.'), an action against ma.ster and "servant for ii.iringement of 
 "Arnoid's improved automatic boiler," Proudfoot, J,, granted an 
 injunction against both, but the servant was not held liable in 
 damages : Delano v. Scott. 1 Gilpin, 489, was cited. 
 
 The supply reservoir <>f delnndants was narrower than that of 
 plaintiff's, but had a sloping rim to receive the drippings from con- 
 
See. 16.] 
 
 EQUIVALENTS. 
 
 127 
 
 denser end return them to the reservoir at an oi)oning ; while 
 plaintiflk supply reservoir was wider than the contlensor, so that 
 condensed steam fell from condenser into the reservoir at every 
 point of its circumference ; Held, to be a mere variation of 
 arranjvoment or a mechanical equivalent of a corresponding por- 
 tion of plaintiff's device ; containing no element of invention, but 
 eHycting the same purpose in a sliirlitly diderent method. 
 
 In Wisner v. Coaltkard, Ferguson, J., took the testimony of 
 experts as to " mechanical equivalency " : " Wluthcr a thing in a mo- 
 ulmnioal oquiviilont, ih a tcHliinony of fuct, clepniiding on tlu; tuatiniony of uxpertu": 
 
 Vide F08H v. Herbert, 2 Fisher, 31, ami in Seed v. HiyylnH, 8 H. 
 
 L. Cos., 550, Lord Wensleydalo states : " If Hoicntific ovidonco U 
 noccsBary, fully to ulucidato llie ciiho on uitliur Hide, it in, no d()ul>t, ndniiHHiiilo." 
 In all ca.ses of " mechanical equirnlencjf," and they are very 
 numerou.s, for it is the usual way of infringing a patent for ma- 
 chinery, and in all cases of "chemical euaivalency," an important 
 consi''eration is, whether the device infringed is f primary or a 
 secondary invention. 
 
 Primary Invention. 
 
 A " prinmry invention " is one which performs a function never 
 performed by any earlier invention, such as the " hot air blast " 
 or the telephone. 
 
 Secondary Invention. 
 
 A " secondary invention " is one which performs a function 
 previously performed by some earlier invention, l)ut which per- 
 forms that function in a substantially different way. 
 
 "Primary" inventions are entitled to a somewhat looser 
 application of the definition of an equivalerf. ',nd it is easier to 
 make out ecpiivalency than in the case of a secondary " inven- 
 tion ; while in " .secondary" inventions the inventor of an improve- 
 ment cannot invoke the doctrine of ctpiivaients to suppre.ss all 
 other improvements, which are not mere coloural)le invasions of 
 his: Fi</e Walker, s. 359. Nearly all inventions are " seeondary " 
 inventions, improvements on that which has existed before. 
 
 Primary Invention. 
 
 A patent which discioscvs an idea, and shows a method by 
 which it can be carried out, is infringed by any apparatus, 
 
 1^:; 
 
r 
 
 I. 
 
 
 128 
 
 CHEMICAL EQUIVALENTS. ETC. [See. 16. 
 
 which, )>y (litrcri'iit in(;chanical muans, carries out the samb idea : 
 Eosterln-ook v. GreAit Western 11 W. Co., R. P. C, vol. 2 (1885), 
 p. '207. 
 
 A patent for a new processt, for a new result, is infringed by a 
 different process for the saino result: Badische Anilin, etc.. v. 
 Levinstein, snpra. 
 
 In The Automatic Weighing Machine Co. v. Fearly: Hdd, 
 to l)e the substitution of a " mechanical eiiuivalent " for a weighted 
 lever of f)laintiti's, and judgment was given for an injunction and 
 costs : Times L. R, vol. 10, p. 22, October 31st, 1893. 
 
 In a recent Sup. Ct. case U. S., Morley Co. v. Lancaster, 19 
 Brodix, p. 2G3, the (juestion of " nieclmnicul eijuivalency " as 
 bearin;^ on " primary " and " secon<lary " inventions is very fully 
 discussed, and the leadinif American and English cases are 
 reviewed : Vide pp. .'134-344. 
 
 Morley being a pi(me<'r in the invention of an automatic 
 machine lor sewing buttons on fabrics, was held entitled to a 
 liberal construction ot the claims of his patent, 
 
 llfid" Wliuru an iiivviitiou is uiiu of a priinury clinriiotvr, ami the mechanical 
 function performed by thu machines, are, iin ii wiiolc, entirely new, all suhBo<iuent 
 machines wliich employ subHliintiully thu same moans to accomplish the same 
 results, are infringements, although ihe 8ul>se({uent machines may contain impiovc- 
 ments on the separate mechanisms which go to make up the machine (p. .t.').')). 
 Vide also as to construction of claim in primary patent : National 
 Canh Reginier v. American Cash Register Co., U. S. Cir. Ct. of 
 App. (December, 1>S!)2), 02 (). G., p. 4')0 ; vide also as to equiva- 
 lency, Bump., 2nd ed.. p. 28.5. 
 
 Chemioal Bquivalents. 
 
 As an instance of " chemical equivalency," Stevens v. Keating, 
 2 Web. P. C. 181, for the manufacture of cement, in whicit borate 
 of soda (borax), treated with gyjwum (sulphaiie of lime), forming 
 a double salt, was substituted for pearl-ash and sulphuric acid, 
 also forming a double salt, and resulting in setting. 
 
 Any person may use, without infringement, chemical equiva- 
 lents not taken to bo such at the date of the patent : Badische 
 Anilin, etc. v. Lei^instein, R. P. C, vol. 2 (1885), pp. 92-93, but 
 the use of " chemical ecpiivalents " known to be such at the date 
 of patent is an infringement : iS*. C. 
 
Sec. 16.] 
 
 EQUIVALENTS. 
 
 12!) 
 
 Chomieal ociuivalunts, sco Hancock v. Moudton, for nn infringe- 
 ment of " vulcanized cnoutrhotic," a mixture of caoutchouc ami 
 .sulphur, subjected to heat, intrin|:;c«l by a mixture of caoutchouc 
 and hyposulphato of load, subjected to heat ; Edmunds on 
 Patents, p. 248 ; see also Heath v. Unwln (ISoO), 5 H. L. C, 545 ; 
 Goodeve, 2.S3 ; Morewood v. Tiipper (18r)5), 3 C. L. R, 717 ; 
 Mitntz V. Foster (1844), 2 Web. P. C, 05 ; also Woodward v, 
 Aforr 18011, 1 Holmes, 12'>. 
 
 The inventor of a novel combination of old elements is en- 
 titled to all the mechanical ei|uivalent.s of his several element!:', 
 known at the time of his invention : Vide WiAe v. Ostrum (1881), 
 13 Brodix, p. 114 ; 103 U. S., 4G1. 
 
 Kquivah'uts should be well-known at the date of patent, to l)o 
 suoli : Vide Wicke v, Ostrum (1881), 13 Brodix. 114; 103 U. S., 
 461 ; licnrell v. Lindsay (1885), 15 Brodix, 441 ; 113 U. S., p. 97 ; 
 but nearly all the Circuit Courts have uniforndy ignored the 
 element of age, when cncjuiriiig about equivalents. The Sup. Ct., 
 t . S , has made age an element: See Walker, sec. 350. 
 
 The Sup. Ct, U. S. A., said: "ThiH term, equimleut, when apoakiiig 
 of innohiiieB, has a curtain tlutiniti^ nicnning, liut when \ww\ with regard to the 
 uhemical action of hucIi lluidH nH can Ihj (liMoovercd only by cx|)tirinient, ineana 
 
 nimllinioiMl" : Tyler v. Boston. 7 Wall., 327. 
 
 Meohanioal Equivalenoy: St^e Hartshorn v. Saginaw 
 Barrel Co. (1887), IG Brodix, p. 530 ; ? IJ) U. S.. GG4. 
 
 Two things are the same in tlic sense of the patent law, when 
 they perfornj the sanus function, in substantially the same way, 
 .'ind accomplish the same result : See Say r. v. Scatt, U. S. Cir. Ct. 
 of Appeals, 3rd Cir. (May 23r<l, 1S!)3), 03 » >. C, p. 1818 ; concrete 
 pavement in d((tatched blocks ; Set; Jlnrlhut v. S<!iillin<jer (188})), 
 If) Brodix, p. 54-2, 1.30 U. S., p. 450 ; U. S. Cir. Ct. of Appeals. 3rd 
 t.'ir. ; Xatiotut/ Cash litylster <'o. v. American Cash liei/tster Co. 
 fr)(>cend)er 1892), 02 O. (}.. p. 450, ii prinuiry patent. 
 
 When " primary patent " is of low order, it will not receive a 
 l)ioad o()nstru(!tion : Vide C S. Cir. t^t. of App.. Dederirk v. heiy- 
 laund (July, 1802), 00 O. (;., p. 1103. 
 
 Tamping oil wells with benzine, instead of with watc, con.sti- 
 17 
 
 ]i {I .l| 
 
 I 
 
 V i 
 i 
 
 U' 
 
 ; r 
 
 si " 
 
 i i I 
 
 i 1- 
 
 m 
 
 :r ■!.«., 
 
 •u4 
 
ir- 
 
 lill 
 
 
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 i 
 
 ■ ■ 
 
 til 
 
 ?i. 
 
 '<i' 
 
 130 
 
 AGOREOATION. 
 
 [See. 16. 
 
 tuted an infringement of the Roberts' torpedo patent : Roberta 
 V. Ropt'.r, 5 Fisher. 21)0 (1872). 
 
 Eiiglish cases on " incclmni>3al equivalency " : See Thomson v. 
 Moore, G R. P. 0. (1889), p. 420: Automatic Weighing Co. v. 
 International Hygienic Co., G R. P. C. (1880), p. 475. 
 
 Aggregation- 
 
 (a) An "aggregation" is not patentable. 
 
 This doctrine first camo prominently into notice in the IT. S. 
 suit of IIaHe8 v. Von Warmer, 20 Wall., 353 (1873), where 
 sundry features of self-feeding coal stoves had been assembled, 
 making a superior stove, but the elonients did not perform any 
 joint function, but each did only what it had formerly done in 
 other stoves. 
 
 This case has been continually relied on and promiscuously 
 applied in Ontario Courts to destr»)y |>atents, and calls for notice. 
 It first appears in one of the judgments in Yates v. Great Weaterv 
 R W. Co., 2 A] p. R., Ont., 226 (1887), relating to a railway 
 chair for joining the ends of ails and preventing the nuts or 
 bolts from turning ; and vas also tlie basis of the judgments setting 
 aside the patent in Hwn.er v. Carric/c. 10 App. R. Ont., p. 449 
 (1884) (relating to a baker's oven), and 11 Sup. Ct. (Can.), 300, 1885. 
 
 In Winner v. Coulthard (an unveported case, Ont.), relating 
 to &. piece of mechanism in a seeding machine ; the combination 
 of (1) an indep3ndent drag bar, (2) a locking device, (3) a curved 
 spring tooth, and (4) means of detachably connecting the tooth to 
 the drug bar, Hadex v. Von Warmer formed the ground of the 
 judgment of the 2nd February, 1891, setting aside the patent by 
 the Div. Ct. Q. B. and reversing the judgment of the trial Judge; 
 and was also the ground of the judgment (10th May, 1892), of 
 the Court of Appeal, Ont. The doctrine of " aggregation " was 
 apparently misapplied by these Courts, as there was a true com- 
 bination and no aggregation. 
 
 However applicable tnis doctrine may in some case^i possibly 
 bo with respect to a stove or other inert matter, such as a piece 
 of furniture, it certainly is not applicalde to a machine or piece 
 of operative mechanism, and probably was never so intended by 
 the U, S. Circuit Court Judge who propounded the doctrine. 
 
Sec. 16.] 
 
 AOOREOATION. 
 
 131 
 
 which was aftcrwai'il.s on(loi'.suil and apparently misapplied by the 
 Sup. Ct., U. S., in Haites v. Von Warmer. 
 
 Hailes v. Von Wornur as reported in 7 Blatchford 443, was 
 tried before Woo«lruff, J., Cir. Ct., N. Dis. N. Y., U. S. ; after 
 tinding want of novelty and non-infrinjjeinent as to all claims, 
 propounds the " aggregation " dictum as to claim 1 : "The coinbi- 
 iiatiHii of tho illuminated oimnimjn, flumo expniiHion chanilicr, coal Hupply rusurvoir, 
 lire pot, desucndiiig Ihic, iiiul draft tliio, auhstantiitlly," etc., and HndH "the mure 
 addition of an old device pro<luoing a specilicd result to another old device pro- 
 ducing its own rcHtilt in such a manner that their condtination produces the same 
 two results an<l no other, is not invention." 
 
 The illuminated mica openings contributed nothing towards 
 the combustion or perfecting it, and this Hnding was possibly 
 correct. 
 
 In the U. S. Sup.. Ct, in giving judgment on the five claims 
 of tho reissued patent, four claims were decided on non-infringe- 
 ment, and one, tha .second claim, on " a<f(jreu<ition " (p. :iH'^ Brodix, 
 vol. 9), this might liave been non-infringement also, as stated b}' 
 the Court; but as to this claim, which is "for contracting the dis- 
 
 churg J end of a coal supply reservoir, ex|>anding the Hrepot, and extending the Hame 
 passage tlownward for ui.ited operation in a Itanu burning coal supply reservoir 
 stove or furnace," the Supreme Court have apparently misapplied 
 Judge Woodruff's "aggregation" dictunx where " tlie illuminated 
 mica oiwnings" came in, and may have erred; for the foregoing 
 might well be a good combination, if the result or effect thereof 
 was shown to be novel, and a better and more economical com- 
 bustion and greater heat attained than was before po.ssible, thus 
 forming a new combinatioji of old elements producing new and 
 n.seful results, or the old results in a more useful and beneficial 
 way. 
 
 In Merwin on Patentability, p. 3.')8, sec. 118 — the author, com- 
 menting on Haden v. Von Warmer — states, when speaking of 
 
 " aijyregation l "the dittieulty of bringing all these cases under one head at 
 tiic same time excluding all nun-patcntuble combinations is ol>viuuH. The Courts, 
 however, and the Supreme Court especially, liave proceeded as if tliis dittieulty 
 (lid not exist. Devising a rule to tit the same case before them, they go on to 
 state it as one of universal application." 
 
 In sec. 129, p. 402, Merwin instances a ca.se of what was held 
 in Williams v. Rome It W. Co., 15 Blatch., 201, the " Locomotive 
 
 
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 I! 
 
 m 
 
 i :i 
 
 ^1 
 
 m 
 
 iHi 
 
 t 
 
 
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1 
 
 1 
 
 
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 132 
 
 ▲OOBEOATION. 
 
 [See. 16. 
 
 Head Light" ca.so, to bo a gc >tl ami successful "aggregation." 
 
 making it possihlo to use kerosene oil on locouiOtive head lightH; 
 
 and on p. 4()G Merwin stateH: "Tho truth U that the Supmnu Court left 
 out of viitw ihiM Rort of coinhiiuktiou (refurriug to \Vi/linmM v. Romf K. W. Co.), 
 when they guvu judgment in Ilnilm v. Vim Wonufr, in which the He|wrttt« parta 
 cannot Ijo anid to hiivu any operation liy thuniHelvoa," utc. 
 
 Bxoeption. 
 
 Vide also sec. 122, Merwin, commenting on Farhush v. Cooh, 
 2 Fisher G68, when a combination of machinery was the subject 
 ut' the patent, in which Merwin sttitts : "Hu (Mr. .luatiou CurtiH) hiul 
 before hlni o/M'ratii'e, parln a» of niiM-'hinvry, whoruiw an article coiupoHuil of to 
 to Huy inert pnrtH (like a lump couHidurcil nH ii |>orta)ilu article ami not aH a niuchintt 
 to Iturn <»il) can 8<-arccly he Haid to iiavu any mode of operation. In Huch caHea (oa 
 to operative parta of machinery) a ntw remilt ia the teat of invention." 
 
 It is to he noted that Mr. Justice Strong, who delivered the 
 judgment of the U. S. Sup. Ct. in Ha'des v. Von Wormer, on 
 Junj 5th, 1874, on May 8th, I87G, in lieclcendorfer v. F<d>er, 10 
 Brodix 3i)y, — the oft (|Uoted rubber-tipped pencil case of "aggre- 
 gation," — evidently altered his views as to" agf/reytUvm," and dis- 
 sented frouj the judgment of the majority of Supreme Court, U. 
 S., as did also Mr. Justice Davis and Mr. Justice Bradley. 
 
 SuHicient has been said to show that "aggregation" should 
 not be applied to a i)iece of operative machinery — such as the 
 part of a seeding machine in Winner v. IJoulthard referred to. 
 
 The doctrine in lladen v. Von II onner, as stated in the 
 
 Sup. Ct., U. S., is ; " It nuiHt Imj concedeil that a u«>w combination, if it pro- 
 duccH new and UMeful reaultit, '\n pat<Mitable, though i\\\ the couHtituenta were well- 
 known and in common uae Iteforc the combinati(>n was made. But the resulta niuat 
 1k! u i>roiluL't of th<' i'oinl)inuti<'ii \\\i\ not a mere agj(rcgate of several rcHuli*' ; each 
 the complete product of on of tiie combiiitil clementH. Merely i)ringiM>{ old 
 devicea into juxtapoHitioii. and tlierr idlowinj^ each t<> work out its »wn effect 
 witliout the production < f soiiu-thiug novel, is not invciitinn." 
 
 Reckendorfn- \.,Faha', 10 [^ludix, :W1) (1892), U.S., 357, 
 relates to a piece of soft rubber united to one end of a lead pencil; 
 this was a phenomenal success, man) niillions of specimens 
 licing sol<l, yet the majority of tiie Sup. Ct., IT. S , held that there 
 was no joint operation p^-rformed by the |)encil and rubber, and 
 that tliH ptttont was void ; it was a clear case of " aggrcj/ation " 
 according t" the doctrine given out two years previoisly, yet 
 
 
 I!; 
 
8eo. 16.] 
 
 AOOREOATION. 
 
 i:tn 
 
 three of the Judj^es dissuntutl, as stated previously, the udop- 
 tioi) of the tipped pencil hy the public and its general use being 
 presumptive of invention. 
 
 In Pickevivy v. AfcCnnoKyh, 104 U. S., 310 (IMSl), the doctrine 
 was again attinned in the Sup. Ct. V. S., with the atldition, that 
 all the constituents must so enter into the cond)itiation, as that 
 each qualifies every other. These form the three lending cases : 
 Vide Walker, 2nd ed., sees. 32, 33 ; Merwin, s.-cs. 117 to 136. 
 
 Each Blement Need Not Qualify Every Other. 
 
 In National Cash lityister Co. v. American (hish l{f<jintt')' Co., 
 U. S. Cir. Ct. of App., 3rd Circt (decide.l December 23rd, 1892), 02 
 O. G. ; Pickering v. McCullomjIi, is examined, and the tlangerous 
 doctrine, apparently underlying part of the judgment, explained 
 
 away, viz. : " No Huch doctrino (i. <•., tlwit cacli ulement Hhould nioilify or ulmngo 
 tilt) oharacteristiu iiuxluof autioii or nibtiio<l of opcrntioii of tiiu othi-rH) iippuiifM to 
 havo licun uHHential to thu judgment in that uaHu, nor «li> wu think it ucceHitary to 
 attribute to the iiarticular htngiiage referreil to the nieun<»ir itHcribuil to it l>y uoiuiBel 
 (on reading thu wliole case insti.'ad of an extract), etc. If it were esaential to a 
 valid patent for any combination wiiatever, tinit tlie mmlo of action of every 
 element included in thu c«>mbinati(m should bu changed by each of the others, it 
 would be im|K)HHiblu to sustain several uombination jiatentH whicii have, in fiict, 
 been upiield, as indeed, it woidd be ditHcuU to conceive of any mechanical 
 contbination which would be botii (lossible an<l patentable." There is no 
 
 intimation in the opinion that J'ickeriiu/ v, McCuUoufjh, .should 
 override the earlier decisions with which it apparently conflicts. 
 
 The doctrine of aggregation is very sweeping.and there is a con- 
 flict of opinion among U. S. Judges how it shouUl be applied. "Ag- 
 gregation " may be a roundabout way of holding there is no in- 
 vention. 
 
 The elementary parts of the combination of old elements re- 
 ferred to in Plckerimj v. McGalloiuj/t, need not act simultaneously, 
 but may also act successively : Kit/e Walker sec. 33, Uoe v. Cottrill, 
 17 Blatchford p. 546. 
 
 The leading case in the Ontario (Jourts is Hunter v. Carrlck, 
 2S Grant, 489, in which Proudfoot, J., upheld the fir.st claim of the 
 
 reissued patent : *' A fire pot <>r furnace placed within a baker's oveu below 
 the sole thertiof, and provided with :i door situated above the grate." 
 
 •' Tin- dv«(ir situ.ki* above the grate" lirst appears III the reissue, with- 
 
 
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 184 
 
 AOOBEOATION. 
 
 [8eo. 16. 
 
 out it there won no novelty in tlic claim of the ori^nnal ))atent. 
 The <lraft did not attect the fire and the coal did not fall out 
 when the door was opened — the location of the door above the 
 grate was deemed essential. 
 
 The Court of App., Ont , 10 Ajjp. R. p. -t-tO, reversed, Proudfoot, 
 J. (Patterson il. dissenting), holding the alleged combination an 
 " aggregation " and not patentahle. 
 
 S. C, 1 1 Sup. Ct. R. (Can.), p. 3()(). The judgment in appeal 
 attirmed, the Court (Strong, J., di.ssenting), holding " aggregation." 
 
 In Canada as in the United States there is not a consensus of 
 opinion a.s to aggregation. 
 
 N.B. In this case the headnote to the appeal case is erroneous, 
 in that the claim as above is not properly recited, the tilting grate 
 was in the ♦tli claim — the cn.se was decided on " aggregation " or 
 no invention rather than want of novelty as .stated in the head- 
 note. In the Sup. Ct. (Can.), Henry, J., gives judgment on the 
 first claim of the orifjinal patent, and strangely overlooks the 
 reisHued patent which was ahmi; in <|uestion. 
 
 In Ball V. Crompton, 12 App. Rep., Ont. (188G), pp. 739-740. 
 Hagarty, C. J., in citing Hunter v. Carrich, states : " Wo werosatu. 
 
 fiu«l that thu pluintiiriiail, by the ttkilfiil ii<Io|itiuii uiid rviiiriiiigumuiit of WL-Uknuwii 
 ptirticulai'H, prodiiueil in the whole thu ht'Ml ox-eii that had been heretofore in use, 
 but it won pointed out how he failed to eHtubliHh \\i» right to a patent for the com- 
 bination." And again at p. 742: "I believe the result is a cheaper and 
 better article just as the plaintiff in the oven case produced by his shrewdness the 
 best oven." 
 
 One would suppose the foregoing was very good grounds 
 for upholding the patent, yet it was set aside on the ground of 
 " ftggrogation." 
 
 If a new and u.seful result is ultained by thu coukbination there 
 can be no aggregation. 
 
 Illustration. 
 
 Take the twenty-six letters of the alphabet — a table of 
 logarithms will quickly show that there are upwards of 412 
 scptillions of combinations po.s.sible, a number of twenty-seven 
 figures ; out of these letters it is .said that only 225,000 Englisli 
 words can be formed. So that an inconceivable number of com* 
 
8eo. 16.] 
 
 NOT INVENTION. 
 
 13.5 
 
 hinaiioiiH uf the lettui'H of tliu alphaitut aru iiiuru " a^^rpgatiuiiH " 
 or "juxtapositions," whilo only a lew which form words with a 
 (loHnitc nioanin}^ are j^ood combinations ; "cab" is a combination 
 and " l>ca " is an aggregation. 
 
 Again, a mob is an " aggregation," whilo the body of police or 
 8oldier8 which scatters it is a " combination." 
 
 Recent cases in the Supreme Court, U. S., bearing on " aggre- 
 gation," are as follows: — 
 
 Union Edge Setter Co. v. Keith, Sup. Ct. (April, 1891), 55.0. G., 
 p. 285. 
 
 Florahelm v. Sddllhuj (November, 1800), 20 Brodi.\. 416, 
 affirming 2G Fed. Rep., 250. This was the same patent in suit in 
 Ball V. Crompton, l.S Sup. Ct. Rep. (Can.), 40!) (1880), relating to 
 a continuous coiled wiie s])ring in a corset. 
 
 WatHon V. Cincinnati, Indiand, etc., R. W. Co., 20 Brodix, 
 p. 22 (November 18th, 1889), 132 U. S., 101. 
 
 County of Fond du Lac v. May, IJ) Brodix, p. 501 (1889). 
 
 Mosler Co. v. Moder, liaJnnann it Co., 18 Brodix, 560 (1888). 
 
 Thatcher Ileatiwj Co. v. linrtia, 17 Brodix, ti7 (1887), 121 
 U. S., 286. 
 
 Hailes v. Albany Stove Co., 17 Bro<lix, 336 (1887), 128 U. S., 
 582. 
 
 (a) Meohanioal Skill not Invention. 
 
 Allen V. lieed, 14 Q. L. R., 126 (1888). A manufacture or pro- 
 cess which any skilled mechanic or eiiemist would suggest when 
 required, or the result of judgment and skill in the adaptation 
 and selection of materials if- no invention. 
 
 Fasset v. Ewart Manafacturiny Co., 64 O. G., p. 430, April 
 3rd, 1893. In a machine for coupling the links of drive chains 
 where a sidewise thrust of the coupling bar had already been 
 patented, it was held only a matter of " mechanical skill " to 
 adapt an endwise for a sidewise thrust : Vide sections 25 and 
 27 Walker, 2nd ed. 
 
 Day V. Fairhaven R. W. Co., 20 Brodix, p. 1. The application 
 of a diagonal brace to a track scraper involved mechanical skill 
 only, and was not invention. 
 
 

 Hi 
 
 
 I 
 
 i if 
 
 
 « 
 
 
 i;. 
 
 ^i 1 
 
 l»0 
 
 HOT DHnamoa. 
 
 [8m. 16. 
 
 ffutler V. Steckd, 20 Hrcxiix. SH*. IHOUJ. Cutting douxh into 
 brotxulH, ilo. 
 
 /Vr)it/i V. Carfn', 20 Br.Mlix. 451 *l»90). 1.37 V. S., .^.SJJ. Im- 
 provuniL'nts in roofn for vault*. <ht. 
 
 CovHolilateU UoU, r Mill ('<> \. Walker, 20 WuA'ix, fti\\\(\m\), 
 13M, U. S. 12+. Iiiipioviiiif'iit* ill ;:<(«nn:; for rollwr ;;rin<Hng mills, 
 do. Soe alHo Unijev v. Uitth, 20 llr<^ix, *^. 
 
 Avon V. iV(tnAa«(»u ii. H'. Cu . 19 Brodix, UOl) ( I8»D), l.'J2 U. S. 
 84. 
 
 hi'own V. /;//*/!ric'/ o/ Colurnhia, 19 Br.).lix. 473 (1889), 130 U. 
 S., 87. 
 
 Yale Lock Manufudwring Co. x. OrtenUaf, 117 V.H., 554 
 (1880), it ru(|iiii't'd only nieclianical ftkill U>a«iopt the anticiputing 
 lock. 
 
 Wlndou) Cleaner Co. v. /i(«/^y, 1 5 BroiJix, 04 (1884). Window 
 cleaner — udjiLstuient of parts only. 
 
 llollister v. Jiniedict Co., 113 U- Su. 59 (1885). A stamp and 
 .slip of mutiil so attached as when removeii it will mutilate the 
 Htamp; only mechanical skill re({uire«L 
 
 Omitting one element of an existing thing is not 
 invention— unless such omianon causes a new mode 
 of operation of the parts retained : VuU Allen v. Heed, 
 14 Q. L. K., 120, S. C. (1888) : Vi.'h ai^j Stotv v. City of Chicago, 
 3 Ban. k, Ard., 1)2 (1877), wliere omitting the t)oard .strip.s and 
 board foundation of the " Nicljolw'n j)«vcment," was held to be 
 no invention: See also Afct^iain v. Orimayer, 33 Fed. Rep., 287 
 (1888). 
 
 Wheiv a iiroccss becomes new sjmI patentable by omitting one 
 of the steps of a former prweKs: ,Sc-<r Lottiher v. HamUtan, 124 
 U. S., 1 (1888). 
 
 Also a process foi- the maiiufawrture of gelatine by cutting 
 hides into thin slices and then suii^iiiitBR;^ them, in that state, to 
 the action of caustic alkali, w]ii'reby the ujmj of blood, as in the 
 method previously used, was rendtred anneceasary ; held patent- 
 able : See Wallinyton v. Da(4; 7 Ex. R, 888. 
 
 Where a change of form or size does not involve a 
 change in mode of operation, or a change of function, 
 it is not invention. 
 
See. 16.] 
 Illustrations. 
 
 NOT INVENTION. 
 
 137 
 
 A pntoiit for Hhiftinif tho mknrs Hoat from ono Hido of n rrn))- 
 injj inachin*) to tho othcjr, tlion^h tlm clianj;t« iiia«lo work nwitir 
 for thw rakur, whs invaliil : i\/«uW/ v. Dotlijv, rlr., Co., G KimIi., 502. 
 
 A meru cltaiij^o of foriuor proportions will not untitle tu ii 
 piitcnt : Vide Woixhun^h v. Vai'ker, Mcrwin p. 2lM. 
 
 In 7 Uuo. IV., c. 5, Upper (!aiia<la, it wiis provi<lnI that, 
 " aimply ehaiigiiiK th» form nr iiroportiim of any iniiiliiiMi or loniiMwitioii in tiiy 
 ilu(;rf« ■hall not Iwileumtxl a (lUcovvry." This is takrii from the U. S. 
 Act of 179.T 
 
 In rwid organs niakin<{ the h;n^th un<l si/o of tho valvr op«m- 
 ing greater or les-s in a reed boani, or wlicri* i\w rocd lM)aril wan 
 iua«lc wider or narrower, or had nion* or less sets of reeds in it, 
 was no invention: Vldi' Eskif v. lianlett, 15 Hrodi.x, .T2 (IMH+), 
 109 U. S.. G:13. 
 
 It iH no invention to make a larger sounding hoard in the .same 
 comhination. Daj/ v. Btinhern Tel. (Jo,/.) Hlatch, .'Mi.'). 
 
 An immaterial variation of a machine in general use cannot 
 \ye the suhject of a patent right, there must, at least, ho a new 
 adaptation of a known principle, or some rhai)g(! which has culled 
 forth the inventive faculty : Vide HuhH v. Mnntennan, 4 L. N., 
 8, »S'. C. ( I S81 ) : .See also the judgment of Hagarty , ( '. J., in llu nter 
 v. Carnck', 10 App. R. (Ont.), pp. 4r>5-4.'>G, where a nniid)er of rofor- 
 encc: and English casos,bearing on change of form, etc., are collected. 
 
 Old devices combined into a new article, without 
 producing any new mode of operation not inven- 
 tion : Vide Yala Loch M(innfoctiKrin<i (yO. v. Aational Hank, 
 17 Fed. Hep., 5.'J:} (l.S«3), and sec. ;J7. Walker. 
 
 It is not Invention to Duplicate parts of a Machine 
 
 Making two deflecting plates in u saw mill machine which 
 doubles the efl'ect of the one previotisly in u.se, is no invention : 
 Ihhnbar v. Meyers, 94 U. S., 187 (1«7G) : Vide Walker, sec. 34. 
 
 Placing two glass panelH instead of one an previously in a 
 street car fare box, not invention : Sloivnon v. Railroad, 14 
 Hrodix, 47o (1883). 
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 NOT INVENTION. 
 
 [Sec. 16. 
 
 The substitution of one material for another, if 
 the result be only greater cheapness or durability, is 
 not patentable : /^o^cMi'^8 v. Greenwood, 11 How., 248; 
 Bump., 2nd ed., .55, .50; Brook v. Ashton, Goodeve, 94; Curtis, 
 4th ed., sec. 73 ; Walker, .sec. 28 ; Robinson, p. 330. 
 
 In Rushton v. Grawlei/, 10 Eq., .522 (1870). The use of a new 
 material to produce a known article not patentable : Curtis, 4th 
 ed., sec. 72, c. 
 
 In Kilhourne v. Bingham (June 6th, 1892), Cir. Ct. of 
 App., 6th Dist., 60 O. G., p. 577. The use of wrought iron or 
 steel in lieu of cast metal, is a mere substitution of materials, and 
 not patentable, notwithstanding the superior results obtained. 
 
 FU»'8heirn v. Schilling, Sup. Ct., U. S., 20 Brodix, p. 416 ; 
 
 137 U.S., 64 (November, 1890): Held, that thv substitution of the 
 metal spiral spring for the india rubber spring, which d' '^ '..» involve change of 
 method nor develop novelty of use, even though it may result in a superior 
 article, is not oeoesHarily n patentable invention." 
 
 See also Bruafi Electric Go. v. Electrical - n nulator Co., 
 66 O. G., 1334. 
 
 Exception. 
 
 Generally speaking, if a result long sought for has been 
 attained, the device or process which attained that result may be 
 patentable : Tondeur v. Chambers, 37 Fc 1. Rep., 333 (1889) ; 
 Walker, 2nd ed., sec. 26. 
 
 And in applying the tests, patents are not held void for want 
 of invention, except when invention is clearly absent : Reiter v. 
 Jones, 35 Fed. Rep., 421 (1888) ; Marrin v. Gotshall, 36 Fed. 
 Rep., 908 (1888). 
 
 Changing the form of a coal- car from rectangular to conoidal 
 was held patentable : See Winans v. Denmead, 56 U. S. ; Ren- 
 wick (1893), p. 6. 
 
 Lessening the size of the perforations in the lantern-case of 
 the " Davy safety lamp " a proper subject for a patent : Reuwick 
 (1893), p. 10. 
 
 There may be invention in change of proportion. Nelson 
 Goodyear discovered that b}' increasing the quantity of sulphur 
 for mixture with crude rubber in the* process of vulcanization. 
 
Sec. 16.] 
 
 ABA-NDONHENT. 
 
 139 
 
 that vulcanized ruVjber lost its pliable quality and became " vul- 
 canite": See Goodyear v. New York Gufta Percha, etc., Co., 2 
 Fish., 312. 
 
 There may be invention in change of material ; a rubber roll 
 for wringing machines held patentable: Renwick (1893), p. 12; 
 a rubber plating for a carriage step held [tatentable : See Rubber 
 Step MaiiiifactiLring Co. v. MetrupoUtan R. Co., 3 Ban. & Ard., 
 252 ; Renwick (1893), p. 25. 
 
 There may be invention in duplication of parts ; in an ice- 
 cutting machine a series of cutters arranged behind each other, 
 projecting to progressively increased distances beneath the beam 
 so that the ice was cut by a succession of chippings, was held 
 patentable : Wyeth v. Stone, 1 Story, 273. See also as to dupli- 
 cation of parts being patentable : Parker v. Hkdme, 1 Fish., 44 ; 
 Renwick (1893), p. 32. 
 
 There may be invention in change of arrangement of parts ; 
 arranging the discharging wheel to throw the seed vertically 
 instead of horizontally was held patentable : Culioomi v. Ring, 1 
 Clifl:, 592 ; Renwick (1893), p. 16. 
 
 The change of location of a quadrantal platform in a reaping 
 machine, inducing a new mode of opemtion, held patentable by 
 the U. S. Sup. Ct.: Seymour v. Osborne, 11 Wall., 516. 
 
 Abandonment. 
 
 (6) See section 16. When the invention has been in public use or 
 on sale for more than one year with the consent or allowance of the 
 inventor prior to application for a patent therefor in Canada, it is 
 deemed to be in the possession of or abandoned to the public : 
 Vide note e, sec. 7, where the matter has been fully discussed. 
 
 Illustration. 
 
 In Hessin v. Coppin, 19 Grant, p. 629 (Ont), 1873, the 
 inventor of a new machine, before taking out a patent, erected 
 and sold a machine embodying his invention, and the purchaser 
 had it in use three years before the inventor procured a patent. 
 The machine so sold was not put up for experimenting, but was 
 sold as a complete machine : — 
 
 Held, that the inventor had lost his ri^t to a patent. 
 
 t I 
 
140 
 
 NOVELTY. 
 
 [Sec. 16. 
 
 .1 
 
 In section 7 we have the expreasion "in public use," here, 
 section 16, we have "in the poascsaion of the piililic, with the consent or 
 allowance of the inventor," and in section 4G of this Act we have a 
 definition of what will constitute :i i>ois>ie.vsion by the public, viz., 
 
 it it be "purchased, constructed, acquired, or used, with the consent or allow- 
 ance of the iiiventor thereof, for a longer iK-rifnl tlmn one year Ixjfore the applica- 
 tion for a patent therefor, making t)>e invention one v hich had become public and 
 in public use." But as to this last definition, it must be reumrked that 
 it relates to a case under section 40, where a pei-son has purchased, 
 constructed, or acquired an invention prior to the issue of a 
 patent, and relates to the "specific article ' so purchased, con- 
 structed, or acquired. 
 
 The establishment of " abandonment " or of " public use " 
 requii'es proof so clear as to be beyond all reasonable doubt : Bury 
 V. Tho7np807i, 58 0. G., p. 1255 ; Oval Wijod Dish Co. v. Sandy 
 Creek Manufacturing Co., 60 0. G., p. 1895 (March, 1894). 
 
 (o) See section 10. Novelty lies at the root of everything 
 which is patentable in Canada, Pid has been already discussed 
 under Notes (c) and (d), sec. 7. 
 
 The meaning of " novelty " differs from the meaning in the 
 United States, as well as in Englauv' - here we have seen it may 
 have a literal meaning — while in the estates, by .sections 4887, 4928 
 R. S., " novelty " is not negatived by prior knowledge and prior use 
 in a foreign country of a patented article, provided the patentee, 
 at the time of making his application for a U. S. patent, believed 
 himself to be the first inventor of the thing covered thereby, and 
 provided that the thing had nowhere been patented to another, and 
 had nowhere been described in a printed publication prior to his 
 invention thereof. 
 
 Under note to section 10, we have seen that " patents of com- 
 munication," from abroad, are still obtainable in Great Britain, 
 under the Patent Act of 1883, by agents, and that the first intro- 
 ducer into the realm was held to be " tJte true inventor " within 
 the meaning of the Statute of Monopolies. 
 
 In North v. Williams, 17 Grant (1870), p. 179, the introduc- 
 tion into a drum stcve, in addition to a spiral flue which had pre- 
 viously been in use, of a centre pipe closed at sides and open at 
 
Sec. 16.] 
 
 PUBLICATION. 
 
 141 
 
 top and bottom, as a means of producing; greater heat : Held, that 
 the improvement did not involve any new pi'inciple or new com- 
 bination, and that the patent was void : Vide also Sylvester v. 
 Mimon, 12 App. R. Ont., p. 335 (1885). 
 
 Novelty not Negatived. 
 
 (1) When air the elements of the combination are old so that 
 the combination be new, and the result useful : Parks v. Booth, 
 102 U, S., 104 (1880). It nuist, however, be a combination and 
 not a mere aggregation : see note, a, section 16. There may be a 
 new means of producing an old result : Vide O'Heilly v. Morse, 
 15 How 62 (1853). 
 
 (2) By an accidental pjoduction of an alleged anticipating 
 article, without sufficient knowledge to enable one to repeat the 
 production : Andreivs v. Carman, 2 Ban. & Ard., 277 (1876). 
 
 (3) Novelty is not negatived by a prior inoperative device : 
 Vide Morey v. Lockivood, 8 Wall., 230 (1868). 
 
 (4) Novelty is not negatived by prioi" abandoned applications 
 for a patent ; they are not publications : Vide Cornplanter Patent, 
 23 Wall., 211 (1874). 
 
 And in Great Britain by 48 and 49 Vic., c. 63, sec. 4 (1885) : 
 When an application for a patent has been abandoned or become 
 void, the specification or specifications and drawing ^'i any) ac- 
 companying or left in connection with such application shall not 
 at any time be open to public inspection or be published by the 
 comptroller. 
 
 (5) Nor, as we have seen, is novelty negatived — vide note d, 
 sec. 7 — by unpublished drawings or models : Vide Walker, 2nd 
 ed., sec. 61. 
 
 (6) An abandoned experiment is no evidence of want of 
 novelty : Vide Walker, sec. 95. 
 
 Novelty Negatived. 
 
 But where there has been a public, well-known, practical use 
 in ordinary work, of the exact invention, and although only one 
 article of the patented invention w^as ever made, which was used 
 two and a half months onl}-, and then taken from the lamp: 
 Held, that it was a perfected invention and not a mere aban- 
 
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 IHIIt 
 
 Ai 
 
 U2 
 
 PUBLICATION. 
 
 [Sec. 16. 
 
 doned oxperimoiit. A (jnestion of degree in the use of substan- 
 tially the same nienns is not novelty : See Bmnh v. Goiulit, Sup. 
 Ct., U. S., 19 Brodix, 582 (November. 1889). 
 
 A ({ualitied disclaimer, however, i.s held to be an admission of 
 want of novelty: .see Collins Co. v. Lorivg, Sup. Ct, U. S, 19 
 Brodix, p. 452 (March, 1889); also an express disclaimer : See 
 Beecker Manufacturivg Go. v. Atwater Manufacturing Co., 16 
 Brodix lOG. 
 
 {(1) Suo section 16. Printed description or possession 
 by the public as grounds of refusal of a patent. 
 
 Abandonment to the public by the inventor cannot, it is con- 
 ceived, take place by the mere description by the inventor himself 
 of his own invention in a book or printeil circular, during the year 
 prior to his application for a patent ; although a printed descrip- 
 tion in a book or other publication by the inventor himself more 
 than a year prior to his application, may be held to work such 
 " abandonment." 
 
 In Barter v. Hoivland, 26 Grant, p. 135 (Ont.), where the 
 plaintiQ had more than one year previous to his application for a 
 patent, in Canada, obtained a pate!it in the U. S., disclosing the 
 same invention though not containing all the claims of the Cana- 
 dian patent ; Blake, V. C. — Held, that under sec. 7 of the Patent 
 Act of 1872, such foreign patent amounted to a publication of the 
 whole invention in the United States, and imported a disclaimer 
 of all parts not claimed in the foreign patent. This case is analo- 
 gous, but, of course, refers to a patent ; books or other printed 
 publications are spoken of separately, as distinguished from pat- 
 ents in sub.-secs. (d) and (e) of this sec. 16. 
 
 It does not appear reasonable that a mere printed publication 
 by the inventor himself, within a year prior to his application, 
 should wcvk a forfeiture, when being " in public use or on sale " 
 dui'ing that period, *' with the consent or allowance of the inventor," 
 will not work such forfeiture. Besides that the right to expose 
 articles for sale implies a right to advertise them for .sale in 
 books or printed publications, both by the inventor and by those 
 whom he authorizes and allows. The publicjition is to be a 
 " printed " publication and not a manuscript. 
 
Sec. 16.] 
 
 FUBLIOATION. 
 
 148 
 
 The publication in this sub-sec. (</), " in u IhwIc or other printed 
 publication hetote the date of the upplication " mUst then refer to an 
 
 indepenJent invention by some person, other than the ap|>licant. 
 
 The invention amy l>e "otherwise in the poBscHHion of ihe public" 
 by reason of the inventor having taken out a foreign patent and 
 failed to apply for his Canadian patent within n, year of the date of 
 his foreign patent under sec. 8 ; or by reason of an unpatented in- 
 vention by an independent inventor being in public use or on sale 
 in Canada prior to the application ; or by renson of it having been 
 "known or used" anywhere prior to applicant's invention thereof: 
 Vide Note (d), sec. 7. 
 
 In this sub-section (d) of section 16 "possession of the public" 
 appears to be contrasted with the " possession of the public " referred 
 to in sub-section (6) of section 16, and is without the consent or 
 allowance of the inventor. 
 
 There may be an abandonment to the public when an inven- 
 tor makes an express declaration to that effect : See Kendall v. 
 Winsor, 21 How., 328 (1858). 
 
 The Supreme Court, U. S., has held that the failure for two 
 years without excuse to prosecute an application for a patent 
 works an abandonment of the invention : Planing Macliine Co. 
 v. Keith, 101 U. S., 479 ; unless there are the strongest reasons 
 for the delay, such as sickness, insanity or actual pov^irty : See 
 U. S. R. S., sec. 4894. 
 
 Fublioation. 
 
 The meaning and efTect of " publication " in Great Britain, the 
 United States, and Canada differs, as appears by the following 
 citations : — 
 
 Illustrations. 
 
 {d) See section 16. The printed description must be such as 
 would enable a properly qualified person to put the invention into 
 practical operation from the description alone : Vide Eaines v. 
 Andrews, 17 Brodix, 98. 
 
 In Hilla v. Evans, 31 L. J., Ch., 463, Lord Westbury said : 
 
 " The antecedent statement must, in order to invalidate the subsequent patent, 
 be such, that a person of ordinary knowledge of the subject would, at once, 
 
144 
 
 PUBUOATION. 
 
 [Sec. 16. 
 
 S'Ji? 
 
 11 
 
 « 
 
 l*f 
 
 puroolvu iind uiuIerHtuiul hikI Im; iiMu pnictivully to upply thv iliiuovery without 
 thu lUKiutmity of iniiking furtliur oxpiTitiii-iitM." 
 
 And in Plimpton v. Mdlcolmson, L. R., S Ch. 1)., 581, Sir 
 
 George Jessel says : •' He must not Hclett ttminent engineers or celebrated 
 clieniistH UH the ]ierHf)iiH to whom tlie B|)eL'iKcation must he intelligible, but he niiiHt 
 choose ordinary workmen in the j ticular branch or trade to which the invention 
 refers, etc. lie may, of course, call eminent eiigineent, l)ut their evidence can 
 only have this etl'ect, placing myself in the position of an ordinary workman, 
 wliother I think it would or would not be intelligible to me." 
 
 On tlio saino lino ns the tbrej,'oing, Morgan v. Seavurd, 1 
 Web. Pat. Cas., 107, was also deeidecl. 
 
 Now, however, in a recent Hou.se of Lords case, the foregoing 
 tests have been materially changed, which, in the case of prior 
 publication, enure to the destruction of the patent, and in the case 
 of insufficiency of specification, to its validity. 
 
 New Test in England. 
 
 The test now as to prior publication is, whether the specifica- 
 tion was sufficient to convey to men of science and employers of 
 labour information which would enable them to understand the 
 invention so as to give a workman specific directions for the 
 making of the machii.e, and applying such test there had been 
 publication: Anglo Armricau Brush Electric Light Corporation 
 V. King, Broivn it- Co. (1892), App. Cas., 367, H. L. 
 
 Prior publication in a foreign magazine published in Great 
 B; tain invalidates the patent : Pickard tC* Gurry v. Prescott 
 (1892), App. Cas., 203. 
 
 " Publication " is defined to be an addition to the stock of 
 knowledge which the public either has or can acquire by consult- 
 ing .some source of information open to it ; it has not the same 
 meaning when used with reference to patents as it has when used 
 with reference to libels or slanders : Vide Gadd <i' Mason v. 
 Mayor of Manchester, 9 R. P. C, p. 527 (1892) ; Humpheraon v. 
 Syer, 4 Web. Pat. Cases, 410, and Plimpton v. Malcolmson, 3 
 Ch. D., 531, before referred to. 
 
 If a foreign patent be oaken out first in a country belonging to 
 the International Convention, and then published in England prior 
 to taking out a patent ; if the English patent be not antedated to 
 
Sec. 16.] 
 
 PUBUOATION. 
 
 145 
 
 the (late of foreign patent as required by section 103, Patent Act 
 (188.3), T/ig., the prior publication in Kngland is fatal : Vide 
 British Tanning Co. v. Groth, GO L. J., c. 2'.ir>, 8 R. V. C, 1 13. 
 
 Prior publication in a foreign Journal and in a foreign 
 language will invalidate an English patent if it can be shown 
 that a single copy was deposited in England in a public place 
 and was open to public inspection; United Tvlvithouc Co, v. Ilarn- 
 »on <t' Co., L. a 21, Ch. D., 720. 
 
 Prior publication in England was proved by evidence of 
 delivery of a foreign publication, showing the invention, to 
 several persons a few days before the date of patent : Pickard v. 
 Prescott, R. P. C, vol. 7, p. 3G1 (1890). 
 
 No prior description ought to invalidate unless the patented 
 thing could be made from the description, per Je.ssel, M. R. : 
 Plimpton v. Malcolni8on, p. 377, Goodcve, L. R., 3 Cli. D., 531. 
 In this case, a volume of patents from the United States, 
 containing a drawing, had been deposited in a room in the Patent 
 Office Library, which room was not accessible to the public. 
 Jessel, M. R., held that the existence of this book for ten years 
 on the shelf in a private room, was not a publication, and he 
 quotes Tindall, C. J., in Stead v. Williams, 2 Webs. Pat. Gas., 126 : 
 " It must be published in a bonk made public in England. It must \m publicly 
 circulated, and it must give possession of the knowledge to the public." And 
 
 in Stead v. Anderson, 2 Webs. Pat. Gas., 147, '• That u book must be 
 
 Duide public to such an extent aa to be generally known by persons practising 
 in such matters. " 
 
 As to prior publication in England, the law on the subject as 
 stated in Gadd v. The Mayor of Manchester, T. L. R., vol. 9, 
 p. 4t2 (November 4th, 1892), is said to be found in Humpherson 
 V. Syer, 4 Pat. Gas., 410 ; and Plimpton v. Malcolmson, 3 Gh. D., 
 531, supra. 
 
 A French treatise was placed in the British Museum Library 
 in 1863. The Museum's catalogue is kept with reference to 
 authors' names and subject matter, and parties might have been 
 guided to this treatise : Held, that theie was no prior publica- 
 tion in Enorland of matter contained in the treatise so as to avoid 
 a patent taken out in 1876, and that as defendant adduced no 
 evidence of such book being actually used, or of any other copies 
 19 
 
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 PUBLICATION. 
 
 [See 16. 
 
 hmrini^ hM*n tntrodiicod into Eni^'land, cvidonoo was ina^lininfiible : 
 
 orf*> •. Sf'^'f. K. i». ('., vol. :\ (iHMO), p. i()!» ; :{i n,. d.. 241. 
 
 Wh^'n two spiMMfioations in rJcrniaii lunl Iw^cn inon? than two 
 y«mr% an*! forty <lays r<>Mportiv«'ly, in the l'at<*nt Ortiee Lihrar}', 
 London, Eng. : Ilrhl, that Iiavinj^ ro^anl to facility of acces.s to 
 the Library, to information given in the" Patent Journal." «n«l the 
 lengih of time there had been previous publication in England ; 
 novelty was negatived ; and that it was ininiaterial whether the 
 pablieatton was in (Jerman or English : llntriM v, Rotfnrell, R. 
 P.CtoL3(1886), p. .S83. 
 
 Anticipation. 
 
 IneM«>i of alleged anticipation by earlier patents from which 
 ■O actual manufacture had been tna<le, caution is to be oli«ierved 
 in dealing with such alleged anticipation : Ehvlich v. Ihlee, R. P. 
 C^Tol. 5, p. -200 (18S8). 
 
 In the United States a foreign publication prior to the inven- 
 tion in the States, even though it had not reached the States 
 woald :«atfice to avoid the patent under their Act : Vide Walker, 
 2nd <♦!., sec. 54. 
 
 Pablication in Canada. 
 
 A« in Canada, a [»atentable invention may Ije re<juired, as we 
 have «een, to be new as to the whole would, the lx>ok or other print- 
 ed pubtication refened to in sub-section (rf) of the Act may be held 
 to mean a book or printed publication anywhere. We have no 
 reftortetl judicial decisions exactly on this point, but in Smith v. 
 Grifify (a sequel to Smith v. Goldie, 9 Sup, Ct., Can., decide<l June 
 IShth, 188:^), tried before Mr. Justice Pioudfoot, at the Chancery 
 SiittingH, Toronto, in 1886. A work published in Fi-ance, con- 
 taining an alleged anticipation of plaintiff's invention of a " Mid- 
 dJittg* purifier," which had found its way to Minneapolis, U. S., 
 wa* alIowe«l in, as evidence, at the trial, of the want of novelty 
 of pkintitfs Canadian Letters Patent, under the general plea of 
 want of novelty, set up in the pleadings, notwithstanding the 
 oi^eictions of plaintiff's counsel ; no particulars had been de- 
 manded as to this. 
 
 The "■ printed publication " referred to in this sub-section may 
 
 W t 
 
Sec. 16.] 
 
 PUBLIOATION. 
 
 U7 
 
 nii'iiM th<! priHtt'tl .s|nj(Mtici»t,i()M.s uttticho«| to LotttTs Patent in tlio 
 Uiutoil Stiitos, or in Uonnany, or tin- spt'citic^utionM in (iruat 
 Hiitain, which arc also printed Imt not attached to the deed. 
 
 In foreij^n countries the specitieationM are not usually attached 
 to the patent deeds, as is th(» case in Canachi and the United 
 States and Oerniany an<l Belgium. 
 
 In Canada tho specifications are either " written or type- 
 written," but, as in tho Interpretation Act the expression "writing, 
 writton or any term of liko import, ini'liulvn wonlH printiMl, |)ikiiit<!il, tingravcd, 
 litlioKraplHMl or othirwiNtt triicvd or cnpiiMl," ( 'iinadiaii !ipecifi(witions may 
 thus come within the meaning of a " printed |)ul»lication." 
 
 Defects in deotion 16. 
 
 The section is defective in that it does not directly refer to 
 inventions previously patented in Canada (»r elsewhere, as antici- 
 pations, for the reference to them in sub-section (t) following, is 
 ('(Hitined to cases arising under the eighth section of the Act ; 
 proof, however, tliat an invention had been patented anywhere 
 would go to show that it was " known " within the meaning of 
 the 7th section. 
 
 This sub-section (d) refers to a publication before the date of 
 the application for a patent in Canada ; in Canada, the publica- 
 tion may then, possibly, be held to mean a publication outside of 
 Canada, not shown to have reached there, as showing that there 
 had been prior knowledge or use of the patenteii article else- 
 where. 
 
 In the United States, by section 48(SG, " not imtentetl or deHcriliea 
 in any printod putdication in tliis or any foreign country l)ttforu liiH invention or 
 discovery tlioreof," is held to mean that novelty in the States is not 
 negatived by anything patented or described in the United 
 States or any foreign country, unless such thing antedates the 
 invention of the applicant in the United States : See Cochran 
 \.Diener, 11 Brodix, 290, Sup. Ct., (J. S. (1877); Elizabeth v. 
 Pavement Co., 11 Brodix, ali, Sup. Ct., U. S. 
 
 As to Publication in Canada and United States. 
 
 In Canada publication before the date of application is 
 material, in U. S. publication before the date of invention, ; the 
 U. S. Statute also expressly refers to foreign publications. 
 
 
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 •!. 
 
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 I 
 
 I' 
 
 11 
 
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 148 
 
 PUBUOATION. 
 
 [8«0. 16. 
 
 At tho PutJint OfH(M» lihrury in Ottawa, tho full text of this 
 U. S. M|)«'('iflc'jitliiris lwiv«( htM'ii n'CoiviMl fur hoiiw yi-ars |)iiMt, ntnl 
 jii»( tlxMii ill iiDiiiid voliiiiH's. U((!«>iitly tin* Kii;,'li.sli and Frciicli 
 HpocifJcatioris liavr havn received into said liluary from th« 
 Pai'lianiuntary Library. 
 
 («) See Hection IG, Tliis .snb-soctioii appears to moot tho case of 
 an invention tirnt patenud abroad, and th<> applicant (vpplyin^' 
 within one year of tho (hilo of tho Hrst forei^'n patent for a 
 patent in Canada under Hection H; if a patent shouhl liave 
 ah'oady isHiicd in Canada to an independent itjventor, this, of 
 eourse, would cut out the new applicant ; this sub-section also, 
 uiuler tli(> words "or elmiwlnTf " coviTs th(! ease of a foifi'm 
 patent, b(unj^ within tho knowled;,'o of tiio conunissioner, which 
 foreign patent anticipates tliat of tho applicant, so that ho is not 
 tho true and first inventor as to tho world, as may bo roquired 
 by our Act as it now stands in this case, also tho granting of a 
 Canadian patent may bo objected to. (See Appx. 3 for amending 
 Act, if any, passed during session of 18!)4). 
 
 But if tho Commissioner has doubts whether tho prior 
 patentee in Canada, as in tho first instance, or tho foreign 
 patentee, as in tho second instance, bo tho first and true invtntor, 
 or whether tho applicant bo, ho may, it is inferred, grant the 
 patent to tho new applicant and allow tho parties to adjudicate 
 tho matter in tho Courts. 
 
 By the Act of 1869, sec. 40, this provision appeared for the 
 first time, and tho term here could not then mean " tlie first 
 inventor " tho world over, for tho Act of 18(J9, in which they first 
 occur was limited to residents of Canada, and an independent 
 Canadian inventor's patent was not liable to attack, because of 
 any knowledge or use of tho invention abroad not accessible 
 or open to the j ublic. 
 
 The remedy, although not specifically stated, is implied, and 
 the procedure would, it is conceived, be under the amended 34th 
 section of this Act, by acl. fa., in the Courts of any of the 
 Provinces or North-West Territories of Canada, or in the 
 Exchequer Couit of Canada, at the suit of any of the patentees 
 or of any person interested : Vide .section 34. 
 
■ 
 
 i 
 
 Sec. 16.] 
 
 PROCEDURE. 
 
 141) 
 
 Defeots in Sub-seotion («). 
 
 Tilt' sul)-.si!Otion is (U'lWtivt!, in not Hp»;ciflcftlly stilting what 
 thv (/«»nMni.H.sionur nmy «lo, nor how tlio niattfi' \h to K l)rnu^ht 
 h"fori' tho ('ourts to (lotrrniino who is th«! " fiist inventor " ; in 
 oni' instance, at loa.'-t, the ConMnissionrr iioM that he hail no 
 powt!!' to fj^rixut another patent, in view of the existence of a 
 |irt!vioUH patent to anutlier inventor ; the <|uestion, however, 
 niij,'ht he hrou^'lit up uiuha' section .S4, to repeal the existing 
 patent hy the new applicant, and it' the new applicant were suc- 
 cessful in showing that ho was the first inventor, the olil patent 
 might l)u re pealed and a new one issued to the applicant ; there 
 ought to he some provision, as in the States, confining the issue 
 to whif'li was " the firsK- inventor." 
 
 Procedure In U. S. 
 
 In the United States, the procedure is difFeront. Although the 
 Conindssioner of Patents has no power to cnnf' a patent, he may 
 grant another patent for the same invention to a person who 
 proves to ho the prior inventor; and m detorndne this point, an 
 interference would he declared, under Rule 94 of the U.S. Patent 
 Ortice ; there are eight eases in which interferences may he 
 declared set out in this rule. 
 
 The case in point would come under heading tvo as between 
 an original a[>plication and an unexpired patent containing 
 conflicting claims, when the applicant, having ht^n rejected on 
 the patent, shall file an affidavit that iie made tiie invention 
 hefore the patentees application was filed. 
 
 All preliminary qHestions having been settled hy the primary 
 examiner, the issues are clearly defined, and the case forwarded to 
 the examiner of interferences, who makes a formal declaration of 
 interference, by forwarding notices to the parties to the proceedings. 
 
 If, in the interference ])roceedings, the new applicant be 
 adjudged the prior inventor, it becomes the duty of the com- 
 missioner to grant him a patent, under section 4904, Revised 
 Statutes. 
 
 A suit in equity may then be instituted tc determine which 
 of the two patentees is entitled to the patent or claims in 
 

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 1 1 
 
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 Mil 
 
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 150 
 
 PROOEDURE. 
 
 [Sec. 16-17. 
 
 question, and the only issue of fact is, which of the two is the 
 first inventor ? There nmy, liowever, be an issue of law : Vide 
 Morrk v. Manti/dctaring Co., 20 Fed. Rep., 121 (liSS-i). 
 
 Evidence that a third person anticipated both inventors is 
 not admissible in an interference suit. 
 
 And the evidence taken in the Patent Office is not to be used 
 in the Court : Vide Clow v. Baker, 86 Fed. Rep., G92 (18S8). 
 
 For proceedings as to interfering patents : Vide Walker, 2iid 
 ed., c. 13. 
 
 1 T. Whenever the CommiaBioner objects to grant a patent as aforesaid, lie 
 shall notify the applicant to that effect and shall state the ground or reason there- 
 for, with siiihcieut detail to enable the applicant to answer, if he can, the objec- 
 tion of the commissioner. 35 V., c. 26, s. 41. 
 
 Note. — Outside of the signing of the patents all the routine 
 work of the Patent Office is done by the Deputy Commissioner 
 and his staff; the Deputy Commissioner having general control 
 of the business as provided in sub.-section 2 of section 5 of 
 the Act. 
 
 Besides formal objections to the specifications and drawings 
 which are usually capable of correction by correspondence, we 
 have seen that the Commissioner may object to grant a patent 
 if, in his opinion, it lacks (1) novelty, (2) utility, or (3) invention, 
 (4) if it be the mere application of a known machine or process to 
 an analagous purpose, (5) if the invention be injurious to the 
 health, morals or good order of society, (6) if the invention have 
 an illicit object in view, (7) if it be for a scientific principle or 
 abstract theorem, (8) if " mechanical equivalents " be substituted 
 in an existing machine, (9) if " chemical equivalents " be substi- 
 tuted in an existing composition of matter, (10) if it be an 
 "aggregation," (11) if it be merely the result of mechanical skill, 
 (12) if it be the mere omission of one element of an existing 
 thing without setting up a new mode of operation, (13) if it be a 
 mere change of form or size, which does not involve change of 
 operation or change of function, (14) if it be the mere substitu- 
 tion of one material for another, (15) when the invention is 
 abandoned or in the . pos.ses.sion of the public, (IG) if there be a 
 
Sec. 17-18.] 
 
 PROCEDURE. 
 
 131 
 
 disclaimer or a qualified disclaimer, (17) if it be merely a question 
 of decree in the use of substantially the same means, (18) if it be 
 described in a book or printed publication prior to the applica- 
 tion, (19) if it be patented previously in Canada or elsewhere, 
 (20) if in the case of an application by a foreign patentee, under 
 section 8 of this Act, a previous patent should have already issued 
 in Canada to an independent inventor, (21) if a foreign patent be 
 in existence anticipating that of the applicant, (22) if the inven- 
 tion by express terms be expressly abandoned to the public, 
 (23) if there be laches in prosecuting the application in the Patent 
 Office, and it be not perfected within two years from date of 
 filing the petition (24) if the device is clearly inoperative. 
 
 And for other reasons not above enumerated the Commissioner 
 may object to grant a patent, and he shall notify the applicant, 
 presumably in writing. 
 
 The sufficiency of the detail to be given by the Commissioner 
 is presumably that which would suffice in a Court of law, giving 
 dates and occasions when and person by whom prior user was 
 had: See Smith v. Gre.ey, 11 Prac. Rep. (Ont.), p. 169. 
 
 The numbers and dates of the patents, and the persons to 
 whom the prior patents were made and the countries in which 
 issued may be demanded. 
 
 If publications or books are set up, the pages of the book, etc., 
 its date and where it may be obcained should be pointed out : 
 See Silahy v, Foote, Sup. Ct., U. S., 14 How., 218; or any other 
 matters which would add definiteness to the grounds of refusal. 
 
 Many of the foregoing re.isons for refusal of a patent involve 
 mixed questions of law and fact, and the Commissioner of Patents 
 has been in the habit in this country, as well as the Commissioner 
 in the United States, of disregarding the legal aspect of the cases, 
 and confining their objections to such questions of fact as may arise 
 relative to anticipation and to formal matters in the framing of 
 the specification and claims. 
 
 1 8. Every applicant who haa failed to obtain a r^atent by reason of the 
 objection of the commissioner, as aforesaid, may, at any time within six months 
 after notice thereof Itas been addressed to bim or his agent, appeal from tae 
 decision of the commissioner to the Governor-in-Council. H5 V., c. 26, s. 42. 
 
 i^l'i 
 
 Vi 
 
iii 
 
 152 
 
 ^ROOEDTTBE ON APPEAL. 
 
 [Sec. 18. 
 
 Note. — The previous section says that the applicant is to 
 answer if he can the objection of the Commissioner ; this implies 
 that the Commissioner is to consider the answer to the objection. 
 The answer might take some time to prepare, and the Commis- 
 sioner might delay the consideration of the answer. One would 
 suppose that the " six months " should then commence to run 
 from the date of addressing the final notice of rejection after the 
 answer had been heard, this latter appears to be the recognized 
 practice. 
 
 The term " addressed to him " probably means " mailed to 
 him." A letter or notice might be addresred, but never sent, and 
 the time would commence to run from the date of mailing. 
 
 The six months mean " calendar months " under the Interpre- 
 tation Act. In the United States they may mean "lunar" 
 months, although the practice is now to regard them as calendar 
 months. 
 
 The appeal to the Governor-in-Council would practically 
 mean the Minister of Justice ; an appeal to the Exchequer Court 
 one would suppose a more desirable procedure. 
 
 Appeal in the Matter of a Lapsed Application. 
 
 Under this section 18 it has been held by the Commissioner 
 of Patents, Canada (1st February, 1894), in the matter of the 
 lapsing of application No. 57,729 (Fitzmaurice), by rea.son of 
 the non-completion or non-perfecting of the application within two 
 years from the date of filing, as required by Rule 9 of the Patent 
 Office (see Appendix 1), that an xippeal lay from the decision of 
 the Commissioner to the Governor-in-Council. The proceedings 
 are by way of petition to the Governor-in-Council, setting out 
 the facts, with a prayer for the relief required, supported by 
 affidavits ; the petition, etc., to be left with the Secretary of State 
 and the Commissioner of Patents. 
 
Sec. 19.] 
 
 OONFUOTINO AFPLICAIIOH& 
 
 153 
 
 PART V. 
 
 Conflicting Applicatioxs. 
 
 1 9. — {ci) In case of conflicliug applications for any patent, the same shall 
 be submitted to the arbitration of three skilled pt-nons, tvo of whom shall be 
 chosen by the applicants, one by each, and the third of vhom sh-vll l>e chosen by 
 the commissioner or by the deputy commissioner, or by the person appointed to 
 perform the duty of that ofScer ; and the decision or avard of such aroitrators, 
 or of any two of them, delivered to the commissioner in writing, and subscribed 
 by them or any two of them, shall be final, as far as conoenA the granting of the 
 patent : 
 
 2. (6) If either of the applicants refuses or fails to choose an arbitrator, 
 when required so to do by the commissioner ; and if there are only two such 
 applicants, the patent shall issue to the opposing apfMicaoit : 
 
 3. (c) If there are more than two conflicting; applications, and if the 
 persons applying do not all unite in appointing three arbitrators, the commissioner 
 or the deputy commissioner or person appointed to perform the duty of that 
 officer, may appoint the three arbitrators for the purposes aforesaid : 
 
 4. (d) The arbitrators so named shall subscribe and take, before a judge 
 of any court of record in Canada, an oath in the foim following, that is to say : — 
 
 "I, the undersigned {A. B.), being duly appointed an arbitrator under the 
 authority of ' The Patent Act,^ do hereby solemnly swear, (or affirm, as the caae 
 may be), that I will well and truly perform the duty of snch arbitrator on the con- 
 flicting applications of (C. D. and E. F. ) submitted to me : '' 
 
 5. (e) The arbitrators, or any one of them, whoi so sworn, may summon 
 before them any applicant or other person, and may r«|aire him to give evidence 
 on oath, orally or in writing {or on solemn ajftrmafiom, if *mtk applicant (yr person 
 M entitled to affirm in civil cases), and to produce such documents and things as 
 such arbitrators deem requisite to the full investigation c^ the matters into which 
 they are appointed to examine, and they shall have the same power to enforce the 
 attendance of such applicants and other persons, and to cmnpel them to give 
 evidence, as is vested in any court of justice in civil cases, in the Province in 
 which the arbitration is held : but no such applicant or person shall be compelled 
 to answer any question, by his answer to which he mi;', t render himself liable to 
 a criminal prosecution : 
 
 6. (f) The fees for the services of snch arbitTators shall be v. matter of 
 agreement between the arbitrators and the applicantB, and ihall be paid by the 
 applicants who name them, respectively, except thoae of the arlntrator or arbitra- 
 tors named by the commissioner, which shall be paid by the applicants jointly. 
 35 v., c. 26, 8. 43, part, 
 
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 154 
 
 OONFLIOTINO APPUOAHONS. 
 
 [See. 19. 
 
 (a) See section 1 9, Provision was first made for determining as to 
 interferingapplications in7 Geo.IV.,c.5(182(5),by three arbitrators ; 
 one to be chosen by each of the parties, and one by the Secretary 
 of the Province. In 186G, there was an Act to amend the 
 Con. Stat., ch. 34 (1859), which contained this provision, and 
 provided that an oath should be taken by the arbitrators, who 
 could summon witnesses to give evi«Jence on oath, and that 
 any wilfully false statement should be deemed a misdemeanour 
 and be punishable in the same manner as wilful and corrupt 
 perjury, and that no witness should be compelled to answer a 
 question so as to lay himself open to a criminal prosecution. 
 The fees of the arbitrators were to be paid by the parties 
 naming, and those of the third arbitrator, named by the 
 Minister of Agriculture, to be paid jointly, so that the general 
 provisions then were the same as now. 
 
 The Patent Act of 1872 provided for arbitration by three 
 
 skilled persons, " One of whom shall be chosen by each of the applicants," 
 etc. ; this is put in a less ambiguous shape now. 
 
 The patent referred to in this sub-section includes also the 
 specifications and drawings attached to the Letters Patent. 
 Although the arbitrators are to be "skilled persons," the standard 
 of skill is that which placed by the parties appointing them ; 
 and as merely a question of fact has to be determined as to the 
 date of the first invention, no very great skill in the art to 
 which the invention may belong appears to be called for. 
 
 The phrase " or by the person appointed to perform the duty of that 
 officer" might refer to eithei- the Connnissioner or the Deputy 
 Commissioner ; the last mentioned is probably the one intended ; 
 but how, or by whom this person is to be appointed, does not 
 appear. The Deputy Commissioner, under section 5 of this Act, 
 is appointed by the Governor-in-Council, apparently to perform 
 the dut}' of the Commissioner and such other duties as are 
 assigned to him ; but there is only provision for one Deputy. 
 
 No Time Mentioned for Appointment. 
 
 No time is mentioned within which the appointment of the 
 arbitrators is to be made by the applicants or of third arbitra- 
 tor ; nor is any provision made for the enlargement of such 
 time. 
 
Sec. 19.] 
 
 OONFLIOTINO APPLIOATIONS. 
 
 156 
 
 No Time for Giving Award- 
 
 The award has to be in writing', signed by the arbitrators, or 
 a majority of them, but no time is mentioned tor making the 
 award, nor for enlarging such time. 
 
 No Provision if Case not Decided. 
 
 In the event of the arbitrators being unable to decide which 
 applicant was the first inventor, no provision is made ; in Great 
 Britain, where the examiner reports that there are two applicants 
 for the same invention, the comptroller may refuse to seal a 
 patent for the second applicant, preference is shown to the 
 earlier applicant : Vide sub-section G, section 7, British Act, 
 1883. In Austria and Hungary, the tirst applicant is the true and 
 lawful inventor whether he be the inventor or not. Generally 
 speaking, the earliest applicant has the preference ; in Canada, in 
 the event of indecision, there might be some such rule giving 
 |)ieference to the earliest applicant. 
 
 Award Final. 
 
 Such award by the arbitrators shall be final ; and there is no 
 provision made for a review of the award, in the event of 
 improper reception of evidence, corrupting an arbitrator, etc. 
 
 Bell Telephone Co., 9 Ont. K, p. 343, on a motion for a writ of 
 certiorari, to bring into the Common Pleas Divisional Court all 
 matters, and the decision of the Minister of Agriculture as to 
 
 voidance of a patent, Cameron, C J., states : " in the case of 
 interfering applications wlien a judicial consideration would seem to be called for, 
 etc. The skilled persons appointed as arbitrators act judicially. Tiie machinery 
 is provided for the summoning and swearing of witnesses, and thns they have the 
 full power to inform themselves as to which applicant has the right. " 
 
 The board of arbitiators are then a judicial tribunal appointed 
 by the Dominion, and Cameron, C. J., intimates "that Provincial 
 Courts created by local Legislatures cannot have inherent power to reverse deci- 
 sions of Courts created by the Parliament of the Dominion." Provincial 
 
 Courts then appear to have no power to review the award in any 
 way. 
 
 Exchequer Court has Jurisdiction also. 
 
 By the Exchequer Court Amendment Act of lb91, sub-s^jc. 
 (ci), sec. 4, the Exchequer Court of Canada has also jurisdiction 
 
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 150 
 
 OONFUOTINO APPLICATIONS. 
 
 [Sec. 19. 
 
 i 
 
 
 " in all oases of conflicting applications for any patent of invention or for tiie 
 registration of uny copyright, trade murk or industrial design." 
 
 When a case is referred to arbitration, it is usually done at 
 the instance of the Commissioner or Deputy Commissioner, and 
 there is no appeal from the award. 
 
 Proceedings in the Exchequer Court, according to the present 
 rules, would be commenced probably by the junior applicant 
 filing a statement of claim and the senior applicant by state- 
 ment of defence ; but no proper rules such as in the United 
 States in " interference cases " have yet been formulated ; for it is 
 evident that the disclosure ot the party tiling a statement of 
 claim as to the date of conception of the invention by him, of 
 making drawings, or date of making model or operative device, 
 might have the most serious consequences, enabling a dishonest 
 contestant to " antedate " in all respects. 
 
 In the United States, the principal object of Rule 116, as to 
 " interferences," is to determine the " burden of proof ," which is on 
 the junior applicant, and to determine the position of parties as 
 plaintiff and defendant : Vide O'Shaughnessy v. Van Depoele, 
 C. D., 62 O. G., p. 1063, decided 1893. 
 
 Some provision in Canada as to secrecy, until all parties had 
 filed their statements, should be made ; such as is the case with 
 " factums " in the Supreme Court of Canada, and there should 
 be no publicity or interchange until all statements are filed. 
 
 At present, the provision as to conflicting applications in the 
 Exchequer Court (Can.), is unworkable. 
 
 Appeal to Supreme Court (Can.) 
 
 By section S, chapter 26, of " The Exchequer Court Amend- 
 ment Act, 1891," paragraph lettered (6), sub-section 1, of section 
 52, of 50-51 Vic, c. 16, is repealed, and the following lettered {b) 
 is substituted therefor : — 
 
 No appeal shall lie from any judgment of the Exchequer 
 
 Court in any suit, etc., wherein the actual amount in controversy 
 
 does not exceed the sum or value of $500, unless such action, 
 
 suit, cause, matter, or other judicial proceeding, etc. * ♦ * 
 
 (6) ' ' Relates to any fee of office, duty, rent, revenue, or any sum of money pay- 
 able to Her Majesty, or to any title to lands, tenements, or annual rents, or to any 
 
Sec. 19.] 
 
 INTERFEBENOE. U. 8. A. 
 
 157 
 
 ((uestion affecting any patent of Invention, copyright, trade mark, or induatrial 
 design, or to any matter or tiling wiiere riglitk in future miglit belwund," 
 
 Appeal to Supreme Court Can. Doubtful. 
 
 As this relates to a patent " in esse " and not to an " applica- 
 tion " for Lettei's Patent, although the Exchequer Court can enter- 
 tain questions on " conflicting applications," it is questionable 
 whether under this sub-section (b) there is any appeal from its 
 decision to the Supreme Court (Can.) as the law now stands. 
 
 Interference— Praotioe U. S. A- 
 
 In the United States, under Rule 94, interferences are declared 
 between two or more original conflicting applications. Under 
 Rule 110, each party to the interference will be required to file a 
 concise prelinr.inary statement, under oath, on or V)eforo a date 
 to bo fixed by the Patent OfKce, showing the following facts : — 
 
 1. The date of the original conception of the invention set 
 iorth in the declaration of interference. 
 
 2. The late upon which a drawing of the invention was 
 made. 
 
 3. The date upon which a model of the invention was made. 
 
 4. The date upon which the invention was first disclosed to 
 others. 
 
 5. The date of the reduction to practice of the invention. 
 
 6. A statement showing the extent of use of the invention. 
 
 If a drawing or model has not been made, or if the invention 
 has not been reduced to practice or disclosed to others, or used to 
 any extent, the statement must specifically disclose these facts. 
 
 In Slattery v. ShalUnburger, C. D., decided 1893, 62 0. G., 
 p. 1515 : An interval of a year and a half after conception of 
 an invention, during which the inventor practically gave up work 
 on his improvt;^ n; • Held, to negatives reasonable diligence. 
 
 ReduotioD. r- » '^"aotioe. 
 
 Rennyson v. ihrritt, C. D., decided 1893 : Vide 63 O. G., p. 
 151 : Where a party to an interference claimed to have reduced to 
 practice early in 1887, and then discontinued the use of his inven- 
 tion for two years, meanwhile applying for two other patents 
 
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 168 
 
 INTERFERENCE. U. 8. A. 
 
 [Bee. 19. 
 
 upon (loviwH of tlu! shiik; ^'dikthI clmriicU'r : lielil, tlmt such 
 conduct was inconsistont with the supposition that he made a 
 successful reduction to practice at the earlier date. 
 
 Statement. 
 
 When the invention was made abroad the statements should 
 set forth : — 
 
 1. That the applicant made the invention set forth in the 
 declaration of inteifei-ence. 
 
 2. Whether or not the invention was ever patented ; if so, when 
 and where, givinjjf the date and number of each patent. 
 
 3. Whether or not the invention was ever described in a 
 printed publication : if so, when and where, giving the title, 
 place and date of such publication. 
 
 4. Whether or not the invention was ever introduced into this 
 country ; if so, giving the circunistances, with the dates connected 
 therewith, which are relied on to establish that fact. 
 
 The preliminary statements should be carefully prepared, as 
 the parties will be strictly held in their proofs to the dates set up 
 therein. 
 
 The statements must be .sealed up before filing, to be opened 
 only by the Examiner of Interferences: (See U. S. Rule 111), 
 and the name of the party tiling the title of the case, ^nd the 
 subject of the invention indicated on the envelope. The envelope 
 should contain nothing but the statement. 
 
 By U. S. Rule 111, the preliminary statements shall not be 
 opened to the inspection of the opposing party until each one 
 sh»ll have been filed, oi the time for such tiling with any exten- 
 sion thereof, shall have expired, and not then, unless they have 
 been examined by the proper officer and found to be satisfactory. 
 
 Any pa)ty in <lefault in tiling his preliminaiy statement shall 
 not have access to the preliminaiy statement or statements of his 
 opponent or opponents, until he has either filed his statement or 
 waived his right thereto and agreed to stand on his record date. 
 
 In certain cases of error 
 
 arising 
 
 throujrh inadvertence or 
 
 mistake, or if defective, the statement may be amended under 
 U. S. Rules, 112-13, but this must be done before testimony is 
 taken. 
 

 Sec. 19.] 0ON7U0TINO APPLICATIONS, ETC. 
 
 159 
 
 If a party fail to Hlo a statiJiicnt, tc-'-tiinony will not be 
 riceived sul).so<iut'ntly from him to prove that hu ma<l»5 tho inven- 
 tion at a (late prior to his application. 
 
 By U. S. Rule 116, in original proceedings, inventions will be 
 presuinetl to have been made in the ehronolojrioal order in which 
 they tiled their completed applications, and the burden of proof 
 will re.st on tho party who seeks to establish a different state of 
 facts. 
 
 Times are assigned for taking testimony after tho original 
 statements are in. 
 
 And by U. S. Rule 14G parties may appeal to the examiners 
 in chief and to the Commissioner, but no appeal lies from tho 
 decision of the Commissioner. 
 
 Defeated contestants may, however, have remedy by Inll in 
 equity, and appeals must be accompanied by printed b' iefs. 
 
 The foregoing and a number of other salutary rules relating 
 to interfering applications in the States might, in some measure, 
 be adopted by our Exchequer Court. A preliminary statement 
 under the headings indicated ought certainly to be made and tiled 
 prior to the hearing of the case ; the rules relating to the filing 
 and interchange of factums as in appeals to the Supreme Court 
 (Can.) might be taken as precedents. 
 
 In a recent arbitration held under section li), the arbitrators 
 required the contestants to file each a declaration following the 
 headings enumerated as nearly as possible, which were not opened 
 till the meeting. 
 
 The rule by which the burden of proof is cast on the later 
 applicant is a salutary one. 
 
 The repeal of the Dominion Act relating to official arbitrators, 
 and the substitution of the Exchequer Court as the tribunal, by 
 sec. 58, c. 16, 50, 51 Vic. (1887), would indicate that the present 
 policy was to do away with arbitrators, as called for under this 
 section 19, and to transfer the jurisdiction to the Exchequer 
 Court. Now we have, in Canada, two courts of concurrent juris- 
 diction, and no appeal from one, while appeal from the Exchequer 
 Court on a conflicting application is not specially provided for. 
 
 In England, under section 7 of the Act of 1883, in conflicting 
 
 f- ; 
 
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1«0 
 
 OONFUOTINO APPU0ATION8. 
 
 [See. 19. 
 
 a|if»liaitionH tor thu naiiio invention, thorc in an appeal from the 
 deeiiion of the examiner and of the comptroller U> the Attorney- 
 General an<l Solicitor-General of Kn^laml. 
 
 «V)> See section If). In this suh-section it is the Commimioner 
 who » to call upon the parties to choose each their arhitrator 
 ''tbt'lltpatyoommiaiiiDuororthu ixtrMoiiappointoil to | orforrii the<lutyof thatotticcr" 
 ha%'ir».; heen left out, "uml If theni un! only I vo ■lull applicauiUi," the^e 
 m-orii!» have })een added to the section in the Act of 1872, and 
 are luur«Ily necessary, as only two applicants have heretofore Imen 
 spoken of, and instead of " the opixwite party " in the Act of 1872, we 
 have now " the opposing applicant," which means the |>aity who has 
 cliHO»«en an arhitrator at tlio behest of the Commissioner. 
 
 Thw sub-section is defective in that it limits no time after 
 wlikfa refusal to appoint an arbitrator may be presume*!, so as to 
 vork a forfeiture. 
 
 When there are Three or More Conflicting Applica- 
 tions. 
 
 ((f> See section 19. Why the Commissioner or Deputy Coramis- 
 sioDer,etc., should not, in the case of three or more conHictinf^appli- 
 eatkns. still retain the power of appointing one of the arbitrators, 
 is not ea.sily seen ; leaving the matter altogether to the parties 
 themselves, makes way for collusion. 
 
 Oath. 
 
 («/) See section 19. Nothing is said as to what shall be done with 
 the oath subscribed and taken with the formalities designated ; it is 
 preAomeil that it is written out in triplicate, signed by the arbitra- 
 tor* and Judge, respectively, and attached to the proceedings in 
 «)onie manner ; although, the award, of which no special form is 
 indDcate«l, is alone required to be delivered, in writing, to the Com- 
 mmioner, signed by the arbitrators or any two of them. 
 
 (e) See section 19. A notification to the applicants under the 
 hand of the arbitrators, or any one of them, after having been sworn, 
 dT the time and place of holding the arbitration, would be all that 
 would be necessary — it would be for the applicants to determine 
 what witnesses they may desire to bring or summon, if necessary , so 
 as to present their respective cases in the best aspect possible ; 
 
See. 19.] 
 
 OONFUOTINO APPU0ATION8. 
 
 ICl 
 
 tlio nrbiirators iiii^lit, but Itiirilly would tiiko ihn initiutlvo in 
 smiiinotiinj^ witiiossus. if tlu^ M|)|»li('uiits do not kr»o\v tlic wit- 
 lu'sscM, (lociitiifntH, utc, which shiill bo proilucod, it in not likidy 
 tiie iirbiti'iitoi'M will. 
 
 In Sviith Co. V. (h'C('y,\\ Vrnc. Hop. Out,, p. .'U.') : The fiu't that 
 there wns then ponding' a^Ljainst phiintitfs' prosident, at tlie in- 
 stance of a stranu;or to tho action, proceed in j;s for perjury, wldcli 
 iiiij,dit ad'oct Hoiiio point incontrovorHy ; thouj^h it ini^dit bo a rcn- 
 Non for Ids rofusiii;; to an.swor any (pioHtioti on this point, was not 
 a reason for refusing; to attend on the examination. 
 
 Who May Administer Oath. 
 
 The oath may bo a solemn declaration or aftirmation : V'lile 
 sub-section .5 of this section atid paragraph 28 of section 7 Inter- 
 pretation Act ; and by paragraph 28, .section 7 : The arbitrators 
 named, a Judge of any (.\)urt, a iDtary public, a jjistice of the 
 peace or a Comndssioner, may administer such oath, and certify as 
 to its having been made and administered. 
 
 Feeo 
 
 {/) There is no taiiff of fees; $25 per diem and travelling 
 expenses (if an\) is not unusual, unless there bo exceptional cir- 
 cumstances. 
 
 The arbitnitor named by the Cou>inissioner is the arbitrator 
 referred to und':;r (a) section 19, and " the arbitrators," when the 
 whole three are appointed, as under Note (c), section 19. 
 
 The arbitiator or arbitrators appointed by the Deputy (Commis- 
 sioner, or by the person appointed to perform the duty of that 
 otlicer, should also have been referred to, the omission is merely 
 an oversight. 
 
 Filing Protest. 
 
 Under Rule 11 of the Patent Office (Canada), the filing of a 
 protest against the issuing of a patent .shall not be taken in itself 
 as sufficient ivason to withhold the granting of a patent to an 
 applicant. If another claims to be the inventor he shall proceed 
 to file his application, and proceedings may be taken under this 
 section to determine the priority of right to the patent. 
 21 
 
 ! I' 
 
4 
 
 102 
 
 OONTUOTIMO APPUOATIONB. [8«0. 19-20. 
 
 Tli<;re is nothing to iiwlicato in thin Kiilu II, that a wull- 
 t'i)un*K>il jU'iituHt will not rucuivu uttuntion. 
 
 Rival Applioants. 
 
 In Thr Queen v. La Fore$t Can. L. T., vol. 14, p. 27, tlwoi.K'.l in 
 
 tlif Kxclii'i|iu.'r C'ouit, Caniiila, hy Mr. .lustios Hurltidjjo, in .)iin- 
 
 iiaty, IHUi, to he leporttul in full in 4 Kxoh. Ct "., (.'an., in Npoak- 
 
 ii);; of conflicting applications ho states: — 
 
 " III tilt) cunti of (loiitliutliig u|iiili(witioiiii, tliu Clown Iiiin not |mrt«!(l with it* 
 |M>wi>r to II iikt' II (Ciiiit, liiitl tliuri! in |>roviiiiiiii tor tluiaiipoiiitiniint of arWitnitorN to 
 <lfi'i<lu Itt'twcDii lli: a|i|iliiNiiitN, III Niitili a controvttriiy .1 ifoiiiN to init, that Ihtjifi 
 'i/ili/iitinl I/' h< /»' n tni' iiiffiilor, ami lln fi>'»l to mnk* kiioini hi'* iiii'fiiHitu to Ihf 
 /inUir, mIioiiIiI Iiu (irttftTi'i'il. If tlivru Im any iloiilit ua to that liiiiig tho luw iit |irt>- 
 •ont, or if it i* not tliu luw, I vuiitiiru to hopo tiiut tiie doiilit iiiiiy im roiiiovcd uml 
 till' luw chunj^cil ; for not only in tliu riiUi n JiiHt (iiiu, uh it ><ivi'H tliu ritwanl to the 
 licmoii »'7j() firs/ roinmiiiiirntin n kiHnchilijr. qf' /Ac liirfitlinn to Ihr. imlilir, luit it in u 
 t'onveiiiuiit out; in ruHpttot of the proof l>y wliicli iiiidur it uiiy i|iii!iition of priority 
 iiiiiy lie iletcriiiinuil," 
 
 Nfvi'K. — It niu}' 1)0 remarked that Mr. Justice Hurl»iilj,'e, wlion 
 lie wrote this, read section 47 of the Patent Act as nieaninf,' that 
 pi'iidiiii; applications in the Patent Oflice, (Canada, were open to 
 pitblic inspection. This is nut the practice: See also Uule 15, 
 Patent Oftico, Can., Appx. 1. 
 
 Abandoned applications even are not open to public inspec- 
 tion in U. S. A. : See A'.i- parte Wi/cko(f', fiO O. G., p. 1104 (18U2) ; 
 nor in £n''lanil : See British Act, 1885, sec. 4. 
 
 PART VI. 
 
 ''1 
 
 I 
 
 M 
 
 Grant and Duiiation of Patents. 
 
 SO.— (a) Every patent granted under this Act nhall contain the title or 
 mine of the invention, with a reference to the 8pcciMcatioii,and uliall grant to the 
 patentee and hia legal representatives, for the term therein inentioned, from the 
 granting of the same, the exclusive right, privilege and liberty of making, 
 constructing and using, and vending to others to bo used, the said invention, 
 subject to adj udication in respect thereof before any court of competent jurisdiction : 
 
 2. (6) In cases of joint applications, the patents shall be granted in the 
 n^.nes of all the applicants. 35 V., c. 26, s. 10, part, and s. 16 ;~30 V., c. 44, s. 5. 
 
8eo. 20.] 
 
 TITLE OR NAME. 
 
 103 
 
 Titlo or Name. 
 
 NoTK.— (a) Tho titli) or uumo of tho invontioii in ^'ivcn l»y 
 thu Hpplicnnt in Cana*la, whrrciis in tliu Stat<>H thn title or name 
 is inN(>rto(l in thu Patent OtHot; at WaNhinK^on ; in (heat tltitain, 
 it is of Nonie moment to liave the title deHneii ho that it may 
 asfi'ce witli the invention, otlierwise a.s we have seen {Vith: p. 1)0) 
 that there may he some dan^'er of t1i<> patent hein^ voi<kuh 
 
 In Kn^lan*!, the KpeciHcation doen not fornt pait of the 
 patent, so as to control its construction ; hut the rights of the 
 inventor arc nuide to depend on tlie description of his invention 
 inserted in the title of the patent and cannot hu helped hy thu 
 .^pocification, the oiHce of which is to descrihe thu ntode of usin^, 
 constructing or compounding the invention mentioned in thu 
 patent : Vulfi Curtis, 4th ed., sec. 221. 
 
 A duplicate copy of the sp«'citlcation is attached to Canadian 
 Letters Patent and is made an essential part thereof, as well as 
 the drawings, which, on their face, are certified to be thu 
 ilrawings referred to in thu specitications. 
 
 Hy section 22, thu term uf a Canadian patent is now 
 eighteen j'cars. 
 
 The grant, on its face, was conditional as to manufacture and 
 importation, as provided in the 37th section of the Patent Act, 
 ami sections 22 and 37 of the Act used to bo set out on the last 
 pa;'0 of the patent in full ; but now, with the now foruj, since 
 the Act of 18!)2, the grant is nuulo subject to the conditions 
 ot the Patent Act, 61 R. S, C, and the Acts amending the same, 
 which covers manufacture and importation under the 37th section, 
 although the attention of the patentee is not now .specially 
 directed thereto. 
 
 Exclusive Right. 
 
 " Tho exclusive right, privilege and liberty of making, constructing and using 
 iind vending to others to be used " in the Dominion of Canada, the said 
 invention, etc., is not really an " exclusive right " for more than 
 two years, as we shall see under section 37 of this Act ; and, is not 
 exclusive even for two years, for under .section 44, the Government 
 of Canada may, at any time, use any patented invention on paying 
 
 II 
 
; ; i; 
 
 161 
 
 BRITISH PATENTS, ETC. 
 
 [Sec. 20r 
 
 i 
 
 to the patentee such amount as the Commissioner deems [)roper. 
 Notliin*^ IS said here about granting licenses, which is an inherent 
 right of a patentee. The words at the beginning of this para- 
 graph first occur in the Provincial Act of 1826, 7 Geo. IV., c. 5. 
 
 In the United States a patent right may be more appropri- 
 ately deemed an exclusive property, for there is no obligation 
 there to manufacture, as in Canada, or to license to use. 
 
 The Government of the United States may make and use a 
 patented article, but not without the license of the patentee: 
 Cammeyer v. Neivton, O-t U. S., 234 (187C); McKeever v. United 
 States, 23 O. G., 1527 (1879). 
 
 A British Patent Binding as Against the Government. 
 
 By 27 British Patent Act, 1883, a patent has the same binding 
 eflect as against the Queen, her heirs and successors, as it has 
 against a subject. 
 
 But the invention may be used for the service of the Crown 
 on terms, to be before or after the use thereof agreed on, Oi" on 
 terms settled by the Treasury. This is an important change in 
 the law in Great Britain. 
 
 In 1865 it was held that the Crown might use a patented in- 
 vention, without the assent of and without remuneration to the 
 ])atentee, on the ground that the grant of a patent was simply an 
 exercise of the prerogative : Vide Feather v. The Queen, 35 L. 
 J., Q. B., 200. 
 
 By section 44, Act of 1883, the inventor of improvements in 
 munitions of war may assign to the Secretary of State for War, and 
 if the Secretary of State certifies, such invention shall be kept secret. 
 
 In England there are Compulsory Licenses, under section 
 22 of the Act of 1883 ; the terms and conditions, as to royalties, 
 are regulated by the Board of Trade, from whose judicial decision 
 there is no appeal. If the Board of Trade acts improperly it is 
 appi c hended they are subject to mandamus : Vide Tapping, on 
 Mandamus, c. 3. 
 
 Courts. 
 
 The Courts of competent jurisdiction before which a patent 
 may be adjudicated are the Courts of record of the various Pro- 
 vinces and the Exchequer Court of Canada. 
 
Sec. 20-21.] 
 
 JUBISDIOTION. 
 
 165 
 
 By 53 Vic, c. 13 (1890), " An Act to amend the Patent Act," 
 the Exchequer Court obtained jurisdiction in the matter of the 
 repeal of Letters Patent by " sci. fa." 
 
 And by 54, 55 Vic. (1891), c. 2C, " An Act to amend the 
 Exchequer Court Act," the Exchequer Court obtained jurisdiction 
 in all cases of conflicting applications, for any patents of inven- 
 tion, or the registration of any copyright, trade mark, or indus- 
 trial design, etc. ; (6) in all cases in which it is sought to impeach 
 or annul any patent of invention, etc. ; (c) in all cases in which a 
 remedy is sought respecting the infringement of any patent of 
 invention, copyright, trade mark, or industrial design. 
 
 In the Exchequer Court you obtain the advantage of being 
 able to proceed with respect to infringements in any part of the 
 Dominion, and you can issue execution to any part of the Domi- 
 nion of Canada ; whereas in the Provincial Courts you are con- 
 fined to the Province in which the suit has been instituted. 
 
 If Partial Pee Paid. 
 
 If a partial fee only be paid for six years, as is usually the 
 case, there is a notifici.tion that the patent shall cease unless at or 
 before the expiration of the said term the holder thereof pay the 
 fee required for the further term or terms. 
 
 (J)) Under note "a" to section 7, we have already shown that 
 where there are joint patentees, in the absence of special contract, 
 each can deal with the patent as if he were sole owner, without 
 bei'Tg liable to account to his co-patentees therefor. 
 
 m^ 
 
 lit. — (ft) Every patent shall be issued under the seal of tht Patent Office 
 and the signature of the commissioner or of the deputy commissioner, and 
 wlien duly registered, shall be good, and shall avail the grantee and his legal 
 representatives for the term mentioned in the patent : 35 V., c. 26, s. 6, part, and 
 8. 18, Patent Act (1886), 56 V., c. 34, s. 2. 
 
 -. (o) The commissioner may recjuire that any patent, before it is signed by 
 the commissioner or by any other member of the Queen's Privy Council for 
 Canada, acting for him, and before the seal hereinbefore mentioned is uffixed to it, 
 shall be examined by thft Minister of Justice ; and if such examination is so 
 required, the Minister of Justice shall, accordingly, examine it, and if he 
 finds it conformable to law, he shall certify accordingly, and such patent may then 
 be signed, and the seal affixed thereto. 35 V., c. 26, s. 6, part, and a. 18. 
 
 U 
 
 1 
 
 ■'' ! 
 
166 
 
 FORM OF ISSUE. 
 
 [Sec. 21. 
 
 (a) See section 21. By section 2, chapter 34., 56 Vic. (1893), 
 sub-sec. 1, of sec. 21, of the Patent Act, was repealed, and the fore- 
 going sub-section 1 enacted ; whereby the words '• or of the deputy 
 cominiasioner " wero substituted for " or of some other member of the 
 Queen'8 Privy Council noting for him," of the Patent Act. 
 
 So that the effect of this sub-section 1, as it now stands, is to 
 substitute the Deputy Commissioner for a member of the Privy 
 Council ; the only parties now entitled to sign patents being 
 the Commissioner or the Deputy Commissioner who have co- 
 ordinate power. 
 
 Before this new sub-section came into force (April 1st, 1893), 
 it was usual for the Commissioner of Patents, who is also the 
 Minister of Agriculture, to sign the patents which were counter- 
 signed by the Deputy Commissioner who is the executive officer. 
 
 The seal of the Patent Office being affixed and the patent 
 registered, the patent is deemed duly issued, and is sent to the 
 patentee or his agent. 
 
 The term legal representatives means " executors, administra- 
 tors, and assigns." 
 
 In the U. S., section 4883 R. S., as amended by the Act of 
 1888 : All patents are issued under the seal of the Patent Office, 
 and shall be signed by the Secretary of the Interior or under his 
 direction by one of the Assistant Secretaries of the Interior. 
 
 (h) See section 21. Under what circumstances the Commissioner 
 may require the Minister of Justice to examine a patent so as to 
 certify that it is conformable to law, before the patent is issued, does 
 not appear; the Commissioner may presumably require the opinion 
 of the Minister of Justice on cases arising under section 16 of 
 this Act, already discussed : — 
 
 On a question whether the specification and drawings does or 
 does not sufficiently describe and claim a certain invention, one 
 would suppose that the examiners in the Patent Office, and those 
 skilled in the art to which the invention pertains, would be better 
 able to express an opinion than the Minister of Justice. 
 
 In this sub-section 2, the singular mistake has occurred of 
 leaving in it the words, "any other member of the Queen's Privy Council for 
 
 Canada, acting for him," and failing to substitute therefor the Deputy 
 
Sec. 21.] 
 
 ISSUE TO ONE DEAD. 
 
 1G7 
 
 Commissioner; it should also be so amendefl that either the Ci>m- 
 missioner or the Deputy Commissioner may make the requisition 
 on the Minister of Justice alluded to in this <iul>-section 2. 
 
 As it now stands, this sub-section 2 remain.^ intnet, and is 
 inconsistent with sub-section 1, which has Wen amended as 
 indicated. 
 
 Patent Issued to a Dead Applicant. 
 
 A patent issued in the name of an applicant who died while 
 his application was pending aTid before Usue has bt?en held void 
 for want of a grantee : De la Vergne Refrigetnting Muchlne Co. v. 
 Featherstone (1892), 58 O. G., p. 18+2 : See also Galloway v. 
 Findlay, 12 Pet., 264 ; but these cases have been overruled in the 
 Sup. Ct., U. S., on appeal in De la Vergne Re/ngeyatihg Machine 
 Co. V. Featherstone, 147 U. S. Rep., p. 209 (decide*.! January 9th, 
 1893) ; the decision is to the effect, that a patent for an invention 
 issued to the inventor " his heirs or assigns " after his death, is a 
 valid patent, and should be construed in the alternative as a grant 
 to " him or his heirs or assigns." So that on filing a certified 
 copy of the probate of the will, or of letters of administration 
 (if from Canada, legalized by the U. S. Consul), the title would 
 enure to and become vested in the personal representative. In 
 the above judgment Fuller, C. J., said : " If the p-.tent had issued to 
 
 Boyle, when living, although an assignment of his entire interest had been recordeil 
 before the patent issued, the patent wouhl have enured to the benefit of the 
 assignee, and it is difficult to see why, if Boyle (lie<i j*rior to the issue of the patent, 
 and after he had made the application and assigned his interest, the assignee 
 sitould lose the benefit of the assignment because of the death." 
 
 We have no rule to meet a case of this kind : what might be 
 done would be to file probate of the will or letters of administra- 
 tion, when the Commissioner would possibly grant a re-issued 
 patent in the name of the executor or per«onal representative, or 
 person entitled to the patent issued erroneously in the name of 
 the dead person, on the original patent being surrendered and 
 cancelled ; or the patent might be read as in the U. 8. Sup. Ct. 
 case. We should have a rule to meet a case of this kind. 
 
 In the House of Congress, U. S., a bill (No. 1985) was intro- 
 duced September 9th, 1893, to give effect to patents issued in the 
 
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 I: 
 
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 168 
 
 EIGHTEEN TEAS PATENTS. 
 
 [Sec. 22. 
 
 names of deceased persons ; it provides that when a patent has 
 been issued to a person who shall have died Ijefore the date of 
 the patent, such i)atent shall not be deemed invalid by reason of 
 such decease, but the title thereto shall enure to and become vested 
 in the executors or administrators of the deceased in the same 
 manner as if issued direct to then> ; since the above Sup. Ct. (U. S.) 
 decision this bill may not be deemed necessary. 
 
 ^*4. The term limited for the duration of every patent of invention issued 
 by the Patent Ortice shall be eighteen years ; but at the time of the application 
 therefor it shall be at the option of the applicant to pay the full fee required for 
 the term of eighteen years, or the partial fee required for the term of six years, 
 or the partial f«e required for the term of twelve years: 46 V., c. 19, b, 1, Pat- 
 ent Act (188G) ; 55, 56 V., c. 24, s. 5 (1892). 
 
 2. If a partial fee only is paid, the proportion of the fee paid shall be stated 
 in the patent, and the patent shall, notwithstanding anything therein or in this 
 Act contained, cease at the end of tlie term for which tlie partial fee has been paid, 
 unless before the expiration of the said term the holder of the patent pays the 
 fee required for the further term oi six or twelve years, and obtains from the 
 Patent Office a certificate of such payment in the form which is, from time to 
 time, adopted, which certificate shall he attached to and refer to the patent, and 
 shall be under the signature of the commissioner, or of the deputy commissioner : 
 46 v., 0. 19, 8. 1, Patent Act (1886) ; 55, 56 V., c. 24, s. 5 ; 56 V., c. 34, s. 3. 
 
 3. If such second payment, together with the first ptiynient, makes up only the 
 fee required for twelve years, then the patent shall, notwithstanding anything 
 therein or in this Act contained, cease at the end of the term of twelve years, 
 unless at or before the expiration of such term the holder thereof pays the further 
 fee required for the remaining six years, making up the full term of eighteen 
 years, and obtains a like certificate in respect thereof : 46 V., c. 19, s. 1, The 
 Patent Act (;b86) ; 55-56 V., c. 24, s. 5. 
 
 Eighteen Year Patents. 
 
 Note.— By section 5, of 55-5G Vic, c. 24 (1892), section 22 
 of The Patent Act, was repealed, and the foregoing sub-sections 
 1 and 3 substituted ; and by section 3, of 56 Vic, c. 34 (1893), 
 sub-section 2, of the said Act of 1892, was also repealed, and the 
 foregoing sub-section 2, was substitut'ed ; the change from the 
 provision in the Act of 1892, in this sub-section 2, being, that the 
 words "at or before the expiration" now read "before the expiration," SO 
 
 that the further fee must now be paid before the expiration of 
 
I > ■ 
 
 Sec. 22.] 
 
 TERM OF PATENTS. 
 
 169 
 
 the term ; the words "or the signature of any other member of the Qiieen't 
 I'rivy Council for Canada acting for hini," WOrc Jstruck OUt, and "or of the 
 (kpiity c( iiiiMissioner " at the end of Hub-scction 2 substituted, so 
 that the < . rtifioate may now be signed by the Comniissiouer or 
 Deputy Commissioner. 
 
 By this section, Canadian patents were, for the first time, 
 extended to eighteen years. 
 
 In Ujjper and Lower Car. ia, patents were originally granted 
 for a period of fourteen years ; the same was the case in Now Bruns- 
 wick and Nova Scotia. In Canada, by the Patent Act of 18G9, the 
 poiiod was extended to fifteen years, and this continued to be the 
 case until the Patent Act Amendment, 1892, when all patents 
 issued after the 9th July, 1892, are for eighteen years. 
 
 Under note (d), section 8, the effect of a prior issue of a 
 foreign patent has been discussed, and the length for which 
 British and foreign patents are granted is enumerated. 
 
 There is nothing to be gained by paying the full lee for 
 eighteen years at the time of application ; the one-third fee for 
 six years (.$20) is usually paid in. If the full fee (SCO) be paid 
 at application, under Rule 9 of the Patent Office, should the 
 ajjplication be deemed abandoned, all fees paid in would be held 
 forfeited. 
 
 The Act of 1872 was defective, in that it provided (Vide 
 section 17) that patents should be valid for five, ten or fifteen 
 years, at the option of the applicant ; but at or before the 
 expiration of five or ten years, the holder might obtain an 
 extension. 
 
 By 46 Vic. (Can.), c. 19 (1883), this provision was repealed, and 
 patents were issued for fifteen years, but partial fees might be paid, 
 but in such case the patent was to lapse at the end of fiv or ten 
 years, unless the remainder of the fee is paid ; and it was 
 declared that ever^'^ patent theretofore issued, in respect of which 
 the fee required for the whole or any unexpired portion of the 
 term of fifteen years has hem duly paid, shall be deemed to have 
 been issued for fifteen years, etc. : See further note to section 58. 
 
 In the United States a fee of SI 5 is payable on filing the 
 applications, and a further fee of ?20 when allowed — if not paid 
 22 
 
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 V 
 
 
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 i 
 
 j; 
 
 .1 
 
: 
 
 1 I 
 
 170 
 
 TERM OF PATENTS. 
 
 [See. 22. 
 
 within six months of the date of allowance — the first fee becomes 
 forfeited and a new fee of Ijlo has to be paid. 
 
 '"he U. S. Act of March 2, 18G1, abolished extensions of pat- 
 ents, and made the term of patents seventeen years, instead of 
 fourteen year.". 
 
 The U. S. Act of 1836 is the foundation of the existino; law in 
 the States, by it the Patent Office and the office of Commissioner 
 of Patents was created, and patents were granted for fourteen 
 years, extensible, conditionally, for seven years more. 
 
 The Acts (U. S.) subsequent to that of 18GI are codifications 
 of it as modified by the decisions of the Courts. 
 
 Months Mean Calendar Months. 
 
 Ex iiarte Brown, C. D., decided 1890, 63 O. G., p. 759 (1893). 
 The time for payment of the final fee in the United States has, 
 time out of mind, been construed to be six calendar months from 
 the date of allowance. The Commissioner has no doubt the prac- 
 tice is a legal and valid one : Sheets v. Shelilen's Lessee, 2 Wall, 
 177 ; Uvited States v. The Ship Recorder, 1 Blatch., 218. 
 
 We have before noted that Walker, sec. 125, holds that the 
 months mean " lunar " months, giving reasons for holding, that if 
 the patent were issued on a final fee paid more than six months 
 after allowance, the patent would be void for want of jurisdiction, 
 this decision completely upsets Walker's view. Whether month 
 means a lunar or calendar month, when not covered by Act of 
 Interpretation : See Hart v. Middleton, 2 Car. & Kir., 9. In 
 legal matters a " month " means a " lunar month," in commercial 
 matters a " calendar month " : Hutton v. Brown, 45 L. T. N. S. 
 (1881). By Interpretation Act (D.) " month " means "calendar 
 month." 
 
 If a partial fee only is paid in the first instance, it appears on 
 the face of the patent ; and if there be a subsequent renewal, the 
 original patent should be sent to Ottawa, in order that the 
 renewal certificate menti<:>ned in sub-section 2 be attached to the 
 patent. 
 
 Great care m; r.»,k ; ihat the patent be not allowed to 
 
 expire by non-pay . .. '* v 'C3 in time ; the rule is rigorous, 
 and is relentlessly enfoi lA. 
 
rirA 
 
 Sec. 22.] 
 
 TERM OF PATENTS. 
 
 171 
 
 By 54, .55 Vic, c. 131, Can. (1891), a special Act was passed 
 for the relief of Jay S. Corbin, whose patent for " improvements 
 in combined haiTowa and seeders," was inadvertently allowed to 
 expire after the first five years, the renewal fee not having been 
 tendered till nearly a week too late, when the Commissioner 
 could not accept the fee and grant the renewal certificate. 
 
 This Act, which was exceptional in its nature, authorized the 
 Commissioner to receive the renewal fee and renew the patent ; 
 but any rights acquired by third persons by assignment, user, 
 manufacture or otherwise between the date of expiry and the 
 renewal under the special Act, were preserved. 
 
 A number of patents are allowed to lapse every year, many 
 through inadvertence, one cannot rely on being able to obtain a 
 private Act to renew them. 
 
 Patent solicitors in Canada are in the habit of sending out 
 circulars to patentees as to renewal of patents about to expire, 
 both by way of advertisement and to earn a fee ; but it is not 
 safe to rely on this ; patentees should know enough to look after 
 their own interests in this respect. 
 
 Some provision should be made, whereby, on a payment of a 
 fine, as in Great Britain and many foreign countries, enlargement 
 of the time for paying renewal fees, within a period of one to 
 three months, might be attainable. 
 
 The fees in England on enlargement of time for paying the 
 annual Government fee are, if not exceeding one month, £3 ; 
 not exceeding two months, £7 ; not exceeding three months, 
 £10. Taxes in foreign countries are usually paid yearly in 
 advance. 
 
 Countries in which there is no Prolongation of Time 
 to Pay Taxes. 
 
 In AustHa and Hungary, no extension of time for payment 
 taxes is permissible, nor in British Guiana, nor Brazil, nor 
 British Honduras, nor Cape Colony, nor in France, nor 
 Gautemala, nor Leeward Islands, nor Natal, nor South Australia, 
 nor Spain, nor Tasmania, nor Uruguay. 
 
 ft" 
 
J, 
 
 
 \l 
 
 17? 
 
 FOREION TAXES. 
 
 [Seo. 22-23. 
 
 Countries in which Prolong^ation of Time to Pay 
 Taxes is Allowable. 
 
 In licUjiuhi, tliore is one montli's grace without fine for 
 tlie iimkiiifjf payment, or six months' grace with a fine of ten 
 francs (.^2). 
 
 In the Germati Empire, three months grace is allowed for 
 those payments without fine ; no further prolongation is 
 ohtainable. 
 
 In India, an extension of time to pay taxes, which are 
 payable yearly in advance at the end of fourth year, is obtainable 
 for three months, at most, on payment of a fine. 
 
 In Italy, three months grace is allowed without fine within 
 which to pay taxes. 
 
 In Luxemboiuy, three months grace allowed without fine ; no 
 further prolongation. 
 
 In Nciv Zealand, an extension of time not exceeding three 
 months, obtainable on payment of £4. 
 
 In Norway, three months grace, together with a fine of one- 
 fifth of the tax payable; the same rule applies in Sweden. 
 
 Oranye Free State, an extension of time not exceeding three 
 months, and a fine of £5 ; also in South African Republic 
 (Transvaal). 
 
 Queensland, an extension of time not exceeding three months. 
 
 Switzerland, three months' grace allowed without fine ; no 
 further prolongation. 
 
 Victoria, an extension of time not exceeding six months, 
 with statutory declaration setting out the grounds, and a fine of 
 158. (.^3.75) for each month of such extension. 
 
 PART VII. 
 
 Reissue of Patents. 
 
 43. Whenever any patent is deemed defective or inoperative by reason of 
 
 insutiicient description or specification (a), or by reason of the patentee claiming 
 
 more than he hud a riglit to claim as new, but at tlie same time it appears that the 
 
 error arose from inadvertence, accident or mistake, without any fraudulent or 
 
 -deceptive intention (6), the commissioner may, upon the surrender of such patent 
 
Sec. 23.] 
 
 REISSUE. 
 
 173 
 
 uml the payment of tlio furLlinr fitit lioruitiuftvr iirnvidt!)!, caimo n now pntnit, in 
 aouorilaiiL'u with iin ainvndeil iluHoriptinii aiul Hpocitluiitioii niailu by Miich patctitco, 
 to 1>o isHiietl to liiin for the saniv iiivontioii for any part or fur tlu^ wliolt; of thu 
 then uncxpireil roHidiui of thu term for whicli thu original patent waa, or might 
 have been granted (r) : 
 
 2. In the <!vent of Hio doath of th.^ iginal patnnteo or of liin having .isnigned 
 the patent, a lii<e right hIuiII vent in his anxignee or. hiH legal repreuentativeH (U) : 
 
 3. Sucii new patent, and tiiu amended dcRcription and Hpeoitieation, xhall liavc 
 t lie same effect in law, on the trial of any action thereafter eommenced for any 
 cause 8n)>8ei|uently accruing, an if the Hame had lieen originally Hied in Hnuh cor- 
 reuted form i)eforo thu isHiie of the original patent (') : 
 
 4. The conimiNHionor may entertain xuparate a|)plicationR, and cause patents 
 to be issueil for ilistinct and separate parts of tiie invt-ntion patented, upon pay- 
 ment of the fee for a reissue for each of sucii reissued patents. 3o V,, c. '2(i, a. 
 19;-38 v., c. U, a. 1. 
 
 Note. — This section 23 and its sub-sections follow the pro- 
 visions of section 4916, II. S. U. S., the wonlinjif beint^ sonie- 
 what altered ; but, unlike our section, the U. S. section provides : 
 " Hut no new matter shall be intr duced into the specification, nor in case of a 
 machine patent shall the model or drawings bo amended, except each by the other ; 
 but when there is neither nio<lel nor drawing, amenilments may be made upon 
 prooi' satisfactory to the commissioners that such now matter or amendment .was 
 11 part of the original invention, and was omitted from the specitication by inad- 
 vertence, accident, or mistake, as aforesaid." V''J" also Patterson, J., on 
 
 p. 468, 10 App. Rep. (Ont.), in Hunter v. Carrick, as to the simi- 
 larity with the U. S. Act, an^l as to treating the U. S. judgments 
 as laying down rules we should follow. 
 
 Rule 14, Patent Office (Can). . 
 
 Although these provisions do not appear in our Act, yet Rule 
 
 14 of the Patent Office provides that, "in the matter of a reissue, 
 whatever is really embraced in the original application and so described or shown 
 in the same, that it might have been embruoed in the original patent may be 
 ground for a reissue. No new matter can be introduced into the specifications, 
 nor can the models or drawings be amended except each by the other. In the 
 absence of model or drawings, the reissue may contain amendments upon satis- 
 factory proof to the commissioner that such amendments were part of the inven- 
 tion, although omitted in the original application, etc." 
 
 This covers the same ground as the extra matter contained 
 
 in the U. S. Act. So between our section and the above quoted 
 
 'H 
 
 u'> 
 
w 
 
 •w 
 
 .Uii 
 
 "t 
 
 
 174 
 
 BEISSUE 
 
 [Sec. 23. 
 
 OiOAtla Patent Office Rule 14, wo have practically the same pro- 
 %'i'»ioa^ for rcisHUo uh in thu States. If the specitication do- 
 *crib»w the invention a.s shown in the (hawing, and the drawiny 
 ci<>ntrailicts the model, a reissue cannot bu •granted for a feature 
 «h»irn in the model, hut proved hy thu drawing not tu be a part 
 of the invention : lie Hunt, 15 O. (J., p. M31. 
 
 In Flower v. City of Detroit, Sup. Ct., U. S., decided October, 
 1887, IH Bro<lix,p. 021, the rule iu r<irhet'ii- ]\'liij>ple Co v. YaU 
 Cfock Co., 123 U. S. (1887), 17 Brodi.v, 1!)4, was affirmed, viz. : 
 " Th.te the I'ateiit Otlicu inoilul aloiio Im not to )>c c<*nKiilere<l the IxuiU of a 
 rtuMOc:, in which a uhaiigu of tho invuntioii of thu original |>at«iil ia Nought." 
 
 Tlie same rules would probably apply in C'unaila, althouj,'li 
 Patent Office models are now rarely filed ; if the drawings agree 
 irith the models, tho case might possibly be different. 
 
 (a) The word " defective " and the word " inoperative " are 
 pOBsibly synon3'mous, both indicate something lacking: if a 
 description be obscurely worded it may convey a wrong impres- 
 sioo and is defective ; again, parts may be omitted altogether in 
 the description which would render the device unworkable or in- 
 operative ; the patent may also be defective (although the descrip- 
 tioo may be complete), on account of a claim or claims being 
 oiuitte«i, the claims may bo nebulous and cover the whole inven- 
 tion imperfectly, being liable to be misunderstood, or they may be 
 too narrow for the invention and therefore defective, or they may 
 be too broad ; then, as the claims are the only operative parts 
 of a specification, serious difficulties may arise, if corrections be 
 not promptly made : Eamea v. Andrews, Sup. Ct, U. S., 17 
 Brodix, p. 98 (May, 1887). 
 
 If, in the reissue, the scope of the original is so enlarged as 
 to cover and claim as a new invention, that which was not in the 
 original specification, as a part of the invention described, or if 
 described, was by reason of not being claimed, virtually aban- 
 doned and dedicated to public use, the rei.ssue is unauthorized : 
 Etimgs v. Andrews, supra, p. 126. 
 
 Or again, all reference whatever may be omitted in the speci- 
 fications, claims and drawings to an integral, distinct and neces- 
 sary port of the invention, in which case, the patent and specifi* 
 
 (' 
 
'if: 
 
 8eo. 23.] 
 
 REISSUE. 
 
 175 
 
 cutions which form nn esNontiul part thereof, would ho th'foctivo 
 mill had. A (|uostioii nuiy ariHu whether a matter descrihed hut 
 not (daiincd may not he deemed ahan(h)iied to the puhhe. 
 
 In liarti'i' v. Iloviantl, lit Grant, p. 13'), thoiii^li not exactly 
 in ])oint, wlten the plaintiff liad more than one year previous to 
 liis application for a patent in Canada, ohtaintMl a patent in the 
 U. S., disclosing the .same invention though not containing all the 
 claims o ntained in the Canadian patent. Held, that sueh foreign 
 jiiitent amounted to a puhlication of the whole invention in the 
 United States and imported a disclaimer of all parts not elaimed 
 ill the foreign patent. 
 
 The law, however, is averse to forfeitures, and unless there 
 be laches, or if express evidence of actual intention to ahandon 
 and dedicate to the public he lacking, it is conceived that possibly 
 a claim or claims may now be added, in a reissue for matter pre- 
 viously described and not claimed in the original patent ; it is 
 usual in (yaiuida to make such reissues, and hitherto they have 
 not boon questioned, and this was the view taken by the Chan- 
 cery Division Court in Withroiv v. Malcolm, ij Ont. R., 12, and in- 
 deed appears to be covered by the first part of Pat. Oft'. Rule 14, 
 just (juoted. The description of the part in the original patent, 
 without claiming it, will not constitute an abandonment of it to 
 the public so as to prevent him from claiming it in the reissue : 
 Batten v. Ttujgert, 17 How., 74. 
 
 The decision in Barter v. liouiand, would appear to indicate, 
 that had the Canadian patent been applied for in time, there 
 might not be a reissue in Canada for that which had been de- 
 scribed, but not claimed in the foreign patent ; this question of 
 reissue was, however, not then under discussion and we have no 
 judicial decisions exactly bearing on this point. 
 
 The word " .specification " when used without the word "claim," 
 means both " description and claim," therefore, a reissue is allowed 
 when the specification is defective or insufficient in regard to 
 either the description or claim, or both : Wilnon v. Coon, 18 
 Blatch., 532 ; Smith v. Merriam, 6 Fed. Rep., 713 ; vide Bump, 
 2nd ed., p. 240. 
 
 Should it be held that the matter was previously undescribed 
 
 
 1 
 
 .; ^r 
 
 
 fti 
 
170 
 
 REISSUE. 
 
 [Seo. 23. 
 
 fttui tU'W, iiikI tlit'icfr/rc not siilijcrt nmttcr for r(<issiu',l)iit for a new 
 application ; il ini^'lit then turn out, limt t)ii> oniitti>(| inattor lia\ - 
 in;; Ikm'Ii in pitMii; iimo or on salt; in conixution with that which 
 was (h'scrilii'il in thr patent, for morn than ono yt'fti' provions to 
 application, coiiM not form, iniihr Noctioi) 7, Niihj«>ct mattor for a 
 patent. 
 
 This was jiotualiy htjid to Im? thf caso in Ifiitifet' v. Cut't'lch, 
 28 (Jrant (Ont.), IMHI, when it was hcM, IVontifoot, J., "Tliattli.- 
 
 liiMt four cliiiiiiM l)t'iiiK for w liiit v\iih new, tliii ticNt |iati'iit (!oiilil not !>« iiiii|)*'rtitivi' 
 itN to tlicir:, iiinl tlu- mccoihI piiUMit itft to tlii^no imumI I)i> coiiMtruril iiMiiii iiiili'iiciiili'iit 
 oiii) iMMiiiii){ tlii^ tlrNt tiiiiu on itH ilutc, umi iim nil otliur tliiin the tliMt oonil)iiiiitiiiii 
 liiiil Ih'cii tiNol for ii|iwurilH of n yt'ur prior to tli(^ piitoiit, lie wun not untitlt'il to u 
 
 ptttuiii tiirri'ior," i,f., for tlu^ last fonr claims. 
 
 This st'cms rather inconsistent, for tlu; same reasoning,' shoiiM 
 Imve applied to tho first comliinati<»n, which was also now — 
 " a door Mituiitoil nlxive till) gratu " having hecn aihlud ; }'ct this ohiini 
 was held infringed and the proper HuV)ject of a reissue, although 
 it had been in use for upwards of a yt-ar prior to the reisstied 
 patent. 
 
 In the United States, the statutory provision winch makes a 
 patent void if the inv(!ntion it covers was in public use or on sale 
 for more than two years before the patent was applied for docs 
 not apply to reissue patents: Shanj v. Lead Co., 11 Fo<l. Rep., 
 714 (1882). The reissued api»lication is considered appended to 
 tho origiiuil application, and the two years during which public 
 use or sale nuiy take [)laco prior to the application cease to run 
 with tho tiling of tho latter : Grant v. Raymond, 6 Peters, 
 218 (1832). 
 
 In Withvoiv V. Malcolm, G Ont. R., p. 1 2, Ch. Divl. Ct., an action 
 on a reissued patent, it was objected that tho reissued patent con- 
 tained a co'>ibination claim not in tho original, but was showr. in 
 the drawings and specifications of the original patent, but through 
 mistake and inadvertence was not separated from the other parts 
 and made the subject of a distinct claim. Held, per Boyd, C, 
 
 affirming Ferguson, J., that the reissue was valid ; Proudfoot, J., 
 dissenting. 
 
8eo. 23.] RSI8SUB. 177 
 
 Headnote in Wi throw v Malcolm, 6 Ont R , p 12. 
 
 " What I'liiil)! Iiuvo Imidii clniiiu'tl iimliir ttiu ii|H)riflrKtliiii kiuI iliim'tiiition nf 
 the oi'i|{iiial |)atiiii(, lull wua not \>y nrtor, iKiiilunt, iiiiatAkn, or iuiMlvvrteiitia, inuy 
 Im cUlinuil oil A raimiu*, if thi<r(i hiul iNitiii no hwhu*. 
 
 " Not whitt pnti'iitcn oluiina Ixit what ii lii-Mt diitt'liHM'il nn liia nppIlcAtion U 
 tho iiU'iiNiirit <>( hill rif^htx on a rctMiU'." 
 
 This eiiMi> wouM tlion iiulicuti' that u ciniiri may ho a<l<: i for 
 that which ha<i hooii prttvioitsly tlesciiht'd in thu ori^'iiial patent, 
 and that unh'ss ihiM'o bu Noniu <lisuh).sni'o on thu ot i^'inal appli- 
 catiun, no rin;hts exist for a rcissni! ; an*! that tho hipse )f ahuut 
 a yniiv \n\t\\'oiiu tho ori^'inivl and roi.ssuod j)att'nts wan not no groat 
 (I delay as to prejudico tho invmtor. 
 
 Till) Anu'iican Aot oxpressly states that no now nuvttt.'i' shall 
 1)0 introduced, althon;j;h tho C/Oinniissionor may j,'iant reissno on 
 jtroof that tho omitted part was part of tho ori^nnal invention. 
 ( )ur Act merely .states that tho reissue shall ho for tho samo inven- 
 tion ; but our Patent OtKco llulo 14, besides statin^' that no now 
 matter shall bo introduced, authorizes tho Commissioner to ^'rant 
 reissues on proof in tho same wjiy as in tho States. 
 
 Ill J'Jamt'H V. Anilirws, Sup. Ct., V.H., (decided May 2;ird, 
 IHH7), IVJ O. G., p. i:UJ), " Tho driven well case." 
 
 Held, that whoro matters found only in tho reissued patent, or 
 matters where a chaufjo has been made from that described in tho 
 ori<,dnal patent occur, if tho addition and changes do not, in fact, 
 amount to different invention, tho case is one simply of a defective 
 specitieation, and a proper subject of amendment. 
 
 Reissue With Broadened Claims. 
 
 Cobbin Cabinet Lock Go. v. Emjhi Lock Co., Sup. Ct, U. S., 
 (decided October 30th, 189:0, 05 O. G., p. 1060. 
 
 It ia settle! by authorities that to warrant new or broader 
 claims in a reis.sue, such claims must not only be indicated in the 
 original application, but it must further appear, (1) that they 
 constituted part of the original invention, and (2) wore sought 
 and intended to be covered oi* secured by tho original patent : 
 Bantz v. Frantz, 105 U. S., IGO ; Heald v. Rice, 104 U. S., 737 ; 
 Miller V. Brass Co., 104 U. S., 350; Topliff v. Topliff, 145 
 U. S., 150. 
 
 23 
 
 I' 
 
 
 i 
 
 ) 
 
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 11 
 
 M 
 
 ^1 
 ■.1 
 
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 (•I 
 
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 H.: 
 
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 JL 'iH ,1! 
 
 178 
 
 REISSUE. 
 
 [Sec. 23. 
 
 There cannot be a reissue for that which has been expressly 
 dischiiined in the original patent : Beecher Manufacturing Co. v. 
 Atwater Manufacturimj Co., 16 Brodix, 106. 
 
 (6) SliouM a patentee desire to obtain a reissue, by reason of 
 elaimin;,' nic e than he had a right to claim as new, and thus to 
 narrow his claim or claims, application may be made regardless 
 of the age of the patent : Vide Matthew v. Flower, 25 Fed. Rep , 
 134 (1885). 
 
 Lapse of time maj' be of small consequence on an application 
 for the reissue of a patent on account of a defective specification 
 or description, or where the original claim is too broad : Vide 
 Malm V, liar wood. Sup. Ct, U. S. (decided November 3rd, 1884), 
 15 Brodix, 339-40, 112 U. S. 
 
 Where a patentee claims more than he has a right tu claim, 
 instead of having the patent reissued, it will be less expensive, 
 and more desirable in many respects to disclaim under .section 24, 
 as often may be ilone. 
 
 It is only with broadened reissues that the element of age may 
 become material. In the United States Miller v. Brass Co., 104 
 U. S., 350 (1881), 13 Brodix, 303, introduced a new doctrine into 
 the patent law, which has been recognized in our Canadian Courts; 
 in that case it was established, that the right to obtain a broad- 
 ened reissue was lost by a long lapse of time after the date of the 
 original and before the application for that reissue ; in that case, 
 the fatal lapse of time begins to I'un from the dato of the original 
 patent. In Miller v. Brass Co., the delay had continued for fifteen 
 years. 
 
 In Mahn v. rfarwood, 112 U. S,, 354, Sup. Ct,, the principles 
 enunciated in Miller v. Brass Co., were afhrmed, and the Court 
 stated that there are substantial reasons why a claim cannot 
 be enlarged and made broader ifter an undue lapse of time, 
 " The rights of the public here intervene, tvhich are totally inconsistent with such 
 tardy reissues, and the great opportunity and temptation to commit frautl, after 
 any considerable lapse of time, when the cir'^umstances of the original application 
 have passed out of mind, and monopoly has proved to be of great value, make it 
 imperative on the Courts as a dictate of justice and public policy to hold the pat- 
 entees strictly to the rule of reasonable diligence in making applications for this 
 
 kind of reissues," In this case a delay of nearly four years was 
 deemed fatal to the reiseuo. 
 
rlJ 
 
 Sec. 23.] 
 
 REISSUE. 
 
 17a 
 
 And the Supreme Court also held (vide p. 343, 15 Brodix, S. C.) 
 thftt no invariable rule can be laid down as to what is a reason- 
 able tme within which the patentee must seek for the correction 
 of a claim which he considers too narrow. "It is for the Court to 
 judge in each case, and il will exercise proper liberality towards the patentee, 
 liiit as the law charges him with notice of wliat his patent contains, he will be 
 lield to reasonable diligence. By analogy to the rule as to the effect of public use 
 before an application for u patent (in U. 8.) a delay of more than two years would, 
 in )^eneral, require special circumstances for its excuse." 
 
 Should the same analogy prevail in Canada, a delay of more 
 than one year would require special excuse. 
 
 Whiteley v. Gowdey, Ferguson, J. (decided 16th May, 1885), 
 Can. L. T., vol. 5, p. 327 ; Can. L. J., vol. 21, p. 260. Where, in a 
 reissued patent, a claim constituting a new feature was introduced, 
 a thing which was not in the original patent or contemplated at 
 all by the then inventor, and which was of substantial importance 
 and practical utility, and amounted to an invention, and it did 
 not appear to be a correction of a mistake or a thing arising by 
 loason of accident or inadvertence : Held, that the claim in the 
 reissue was invalid. 
 
 Held, also, that a reissue cannot contain matter of invention 
 which, with regard to the original, is new, as a broadening of the 
 invention, although it may, under proper circumstances, contains 
 broadening of a specific claim made. 
 
 Where, in a reissue, the claim was identical with that in the 
 original patent, but contained the words " substantially as shown 
 and described," and the reissue contained in the specifications 
 certain additions which read with reference to the claim indicated 
 something different from that claimed in the original patent, and 
 it did not appear that this change could be said to be made to 
 correct a mistake or by reason of accident or inadvertence : Held, 
 that the claim in the reissue patent could not be sustained, and 
 was invalid. 
 
 Where the original patent to D. Maxwell was dated 4th 
 January, 1878 (not 6th December, 1877, as in Report), and the 
 reissue, No. 12452, 7tli March, 1881, and it appears that the 
 attention of the patentee must have been callc' to the scope of the 
 patent as early as 7th March, 1879, by reason of a disclaimer of 
 
 1 
 
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 ft 
 
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180 
 
 REISSUE. 
 
 [See. 23. 
 
 that date ; that a second patent to D. Maxwell was originally 
 dated 14th November, 187C, and the reissue, No. 12512, 17th 
 March, 1881, and that there was also a disclaimer, 7th March, 
 1879, also calling attention ; that a third patent to C. C. Braj'ley 
 was originally dated 28th September, 1876 (not 1879, as in 
 Report), and the reissue. No. 11469, 10th July, 1880, and during 
 this interval the patentee's attention had also been drawn to the 
 detects of his patent, and that in the reissues there had been the 
 intrtduction of new invention and an enlarging of the scope of 
 the patent and a broadening of the claim. 
 
 Held, that the rule of laches must be strictly applied, and the 
 delay being unaccounted for, the reissues were Invalid at all 
 events to the claims of the reissues which constituted a broaden- 
 ing and enlargement of the claims in the original patent. 
 
 Note. — In the tirst instance, the delay was over three years 
 and one month ; in the second instance, nearly four years and 
 four montns ; and in the third instance, nearly three years and 
 nine months, after the date of the original patents. 
 
 In Woolensak v. Sargent <L' Go. (decided January 4th, 1894), 
 Sup. Ct., U. S., 66 O. G., p. 1007, a delay of eight years, by advice 
 of solicitor, was held not excusable and fatal : Dohson v. Lees, 137 
 U. S., 258, cited. 
 
 In Cornell v. Weidner, Sup. Ct„ U. S. (decided April .30th, 
 1888), 18 Brodix, p. 549, is a case of a reissue of a reissue; the 
 second reissue was obtained nearly seven years after the original 
 reissue, the first reissue being a bushing for bungs having a 
 notch ; the second reissue being without any such notch, was 
 held as an unwarrantable enlargement. 
 
 In Kidder v. Smart. t>t nl,^ 8 Ont. R., p. 362 (decided February 
 2l8t, 1884), application for a broadened reissue of a patent for 
 Kidder's sliding door, in which the hanger, a very material part, 
 was not fully described and claimed ; it was held by Ferguson, J., 
 that the delay (without any oxcuse) for a period of over one 
 year and nine months after full knowledge of the inadvertence 
 and mistake in the original patent, and after professional advice, 
 and after a reissue of the same patent in United States, founded 
 on the same alleged inadvertence and mistake (during which 
 
I> v3 
 
 Sec. 23.] 
 
 BEISSUE. 
 
 ISl 
 
 ]H'riod manufacture had been carried on in the United States 
 under a reissue there) before the application for a reissue in this 
 ccimtry, is fatal to the validity of reissue here. 
 
 The reissue in Canada was not applied for, for more than two 
 years from the date of the original i><ttent. 
 
 A number of cases are referred to in Withfoto v. Malcolm, 
 (3 Out, R., 12, in which reissued ])atent5 have been held good, 
 notwithstanding the lapse of a number of years after the issue of 
 the original patent, and before the application for the reissue. 
 One case in Bump., 2nd ed., p. 242, is mentioned, in which 
 .sixteen years elapsed : Hussey v, Bi'odley, 2 Fish., 362, but it 
 does not appear that these long periods elapsed after the 
 di.scovery of the alleged mistake, and before the application for 
 rei.ssue. And Ferguson, J., cited Miller v. Brass Co., 104 U. S., 
 p. 350, supra, in which Mr. Justice Bradley says: "But in reference 
 to reissueH made for tho purpose of enlarging the scope of the patent, the rule of 
 ladies should be strictly applied, and no one should be relieved who haa slept 
 uj)on his rights, and has thus lead the public to rely opon the implied disclaimer 
 involved in the terms of the original patent : and wbeo this is a matter apparent 
 nil the face of the instrument, upon a mere compaiiioa of the original patent with 
 tlie reissue, it is competent for the Courts to decide whether the delay was 
 unreasonable, and whether the reissue was therefore contrary to law and void." 
 
 In Walker, 2nd ed., sec. 227, a number of instances are given 
 in which delay in applying was fatal to a broadened reissue. 
 
 The general rule in the States appears to be that a delay of 
 two years or more invalidates a broadened reissue unless account- 
 ed for and excused by special circumstances: Sup. Ct., U. S., 
 Tojjlify. Topliff (April, 1892), 59 O. G., 1256. 
 
 If a reis.sue be sought to enlarge a claim, a delay of two years 
 in applying therefor will ordinarily, though not always, be 
 treated as evidence of abandonment of the new matter to the 
 public. 
 
 A reissue may be had for an enlarged claim provided no 
 third persons have mean- vhile acquired rights to manufacture or 
 .sell what he failed to cli. -. 
 
 In Farmer's Friend Manufacturing Co. v. Challenge Gorn- 
 planter Co., 128 U. S., 506 (1888), 19 Brodix, p. 86, a delay of 
 less than two years sufficed to destroy a broadened reissue; in 
 
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 .. ) 
 
 't 
 
m 
 
 
 
 182 
 
 BEISSOE. 
 
 [Sec. 23. 
 
 this caso the original patent was dated August 10th, 1880, and 
 the reissued patent with the broadened claim was granted July 
 11th, 1882. 
 
 Provided the faults arise from inadvertence, accident or 
 mistake, and disregarding the nugatory provisions relevant to 
 broadened reissues : Walker, 2nd ed., sec. 218, lays down four faults 
 which make patents reissuable and which are applicable to our 
 section : 
 
 1. Invalidity arising from <lefective description. 
 
 2. Invalidity arising from insufficient description. 
 
 3. Invalidity arising from defective claims. 
 
 4. Inoperativeness arising from insufficient claims. 
 
 He might have added that there may be a combination of two 
 or possibly more of these causes. 
 
 Besides mistakes in the written or printed matter, there may 
 be mistakes of such a nature in the drawings as might necessi- 
 tate a reissue, although this is unlikely to occur, a drawing which 
 was clearly indicated in the original specification may be added 
 to the reissue : Union Paper Bag Co. v. Nixon, 6 Fisher, 402. 
 
 Reissue Not Allowable. 
 
 Where it appears on the face of the patent or by contempo- 
 rary records, that no accident, inadvertence or mistake could have 
 occurred, an expansion of the claim cannot be allowed or sus- 
 tained : Bradley, J., in James v. Caniphell, 104 U. S., 356 ; Mahn 
 y.Harivood, 112 U. S., 359 (1884), 15 Brodix, 339; Coon v. 
 Wilson, 113 U. S., 277 (1884), 15 Brodix, 504; in this last case 
 the reissue was applied for a little over three months after the 
 date of the original patent, and the claim of the original patent 
 was enlarged to cover collars manufactured by defendants after 
 the original patent was issued and before the reissue. 
 
 In Wicks V. Stevens, 2 Ban and Ard., 318 (1876), Bradley, J., 
 decided that neither inadvertence, accident or mistake did cause 
 the particular omission, and that the claim of the reissued patent 
 could not be sustained : Vide also Giant Powder Co. v. Vigorit 
 Poivder Co., 6 Sawyer, 508 (1880). 
 
 The omission in the original patent to claim sub-combinations 
 
 If: -t 
 
 1^ 
 
Sec. 23.] 
 
 REISSUE. 
 
 183 
 
 in tlie combinations clnimed was a mistake, apparent on the face 
 of the patent, and was in law such a dedication of them, if new 
 to the public, that a reissue cannot be availed of: See Clements 
 V. Oiloiieaa Excavating Co., 15 Brodix, 44 (January, 1884). 
 
 In Goodyear v. Rubber Co., 9 Wall., 795 (1869), the Supreme 
 Court reviewed the decision of the Commissioner as to reissue 
 and upheld it. 
 
 Electric Gas Co. v. Boston Electric Co., 139 U. S., 481, a reissue 
 was invalid because there was no inadvertence, accident or mis- 
 tiike, the sole object being unlawfully to expand the claims. 
 
 The omission of an element in a claim held to be an illegal 
 enlargement of the claim : Pattee Plow Co. v. Kiwjman, 19 
 Brodix, 35.-) (February, 1889, Sup. Ct.,U. S.), 129 U. S. 294. 
 
 The " surrender " of the jjatent is made according to Form 8, 
 Appx. 1, which is to be endorsed on the original patent, and the 
 fee payable is at the rate of S3.33J per annum for the v/hole or 
 any aliquot part (6 years) of the unexpired residue of the term ; 
 under section 39 it might be contended that S4 a year was pay- 
 able for a reissue. 
 
 Reissue for Same Invention. 
 
 The reissue is to be for " the same invention," and whether 
 the subject matter of the invention is the " same invention " as 
 described or intended to be described in the original ai>plication, 
 is a matter for consideration and of the judicial decision of the 
 Commissioner ; each case must necessarily be described on its own 
 merits: Freeman v. Asmues, 59 0. G., Sup. Ct. (May 16th, 1892), 
 p. 1432. 
 
 In Yale Loch Go. v. Berkshire Bank, 135 U. S., 342, a reissue 
 was held invalid although it was applied for thirteen days after 
 granting the original, because there was not a clear mistake inad- 
 vertently committed in the wording of the claim. It is well 
 settled that a reissue can only be granted for the same invention, 
 and the specification cannot be substantially changed : Vide Pat- 
 tee Plow Co. v. Kingaman, supra, 19 Brodix, 355. 
 
 Under Rule 14, in the absence of model or drawing, the Com- 
 missioner may receive proof or written evidence that the pro- 
 
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w. 
 
 pi 
 
 
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 ') tfl 
 
 184 
 
 BEISSUE. 
 
 [Sec. 23. 
 
 posed aiuenchnunts were part of the original invention or applica- 
 tion, ami in special canes may reissue the patent accordingly. 
 This appears to be inconsistent with the statement in this Rule 
 14, that no new matter can be introduced into the specifications, 
 for if it be admissible by extraneous evidence, it must be new 
 matter introduced into the specifications. 
 
 Although the Commissioner may receive evidence when there 
 is neither model or drawing, yet his power to gi-ant a reissue is 
 restricted to the granting of a reissue for the same invention : 
 Powder Co. v. Powder Wovlca, 98 U. S., 126. 
 
 If the original jjatent is for a process, a reissue may embrace 
 the process and the product : Merrlli v. Yeomans, 94 U. S., 568. 
 If the original patent oecified a certi ir qterial a reissue 
 may specify the equivalents for it : Dimoa^ ' ^",15 Fed. Rep., 
 
 747, and generally, equivalents maybe su, aitu.tid in a reissue. 
 In Flower v. CJitij of Detroit (Sup. Ct. U. S.), decided May 
 14th, 1888, improvements in hydrants, for the "nde '.en<' up 
 and down motion of the casing, held to be for an invonLiun not 
 indicated or .suofiiC .tr^d in the original, and is new matter, con- 
 trarj- to the express inhibition of R. S., sec. 4916, and void. 
 
 Vide also Parker Jb Whipple Co. v. Yale Lock Co., 17 Brodix, 
 194 (October, 1887) ; Mqfatt v. Rogers, 14 Brodix, 244. 
 
 Prima facie, then, the Commissioner is to decide the whole 
 law and the facts relative to the reissue, and whether the matter 
 embraced in the reissue be for the same invention as that in the 
 original, mu.it in many cases be a matter of difficulty to decide. 
 The presumption is that in granting the reissue, the Commissioner 
 acted lawfully and correctly, and unless that presurnption be 
 rebutted the Courts would uphold the reissue. 
 
 If there be such a repugnancy between the old and the new 
 patent, that it must be held as a matter of legal construction, that 
 the new patent is not for the same invention as that embraced 
 and secured in the original patent, and that the Commissioner has 
 exceeded his authority, then his decision is subject to be reviewed 
 and reversed in the Courts: Vide Seymour v. Osborne, 11 Wall., 
 516 ; Collar Co. v. Van Dvsen, 23 Wall., 530. 
 
 Form 6, Appx. 1, is the form of petition for a reissue by 
 the original patentee, who need not necessarily be the inventor. 
 
Bee. 23.] 
 
 REISSUE. 
 
 The patentee may redescribe his invention in an amendefl 
 spocification. In so doing he is not rigidly confined to what was 
 (lespribed before, but he may include in the new description 
 whatever else was suggested or substantially indicated in the old, 
 provided it was properly embraced in the invention as actually 
 made and perfected. But the interpolations of new features, 
 which would make the reissued patent for a substantially differ- 
 ent invention from that embraced in the original, are not allowed. 
 
 Whether a reissued patent is for the same invention as the 
 original, is a question for the Court, to be determined as a matter 
 of construction on a comparison of the two instruments, aided or 
 not by the testimony of experts : Seymour v. Osborne, 1 1 Wall., 
 516. 
 
 It is assumed that the applicant for reissue should take the 
 oath, the same as on the original application, this is required in 
 United States : Vide Rule 87, though nothing is said about 
 it with us. 
 
 Practice as to Reissue in IT. S. A. 
 
 And in the United States, the petition for reissue must be 
 iiccompanied by a certified copy of the abstract of title giving 
 the names of all assignees owning any undivided interest in the 
 patent. 
 
 There must also be a statement on oath to be filed with the 
 petitions in the States. 
 
 (1) That applicant veril}' believes the original patent to be 
 inoperative or invalid, and the reasons why. 
 
 (2) When it is claimed that such patent is so inoperative or 
 invalid " by reason of a defective or insujfficient specijication " 
 particularly specifying the defects or insufficiencies. 
 
 (3) When it is claimed that such patent is inoperative or 
 invalid b}'^ reason of the patentee claiming as his own invention 
 or discovery more than he had a right to claim as new, distinctly 
 specifying the part or parts so alleged to have been improperly 
 claimed as new. 
 
 (4) Particularly specifying the errors which constitute the 
 inadvertence, accident or mistake relied upon, and how they 
 arose or occurred. 
 
 24 
 
 6 
 
 !r 
 
 
 
 ■ :.' 
 
 r 
 
 4 "^ 
 
 i'H 
 
 fe 
 
 
 •1 
 
 
 1 i] 
 
 JLUki 
 
 i 
 
1 1 
 
 I ! 
 
 'I 
 
 180 
 
 REISBUE. 
 
 [See. 23. 
 
 (5) That said errors arose " without any fratululent or 
 deceptive intention " on the part of the iipplicant. 
 
 Tliis very salutary .statement is entirely wanting from Patent 
 Office practice in Canada. 
 
 An original claim, if reproduced in the reissue, is subject to 
 re-examination, and the entire application will be revised and 
 restricted in the same manner as original applications ; this is 
 specially piovided for in United States, section 491G, antl Patent 
 Office Rule 90, but no provision is made therefor in Canada. 
 
 ((/) There is no form of petition in the Patent Office forms 
 for obtaining a reissue by the legal representatives of a deceascij 
 patentee, but under Rule G, one can readily be made ; a certiHed 
 copy of letters of administration or of the will of the deceased 
 patentee shouhl be attached to the petition, and the surrender of 
 the original patent daly executed by the legal representatives. 
 
 Form 7, Apj)X. 1., covers the case of a reissue by the assignee. 
 
 The assignment mentioned refers apparently to an absolute 
 assignment, leaving nothing in the as.signee, the U. S., sec. 4916, 
 embraces an assignment of " the ivhole or any undivided part of 
 the original patent" Our .section .should also read this way, 
 and the reissue of a patent to one having a partial interest 
 .should avail only to him and those claiming through him. 
 
 In Canada, the petition is to be made by the assignee; but 
 the amended description and specification referred to in sub- 
 section 1, should apparently be made by the inventor if alive, or 
 by his legal representatives, if dead. In this instance, woidd 
 " legal representatives " cover assignees so as to entitle them, if 
 the inventor be dead, to sign the amended specification ; by 
 analogy to sub-section 2, of section 10, one would suppose this to 
 be the case. 
 
 Surrender. 
 
 The surrender of the original patent, Form 8, Appx. 1, must 
 be made b}^ the party holding the patent ; the form only relates 
 to the party " luithin named " (the patentee), it must be varied if 
 made by an assignee or legal representative. 
 
 11 ■ 
 
VI 
 
 Sec. 23.] 
 
 REISSUE. 
 
 18T 
 
 Praotioe Sinoe 1870 in U. S. A. 
 
 In the U. 8. A., in the case of aMHigiiinentt ns-signcd after July 
 8th, 1M70, tlie upplication must be made and the new Hpecitication 
 must be .signed by the inventor, if living: Vide section 48U'j. 
 And in that case, the assignee of the entire or undivided interest 
 must endorse on the petition of the inventor for reissue, his assent 
 ti» the application. The application for reissue must bo accom- 
 panied by a surrender of the original patent, or if that be lost, by 
 u petition to that effect and a certified copy of the patent ; but 
 if a reissue be refused, the original patent will, on recjuest, be 
 returned. 
 
 Where several executors are appointed in a will, a reissued 
 patent may be granted to one of such executors who receives 
 probate, with respect to a patent of the testator: Rubber Co. v, 
 Gov(l>/ear, 1) Wall., 788 (1869). 
 
 Assignee. 
 
 An assignee of a patent is a person to whom the entire legal 
 interest or an undivided part of the entire legal interest in a 
 patent has been duly assigned by an instrument in writing: Vide 
 Walker, sec. 252. An assignment must, by express provision of 
 the statute, be in writing : Vide Da<jleish v. Conboy, 26 U. C. C. 
 P. 11., 25 (1876). 
 
 A reissue may be granted to an assignee of the executor or 
 administrator of the patentee : Careiv v. Fabric Co., 1 Holmes, 
 45(1871). 
 
 Or to an a.ssignee of an assignee : Sivift v. Whiaen, 2 Bond, 
 115 (1867). 
 
 Or to any assignee, no mattei- how far removed from the 
 original patentee by mesne assignments : Selden v. Oas Burner 
 Co., 9 Fed. Rep., 390 (1881). 
 
 And a recital of these mesne as.signments in the reissuing 
 patent is primd facie evidence thereof in an infringement suit : 
 Middletown Tool Co. v. Judd, 3 Fish., 144 (1867). 
 
 If a patent is owned jointly by two or more patentees, or by 
 two or more assignees, or one or more patentees, and one or more 
 assignees, all the owners must join in a reis.sue or ratify it, or it 
 
 ■■■ !: 
 
 n 
 
 M 
 
 :( • 
 
r 
 
 188 
 
 REISSUE. 
 
 [Sec. 23. 
 
 « f 
 
 
 trill be void ; l>ut lutithor grantens or liconseeH are reqnlrprl to »lo 
 either : Potter v. Holland, 4 Hlatch., 20(J ; Meyer v. Ba'de^j, 2 
 Ban. ic Aid., 7.*} (187.')). 
 
 The right of a patentee or asHi^nioo to receive a reissue is not 
 affected hy his having made grunts or issued licenses under his 
 patent: Smith v. Mercer, 3 Pen. N. J. R., 52f) (1H4«). 
 
 • 
 
 («) This fub-section 3 formed the latter part of Jiection 19 of 
 the Act of 1872, indeed sub-sections 1, 2 and 3 of section 23 coni- 
 prised section 10 of the Act of 1872, with a few immaterial 
 vertjttl alterations. 
 
 \n Patric \. SylvesU , 2^ Orant, p. .'>73 (1 87C), tried before 
 Proudfoot, V. C, it was stated that the patent was reissued 21st 
 September, 1874, and the defect in the original si>ecification, did 
 u*A touch the matter in (piestion in the suit. 
 
 This latter part of the section 19 of the Act of 1872 was held 
 to date back the reissue to the original patent, and to destroy the 
 operation of uncr as invalidating the later or reissued patent. 
 
 And it was also held that there can Ix' no remedy for the 
 intermediate user, as the patent was then inopenitive, but for a 
 snW-quent infraction of the discovery the user shall not operate 
 as a defence. 
 
 Damages. 
 
 The effect of this then is that in estimating damages for the 
 infriugement of a patent, all infringements occurring before the 
 Jate of a reissue are condoned, and no money can Ije claimed in 
 respect thereof, and this although the reissue does not touch the 
 claims in question in the suit, as was the case here. One could 
 well understand how this should be the case, if a reissued claim, 
 which did not appear in the original patent, were in suit, but not 
 where the original claim was intact, and the new matter or the 
 eliminated matter in the reissued patent did not eflfect it in the 
 slightest. 
 
 In the same way in Wianer v. Coulthard, Hotlgins, Q. C, the 
 Master-in-Ordinary, assessed the damages at S6,lfK).00 for infringe- 
 ments covering about four years, subsequent to the date of the 
 
^ 
 
 Sec. 23.] 
 
 EEI88UE. 
 
 1N9 
 
 rci»sut><l patent. And no claim was niadu for infrin^cniciitA 
 extt'Milinjj ovtjr four yearn ?>roviouM thereto, (luring which infringu- 
 mt'iit WHS actively going on, ultht)U<;h the patent had l>een reissJio<l 
 on account of the a«ldition of a new claim, which had no hearing 
 whatever on the matter complained of, or the cliiim in suit. 
 
 Query, whether, notwithstanding reissu»! in this (a.se,claini for 
 datnaguM for infringement of the claim in suit, wiiich was not 
 the subject of reissue, might not have heeit maiht, the patent was 
 not defective or inoperative as to the claim in suit. Kach claim of 
 a patent stands or falls ou its own merits, and may hu considered 
 as an independent patent. 
 
 In Hunter v. Cart'ick, '2H Grant, Ch. Kep. (Ont.), iMSI.tlie 
 original patent was issued in 187U and reissueil in August, l.S.SO. 
 
 The suit was sustained with reference to the first claim, which 
 was a broadened reissue of the claim of the original patent. The 
 original claim being " In comltinutiou with a buker'H oven II fiirnuco h. set 
 within tho uven, but hulow the sole A." 
 
 The reissued claim being ; " l. In a Hroiiotor furnact) placcil witliin a 
 haker's uvea ))el(>w the huIu thurvof, and provided with h door Bitutitud Aliove the 
 gnitt!": "the door situated above tho grate" being new matter 
 mlded and which alone made the claim sustainable. 
 
 No Damages for Immediate Use. 
 
 In this case it was properly holil that there is no remedy for 
 tiie intermediate user as the patent was inoperative, but for the 
 sul).se(iuent infringement the user does not operate as a defence. 
 Putric V. Sylvester, 23 Grant, 573, cited. 
 
 Damages can only bo claimed for infringements after the 
 reissue. ' 
 
 It was also pointed out, that section 19 of the Act of 1S72, 
 which is similar to the first three sub-sections of thi.s section 23, 
 is similar to section 491G U. S. Rev. Stat, and under American ' 
 authorities, no prior use under the defective patent can authorize 
 the use of the invention after the reissue. 
 
 Headnotes Erroneous in Hunter v. Carriok. 
 
 The headnotes in this case are erroneous and misleading. In 
 the Ontario Digest, 1880-90, p. 1549, 1. 17 (2), the Jirat combina- 
 
 !ii? 
 
 .li 
 
 I i 
 
 (I i 
 
liHWi 
 
 1:. 
 
 190 
 
 REISSUE. 
 
 [8«c. 23. 
 
 tit»ii (not thr fifth) of previously known articles, its iipplicil to ii 
 Itnkor's oven, which was proiluctiv«> of rosultM which witc new 
 and Useful to the trade, was held n prop<<r suhject of a patent. 
 
 The lieadnotc in 10 A. K. (Out.), 44!), nn well as 11 Hup. Ct. 
 Ht'p., an; incr)rrect. Thw fnarth claim is tho one rcferriMl to in 
 the lieadnote, whentas the fivnt eluiui, in whicli the tiltiiijj ^'rute 
 is not lUfntioniMJ, was the only one in appeal ; it was expn-ssly 
 shown in tlif evidence that the first claim of the reissue was ni'W, 
 and novelty was not rehutted. 
 
 Moth the ap{)ellate C'ourts held, that the patent was void, ati 
 Ijting merely an " agj,'re^ation." 
 
 And Henry, J., in the Su[)remo Court, founds his judgment on 
 the claim of the orhjlnal patent, which was not in suit, having' 
 been reissued ; and finds that the original cond/niation was not 
 new, which wa.s well-known an<l was tho cause of the reissue, 
 the door situate above the grate having been addetl to j.'ive 
 patentability. 
 
 (f) Sometimes it may bo desiralile to split up a patent and 
 obtain reissued patents for distinct and separate parts of tin; 
 invention originally patented, on account of facility of assign- 
 uient, if for no other reason. 
 
 In Rule 14, Patent Ofttce ((.'an.), the reissued patents must be 
 for .separate and distinct parts of the invention comprehended in 
 the original patent If each part is not capable of being isolated 
 it cannot bo the subject of reissue. 
 
 As to this fourth sub-,scction of .section 23, tho tenth section 
 of c. 49, 12 Vic, makes a similar provision for correction and re- 
 issue of the original, where the patentee may claim severnl 
 patents for distinct and separate parts of tho thing patentetl, 
 which was probably atlopted from .section 5 of the U. S. Act of 
 1837. This is re-enacted and embodied in the Patent Act of 
 1872 by 38 Vic, c 14, sec 1. 
 
 If the original patent i.s for a process, it may be reissued in 
 two parts, one for the process and tho other for the product : 
 Tucker V. Dana, 7 Fed. Rep., 213. 
 
 NoTK— (a), (6), (c), {d), (e) and (J) refer to section 23. 
 
 I 
 

 8«0. 23.] BBI88UE. lUl 
 
 Oovemment Fees. 
 
 As 84 u ytur lor ovory tinnxpirod year of ii roisAiio ih payaltio 
 iiixier Hcc. •'(!) uf tliiH Act, an<l us iimiur hoc. '22, thi; lifo of tho 
 Camuliiui patent is now oij^htren yeaiN, slionM a patent li(> win- 
 •^\u'|\ ill ('anaila flurinj^ 't.s first y«'ar, tho amount of ft'os payaMu 
 lilt a n^issuo may amo' ' > 97'2 insti'ail of ihi; usual ^(H) ; altliou^'h 
 this liuH nut been tji .idod, tho wording of tho Hoetion hein^ 
 • rroneous, nu provision having l>eon made for tho extension of the 
 |i.itt'nt from fifteen to eij^hteen years. 
 
 (Irantees of interests may eontinue to hoM thrir ri;,'hts umler 
 iiii oi'i^riiiul patent after it Ih Nurrendered and reissued by tho 
 piitt'iitee or assij^iieo, or they nuiy take covrespondin;; rij,dits under 
 tlio reissucil patents. They have theii' choice btitween the two: 
 I'otf^i' V. Jlollaihl, + lilatch.. 20G (l«58); Wushlnirn v. UoiUd, 
 .'J Story, I22(l«4+). 
 
 Earliest Reissue in U- S. A. 
 
 The earliest instan( of reisstio in the Utdted States was in 
 ls21, when James (J of l*rovi(h<nee, H. I., petitioned Henry 
 
 < lay, Secretary of St.*. prayinj^ that liis old patent mij^'ht bo 
 (Mncx'lled ami a new one, in a corrected form, issued, which was 
 (Imio on tho advice of tho Attorney-Oeneral, and u now patent 
 was issued by tho President. 
 
 This reissued patent was called in (picstion in Orant v. 
 llnjinond, 6 Peters, 243 (1832), and the validity was sustained 
 by tho Supremo Court. 
 
 A few mcmths after this decision in 1832, Conf^ross passed a 
 statute rchitin^ to the ^irantinsj: reissued Letters Patent. 
 
 A practice sprung up in the States after this of surrendering 
 valid patents and obtaining reissues for the purpose of inserting 
 therein expanded and equivocal claims, which became a matter of 
 jiulicial cognizance : Vide Burr v. Daryee, 1 Wall., 531. 
 
 In Canada, by 12 Vic, c. 24, sec. 7 (1849), pas.sed to consoli- 
 dute and amend the laws of patents of invention in Upper and 
 Lower Canada, provision was, for the first time, made for grant- 
 ing reissues, hereafter set out in fuU. 
 
 ^1 
 
192 
 
 BEISSUE. 
 
 [Sec. 23. 
 
 
 '-S! ! ' 
 
 Illustrations. 
 
 Should the Commissioner reject a broad claim on the errone- 
 ous a.ssuniption that it had been anticipated, and should the 
 inventor acquiesce in the rejection, he would, no doubt, be entitled 
 to a reissue with a broadened claim co-extensive with his original 
 invei 'Aon on the mistake being found out following, Morey v. 
 Lod-wood (1868), 8 Wall., 230. 
 
 A patent for a process cannot, after a considerable lapse of 
 time, be reissued as a patent for a product : Powder Co. v. Powder 
 Co 98 U. S., 12(1. 
 
 In Tojdifv. Tojylif, 12 Sup. Ct. (U. S.), 825 (decided May 2nd, 
 1892), the Supreme Court, U. S., held that a reissue may be had 
 to get an enlarged claim, and intimated that the application 
 therefor may be made at any time within two years of the 
 original patent. 
 
 All owners of undivided rights in a patent must join in 
 prrr-^mg a reissue or ratify it afterwards, or the reissue is void : 
 Pu/m >- \ Holland, 4 Blatch., 206. 
 
 It was definitely settled, that in a suit for infringement, 
 whether of a reissued or an extended patent, the defendant is not 
 at liberty to question the decision of the Commissioner in 
 granting such leissue upon the ground of fraud : Vide Rubber 
 Co. v. Goodyear (1869), 9 Wall., 788 ; Eureka Company v. 
 Bailey Company, 11 Wall, 488; and Seymour v. Osborne, 11 
 Wall., 516. 
 
 The function the Commissioner performed is judicial in its 
 nature. His decision must be held conclusive as to fraud until 
 the patent is impeached in a proceeding had directly for that 
 purpose, according to the rules which define the remedy as shown 
 by the precedents and authorities on that subject : Vide Curtis, 
 4th ed., sec. 282-6. 
 
 Disclaimer may be Withdra^vn. 
 
 If a disclaimer be entered by mistake or inadvertence, it 
 may be withdrawn on reissue : Daniels v. Chesterman, 13 O. G., 4. 
 
 A reissue which contains claims which had previously been 
 abandoned by the patentee in order to obtain his original Letters 
 
Sec. 23.] 
 
 REISSUE. 
 
 193 
 
 Patent must be held to be invalid as to such claims : Yale Lock 
 Manufacturing Co. v. Berkshire National Bank, 20 Brodix, 267 
 (decided May 5th, 1890), 125 U. S., p. 342. In this case the 
 reissue was applied for onl}'- thirteen days after the grant of the 
 original patent ; this did not establish its validity : Vide also, 
 Dobaon v. Lees, 20 Brodix, 461 (decided December 1st, 1890), 
 137 U. S., 258 ; Crawford v. Ileisinger, 17 Brodix, 367 (1887), 
 123 U. S., 589. 
 
 An Element Cannot be Dropped. 
 
 When the original claim was for five elements in combina- 
 tion with two other elements : Held, that it is an enlargement 
 of a claim to reissue it for a combination of the five elements 
 only : Vide Gage v. Herring, 14 Brodix, 454 ; 107 U. S., 640. 
 A reissue for matter disclaimed or rejected with patentee's acqui- 
 escence is invalid : Leggett v. Avery, 101 U. S., 256 ; Goodyear 
 Dental Vulcanite Co. v. Davis, 102 U. S., 222 ; Eames v. Andrews, 
 122 U. S., 40. 
 
 No Reissue in England. 
 
 In England, there does not appear to be reissue such as in 
 Canada and United States. In Kelly v. Heatkman, 45 Cli. D., 
 2.56, when the " correction or explanation " did not make the iii- 
 vention substantially larger than or substantially different from 
 the invention claimed by the original specifications, it was within 
 the meaning of the Act of 1883 and did not render the patent 
 invalid. 
 
 Reissue U. S. A.— What may be Subject of. 
 
 Clerical errors may be corrected by reissue or any obvious 
 error in a drawing, and, if a model is on file, permits the drawing to 
 be amended thereby ; it may correct an error in the title, a mis- 
 take in the name or residence or any grammatical error ; when a 
 specification is insufficient to work by it may correct this ; or, if 
 a whole class of subjects are stated to be necessary when only 
 one or more may answer ; or, if something essential has been 
 omitted ; it may correct a mistake in dates, or may cure an uncer- 
 tain and ambiguous claim; a claim may also be cancelled or 
 88 
 
 {■{ 
 
 VI 
 
 :«' . 
 
 V' 
 
 w 
 
 Tr 
 
 I ' ! 
 
 • \ ' 
 
194 
 
 BEI8SUE-DIS0LAIMEB. 
 
 [Sec. 23-24. 
 
 i- !■; 
 
 narrowed by reissue : Vulcanite Co. v. Wetherhy, 2 Cliff., 555, 
 Simond's Condensed Treatise, p. 55-56 and Buerck v. Valentine, 9 
 Blatch., 479 ; Collar Co. v. White, 2 Ban. and Ard., 60 ; Schneider 
 V. Basaett, 1.3 Fed. Rep., .351 ; Soladee v. Carriage Co., 20 Fed. 
 Rep., 686 ; Schneider v. Pountney, 21 Fed. Rep., 399. 
 
 The original provision in Canada as to reissues was 12 Vie., c. 
 49, see. 7 (1849) : Vide Form 53, Appx. 2. 
 
 This section, as set out in Form 53, was a copy of section 13 
 of the U. S. Patent Act of 1836, the latter part of this section 
 relating to the addition or substitution of any corrected matter. 
 
 In the C. S. C. 1859, c. 34, the said sec. 7, 12 Vic, c. 49, was 
 re-enacted and divided into three sub-sections. 
 
 The Patent Act of 1869 puts it in the same form as in section 
 6 of the Patent Act of 1872, which latter has been sub-divided 
 and forms the first three sub-sections of the present Act. 
 
 These enactments have practically always been the same as 
 to reissues. 
 
 
 
 iit>. . 
 
 PART VIII. 
 
 Disclaimers. 
 
 584. (a) Whenever, by aiiy mistake, accident or inadvertence, and without 
 any wilful intent to defraud or mislead the public, a patentee has made his 
 specification too broad, claiming more than that of which he or the person through 
 whom he claims was the first inventor, — or has, in the specification, claimed that 
 he or the person through whom he chims was the first inventor of any material or 
 substantial part of the invention patented, of which he was not the first inventor, 
 and to which he had no lawful right— the patentee may, on payment of the fee 
 hereinafter provided, make disclaimer of such parts as he does not claim to hold 
 by virtue of the patent or the assignment thereof : 
 
 2. (6) Such disclaimer shall be in writing, and in duplicate, and shall be 
 attested in the manner hereinbefore prescribed in respect of an application for a 
 patent ; one copy thereof shall be filed and recorded in the office of the commis- 
 sioner, and the other copy thereof shall be attached to the patent and made a part 
 thereof by reference, ami such disclaimer shall thereafter be taken and considered 
 as part of the original specification : 
 
Sec. 24.] 
 
 DISOLAIMEIL 
 
 195 
 
 3. (c) Such disclaimer shall not affect any actaoo pending at the time of ita 
 being made, except in so far as relates to the qaeataoo of unreasonable neglect or 
 delay in making it : 
 
 4. (d) In case of the death of the original pftteotee, or of his having assigned 
 the patent, a like right shall vest in his legal repretntatiTea, any of whom may 
 make disclaimer : 
 
 5. (e) The patent shall thereafter tie deemed good and valid for so much 
 of the invencion as is truly the invention of the diacUinunt, and is not disclaimed, 
 if it is a material and substantial part of the invention, and is definitely distin- 
 guished from other parts claimed without right : and the disclaimant shall be 
 entitled to maintain an action or duit in respect of such part accordingly. 35 V., 
 0. 26, sec. 20. 
 
 Disclaimer in Canada Originated in 1840. 
 
 Note. — By the Act of the Province of Canada, 12 Vic, c. 24 
 (passed 30th May, 1849), which consolidated 6 Will. IV., c. 34 
 (1836), for Lower Canada, and 7 Geo. IV^ c 5 (1826), for Upper 
 Canada, a patentee was for the first time allowed to disclaim, and 
 if defendant had used part justly claimed as new, the Court may 
 adjudge and award as to costs. The right of disclaimer has been 
 continued down through the various Patent Acts ever since. The 
 present five sub-sections of section 24, being section 20 of the 
 Act of 1872, split up into five parts, with a few verbal alterations. 
 
 Each Claim is a Separate Patent- 
 Each claim stands by itself and may be treated as a distinct 
 and separate patent, by section 32 of this Act each claim may 
 be taken by itself : Vide Hunter v. Carrick, 10 App. Rep., Ont., 
 p. 472. 
 
 Disclaimer in XT. S. A. Originated in 1837. 
 
 In the United States statutory provisions as to disclaimers 
 originated in 1837, and have remained substantially the same up 
 to the present date, being R. S., sees. 4917 and 4922. 
 
 In Canada our section is modelled somewhat after the two U. S. 
 sections, but with us the two are blended into one : Walker, 2nd 
 ed., in sec. 193, has, with some omissions, blended the two U. S. 
 sections together and made a better blend than onrs. 
 
 \^ 
 
19G 
 
 DISCLAIMER. 
 
 [Sec. 24. 
 
 i.) 
 
 r -m. 
 
 I 
 
 Rule 105 U. S. Patent Office. 
 
 In Rule 1})5, U. S. Pat. Ott'., the two sections are also blended, 
 leaving out, however, all reference to the maintenance of a suit 
 for infringement by the patentee, whether of the whole or any 
 sectional interest in the patent, also, to the fact that no costs are 
 recoverable unless the proper disclaimer was entered in the Patent 
 OHice before the commencement of the suit, or that no patentee 
 shall be entitled to maintain any such sui' if he has unreasonably 
 neglected to enter a disclaimer. 
 
 Rule 19G, U. S. Pat. Otf,, refers to another class of disclaimer, 
 which is embodied in original or reissue applications, and also to 
 those made to avoid the continuance of an interference, which 
 also are required to be in writing, signed by the aoplicant in per- 
 son and to be duly witnessed, and call for no fee. 
 
 (a) The first sub-section speaks of a patentee making his 
 specification too broad, and claiming more than that which he, or 
 the person through whom he claims, was the first inventor, this 
 language would hardly be applicable in the event of an assignee 
 being the patentee, for then the inventor would make the oath 
 and -ign the specification, and the patentee would make no claims 
 at all, as would also be the case in the event of a patentee being 
 the w.3signee, while the original inventor was the first patentee ; 
 but would be directly in point in the event of the patentee being 
 the original inventor, or being the legal representative or the 
 assignee of a deceased inventor, who had died before taking steps 
 to patent his invention, as referred to in sub-section 2 of section 
 10 of this Act. 
 
 Parts of claims or combinations are not referred to, as subject 
 matter of disclaimer, for a claim is an entirety, and if one or more 
 of its elements be given up the combination claimed disappears. 
 A disclaimer caimot then be called in to modify and thus save a 
 combination claim, for unless the combination remains intact the 
 invention fails : Vide Vance v. Campbell, 1 Black, 429. 
 
 Disclaimer Limited to Mistake, Accident or Inad- 
 vertence. 
 
 The right of disclaimer must also be limited to " mistake, acci- 
 dent or inadvertence," as we have discussed under the head of 
 
Sec. 24.] 
 
 DISOLAIMER. 
 
 197 
 
 reissue, in section 23 ; if it cannot come under any of these liead- 
 \wjH there is no statutory right to disclaimer : See SchUlenger v. 
 G anther, 17 Blatch., 06. There may be a mistake of fact or a 
 mistake of law; the former arises when a claim is made to that 
 which is not new, as mentioned under notes (b) and (c) of section 
 1 G, and is the property of another ; the latter, when a claim is 
 made to that which is not patentable, as was the case in O'Eeilly 
 V. Morse, 15 How., 120 (1853), when a claim was made to the prin- 
 ciple of employing electricity in the transmission of messages, 
 and other cases referred to under notes (a) and (d) to section 16. 
 
 Patent Office Form 26. 
 
 The fee payable on asking to attach a disclaimer to a patent 
 is .S2 by section 39, and in the U. S. it is $10. Form 20 of Pat. 
 Ott'. Forms is to be followed, to be varied in the event of the 
 assignee or legal representative disclaiming. The intention of 
 sub-section 1 is, that an assignee should be able to disclaim, though 
 the wording is not very apposite. 
 
 No Disclaimer for Useless Matter or Void Claims. 
 
 That which is void for want of utility does not appear to be 
 subject matter for disclaimer ; where a patent has but one claim, 
 and where the matter covered by that claim is useless, no dis- 
 claimer can make that patent valid. Where a claim purports to 
 cover a thing constructed, in either of several ways ; and where 
 that thing is useless, if constructed in another, the claim cannot 
 be limited to the useful construction by means of any disclaimer, 
 for it is not the office of a disclaimer to reform or to alter the 
 description or claim of an invention. See Hailea v. Albany Stove 
 Co., 10 Fed. Rep., 242 (1883); White v. Manufacturing Co., 24 
 0. G. 205 (1883). The function of a disclaimer is to eliminate all 
 claims for inventions which were not new or inventions with the 
 patentee. Where a part only of the claims of a patent are void 
 for want of utility, and for no other cause, the void claims are 
 not injurious to the valid ones, and therefore no disclaimer is 
 needed : Vide Walker, sec. 197. In both foregoing instances 
 where the claim is useless or improperly drawn, it might under 
 circumstances already discussed be subject matter for a reissue. 
 
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 198 
 
 DISCLAIMER. 
 
 [Sec. 24. 
 
 This sub-sec. 1 refers to that which is a " material and substan- 
 tial part of the tiling patented," if then the matter bo not material, but 
 a mere surplusage, there is no obligation to disclaim : Vide Halt 
 V. Wiles, 2 Blatch., 199 (1851); Peek v. Frame, 5 Fisher, 212 
 (1871). 
 
 Should fraud on the public, or anything misleading be shown, 
 the disclaimer would be void. 
 
 Our section 24 is a bad blend of sections 4917-4922, U. S. 
 Rev. Pat. Stats., which two latter have reference to the same set 
 of circumstances as grounds for disclaimer, the former authoriz- 
 ing the filing of a disclaimer, and the other legalizing suits 
 brought on patents such as have been amended under the first 
 mentioned section. 
 
 Disclaimer Must Not Change the Invention. 
 
 A disclaimer is properly employed for the surrender of a 
 separate claim, or some other distinct and separate matter which 
 can be eliminated without mutilatit)g or changing what is left 
 standing. Perhaps it may be used to limit a claim to a particu- 
 lar class of objects, or to change the form of a claim which is too 
 broad ; but certainly it cannot be used to change the character 
 of the invention : Vide Hailes v. Albany Stove Co., 17 Brodix, 
 336 (decided December 12th, 1887), Sup. Ct., U. S. 
 
 In this case it was held to be an attempt to obtain a new 
 patent by an amended specification and supplemental description, 
 and not a proper disclaimer, and that the drawings annexed to 
 the patent cannot be used, even on an application for reissue, 
 much less on a disclaimer, to change the patent and make it 
 embrace a difterent invention from that described in the specifica- 
 tions, S. C, p. 362. 
 
 If the effect of disclaimer is to make a complete specification 
 a different invention from that in the provisional specification, 
 the British patent issued alter disclaimer is void : Fox v. Ken- 
 sington Electric Lighting Co., L. R., 1892, 2 Oh. 66. 
 
 The original patent cannot be revived by a disclaimer in the 
 reissue: Vide McMuri'ay v. Mallory, 111 U. S., 79, 15 Brodix, 
 171 (decided March 24th, 1884). 
 
Sec. 24.] 
 
 DI80LAIMEB. 
 
 199 
 
 (b) The disclaimer must be in duplicate in writing and must 
 be witnessed by two witnesses in the same manner as nn applica- 
 tion for a patent. 
 
 Defects in Patent Office Form No. 26 (Can.)- 
 
 The fonn of disclaimer in our Patent Office forms is No. 2C, 
 and is defective, in that it is not applicable in the case of an 
 assignee or a legal representative, or the case of a joint owner 
 or tenant in common of a patent right, and it also ])urports to 
 disclaim a j)ar< of a claim, which is incorrect, for a combination 
 claim is an entirety, and no clement or elements can be given up 
 (vide note a, sec. 24) : Vance v. Campbell, 1 Black, 429 ; Walker, 
 2nd ed., s. 197. 
 
 Under exceptional circumstances, however, it may be possible 
 that two or more inventions may be included in one claim when, 
 if definitely distinguishable, one of them may be expunged : Vide 
 Tuck V. Bramhill, 6 Blatch., 95 (1868); Taylor v. Archer, 8 
 Blatch., 318 (1871). In this exceptional instance the furm 20 
 may be applicable, although the illustration of the ])art dis- 
 claimed in the form is not correct. 
 
 When a disclaimer is made as to a claim primd facie the 
 whole claim goes ; the disclaimer bears specially on the claim 
 which is the operative part of the specification. 
 
 It is conceived that the Patent Office form 20 would be in 
 better shape if as follows, and could then be made to embrace all 
 classes of disclaimants. 
 
 Suggested Form of Disclaimer. 
 
 To THE Commissioner of Patent.s, Ottawa: 
 
 Your petitioner W. L., of the city of Hull, in the county of 
 Ottawa, Province of Quebec (or as the case may be, of any other 
 locality and country), represents that, in the matter of certain 
 new and useful improvements in waggon-brakes, for which 
 Letters Patent of the Dominion of Canada No. — were granted to 
 the said W. L. (or as the case may be) on the 1st day of April, 
 A.D. 18 — , he is (here state the exact interest of the disclainiant, 
 and ivhether legal representative or assignee or joint owner ; 
 and if assignee, a reference to the date arid serial number of 
 
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 l 
 
 200 
 
 DISOLAIBIER. 
 
 [Beo. 24. 
 
 the nmgvment as r^scorded), and that ho has reason to bolievt* 
 that through * 'advertence, accident or niiHtako, without any 
 wilful intent to defraud or mislead the public, the specification 
 and claim of said Letters Patent are too broad as to a material 
 and substantial part of the invention, including that of which 
 said W. L. was not the tirst inventor (or, which is not lawfully 
 patentable). 
 
 Your petitioner, therefore, hereby enters his disclaimer to 
 (here set oat in full the numJter and ^cording of the claim or 
 claims disclaimed, as well as any reference to the body of tin: 
 specifications hearing on such claims, ivhich it may he desirahle 
 to eliminate). 
 
 Hull, day of April, 18 \ 
 
 Signed in duplicate in the P»««ence of / ^^^j^j^^^^ hooiii5V. 
 David Buown, i 
 
 FiiAN(!is Lemieux. ' 
 
 The United States form No. 27. " Disclaimer after Patent " is 
 also defective in that it refers to a part of a claim. 
 
 Extent of Interest to be Stated in United States 
 Disclaimer. 
 
 The United States, section 4917, specially requires that the 
 disclaimant is to state the extent of his interest in such patent ; 
 that it shall be in writing, attested by one or more witnesses, 
 and lecorded in the Patent Office, and it shall thereafter be con- 
 sidered as part of the original specification, to the extent of the 
 interest possessed by the claimant and by those claiming under 
 him, after the recording thereof. 
 
 This leaves all other interests in the patent intact, and only 
 affects the disclaimant and those claiming through him: See 
 Potter V. Holland, 1 Fish.. 327. 
 
 Omission in Patent Act (Can). 
 
 Our Act entirely omits all reference to this material matter, 
 viz., the extent of interest of the disclaimant and the effect of a 
 disclaimer by one having only a partial interest, and therein is 
 defective. 
 
"I Va 
 
 Sec. 24.] 
 
 DISOLAIMEB. 
 
 201 
 
 Onr form .should also sot out the capacity in whicli diHclainmnt 
 iiiukcs (lisclaiiucr, whotlier us inventor and patentee, or nssi^'nee 
 nnil patentee, or assignee, or us le;,'al representative of a deceased 
 inv iitor, or as a joint owner. 
 
 First Inventor. 
 
 This section 24 refers to a patentee claiming more than that 
 wliieh he or the person through whom he claims was the " firnt 
 Iwcntov" ; and it is in 12 Vie., c. 24, sec. H, that any of our Acts 
 first speak of the " first inventor." At the time of this Act (as 
 I'.iirhidge, J., in the judgment of T/i*" Queen v. La Force, in Ex- 
 (•li('(|uer Court, Canada, decided January, 1H!)4, points out), what 
 would defeat his patent and prevent hiu) from heing, in tlie 
 ivt's of the law, the "first inventor," was the prior know- 
 ledge or use of the invention in public Against such 
 knowledge or u.se in a foreign country, sec. 2, 12 Vic, c. 24, pro- 
 posed to protect liim, except in the case of the invention having 
 previously been patented or described in a printed publication, 
 ami Burbidge, J., thinks that the word "_/ijwr' hero is used to 
 t'xpress till! idea of novelty, and is not incident to any contro- 
 versy or priority of conception between rival inventors, antl that 
 there is no rea.son to think that these words "first hivcntor" had 
 now any significance different from that with which they we?"e 
 then used ; and tliat "first inventor" did not mean " the world 
 oi-i r the first inventor," because its advantages were limited to 
 British subjects resident in the Province who were not affected 
 I'V any foreign invention that had not been previously patented 
 or described. 
 
 (c) This provides for the case of a disclaimer being made and 
 Hleil during the progre.s.s of the suit, and it is inferred that the 
 claim or claims di.sclaimed has or have a bearing on the .suit ; if 
 not, it is not apparent why the disclaimer should affect the suit. 
 
 If, for instance, there be an infringement suit with respect to 
 five claim.s of a patent, two of which cannot lawfully be claimed 
 by the patentee, being either not patentable at law, or the inven- 
 tion of another, it would then be in order for the patentee to dis- 
 claim, and to proceed on the three claims which are justly his 
 own. 
 
 86 
 
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 202 
 
 DI80LAIMEB. 
 
 [8€0. 24. 
 
 In Ontario there is no reuson why procee«lingH may not ho 
 a^>aniionuil as to these two claims at any stage of the Huit, witii- 
 oat any formal disclaimer, on such terms as to co^ts a.s may l>t> 
 fount! proper ; they might even Iw formally dropped out, on 
 terms as to costs, even at the trial, the Ju<lge noting it on the 
 rec<»rd, and stating thereon that the trial pnjcceded and was 
 contint'd to the three remaining claims, giving their numhers. 
 This latter has heon the practice in Ontario ('ourts, as was done 
 by Ferguson, J., in Wlsiier v. CoiUtluird (unreported), heard at 
 Toronto, December, 1889. 
 
 Owing to the ample powers of amendment since tlie Ontario 
 Judicature Act, 1881, disclaimers have not, at any rate in Ontario 
 the same prominence they formerly ha<l, and with us no disahili- 
 tit's are imposed on failure to tile a disclaimer, as is the casr in 
 the States. 
 
 Practice in United States of America. 
 
 In tlu' States it has l)L'en held that wliere a plaintitl' sues on 
 certain of the claims of his patent only, the defendant will not 
 be able to raise an issue relevant to the validity of any othor 
 claim, to show a necessity for disclaimer, and thus to escape 
 costs: American Bell Telephone Co. v, Hpencer, 8 Fed. Rep., 512 
 1881. 
 
 Practice in Canada contrasted with that in England. 
 
 The term •' at the time of its being nuwle," in sul>-section 3 of sec- 
 tion 24 of our Patent Act, obviously from the p. •j'^eding sub-sec- 
 tion '1, means filed and recorded in the Patent Otnoe. 
 
 In Canada, disclaimers have been ma«le during the progress 
 of a suit as to claims not sued on, on the apparent ground that 
 the presence of a bad claim would vitiate the patent. In Huv- 
 ter X. Caii'ick, 10 App. Rep. Out., p.'450, defendant's coun.sel takis 
 this view, and cites a number of English ca.ses in support of 
 this proposition. 
 
 Before the English Patent Act of 1883, a number of English 
 anthorities went to show that a failure in part of an invention 
 avoids a patent; that the consideration is the entirety of all the im- 
 provements, and if there is no novelty in one of the improvements, 
 the consideration fails in the whole : Vide Brunton v. Haivke, 
 
Sec. 24.] 
 
 DISOLAIMiiR. 
 
 203 
 
 Ooodovc, |). 98; vUk also Thomas v. Foxwell, Goodeve, p. 401, 
 wht'ie t)u) puiunt wiih void fur wiuit of novelty in tho nocoiul cliiiin ; 
 also VattevHon v, Qan Lii//it Co., Uoodove, p. 304! (1875) ; Mor- 
 ifin V. SeawanI, Goodovo, p. ',\0\) (183JJ. 
 
 There are also recent decisions to this etf'ect in Great Britain. 
 If the patent uonsi.st of several claims, and one of those several 
 inventions is useless, the patent is void : See United Stab-s Htn'ne- 
 slioe Nail Co. v. Utenart, R. P. C, vol. 2 (1885), p. V.Vl, the 
 DKvelty and merit of each claim was disbinctly set forth in the 
 jdciHcations as the consideration for tlie grant: SitapHun v. 
 Htdliday, L. R, 1 H. L. .*U5; and Tcmiddon v. MdcJ'uiinnr, I 
 II. L. .')!•'), cited ; the opposite is the case in Uniteil States of 
 America ; see Walker, .sec. 107, ante. 
 
 Where one claim is not novel, appeal on this <jround was 
 allowed : Cropper v. Smith, R. P. C, vol. 2 (188.')), p, 17, and 
 ill Laurence v. Perry, R. P. C., vol. 2 (1885), p. 17!), in such 
 case the patent was hold invalid. 
 
 This extreme view does not prevail in Canada or the United 
 States. 
 
 Although in these recent English cases (188.')) the patents have 
 been declared invalid, sec. 18 of the British Patent Act of 1883 
 provides for amendment by way of disclaimer, correction or expla- 
 nation; and by section 19 power is given to disclaim a part of an 
 invention, during action, on .such terms as to costs, or otherwise, 
 as may bo imposed by tho Court or Judge. This is new, and 
 appears to V)e in tho discretion of the Court, which might not 
 give leave to discard a claim to save a patent, if tho patentee had 
 not taken reasonable precautions to ascertain the validity of his 
 cluims. 
 
 It I 
 
 ,) !. i 
 
 One Invalid Claim does not Invalidate all the Claims 
 of a Canadian Patent. 
 
 However, these English cases have no bearing on Canadian 
 cases, for we have had express power of disclaimer since 1849 ; 
 and by .section 32 of this Act (section 25 of the Act of 1872), the 
 Court may discriminate : Vide Patterson, J., in Hunter v. Car- 
 rid; 10 App. Rep. (Ont.), p. 472 ; also section 28, where the patent 
 
v^w — 
 
 T 
 
 204 
 
 DISOLAIMER. 
 
 [Bee. 24. 
 
 mIwiII I)u )u>lt| valid for siicli part i>t' t}io invention tli>H(!rilH>(l nn tli< 
 |>iit(Mit«'u is tu(iii)l (Mititl«!<l to, wiiui'o tliuru Iwis l)U(>n involuntary 
 error. 
 
 NotwitliMtandin^ i\w Kroad ditiWrcnc*) Itotwccn oiir A(;t and tliu 
 English Acts Lid'orr l.SM.'J.and i!vrn tho Act of \Hh:], lla;,'iirty, ( '. .)., 
 on p. 4')2 of Ilimtfi' v. (Jari'lcl:, 10 App l^ p.. Ont. 'Novohil»er, 
 lNS4j, takes tho Kn^dish vii'W of tlu* situation, and states that 
 tilt' plaintitf Would appurt'iitly fail, if one of the suhsidiary cone 
 liinationswas a known old invention, citint; a very rueent Kn^dish 
 case-. 
 
 In the sanit! way, in view of these old Kn^lish deeisioris, in 
 (Meth' V. Lasnin)', \:\ Sup. Ct. Hep. ((.'an.), March. IMSO, H.-iu-y, 
 J., held, that the patent was void iMscauso one or more of tho 
 claims were void; and that the appeal should l»»! allowed. 
 
 These KnjLjIlsh decisions, and the supposition that f;iilure to 
 Hie a "disclaimer," inducetl disahilities as is tht^casi in the Status, 
 have led to a nuinher of misapprehensions in Canada as to the 
 ert'ect of disclaimers, and narroweil reis.sues. 
 
 No Penalty Stated on Failure to File Disclaimer 
 
 This .suction does not statu what will be the eonstqueiice of 
 unreasonable ne<,dect or delay in makin<{ the disclaimer, nor what 
 constitutes unreasonable n(!;^Iect or delay. It merely follows the 
 woidinj,' of the latter part of .sec. 4917 of tho U. S. Act, which 
 provides no penalty in ca.so of default in tiling; our section is in 
 this respect defective. 
 
 The Penalty in U. S. A. 
 
 The U. S. Act, .section 4!)22, enacts that ••No cohIh Himll be ro- 
 
 cdvcrnhlu uiiIuhs tliu |)i))|)er iliiicluiiiier Uan buon unteretl nt tlif I'litent Ottice buforo 
 tlu! conimcneeniont of the miit," and attain section 4917 provides for tho 
 case of filiuij a disclaimer while an action is pendinjj, which 
 action sliall not bo affected thereby, except, so far as may relate 
 to the (piestion of unrea.sonable ne<;loct or delay in filing it. We 
 have no provision, such as this, in section 4922, with reference 
 to costs ; and of the two U. S. Kcctions 4917 and 4922, this .section 
 4922 is the only one which prescribes any penalty or disability 
 to prosecute a suit for failure to dul}' disclaim. 
 
 The two U. S. sections must be construed together. 
 
8eo. 24.] DIBOLAIMER. 20ft 
 
 DiBolaimer Pending Aotion In England. 
 
 Ia'IIVu to (li>4claiiii, ^i-iuiUmI in tlif terms that tlut Npccitiiiutioti, 
 wiiiit iiiii<!ittl(><l, slioiilil not III' ^ivt'ii ill fvi<lciic«' at tlut ttiul of tlio 
 actinii, uikI tlint no uviditnco sliouM Im* <^iv«<ii of iiny infi'in;^'*ni«>iit 
 ntior to tli<! ilatc of tirm;^ tliu iiinoinlr*! s|)c('iti('iitioti, uritl tliiit tli«> 
 costs I..' |>ai<l \>y jilaintitl': It CmlVs Patent. K. V.C. v<il. I :iH,s4), 
 p. 'J(»!>; Mi'c iiUo (finiJanl. v. l/nuhnii, .'JS V\\. 1)., IlS, wliffi! tjis- 
 claiiiifi' was alloweil on payment of all costs up to time uf leavu 
 ^'iveit to (lisclaim, an*l waiver of all <lamagcs prior to umunilmunt. 
 
 Unreasonable Negleot or Delay- 
 As to titu (piustion uf " iiurcuMoiiiiiiic iiu^iivt or ilitliiy " ill tiling' a 
 (llM'luimer ponding' an action, neglect or «lelay begins when 
 kiiuwledgo is hioiiglit homo to the patentee that the invcMitor, on 
 whose account the patent was granted, was not the first inventor 
 ot II part clainuMJ in the patent, and which formed a material and 
 Mili>tantial part of tlie patented invention : Walker, sec. 204 ; '•/»/<• 
 Sniiin- v. WdlniMleu, I Fisher, 558 (iMGOj; (yiieHI/f v. Mom;, 15 
 llnw., 121 (185.S) ; Uaife v. Iln-rituf, 107 V. S., GM); 14 Hiodix, 
 4')^ ; IhmU'xr v. Mei/ern, D4 U. S., 1.S7 ; II Brodix, 51) ; SiaUU v. 
 yidH>ll8, 21 Wall., 112; 9 Jirodix, 425. 
 
 ll" there he reasonable ground tor doubting whether the 
 alli';;ed anticipation brought homo to the knowletlge of the 
 jHilciitee negatives the novelty of anything claimed by him, tlien 
 unnasoiittble delay will not bc^in until the question be finally 
 settled in the Courts : Walker, sec. 204 ; and vide Seymour v. 
 McConiiid', 19 Howard, lOG (185G). 
 
 When Delay is not Unreasonable. 
 
 Where the validity of a reissue claim had been sanctioned by 
 tilt' C\)iiiniissioiier in i, a it, and the claim was not held 
 
 invalid by the ( -ci Court ; Jh'l<l, that there was no unreason- 
 able delay in a disclaiiiii to it : Yale Lock Munufdctihring 
 Co. v. Sanje, ^up. Ot., Apii. 5th, 188G), IG Brodix, 275; 117 
 U. S, 530. 
 
 There is no unreas enable delay in disclaiming until the highest 
 Court has been reached : Gage v. Hevi lUj, 107 U. S., 640, an<l 
 cases cited 15 Brodix, p. 190. 
 
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206 
 
 DISOLAIMEB. 
 
 [Aec. 24. 
 
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 11 
 
 fc:f- 
 
 An unreasonable delay in filing a disclaimer in the States 
 dcprivc.4 the patentee of all right of action for infringement : 
 Brooks V. Jenkins, 3 McLean, 432. 
 
 The (|ueMtion whether delay in filing disclaimer was or was 
 not unreasonable is a mixed question of law and of fact. It 
 must largely depend upon the circumstances which surrounded 
 the person chargeable, and this must be a question of fact, and 
 whether they constituted an excuse for the delay is a question of 
 law : Vide Walker, sec. 204. 
 
 The Judge ha« Discretion as to Costs in Canjda. 
 
 As the Judge has a discretion as to costs, under this sub-section, 
 he might deprive plaintiff of costs, if there had been unreasonable 
 delay shown in filing disclaimer, although not specially provided 
 for as in the U. S. section. 
 
 As to Damages. 
 
 Whether damajjes are recoverable in Canada, in the event of 
 
 " unreasonable neglect or delay " in filing disclaimer, Is an open question, 
 
 and we have no judicial decisions thereon. In the States the 
 
 suit could not be maintained. In England, under 'jection 19, Act 
 
 1883, power to disclaim during action may be ordered on terms 
 
 as to costs and postponement of the action, and by section 20 
 
 (Eng.) there is a strangely worded provision that " no damages shall 
 1>e given in any action in respect of the use of the invention before the disclaimer, 
 correction or explanation, unless the patentee establishes to the satisfaction of tlie 
 Court that his original claim was framed in good faith, and with reasonable skill 
 and knowledge." 
 
 Why a defendant should be mulcted in damages for infringjt- 
 ment under any circumstances, when he has been rightly advised 
 that the patent for the alleged invention is invalid, merely 
 because the patentee made stupid mistakes in " good faith," is 
 impossible to understand. 
 
 Effects of Disclaimer. 
 
 A disclaimer may cancel one or more claims in a patent, even 
 if it be a claim in a reissued patent : Schillinger v. Gunther, 17 
 Blatch., 66. 
 
 It may cancel parts of the description to harmonize with the 
 
Sec. 24.] 
 
 DISCLAIMER. 
 
 207 
 
 cancellation of the claim as auxiliary to the ilisclaimor : Cartridge 
 Co. V. Cartridge Co., 112 U. S., G24. 
 
 In the case of a claim for "a concrete pavomont laid in dctauhcil 
 blocks or Boctiona suhatuutially in tlie manner shown and (le8cril)e(l." The Uls- 
 claiiner was to the effect that " it disclaima tiie forming of J>Iocks from 
 ])1r.8tic material without interpoaing anything between their joints while in the 
 proeeas of formation," This the Court sustained, and said "the sole 
 claim of the patent left after the disclaimer is thia : The arrangement of tar 
 paper, or its equivalent, between adjoining blocka of concrete, aubatantially aa and 
 
 foi the purpoae set forth " : SchilUnger V. Gtcfither, 15 Blatch., 303. 
 
 A disclaimer may cancel an alternative in a claim ; and it 
 may qualify and modify a claim whenever the effect is simply to 
 throw open to the public some part of the ground which a claim 
 already covers. It cannot restate a claim with another effect. 
 
 (d) In this sub-section 4 •« legal representatives " includes assig- 
 nees as is evident by the context. 
 
 There is no provision in our statute for assignment of sectional 
 Intereata, as is the case in the States, whatever that may exactly 
 mean. 
 
 The expression «• any of whom may make disclaimer " in this sub-sec- 
 tion 4 would, however, seem to imply that one out of several 
 executovs or assignees may make disclaimer. 
 
 As to Joint Owner Making Disclaimer. 
 
 This suggests the question, whether one of several joint 
 ownera or " tey.u.nts in comrr jn " of a patent may file a disclaimer ; 
 he can sell, assign and grant licenses with respect to the whole 
 invention : Vid^e Note (a), section 7, and may maintain an action 
 in his own name to restrain infringement, without joining his co- 
 owners : Vide Sheehan v Great Eastern R. W. Co.. 16 Ch. D., 55; 
 and under sub-.sec. 2, sec. 20 of the Pat. Act (Can.), special pro- 
 viaion is made for granting patents in the name of all the appli- 
 cants. 
 
 This being the ca.se why should not a joint owner or " tenant 
 in com/mon " of a patented invention file a disclaimer ; the Act 
 might provide expressly for this, confining the effect of the dis- 
 claimer to such joint owner and tho.se claiming through him^ 
 leaving the interest of the other owner or owners intact, if they 
 so desire it. 
 
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 4: 
 
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 I 
 
 208 
 
 DI80LAIMEB. 
 
 [Sec. 24, 
 
 If one only of several joint owners of a patent file a disclaimer, 
 no other owner could avail himself of its benefits, nor could it 
 affect a suit brought by all the owners jointly : Wyeth v. Stow, 
 1 Story, 294 (1840). 
 
 Sub-seotion 5 Relates Only to the Inventor. 
 
 (<') In this sub-section the invention may not be that of the 
 " iUaclalmant " at all ; for the disclaimant may be the assignee or 
 a legal representative of a deceased inventor. This sub-section 
 assumes that the disclaimant is the inventor, and makes no pio- 
 vision for anyone else, for it refers only to the Invention of the 
 disclaimant. 
 
 A Material and Substantial Part. 
 
 A disclaimer mUst be for a '• material and Bubatantial part" of the 
 thing patented: Vide Hailes v. Albany Stove Co., IG Fed. Rep., 
 242 (1883) ; White v. Manufacturincj Co., 24 0. G., 205 (1883). 
 A claim which is useless need not be disclaimed. 
 
 No Disabilities in Canada. 
 
 Our section, although it gives a disclaimant a right to main- 
 tain a suit for that which is his invention and is not disclaimed, 
 and is a material and substantial part thereof, does not, like the 
 V. S. Act, provide that no patentee shall be entitled to maintain 
 a suit if he has unreasonably neglected or delayed to ente'* a dis- 
 claimer ; so in this respect in Canada there are no disabilities 
 prescribed. 
 
 Owner of a Sectional Interest. 
 
 Nor does our section authorize the owner of a sectional inter- 
 est in a patented invention who has made disclaimer to maintain 
 a suit for infringement as does U. S. section 4922 ; it is not 
 clear what may be the meaning of " sectional " interest ; it cannot 
 mean a licensee, for he has no power to maintain an action for 
 infringement by himself, nor yet a joint owner. 
 
 For the first Canadian enactment as to disclaimers, 12 Vic, c. 
 24, sec. 8 (1849) : See Form 54, Appx. 2. 
 
 This is an obvious blending together of sees. 7 and 9 of the 
 U. S. Pat. Act of 1837 ; diflerences being that said U. S. sec 7 
 
Sec. 24.] 
 
 DISOLAIMEB. 
 
 209 
 
 refers to the payment of a fee of $10 by the person disclaiming, 
 and said U. S. sec. d to the fact that no costs are recoverable 
 ur' ss the disclaimer has been filed in the Patent Off o*e before the 
 commencement of the suit ; while our section of 1849 does not 
 refer to the fee payable, and specifies no special time for filing the 
 disclaimer, in order that costs may be recovered. 
 
 Our section of 1849 speaks of a " fractional " interest in a 
 patent, whatever that may mean, this wor'^. being substituted for 
 " sectional " in the U. S. Act ; the foreg -r sec. 8, 12 Vic, c. 24, 
 appears in C. S. C. (1859), c. 34, sec. 18, < A was there split into 
 five sub-sections, the name of the Minister of Agriculture being 
 substituted for that of the Provincial Secretirj- throughout. 
 
 If the old section 18 of the Consolidated Act of 1859 were 
 amended in some particulars, so as to bring it <lown to date, it 
 would be in better workable shape than our present section 24. 
 
 In the Patent Act of 18G9, sec. 20, a change took place for 
 the worse, and this section 24 which subsequently appeared " ver- 
 batim" in the Patent Act of 1872, and which is the same section 
 as appears in our present Patent Act, in a sub<iivided form, was 
 for the first time enacted. 
 
 The old section 8 of the Act of 1849, as already stated, is not 
 so faulty as our present section 24, which Litter is an abortive 
 revision and consolidation of U. S. .sections 4917, 4922, which 
 latter are also defective in some respects. 
 
 Improvements Suggested. 
 
 1. Our section, it is suggested, .should provide for " di-sclaij ^r " 
 by a joint owner, or " tenant in common," o< a patent right ; 
 confining the effect of such disclaimer to himself and those claim- 
 in^r through him, leaving the interests of co-owners intact, unless 
 they join in the disclaimer. 
 
 2. The defect or mistake pointed out at the opening of note 
 («), section 24, should be remedied so as to provide for the case 
 of an Jissignee. 
 
 3. As well as the mistake pointed out at Uie opening of note 
 (f ), section 24, so as to provide for the case of assignee, etc. 
 
 4. That, in the disclaimer, the extent of the interest of thedis- 
 27 
 
 ■;,1 
 
 i 
 
 I 
 
 t * 
 
 \k 
 
li 
 
 n 
 
 
 
 210 
 
 DI80LAIMER. 
 
 [See. 24 
 
 claimant in the patent sliould be stated as well as the capacity in 
 wliich ho (lischiinis. 
 
 5. That a now form of disclaimer should Vie adopted in place 
 of Form 26, Appx. I., for the reasons stated in note (6), section 
 24, etc. 
 
 As to Disclaimer in the Case of a Claim "With or 
 Without " a Special Element. 
 
 Tho parts retained after disclaimer must be definitely distin- 
 guishable from tho part disclaimed ; in Tncic v. livamhill, Blatcli., 
 
 95 (1808), the claim was •* the fonning of packing for pistons or stufHiij,' 
 boxes for steam engines, and for like pur|x>8e8, out of saturated canvas, so cut 
 tliat tlie til read or warp sball run in a diagonal direction from tiie line or centre of 
 the roll of packing and rolled into form, cither in connection with the india rul)1i('r 
 core or othei elastic material, or without, as herein set forth." 
 
 Liti<^ation showed that such a thing, without a core, was old, 
 
 the patentee disclaimed this and retained the packing with the 
 
 core. Blatohford, J., held the disclaimer to be proper and eft'ect- 
 
 ual : Vide Walker, 199, where Taylor v. Archer, 8 Blatch., 318 
 
 (1871), is also cited. 
 
 In U. S. Circuit Court of Appeals, 9th Circuit : HvMt Bvoh. 
 
 Fruit Packimj Co. v. Cassidij (decided October 24th, 1892), 02 
 
 O. G., p. 1965, in an improvement in fruit driers, the patentee 
 
 first claimed " spring or other catclies," but on an objection that this 
 
 was not in the proper form, amended b}' striking out "or other"; 
 
 Udd, that this was not a disclaimer of " gravity catches " which 
 
 were known mechanical e(|uivalents for spring catches. 
 
 Disclaimers During Suit in TJ. S A. 
 
 In tho States disclaimers may l>e filed pending a suit, but in 
 that event the plaintiff, even if he prevails in the suit, can recover 
 no costs : Smith v. NicholU, 21 Wall., 117 (1874). 
 
 In Canada No Time Stated for Filing. 
 
 It must, however, be borne in mind that our Act does not 
 prescribe when tho disclaimer is to be filed, it only says there 
 must not be unreasonable neglect or delay ; in the States it must 
 be filed before action brought, so as to recover costs, and the claim 
 to be disclaimed must refer to the subject matter of suit. 
 
Sec. 24.] 
 
 DI80LAIMEB. 
 
 211 
 
 Bffeot of Seotion 82, Patent Act, Oanada (1887). 
 
 Our section 32 gives our Courts greater latitude in tlio 
 matter of disclaimer than the U. S. Courts have ; but to avoid all 
 (luestions it is better to file a disclaimer of tl H wnich is not new 
 wlien found out, if it relates to the subject matter of the suit, 
 
 • ven though, as the section stands, " unreftBoimhle neglect or delay" 
 
 does not deprive us in Canada of the Ixjnefits of the section, as is 
 the case in the States, if the disclaimer be not filed before action 
 
 l)rought. 
 
 Failure to Disolaim Affects Costs in U. S- A. 
 
 The failure to disclaim in the States affects more the question 
 of costs, for if a patentee at the trial is found entitled to sustain 
 fortain claims, but not entitled with respect to others, he is 
 entitled to damages for violation of his valid claims, but he gets 
 no costs: Viile Seymour v. McCoi'miclc,3 Blatch., 209, and cases 
 in Bump., 2nd ed., p. 270. 
 
 The question of costs in the United States of America are not, 
 as with us, of much moment, for comparatively small costs there 
 are taxable against an opposite party on a patent suit 
 
 Descriptive matter may l)e erased by disclaimer, but if there be 
 merely a defective or insufficient description, it must be corrected 
 by reissue: Cartridge Co. v. Cartridge Co., 15 Brodix, 364 (1884). 
 
 Constructive Disclaimer. 
 
 As an instance of " constructive disclaimer," where the body 
 of the specification described a composition of matter, but only 
 claimed a sheet of material or fabric coated with such composi- 
 tion, the composition not having been specially claimed : Held, 
 tliat this composition must be regarded as disclaimed, and, 
 being public property, that there was no invention in apply- 
 ing it to paper as claimed : See Undervjood v. Gerher, Sup. Ct. 
 U. S. (May 1st, 1893), 63 O. G., p. 1063 ; .see also Miller v. Brass 
 Co., 104 U. S. 350-352; Mahn v. Harwood, 112 U. S., pp. 360, 
 3G1; Watson v. Cincinnati R. W. Co., 20 Broflix, 49, 132, 
 U. S., 161 (November 18th, 1889), and cases there cited. 
 
I 
 
 I 
 
 tl2 
 
 ASSIGNMENTS. 
 
 PART IX. 
 
 [Sec. 26. 
 
 t , 
 
 
 ¥: 
 
 I 
 
 11' 
 
 i 
 
 ASSIGNMENTS. 
 
 «•». The pntent may be granted to luiy person to whom the inventor, 
 entitled under this Act to obtain a patent, liatt aHsigned or ))ei|tie..^iu'd tiie riglit 
 of ol>taining tlie Hanic, or in default of hiicIi assignment or l)e(|uest, to tlie legal 
 representatives of the deceased inventor. 3."> \'.. c. 20, 8. 8 ; 30 V'., c. 44, s. -'. 
 
 Assignment by Inventor. 
 
 Note. — In tliu event of an assignment during the lit'etiiue of 
 the inventor, the inventor must make the affidavit prescribed hy 
 the forms, and sign the specifications, and not tlie assignee, the 
 assignee signing the petition Form 8, Appx. I. ; and tlie assignment 
 Form 24 must be executed in duplieaite by the inventor, and 
 registered in the Patent Office on payment of a fee of J?2. 
 
 The assignment referred to in this section means an absolute 
 assignment, otherwise Form 4 would be used. 
 
 If the inventor be deatl, the assignee may obtain a patent, as 
 already indicated under sub-section 2 of section 10 of this Act. 
 The assignment must be filed and proof of the death of the 
 inventor given in the Patent Office. 
 
 In the United States one copy of assignment and one original 
 executed by the inventor, is required, which is registered for a fee 
 of Si for documents of 300 words or under. 
 
 Power of Attorney- 
 
 A power of attorney, Form 11, accompanies the papers if the 
 patent is taken out through a solicitor of patents, which is almost 
 invariably the case. Patent Offices do not anywhere encourage 
 inventors in taking out their own patents, because it entails so 
 much extra trouble on the offices ; besides that, the drawings and 
 documents must reach a certain standard of excellence or they 
 will be rejected as informal, and this standard, those who are 
 unaccustomed to the work, are unable to attain. In the United 
 States Patent Office it is necessary to have an accredited agent in 
 
m 
 
 Sec. 25.] 
 
 A88IONMENTS. 
 
 213 
 
 Washington, U. S., who may attend and assist the t.vamincr when 
 c'Xiiiiiiuing the application ; besides that, the practice in the 
 PiittMit Office on appeals, interferences, etc. is very intricate, nioro 
 so than in any Dominion Court of law, and calls for a )«'j^nlar 
 pnictitioner, etc. 
 
 It is well ni;^h impossihlo for an ordinary inventor to ohtain 
 ji patent himself, without employing a patent solicitor, he would 
 In' Itiocked and delayed ut every step; indeed, the Patent Office 
 ill Washington, U. S. A., could not well be carried on without the 
 aiti of duly qualified patent solicitors. 
 
 On a Bequest. 
 
 If the right to obtain the patent be bequeathed and the 
 iiivtmtor be dead, Form .'J, Appx. I., adapted for the petition for 
 a legatee, must be signed by the party to whom the invention 
 has been bequeathed, who must make oath that the person, named 
 as inventor, was the inventor (no special form of oath has been 
 prescribed by our forms), and he must also sign the specification 
 antl power of attorney ; and a certified copy of the |)robate of the 
 will must accompany the i)etition. 
 
 Defect in Canadian Form of Oath. 
 
 The oath prescribed in Canada, whoever may take it, does not, 
 ;«nt should state whether the invention has been previously patented 
 in the Unitfcil Kingdom or any of its possessions or colonies, although 
 as pointed out in note (a), section S, through the wording of this 
 section, this is not material as to these countries ; it should 
 certainly refer to previous foreign patents, if there be any, or if 
 not, it should be so stated, as is the case in the States, especially 
 as the Canadian patent, under section 8, is limited to expire at 
 tlie earliest date on which any foreign patent for the same inven- 
 tion expires. 
 
 Legal Representatives as Patentees. 
 
 If the legal representatives are to obtain the patent, Form 5, 
 Ai)px. I., is utilized, and the administrator or executor must 
 make the oath as to the death of the inventor, and that the 
 person named as the inventor was the inventor ; no special form 
 
 '«8' 
 
 I ■ 
 
 ^ ;;• 
 
 'IMf 
 
 i 
 
 ill 
 
 
 1 V t 
 
 / ■ 
 
 : 
 
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 I'll '.' 
 
 ' 
 
 214 
 
 AS8I0NMEMT8. 
 
 [Bee. 26. 
 
 is pruvided ; probate uf the will or letters of adininistrntiun, as 
 the case may Ite, shouKl accompany the application. 
 
 When the inventor is not alive to sijjn the speciHcations, Form 
 1(1, Appx. I., is to l»e lollowed, when drawing the specifications for 
 the legal representative, the assignee or legatee to sign. 
 
 /Sw. Kvvry |mtuiit iHaiifd for nil iiivt-iitiou tihall )>o iifMignalilu in law, uitlicr ud 
 tu tliu wholu iiiturvMt or ah touiiy |mrt tliereof, by ikiiy iiiNtruiiient in wiiting ; l>ut 
 Huuli iiHHigiiniuiit, unit every grunt iiml Limveyiintju of iiiiy oxcluHivu right to iiiiikt 
 mill UHe liiid tu griiiit to ullieiH the right to make ami iiHe the invention |iatentcil. 
 within itiiil throughout Cunada or any (lart thereof, hIiuII Ih; rt^giHtereil in the I'n 
 tent Othue in the tnaiiner, from time to time, piencrilied hy the cumiiiiMHioner fm 
 Bueli regiHtration ; itiul every aHHigiiment atfeetiiig a patent for invention Hhiill lu' 
 null ami void aguiiiHt any Miilwet(ueiit iiHaignue, uiiIums hucIi iiiHtrumeiit in regiHtereil 
 as hureinhefore ineaerihed, i>cforc the regiatration of the iDHtrunient umlur whii li 
 ■uuli Hulmut^ucnt aMnignuv ulainia. lio W, u. 20, h. '£2. 
 
 »f '; 
 
 Prior Legislation. 
 
 Note. — In the Act of 1801), sec. 22, there is a provision similar 
 to the foregoing section 2G ; and in C. S. C. (1859), c. 34, consoli- 
 dating the Acts of 184!) and 1851, there was the foregoing pro- 
 vision as to registration of assignments, but providing no dis- 
 ability or penalty in the event of failure to register, the latter 
 part of the .section having been first added in 18G1). 
 
 In DtujleUh v. Conboy, 20 U. C. C. P. R. 254 (1870), Har- 
 rison, C. J., takes up the (juestion of as-sigiuuents, and refers to the 
 similarity of the foregoing provision (which is the same as in the 
 Act of 1872), with .sec. 11 of U. S. Patent Act of 1830, and cpiotes 
 Curtis, 4th ed., sec. 178. The dis.similarity, however, is, that 
 this U. S. provision referred to by Harrison, C. J., provides no 
 penalty in the event of failure to register, and is the .same as the 
 provision in our Con. Stat. (Can.), c. 34 (1859). Harrison, C. J., 
 however, quoted the wrong Act, and should have referred to 
 the United States Act in force at the time he gave judgment, 
 
 which further provides that " an aasignment, grant or conveyance shall he 
 void as against any subseiiuent purcluuitir or mortgagee for a valuahle considera- 
 tion, uithout notice, unless it is recorded in the Patent OiKce within three months 
 from the date thereof : Vitle, also, section 489S, Revised Statutes U. 8., and sec- 
 tion 36 of Act of 1870, U. S." 
 
Sec. 26.] 
 
 ASSIONIIENTS. 
 
 215 
 
 Tliis IJ. S. ormctnicnt is liko tlio proviNion in our proHeiit Act, 
 
 l.lit it colltuins the words "without notice," as well as "Hi,lm,.,,Miiil 
 liiiirliuNvi' or inoi'tKU^'ct) for ii vMiiiul)lo coiiMiderution," Dot ill ours, so tlmt it 
 wtjiiM a)>|)our that if an ussignoo for value in the States 
 lia<l express notice of ii prior assignment, the mere prior rcgistra- 
 tiun of his own assignment within the three months menticjned 
 wuuhl avail him nothing ; whereas, in Canada, nothing is sui<l 
 alM»ut notiee or valiiablo consideiatioii, or any time within which 
 Kifistration shouhl he made ; so that it is more in the nature of a 
 nice for registration in Canada, where prior registration by a 
 siiltserjuent assignee miglit avail, even with express notice of a 
 pi lor assiginnent, where the element of fraud does not come in. 
 
 Interest Saleable at Comnior* Law. 
 
 Harrison, C J,, states : "Tlio Lenutiuinl inttreMt which u imttntee of an 
 iiivi-ntioii nc(iuiruM in hiu invention niuy, ut common law, \n3 hoIiI, iiml, Huliject to 
 tilt' proviHioiiH of the Hlatiitv, nssigned in the Hiimc ninnner im any other property 
 iii<|iiiretl l»y peritonid industry : i'iik Ctirfn'riiiht v. AriiotI, '2 It. Jli I'., 43. " 
 
 Documents Which Should Be Written. 
 
 " Tlie Htiitute tI(M-ii not recjuire a mere contract of anie to l>e in writing." 
 " An ikHii^nment \>y the express provision of tiie Canailiun Statute must he in 
 writing." 
 
 "The interest, therefore, which n patentee may sell and assign is either his 
 whole interest for tiie whole or part of Canada, or a part interest for tiie whole or 
 part of Canada : I'ide Watton v. Lavattr, 8 C. H. N. S., 102. 
 
 What May Be Registered. 
 
 The instruujents to ho registered are, 
 
 1. An assiynment of tlie whole interest in a patent throughout Canadn. 
 1. An assignment of tlio undivided part of a patent througliout ( uiiada. 
 .'). The grant or conveyance of right to nuike and vise the thing patented in 
 sonic specified part of Canada, to the exclusion of the patentee. 
 
 [N. II UY El). — Since the Act of 1802 a mortgage or any other 
 document ati'ecting or relating to a patent may also ha registered.] 
 
 A LicGnse Need Not Be Registered. 
 
 " If till grant l>e not an interest, cither for the \t iiole or some part of Canada, 
 to the excluKou of the patentee, Init at iiiohI the right to make, vend or use the 
 .subject matter of the patent concurrently with the patentee, or with other 
 grantees under him, it is in the nature of a license and need not be registered : 
 I'lolhtrot V. May tt «/., Web. P. C, 411 j t'arrimjton v. (trftjory, 4 FLsher, 12; 
 Uaylor v. Wildtr, 10 How., 477. 
 
"If 
 
 « ! 
 
 1 . ' f 
 
 f*- 
 
 
 116 A88I0NMENT8. [See. 26. 
 
 Assignment. 
 
 " All imii^niiM'iit, tlieii, niiiitt lio ii ^rnnt which ve«U in th« Krantee tho right 
 to the wiiole iiiitfiit or Miiiiu! iindiviilod piirt of it, or t<> the whole or ■oinv uinh- 
 TitlctI |Mirt of lotiiv tri ritoriikl iiitoruHt, to ttiit I'xi.'iiiition of the fMteiitev. 
 
 In I'e.rrfi v. doniiinj, 7 IMutcii , \Wi, tiiii ))at<-iit<*c Iia4l trannferri'il all hm i'i((lit, 
 title anil intcroHt in ccrtnin IvttvrH {iiitt'iil to niiiiiiifiM'ture an<l to iiell the mtiiir in 
 tb* Ntaten of New York iinil Coiinectiuiit ; it waM oontenile^l that thii wan not aii 
 
 inicnt, hut till) Cdiirt held it witH. The pHtentee waa «sclu<ieil from itll 
 
 ent within tiie H|iecitioil diMtrict. 
 
 In the ciiae of llunney v. Whltrhj, '2 iiiiher, I'i'i, where there was an exi-liiiive 
 right to make mid Hell in twenty -tht'<a> eniiiitii-H of Ohio, hut tii.- pntentee renervud 
 lb* right to neiid iniiohint'M of hin own ninnufiioture into the territory, Thia wm 
 hebl to >)« a livenio. 
 
 •' I do not read tho Act iis providing that rej^intmtlon in emential to the 
 ralitiity of an ivHHi^ninunt hm hctwcun tlu; iinniediiite |>artiea thereto, hut only 
 Dcccaaary to Hecurc priority iim a^itiiiHt iv i«nl)Hfi|iieiit aaMignee." 
 
 The tirnt V . S. |»iitont Act (I71K1) nmdc n'f{ii»try eM^ntinl to the viilidity of nn 
 «ae^fnni«.>nt : l><tl>*oii v. Cumphell, I Sumner, .lit) ; hut the eiKiting U. S. Act only 
 fc«|Dcats re^iittry to Hocnrc priority na iigainst a fiuhfte<|uent a«aign(>« : /'m;/ v. 
 C*r»«f/, 7 lUatch., 61 j I'i/ltv. U'Mlman, '2 >Story, (i09; Harriaon, C.J., in HmjltiKh 
 
 Licenses. 
 
 T}u' tlocunient is a license, if it does not convey the entire 
 monopoly or an inKlivifled interest therein, throughout the terri- 
 tory to whiclt it refers : Gaylitr \. Wililer, 10 How.. 404 (\H')i)). 
 
 Tlie following then liave heen liehl to con.stittite licenses 
 merely : 
 
 Aright to make and sell but not to use: llntpvui'd x. An- 
 rf»W8, 14 Brodix, 270, 100 U. S., 073 (1.S82); WalevYnan v. J/c- 
 Kenzie. 20 Brodix, 007 (18<)1). 
 
 A right to make and use but not to sell : Mitchell v. Ilnwley, 
 16 Wall., 544 (1872). 
 
 A right to use and sell but not to make: Hamilton v. K'nujs- 
 hury, 17 Blatch., 20-5 (1879). 
 
 A right to make, to use, and to sell to be used, for certain 
 purposes, but for no other : Gamewcll Telegraph Co. v. Brooklyn, 
 14 Fed. Rep., 2.55 (1882). 
 
 The right to make, the right to sell, and tlie right to use, are 
 each substantive rights ; but the right to make would be nugatory 
 anietM it also implied a right to sell or to use. Either of these 
 
J' 
 H fV 
 
 Sec. 26.] 
 
 ASSIONUENTB. 
 
 217 
 
 la«t two ri^jlitM will bo iin{)lic<l l>y muitouih line's : Sfeoia ('atti'v 
 r,>. V. Shldon, 10 Blatch., H (l«72). Imt both will not bo iinplitti 
 in a license to muko: Walker, sue. 2!)7. 
 
 An agreonicnt granting tlx* "noIu aiuI oxuluiive i-ixlit aihI liccmiu to 
 
 riiaiiufucturo ami Mull" tho patunti^l fl|-ti<;li' " tliroughout tliu l'nite<l Statt<«" 
 lit'M not to inclu<l(; the ri;^ht to nsi- hucIi pat<'tit"»l aitii'los, 
 at least if niamiriu'tur»'il by tliir<l persons, ami construefl to bo 
 ft iiiiM'i! lieonso : Soo Wdtcrinun v. Moclcenzle, Sup., ('t. IJ. S. 
 (tli'ri.k..! February "iml, ISiH), 20 Hro.lix, 007. I'iH IT. S., 252. 
 if the patentee retains a ri^'lit to manufacture, then it is a 
 mere license: See Oiren v. Wntaon, 10 App. Hep. (Ont.), p. 11!>, 
 yW/' Burton, J., an<l the party to sue is the pjitentee ; an assignee, 
 however, has the ri^rht to sue : 8. C, 
 
 Assignment in XT. S. A. 
 
 An assiunnjont is ati instrument in writinj^ conveyinjj; either 
 (1) tlie whole patent, coniprising tlu? exclusive right to make, u.so 
 ami vend the invention throughout the United States ; or (2) an 
 uinlivideil part or share of that exclusive right ; or (.'I) the I'xclu- 
 sive right nnder the patent withifi ami throughout a spt.'citied 
 part of the United States; and vests in the assignee a title In so 
 much of the patent itself, with a right to sue infringers alone in 
 the (1) and (Ji) cases, and jointly with the assignee in the (2) cas'e : 
 H'dtcrman v. McKenzie, mipni., OH. 
 
 Any transfer short of one of these is a more license, giving 
 the licensee no title in the patent, antl no right to sue ot law in 
 liis own name for an infringement. Ai\y rights of the licensee 
 must be enforced tl)rongh or in the name of the owner of the 
 patent, and perhajis, if nece.ssary, to protect the rights of all 
 jiarties, joining the licensee with him as plaintiff: S.C., p. (JH. 
 
 Effect of Registration. 
 
 llegistration does not avail in United States of America in 
 favour of a sub.se<iuent purcha.ser who had actual notice : Conti- 
 nental Windmill Co. v. Windmill Co., 8 Blatch., 295 (1871) ; nor 
 a subsequent party who paid no valuable consideration : Saxton 
 V. Aaltman, 15 Ohio, 471 (1804). A merely good consideration 
 ill tho States will not support an as.signinent a.s against a prior 
 
 I' •' 
 
 f|!i 
 
 i 
 
 ' ' ' I: 
 
 
 I s 
 
 
 I^^V- 
 
t 
 
 2l« 
 
 A88I0NMENT8. 
 
 [8«o. 26. 
 
 uiirfCDideii iisMi^'tiiMcnt tor vuUi«! ; whon'OM in Cuiiatlu it iiii^rlit 
 uitilir thu wonliii^ of our Act liuvu sucU an ctri'Ct. 
 
 An*! in Curiuila from 1'2 Vic, c. 2K up to the I'litnit Act of 
 1MG!>, it won providuJ, tliut thu utMi)(Titiu!nt Mhiill l»u rttconliMl in 
 thu (»tru't' of thu i'lovinciul Sfcrt'tary or MiniMtrT of A;;ritulturo, 
 us tlit> cusu nmy he, within two months from thu uxucntion thurcuf. 
 
 Section 26, Whence Derived. 
 
 Our section 2G is ii sort of niuhm^u of sue. It, of t)iu U.S. 
 Piiti'iit Act, IH.*}<), an<l (as to disaliiUty for non-r«'<,'istration) of 
 MfC. -t.S'JH, It. S. IF. S., now in t'orcu ; but, this hitter nfcrs spccifi- 
 ciilly to a .suh>4L>(|Ucnt jiurchasor or a mortj^'U^'co for a vuhiahlt- 
 conHi<iiiation without notice, and to recording' in the I'ateiit OtHce 
 within three months, whereas oin- section 20 is silent as to these 
 hist matters. 
 
 Anomaly in Section 26. 
 
 'I'he effect of copying, ahuost verbatim, sec. 1 1 of the Act of 
 IS.'Ki (U. S.), has introchiced ananonuily into our si'ction :J(), wiieiv 
 the term "any uxuliiNivu ri){lit to iitakuutid uho, iin<l to ^raiit to otlu-iH tliu ri^'it 
 to iimku mill iiM'j " occur.s, and which term found its way into our 
 Patent Act of 1S41) ; for we shall see under section .'}7 of this Act 
 that Jiow, no such tliinji; as an " ejrlimlre " ri^ht to make and u^c 
 exists in Canada two years after thu <lato of the patent ; under 
 no circuniBtances, after .«aid two yeais, can there be an " e,irlunii:': 
 r'lijlit " to use. althou<,di there migl.t l)u {vida Note, section .'{7) 
 under certain cireiimstance.s, an '* ejriasnu' riylU" to supply a 
 manufactured article, such as in the (Joodyear rubber patent fm 
 the product, if the patentee is able to supply the wliole demand in 
 Canada. Under the Patent Act of 180!) this oblij^ation to manii- 
 tacture or .supj)ly the patented article wa.s first enacteil in Canaila, 
 and the " exda«iue rifjfit " merely existed for three years, until 
 the Act of 1S72, when it was reduced to two. 
 
 This .section should be amended as to its wording, by leaviiiLi 
 out the words " any i.xi;lu«ivo " for this terui"exclusivu"doesnot tally 
 very well with the provisions of the 37th section. In this section 
 20 we retain the wording of the old Act of 1849, unmoditied I'V 
 the change, ,.hich was for the Hrst time introduced by the Act uf 
 
Sec. 26.] 
 
 OOMPULflORT U0BN8E8. ENO. 
 
 2VJ 
 
 \M',l hH to inAiiufactiii-0 aiul iinportutioti iin<l tlm creation of 
 ijHiiHi Ntatutury liconnofs. In ri>ii<lin;; W S. chmch IxMiriii^ uii lliis 
 Iji'uiitli of UFi.Ni),'iiiiu'ntn, etc., it eanuut bo Vm siiuun\y litniic in 
 iiiinil that in tlm Stiitrs t\\\ " r,iclnnlir tuylU" U\ ii piiti'nt or 
 piittntcil nrticlt' •still uxiNt.^, tlieru la'in^ no ol)li;;atiun to ninnu* 
 I'urtiM'o or lici'nH(> any person, tliu patcntfc i)«'in;{ the nntrantnu llftl 
 owner. 
 
 Compulsory Lioenses in Great Britain. 
 
 In Kn<{lanil,als(>, a patiMit«t> usftl tolican Mntnininirll(>t| owniT, 
 as is still th(> t'O-so in tin* Unittnl States ; Imt, liy si-clKtn 22 of the 
 I'liti'iit Act of IHH'\ " rinnjnilHtn'if licensiM " wi-rc Hist introijiiccil : 
 till' Hoard of Tra«l( having; powrr, on petition of any i>c'i'son in- 
 tiTistc'tl, to onlt;r the patontt-c to ^'rant liconscM on such trims, as 
 to loyalties an<l st'cuiity, for payincnt, etc., as the Hoaul may 
 ilttiii just, which onlur may ho unforced l>y " viundtiiuus" ; the 
 petitioner must show that hy reason of the default of a patentee to 
 ^runt licenses on reasonable terms: that, 
 
 («) The patent is not being woikeil in the li'nited Kiii;,'- 
 dutii ; or, 
 
 (/>) The reasonublo reijuirements of the public, with respect to 
 the invention, cannot be supplied ; or, 
 
 (f) Any person is prevented from workinu; or using, to the 
 best advantage, an invention of which he is possessed. 
 
 (f) Hefer.s to a ca.se where a pat»'nt«.'e cannot work his Inven- 
 tion, by reason of its involving the use of unother patented in- 
 vention, where the owner of the lattt;r will not grant a license, or 
 puts on a prohibitory price. 
 
 There is no appeal from the Board of Trade, who act "Jtidici- 
 (illi)"; the parties, therefore, have a right to be heard ami to 
 uiMiiee evidence for its consideration. The l^oard may be ..-oni- 
 jielled to hear and determine judicially by "7U(ti((/»tiHJ<.s " from 
 The (Queen's Bench Division, H. C. J. : Vide Tapping on Manda- 
 imis, c. .*], p. 1 2. 
 
 The Board need not hear agents or coun.sel, unless they choose, 
 but only the parties themselves. 
 
 In Whom Interests May Be Vested. 
 
 Interests in patents may bo vested in assignees, in grantees of 
 sectional rights, in mortgagees, and in licensees. 
 
 f 
 
 '1 
 
 1:1 
 
 ■ ■ : I • 
 
 * . I 
 
 ! 
 
 fl 
 
I 
 
 ii. 
 
 220 ASSIGNMENTS. [Sec. 26, 
 
 Assignees. 
 
 (1) An assi'^noo is a tiansforoo of the wholo interest of the 
 orif^inal patent «,'• of jvu untlividud part of .such wholo interest cx- 
 tendinj,' to every portion of Canada. The assignment must ho 
 written or printed and duly signed, and .-ihould bo registered to 
 ensure priority. 
 
 Grantees. 
 
 (2) A grantee rie(j>iires by the grant the right under the 
 patent, to make and use, the thing patented, within and through- 
 out some specified part of Cana«)a, excluding the patentee there- 
 from. The grant nmst be u'ritten or printed and duly signed, 
 and should l)e registered to ensure priority. 
 
 N. B. — Assignees and grantees are those specially referred to 
 in this section 20, though in fact both may bo called assignees. 
 
 Mortgagees. 
 
 (3) A mort[^'^.gee is one who takes an interest in a patent under 
 II mortgage, which must be written or printed and duly signed; 
 although not specially referred to in section 20, as it is in the U.S. 
 seetion, a njurtgage is a eonuitifmal assignment, and may also he 
 registered un<ler the Patent Act amendment, 1892 (Can.) for S2, 
 
 as a document " uffootiiig or reluting to a |mtent." 
 
 Licensees. 
 
 (4) A " lieen.see " takes an interest less than or ditt'erent from 
 either of the others. 
 
 License to Be Written (Can.). 
 
 A license must also in Canada be in writing, by reason of 
 .section 2D of this Act, and be duly signed ; but need not bo 
 registered ; although like n mortgage, it may be registered, as 
 may be often advi.sablo to be done. 
 
 liy the 7th see. 14 and !.'» Vic, c. 70, a licen.so must be in 
 writing: See Smith v. Matchniore, 10 U. C. C. P., p. IV.)1 : and 
 this appears to have been the case ever since : See also DtujleisU 
 V. donhuij, 20 U. C. C. P. R., 2r)4 and ,sec. 21) Patent Act, Canada. 
 
 In the United States a licen.so may be " oral" but if written 
 or printed must be duly signed. 
 
litt'ercnt from 
 
 See. 26.] 
 
 U0EN8E8. 
 
 221 
 
 License to Be Written (Bng). 
 
 Formerly in Great Britain a licunso to use a patented article 
 nee<l not have been made under seal : Chanter v. Johnnon, 4 M. & 
 A. ; but the ofTect of the prohibiting clau.se in modern Letters 
 Patent seems to make it compulsory that the license must now 
 l)u under ihe hand and seat of the patentee, that is to say, it must 
 1)0 l>y deed : Vide Frost on p. 826. 
 
 As a license must be ^'rn'ited by dt^ed it is nol necessary that 
 tlicro should bo any consideration at all. 
 
 The form of English patent provides that nc person shall use 
 till' invention " without the consent, licenso or ajjreenient of the 
 suit! patentee in writing under his hand and seal " : V'ulti Frost, 
 \). U.'l2. If the license, which is the lesser thing, nuist bu in writ- 
 ins,', " <i fortiori " the assignment which is the greater thing must 
 uIm) be : Lord Ellenl)orongh in Pinar v. Walker, 3 M. & VV., {). 
 
 Any instrument aficcting or relating to a patent is capal)le of 
 registration, in Canada, since the Act of 1H92, no matter what may 
 bo its length, for the sum of ^2 ; all such instrum<jnts, capable of 
 ri'i,nstration', should identify the patent by date and number, or if 
 the invention be unpatented, the name of the inventor, the serial 
 numlier and date of the application should be stated. 
 
 As to the delinition of the various forms of assignment : Vide 
 Wnterman v. Mackenzie, 20 Brodi.x, G07 (1891). 
 
 Mortgage ~U. S. 
 
 A mortgage of a patent is recognized by section 4898 of the 
 Revised Statutes, U. S. As it conveys no larger interest than an 
 assi^'iunent, it does not rerjuire sealing, witnessing or acknow- 
 leil;,Mnent, for an assignment or gram, refjuires neither so far as 
 Ft'ilfral ( 'Ourts are conci-rned. If action bo brought on it in a 
 Stat", Court, it should conform to the formalities of mortgages 
 iv<|uired by the laws of the State. 
 
 A mortgage i^y a patentee vests in tlie n>ortgagec the whole 
 title to the patent rights, sid)ject to be defeated by performance 
 <'f the condition ; and tlic riglit of possessioii to the incor|>oreal 
 pioptirty is in legal ett'ect deliveied to the mortgagee at the time 
 of recording the mortgage at the Patent Office : See Waterman v. 
 Shii,„Mn, 64 0. a, p. 713 (1893). 
 
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 222 
 
 A8SI0NMENTB. 
 
 [Sec. 26. 
 
 Mortf^ages in the States are regarded aw absolute assignments 
 until cancelled with the written consent of both parties or by 
 the decree oi a competent Court ; the same rule woul 1, no doubt, 
 prevail in Canada, although there is no special provision to this 
 effect. 
 
 An assignment of a patent for a machine will not convey any 
 patent for the process, in the performance of which the machine 
 finds its only utility: JJovnton v. Manufacturhig Co.,\) Fi'(l. 
 Rep., 402 (187})); Dcnvnton v. Allen, 9 Fed. Rep., 771 (1881). 
 
 An assignment V)y a corporation in the United States of Americii 
 need not be under its corporate seal, but may be executed in tlio 
 name of the corporation and by its proper officer : See Gottfned 
 V. Milhr, 104 U. S., 528 (1881). In Canada it is usual to have 
 tho nssignment by a corporation under seal ; and this shouM par- 
 ticularly Im the ca."- if intended for England, its colonies, or 
 possessions. / 
 
 Ri'jjhts of action for past infringement are not conveyed by 
 any mere assignment of tin patent : See Moore v. Marsh,! Wall,, 
 iA5 (18G8); but may be conveyed, if rights of action are specially 
 mentioned: See Hamilton v. Rollins, 3 Ban. & Ard., 100 (1877;; 
 Ilayward v. Andrews, 12 Fed. Rep , 78G (1882). 
 
 Parol Evidence to Explain. 
 
 Parol evidence may be admissible to explain an ambiguous 
 assignment, if it points to collateral documents, or such surrouiul- 
 ings as throw light upon the vrords : See Read v. Bowman. 2 
 Wall., .501 (1804); Witherell v. Xinc Co., Fish., .50 (1872); if 
 unsolvabh; aml)i<'iiities remain, thev should be construed against 
 the grantor : See May v. Cliafee, 2 Dill., :]8.') (1871). 
 
 In the States where a patent is to issue to an assighee, the 
 assignment must be recorded in the Patent Office* not later than 
 the day on which the final fee is paid after the allowance of the 
 patent ; if under 300 words Si is chargeable, one original and a 
 copy is to be forwarded ; in Canada a duplicate original is for- 
 warded, and the fee is $2. 
 
Sec. 26.] 
 
 ▲SSIOinCElfT& 
 
 223 
 
 In England Registration BssentiaL 
 
 In England also, by sec. 2.'i of the Patent Act of 1883, j atents, 
 nssijjnments and licenses must be rej^istere*!, and no action is 
 inaintaiuable until after such registration : Vi»l*' ClntUctt v. //<»^- 
 mnn, 20 L. J. Q. B., 249 ; lie Morffun's Patent, 24 W. R.. 245. etc. ; 
 nnd by sec. 87 of Act of 1883 the registered proprietor has 
 !il>s<»lute control. 
 
 Assignment from an Bmploye 
 
 A numufacturing corporation which has employed a skilled 
 workman for a stated cotuKonsation to take charge of its works 
 iiml to devote his till, at , services to devising and making im- 
 junvemontH in articles there manufactured, is not entitled to a 
 miivcyance of patents obtained by him while so employed, in the 
 absence of express agreement to ♦bat effect: Dalzell v. Dueher 
 WtifcliciiHe ManufacturiiKj Co., Sup. Ct, U. S., C3 O. G., p. 1381 
 (bsuS). 
 
 An oral agreement for *bo «ale and assignment of the right 
 to obtain a patent for an i:t vent tm is not within the Statute of 
 Frauds, nor within sec. 4898, Jiev. Stats., U. S., requiring assign- 
 ments to be in writing, nnd may be specifically enforced in etjuity 
 "V. sufficient proof thereof : *S'. C. 
 
 "Without Notice" 
 
 It would be bett(!r if our section followed the wording of the 
 r, S. section where the words " without notice" occur, thus making 
 the assignment against a subst'(|uent purchaser or mortgagee for 
 a valuable consideration, " withoui notice," void in default of 
 registration. 
 
 As our .section now stan<ls, it goes further than our Registry 
 Act, c. 114, R. S., Out. (18H7). sec. 82, relating to lands, which pro- 
 
 \ ide.s that " priority of registration Hhall jirevail naless lx?f»re the n'^imiiitioii 
 t lion- h.iH been actual notice of tlii' prior iiutiuioeoi )•>' the porty cliiiniinj^; under 
 till' prior registration." 
 
 Slipping in a subseque!it assignment for registration, with full 
 knowledge of the prior assignment for value, and with knowledge 
 of its existence at the time the subsequent a.s.signment was (tb- 
 taiiied, for the purpose of cutting out and n-ndeiing null and 
 Void a prior unregistered conveyance, can hardly Ije the intention 
 of this section 26. 
 
 
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 224 
 
 ASSIOITMENTS. 
 
 [Bee. 26. 
 
 Hi 
 
 I 
 
 No Time Limit in Canada. 
 
 There ought also to Ihj a time limit within which registration 
 shouM he made after the date of the document, say three montI)s, 
 as in U. S. A. 
 
 Illustrations- 
 After an uKsignoe has, under an agreement witli a pa entee, 
 nianiifaetiu'ed and sold machines, he is estopped fiom d()h^ing 
 tliat the patentee was tlie original inventor of the device wlieii 
 called upon for an accounting : Kintunan v. Parkhuvst, IJi 
 How., :>89. 
 
 A contract or assignment referring to an original patent 
 refers also to the reissue : Tool Co. v. J mid, 3 Fish., P. C, 141. 
 
 An agreement by an assignor " to protect tho«ale fiominfringcmenta," 
 is a warranty that the sale and use of the device would infringe 
 no existing patent: See Cvoninc/er v. Paige, 4 N. \V. Hep., lOG. 
 
 A patent that a Court has ileclared void may bo rei.ssued: 
 See M<(t/iews v. Flon'cv, 25 Fed. Rep., NSO. 
 
 A contract by an employe' to permit his employers to Hp|)ly 
 for and obtain a patc^it f«)r a devi.su he has invente<l, may !»' 
 proved by parol in the United States of America: See Lockwood 
 V. Lockwood, JW Iowa, 509 ; but this >viU not apply to Canada, 
 where f;i^ contract nnist be in writing. 
 
 A iis'in \n pass by grant or jussiginnent that which he now 
 poFst.vsse.Sj w.\s\ which is in existence at the time, either actually 
 or j. cnti.'),i)v unless he u.ses other language which imports an 
 ini r!ti(;n to if; ant what he does not now p().sses.s, and what is nut 
 no>\ '.n o\7-'.ence; in the latter ca.se, the language acts as a cove- 
 nant oi »ntract which a Court of Eijuity will carry into full 
 effect when the right or thing conies " in esse" : See Woodicortli 
 V. SkernuDt, '.\ Stt y, 171. 
 
 A deed to a deatl man has hitherto been held to be a nullity, 
 and though made " to him and his heirs," the word heirs was not a 
 word of purchase carrying titlo to the heirs but only qiuilifying 
 the title of grantee: Ilunler v. Watson, 12 Cal., 8G3 ; Price w 
 Johnston, 1 Ohio, 390; Wood v. Fertjuson,! Ohio, 228; De la 
 Vevtjne Uefr iterating Co. v. Fcathcrstone, 5H O. G. (1842); but 
 
Sec. 26.] 
 
 ASSIGNMENTS. 
 
 225 
 
 tlu'se cases Imve Im'cii recently overruled in the U. S. S>ip. Ct. by 
 l)f hi Vnyne RffriijertUiiKj Machine Co. v. FeHtherstO)ie, 1+7 U. 
 S. Ke|).,p. 2()f), relating to a patent tlcetl, and was decided January 
 !)tli, IWDS. Ky this Supreme Court decision it now nietins " to him 
 or hhf heirs," and the patent enures to the benefit of his heirs. 
 
 Note. — There is now before Congress a bill to meet the spe- 
 cific ca.so just decided by the Sup. Ct, U. S., which, in view of 
 this decision, nuiy not be necessary; so that if it shoidd happen^ 
 that between tlic time the application for a patent was allowed 
 ill U.S. A. and tlie final fee paid, the a])plicantsho'.)lil die nnd the 
 j)at(^nt i.ssue in the name of the deceased applicant, on filing a 
 {•crtified copy of the probate of will or of letters of administra- 
 tion, the executor or administrator wotild, in the U. S. Patent 
 Office, be recognized as clothed with authority to <leal with or 
 nssijjn the Letters Patent. Under a similar state of facts in ( 'an- 
 ada, it isproV)able that the personal representative of the tleceased^ 
 would, on filing the re(|uisito documents, be also reeognizeil. 
 
 A patent having been rei.ssue<l to the inventor, will not be re- 
 issued also to his assignee, whose as.signment was not recorded 
 Ix^fore the reissue to the inventor : See Ex ^xtrte Whitely, C. 1). 
 (IHGJ)), p. 7J). 
 
 A patentee cannot sell his right to another, ami then Imy or 
 obtain control of an older patent, and through such older patent 
 dispos.sess his assignee of the full benefit of what he pureluised : 
 See Curran v. JJitnixill, 20 Fed. Rep., Hll't. 
 
 " Lf'ifiil reprcKeutdtirex" includes assignees as well as execu- 
 tors and administrators in its ternjs : See Jlamilton v. Kiiii/shiirif, 
 I") HIatch., 64; aKso includes assigm^es, etc., by sec. 2 of the 
 Patent Act, Can. 
 
 The mere assignment of a patent gives the assignee no light 
 to damages or profits already accrued, uidess the huiguage of tho 
 instrument shows that such was the intention : See Mcrviniii v. 
 ^laith, 11 Fed. Rep., .'>SS ; Nevj York G '-ajut Suyttr Co. v. Hii(}'<th 
 Grape Stigur Co., 18 Fed. Rep., G.SS. 
 
 Tho U. S., sec. .*;()4C, R. S., vests nil patent rights iit once in 
 the assignee of a bankrupt ; a recorded as.signment from an ad- 
 iiiiiilstrator of a bankrupt ma<le after the bankruptcy, catin«>t pre- 
 29 
 
 M. 
 
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 'I 
 
 
 
 
220 
 
 ASSIGNMENTS. 
 
 [See. 26. 
 
 *lj 
 
 ii 
 
 m 
 
 vail over an ns.sijrnincnt to the asHij^neo in bankruptcy' : See 
 Prime v. linindon Man ififctnyimj Co., + lian. t!c Anl., .'J70. (In 
 Cnnadu we have no mich .special enactment.) 
 
 A receiver of an insolvent debtor is entitled to a patent rij^lit 
 belonj^ing to the debtor; and a Court is enipo\vere<l to order th»! 
 debtor t*) convey the riyht to such receiver, if such conveyance is 
 necessary: See Petition of Keach, lltsceivor, Duryee, p. 110. 
 
 In the 11. S. A. an assit^ninent of an interest in a patent, to Ikj 
 valid, nuist be in writinfj; it cannot be cviilenced by parol testi- 
 mony : See lialUtrin v. Silhf/. 1 Cliff., l.JO. (N. B.— When there 
 is in U. S. the relation of employer and employe, thi.s rule may 
 be modiHed.) 
 
 Assi<,'nments of patents in U. S. A. are not required to be 
 under seal : Gottfned v. Millev, 10* U. S., .')21. 
 
 AsNij^nments of patents in U. S. A. are not recjuired to bo re- 
 corded in ord«'r to be valid lietween the parties thereto: Holden 
 v. Carfii, 2 N. H., (51 ; Moor v. liase, 11 Iowa, 198. 
 
 Under the statutes of New York, assij^nments duly acknow- 
 led^etl l)efore a notary are sufticiently proved, and it is not in- 
 cumbent upon the coujplainant to prove the signatures of the as- 
 8ij,'nors ; See IIoiujIituH v. Jones, 1 Wall., 702 • New York 
 Phixrmicd Axsitciatlon. v. Tilden, 14 Fed. Rep., 740. 
 
 It is not necessary in U. S. A. that all the administrators 
 should join in an assiirnment ol" a patent. A deed by one of them 
 will convey the entire interest: See Wlnterniute v. liedlwjton, 1 
 Fish., 289. 
 
 An assignment of an expired patent is void as an 'tsaif/nniev/, 
 although it may bo good as <i power of atforw.}/ to collect for in- 
 fringements: See licit V. McCidlowjh, 1 Fish., 380. 
 
 A certificate Ihat A " is tho owner of rtve fortieth j.iirtM of the I^tti i 
 Pttt«i»t" is not such an assigniaent a.s the law re(iuires, and would 
 give the person no interest whatever in the patent : Hope Iron 
 Works V. Holden, 58 Maine, 140. 
 
 If an assignment contains no " viarranty " but a simple 
 transfer of title the vendee cannot .set xx^^ a." parol ivarranty," i>'r 
 it must be presmned that the article contaiim the entire contract: 
 Jollife V. Collins, 21 Mo., 338. 
 
 The " legal t itle " to the patent become'S vested in t' ** a.ssignet 
 
Sec. 26.] 
 
 ASSiaNMENTS. 
 
 227 
 
 altlion^l) the patent is-sued to the inventor, the iissigninontauthor- 
 izii»<i the Coinnii.ssioner to issue the patent to the assignee, not 
 havinj^ been recorded until after the issut; of the patent : See 
 U. S. Stamping Co. v. Jewett, IS Blatch., 4<)i). 
 
 An owner of a patent who corivoys by deed "all iiid proiMTty uml 
 «iitikte wli»Uo«vvr and whensoever of every kiml and doncription " carries the 
 ri^l»t to the patent: .See Railrond Co. v. Trimble, 10 Wall., .'J(i7. 
 
 A Court of K(|uity in U. S. may direct the sale of the interest 
 of an inventor in his patent in order to satisfy a judgment debt, 
 mul the Court may a|)point a trustee to execute thr same : See 
 Murray v. Agrr, 20 O. ()., 1311. 
 
 A Court of Hipiity will not rolea" a purchaser of a patent 
 rif,'ht from liability upon his bond, if there were no fraud on the 
 part of the assignor, notwithstanding the patent may be void : 
 See Canaler v. Eaton, 2 Jones' Eij. (N. C), 4I)J) ; Stcvnix v. Head, 
 !) Vt, 174. 
 
 When a patent owner a.sslgns certain patents, •• together witli the 
 
 ri^'lit to niodiiiuationii, iinprovementH or reUaiiua tburuof, and all <>tlu:i' ami Miniilar 
 l>atcntj in the Unite<I StaU-s which may ho iHiiuud to vn or any of iih, diructly or 
 iiKlireetly, in aid of tho improveinenta al>ov« H|MJcifiod," such H.ssignment does 
 not cover subse(|uently invented improvements not covered b}* tho 
 claims of any of the existing patents specified in such assignment: 
 Stebbins Co. v. Stebhins, 4 Fed. Rep., 445 (LS80). 
 
 NoTK. — The only idea in connnon was that of employing tho 
 power of either on»! or two cylinders, as re(|uirotl, so as to econo- 
 mize water; the new device, however, eouhl not be substituted to 
 operate in combination with the device first putente<l, nor the old 
 device with the new ; therefore, the new device was hehl to bo 
 entirely difl'erent in the particular feature of construction, and 
 mode of operation, and not an infringement. The action was for 
 intringement, antl to compel an assignment of the newly patented 
 invt-ntioii as comuig within the tt-rms of tin- above, in part, (juoted 
 
 a^'reement. 
 
 "An asHigninent of an imperfect invention, with all the iniprovuuienta upon 
 it that the inventor may make, in ei{Uivalent in e<piity to an ^asMignment of the 
 ptrfcted re^nlti. ' : LittUjield V. I^ervy, 21 Wall., 205. 
 
 Note -The above extract from the ju<lgment refers to a case 
 in which the improvement was specifically defined as relating " to 
 
 
 
7^m 
 
 228 
 
 IMPLIED LICENSE, U. 8. A. 
 
 [See. 26. 
 
 ■it 
 
 an ajipfuatmn tliev jiend'niy," the plnintiti' agreed that this was an 
 iiuproveiiient on the original device, and induced deCendant to 
 purchase hy reason of tliit* agreement. 
 
 Void, if Against Public Polioy. 
 
 A C(*ntract wlierein one party, in consideration of receiving' a 
 license, agrees never to dispute the validity of certain other pa- 
 tents or th«' licensor's title thereto, is not enforceahle, being against 
 pnhiic policy : Vole I'djic Mdmi/uclunvij Co. v. UonnnUy {lbd2), 
 Sup. (;t., U.'s., .VJ O. G., p. 40.-). 
 
 If a license to use covers more time thnn the thing will last, 
 tlien there is an iniplietl right to repair or to rehuild that specimen, 
 or to replace it: Steam Cutter Co. v. HheUlvn, 10 Blatch.,8(l872); 
 VVjilker, .sec. 298. 
 
 Implied License in U. S. A. (See also p. 281.) 
 
 An actual recovery of money in an infringement suit for 
 unlicensed making and selling a specimen of a patented thing 
 operates iis an " hnplird license " to u.se such specimen : See 
 «SV<'<'j»( Sttur. M(iniif(U'tnr'n(i<j Co. v. Munufacturivfj Co., 17 Batch.. 
 31 ; (illheit it- liorhei' Manujaeturunj Co. v. Utissivy, 12 Blatcli., 
 420 (1S7')). If there ho user there is an implied contract to pay 
 rovlH' : See Uviteil St.Aes v. Palmer, 19 Brodix, 23 (1888). 
 
 r;tv iii^ ".i-d license, as hetween employer and inventor: Vide 
 lonn.nr \\ HamUtov, 17 Brodix, 39(5 (1888). 
 
 A licen.se to sell does not imply a right to make; but «loes 
 imiil}', that a right to use and to sell again shall be conferred on 
 the vendees of the licensees: See Walker, sec. 299. 
 
 Where the Government ha.s used, without consent of the paten- 
 tee, there is an implied license and royalty payable on these facts 
 alone : See Soloiuun v. United Stdtett, 20 Brodix, 488 (December, 
 1890). 
 
 A license to make and u.se does not authorize any .sale of the 
 thing 8o made, nor authorize any purchaser to use the .same : 
 Wildon v. Stulley, 4 McLean, 277. 
 
 
Sec. 26.] 
 
 EVIOTION. 
 
 229 
 
 Bviotion. 
 
 A licoiiHo dous imply that the liconHeeshall not bo uvict«'il from 
 its eiijoyincnt, and such uii uvictioii is u di'lt'iicc to a suit for 
 royalties, after it occurred : See Whitf v. Lee, 1+ Fed. Kep., 71)1 
 
 (IMS2). 
 
 Ill (fmtn V, WatHon, 2 Out. K., p. 027 (IMH:{), li.twever, it was 
 
 lli>l*l, that a covenant to "wiuiHiit nmi lU'loml \V ill poHMuittiim of tliu pa- 
 tent ritfht," meant "uHiigainitt ttU imrioiiii huviii^ tliv ritjlit tu iiiiuiiifActtiru or 
 Htill, uiiil thut tliuru wait till uviotioii iim n^ikiiiNt wrnn^ iIoopn. " I he (plestion 
 was whether royalties were payable so lon;^ as inrrin«,'t'inents were 
 allowed to ;^o on by wron^j-doers, and it was held tlu-y wme pay- 
 aMu, on appeal 10 App. Hep., Ont., p. ll:{, tlu- ('oiirt was c'i|Ually 
 divided and the apjieal dismissed. Hiirton ami Patterson, JJ.A., 
 takinj^ the j^ronnd that the covenant bound the patentee to pro- 
 tect af^ainst all infringers, and that the rule of construction 
 " to warrant luxl <luriui(l " as applied to lands hail no applicatiiu) ; and 
 Patterson, J., stated, that a person who pays a royalty ought to be 
 protected against those manufactming in detianee of tlu! |>atent 
 right A patent right is of an intangible nature and not like lands. 
 As there was eviction, the latter view would br in accord with 
 Wlute V. Lee, 14 iY'd. Rep., 71)1, «»/>nt, and as the C'oiut of Appeal 
 divided, the origh'al decision is open to ijuestion: Vide aUo 
 Pacific Iron Wod'H v. NcwhiU, :i+ Conn., IG7 (1HG7). 
 
 An Bviotion will take place when a patent is annulled by 
 a ilecree of a ( -'uurt in which an action is brought by the U. S. 
 for that purpo.se : Marston v. Siw.c.t, M2 N. Y., ')2G (l«HO). 
 
 In the same way an eviction would, doul)tle.ss, take place in 
 Canada if a patent were repealed by " scl fn " imder section JU. 
 
 Such an eviction woidd also occur when the liecnscf is on- 
 joined from acting at the suit of an owner of a senior patent: 
 See /W'jVw Iron Wor/cn v. Ncwli(dt,'.U Conn., G7 (IH07). This 
 civso might be cited against the decision in (Irven v. Watnon, 2 
 Unt. R., p. (527. 
 
 Non-payment of royalty on a speeitiod day, although specially 
 stated that forfeiture will follow such breach, will not work a for- 
 feiture, if non-pay ii»ent arose IVom luicertainty as to place of pay- 
 nient and lack of demand by licensor : See Dan v. Hot/lttton, 6 
 Fed. Re|)., 493 (1880); Walker, sec. 308. 
 
 111. 
 
 [I 
 
 
 
 1 I ■' 
 
 i;{ 
 
 
I :, 
 
 LIOENBB. 
 
 [CkO. 26. 
 
 No lirt'iiso is nsHiffiiftMo u>»1«'.hs it contains wonis authori/.in^ 
 it : Viilf Hahhf,- rV>. V. (wodijmv, !) Wall.. 7HH a^lJl*) ; UtiiHjtMui 
 r.Ueni^itt, Ki Hrotlix, 4I2(1HH(»). Tlio won! anhi^rnn is iiHUftlly in- 
 tro«luci'tl, Itut in lldmiltoii v. Ki.iujshv.rtj, I.'i Blntch., Ci\) (lN7H), 
 " Utjal rrjmsentiUit'dH " woro ludd to incliKlc " uftriffUM " rm well m» 
 •* executor** (ind (KhnlniHtnihn'H " ; Vide ixIho Oliver Co, v. Chemicai 
 }y,^rks, 14 Hnxlix, 532 (IMHM). 
 
 Where ii licensu iHgivun to a fMirtnersliip ainl that |)artnership is 
 clisMolved, and its hiisinesH continued i»y one of the partners, tho 
 Utter i.s entitled to timt license : See liddinrj v. Turner, H Hlatcli., 
 321, though it would l)0 well to get a <(uit claim from the retiring 
 I)artnc>r>i. 
 
 Fraud. 
 
 A licensee can challenge a patent on the ground of fraud, hut 
 the fraud must bo a clear case, clearly alleged and made out. 
 See Mel)oa!/(dl v. Partivgton, 7 li. P. C.,p. 22:J (IhDOj ; Aahwoi'tlt 
 ▼. Lov, 7 K. 1'. (.'.. p. 2ni (185)0). 
 
 A licensee may be held liable to make payments, though the 
 patent ha<l laps«'d for non-payment of fee«: H^-e 3/i7/« v. Carson, 
 9 R. P. C, p. 3;JS (1H!)2). 
 
 An as.signment of an invalid patent is sufficient consideration 
 in U. S. A. to support a promissory note, where there is no war- 
 ranty or fraud : TIiovkih v. Quhitard, 5 Duer (N. Y.), 80 (1855). 
 
 Express Warranty. 
 
 Express warranties of validity niay, of course, be incorporated 
 in a.ssignments, whtn the assignors will be subject to action for 
 •iamages in tho event of involidity : See Wriyht v. Wiboii, 11 
 Rich. (S(.uth Car. L. Kep.), 151 (1856). 
 
 In The Fire KjHm/ wisher Co. v. The N. W. Bahcock Fire Jlu- 
 tivg^iiffher Co., 20 Grant, 625 (1873), where the patentees of u 
 machine for extinguishing tire a.ssigned to another the right to 
 manufacture such machines, reserving a certain royalty, with the 
 right to licensee to purcha.se at a stated sum within one year: 
 
 Held, notwith.standing such right to purcha.se, that the as.siguee 
 was not entitled to the exclu.sive right to manufacture, and that 
 the patentees could confer on other parties the right of manufac- 
 turing. 
 
if 
 
 8«c. 26.] 
 
 LICENSE. 
 
 2.31 
 
 N. H. — Them wns nothing said in tin* a^rL'«'iiU'nt in tlu' foio- 
 ^'oin^ case as to thi> riglit ^mtitctl to tli«> lici>nst>i'H hoin^ an cxclu- 
 >ivr ri^jlit. • 
 
 WIh'Ii a party si^'ns r lic«Mis«« without reading; it hr is bound 
 l>y its iornis, nnh-ss ]w lacks capucity to conipiflH'nd pro'irrly 
 what ho is <loin^': Sou McKtnj v. Jmitnan, 17 Fed. K«'p., 041. 
 
 A lic(>ns«> to nianufactni'o at a c<>rtnin place is a pn-sonAl 
 license, not transferal tlu ; See .SVrt/7w v. Htmton, \'2 Fed. Kep,, 140. 
 
 A licensee haviii;; transferred his license without the consent 
 of his licensor, as re<piired, and havin;^ received payments for the 
 use of the hiachine \u\ cannot assail the validity of the transfer: 
 See lUooincr v. (iilpiu, 4 Fish., '»0. 
 
 There are throe classes of persons in wdioni the patentees cnn 
 vest an interest of nouu? kind in the patent. They are (Ij an 
 assi^iu'e ; (2) a grantee of an exclusive sectional ri^lit ; Mnd (IJ) 
 a licenseo : Sou J'nttrr v. Jlvlltnul, I Fish., .'{27. 
 
 The ri;,d»t to manufacture, the ri;;ht to sell and the ri;,d»t to 
 use are each substantive liyhtH, and may ho ^jranleil or conferred 
 separarely by the patentee: Si-e AthtinH v. Hiirh', 17 Wall., 4.5.*) ; 
 JenhiuN v. (inciiinihl, 2 Fish., '.17 ; Steam Stone (hitter Co. v. 
 Shddou, '} Fish., 477. 
 
 A suit on a licen.se for the recovery of royalties is not a «|ueH- 
 tion arising' under the pat«!nt law and the Federal CNnu ts have not 
 jurisdiction: Kelly v. J'urter, 17 Fi-d. Kep., ')1!>. 
 
 Implied License in XT. S- A. 
 
 If one of a firm invents a machine, and takes out a patent at 
 the expense of the tirm, and the machiiu! is used in the puitner- 
 ship bu.siness : Jleld, that no implied license to the mendterof tho 
 Hrm, not tho inventor, arose to make use and vend tlu? patented 
 nuichine after tho dissolution of the partnership: Keller v. Stol» 
 zenhach, 20 Fed. Hep., 47. 
 
 Where an employt? of a firm made an invention in the direct 
 line of its busitu's.s while in its pay, and there were circumstances 
 which rai.sed a presumption of an imjilied licen.se to the firm to 
 sell tiio invention in its line of busines.s, and whore the firm is 
 
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 •develn^wc: ihro a corporation upon the same basis, as tlie "fim] -vaa. 
 and wltfiTi 'iMth employe and succeeding corporation continu^ciiii*? 
 sauif Teinsua co each other as existed between him and tiH ii-ni 
 Held, xiiic die implied license to the firm was transmidec 5i iiz- 
 fiuecessirr die corporation: {Hapgood v, Hewitt, Hi:* 17. S.. iSi . 
 (Hh^f;r ^. Rionford Chemical Works, 109 13. S., 75,«tc.. ciittr. 
 See ircjt* b* Bodley Co. v. Locke (decided November lliih, D'tOSV 
 Sup. OL.ir *, ♦35 O. G., p. 1406. 
 
 If sit^npioye makes an invention in his employerstaim-Tifflur 
 the iKEEffTvcDwis and material, though the invention niB^ ieuhe 
 €m]>loA'±i; die employer, in U. S. a., has an implied lieenst %i -im^ 
 that hiv+iuion in his business, the .employer's rig^ht is mn unoi*- 
 feml'lt tmt if die employer be ,:.v:.rporation the dissoiiniiii]. if 
 the eor]«irrtrion extinguishes the license : Hapgood x. S-cuixt. 7 
 Sup. (^c Eep.. IG3. 
 
 3'v. 3) — fir considering these cast .)f ' implied license '" it muHt 
 "be ImriK n mind that in the U. S. A. tl*.ere is no statuxory ^ri- 
 vinion. uf in. Canada, requiring a license to be " in writinr;.'" Si an 
 ^' iraplittc luense ' cannot arise in Canada in the same wax i» in 
 the fiamih mid caution must be used in apphnng the T. S. lUHe* 
 See untk: see. 4!*) as to only in.-^ance of imijViedliceuw in Cunutu. 
 
 Wiit»^ me has the legal title to a patent and anralitraii 
 ^quituhtt drie bor.h must be made parties to a .suit in an urauur in 
 •etjurry ii C S. A., to restrain infringement : See GanievmL FIj'^ 
 Alarm ITiii^/rfiph Co. v. Citg of Brooklyn, 14 Fed. Eep., iiTm. 
 
 A ci««t iiy which an inventor conveys all his right hi ul in- 
 Tenxioii md in or to the Letters Patent that are otbiex he 
 ^antecj ditti^efor. vests the legal title in the assignee : S«t £Lt.ii- 
 road Cl. w UnmhU, 10 Wall., 367. 
 
 A iiKSiHee. who has manufactured under a patent Bud paiti 
 ro^'akiw-. ■ cannot escape liability for arrears on the plea tiiui he 
 lias takm die assignment under a misrepresentation and ccnuttiu- 
 mein iH-TJ die invention by the assignee: See Shaw t. Smdk, 2^ 
 Fed JLgj.. 7!M). 
 
 Tiinfmnf- ta XJae How Construed. 
 
 A iiiituse to use one machine will always be constriMjc ou b** 
 AT amiiuirj to use a machine unless in express termbii it- iiniditi 
 
Sec. 26.] 
 
 LICENSE, ETC. 
 
 233 
 
 to the identical machine referred to : Wilson v. Stolby, 4 McLean, 
 275. 
 
 A license to a person to use an invention " at his oiun estab- 
 lishment " does not authorize its use at one occupied by himself 
 and others : Goodyear v. Providence Rubber Co., 2 Fish., 499. 
 
 A licensee cannot subdivide and assign the rights granted to 
 him to use or work the patent : Consol. Fruit Jar Go. v. 
 Whitney, 1 Ban. & Ard., 356. 
 
 A mere license to a party without having " his assigns " or 
 eijuivalent words to them, showing that it was meant to be 
 assignable, is only the grant of a personal power to the licensee, 
 and is not transferable by him to another : Troy Iron and Nail 
 Factory v. Coming, 14 How., 193 ; Goodyear v. Providence Rubber 
 Co., 2 Fisher, 499 ; Baldwin v. Sibley, 1 Cliff., 150; Ball v. Pratt, 
 1 Conn., 342, and does not pass to a receiver appointed as supple- 
 mentary to executions under N. Y. Civil Code : Waterman v. 
 Skipman, 64 O. G., p. 713. 
 
 A licensee cannot put an end to his contract, deny the validity 
 of the pateni,, and afterwards when the validity of the patent is 
 sustained, set up a license from the patentee as a defence : See 
 Moody V. Taber, 1 Ban. & Ai-d., p. 41, 5 0. G., 273. 
 
 Although an invention is misnamed in a conveyance, if the 
 deed furnishes sufficient means for correcting the mistake or 
 identifying the thing sold, it will pass title to the invention 
 patented : See Harmon v. Bird, 22 Wend. (N. Y.), 113. 
 
 Joint Owners. 
 
 Joint owners are not copartners, and each may in the absence 
 of express contract use his moiety as he sees fit without account- 
 ing to the others : De Witt v. Elmira Nobles Manufactttring 
 Co., 12 N. Y., Sup. Ct„ 301 ; Vase v. Singer, 4 Allen (Mass.), 226 ; 
 Dunham v. Indiana and St. Louis R. W., 2 Ban. & Ard., 327. 
 
 The amount of license fee is not required to be shown in 
 writing, it may be shown by parol: Wooster v. Simonson, 20 
 Rep., 317. 
 
 A licensee is at liberty to contest the question whether the 
 articles made by him embody the invention or any material part 
 30 
 
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 234 
 
 LICENSE-ESTOPPEL. 
 
 [Sec. 26. 
 
 thereof, and a stipulation to the contrary in the contract is of no 
 effect : See White v. Lee, 14 Fed. Rep., 789 ; but so long as he 
 retains the license he is estopped from denying this : See Marsh 
 V. Dodfje, 11 N. Y., Sup. Ct., 278. 
 
 A purchaser who was deceived by the misrepresentations of 
 the vendor is entitled to a recission of the sale : Pierce v. Watson, 
 34 Ala., 596 ; Hall v. Orvis, 35 Iowa, 366 ; Page v. Dickerson, 28 
 Wis., 694. 
 
 A shop right is a pei-sonal license and not assignable : See 
 Gills V. Hiefner, 19 Fed. Rep., 323. 
 
 Bight to Repair. 
 
 He who acquires the right to use a machine takes the right to 
 repair it and to replace parts of it, but not wholly to replace it : 
 Wilson V. Simpson, 9 How., 109. 
 
 Sale and Use. 
 
 When A owns certain territorial interests under a patent and 
 B owns other under the same patent. If A sells the patented 
 thing, contracting to deliver it in the territory of B, A is an in- 
 fringer of the right of H, but if A sells the patented thing in the 
 ordinary course of trade to C, knowing that C will take it into 
 B's territory, then neither A nor C is an infringer : Hobbie v. 
 Smith, 27 Fed. Rep., 656. 
 
 Estoppel 
 
 In Grau v. Billinrjton, 21 U. C. C. P., 288 (1871), an action to 
 pay royalties on a patented cultivator ; on demurrer to a plea that 
 after covenanting to pay royalties the defendant discovered the 
 invention was not new, Hagarty, J., for the Court, held, the plea 
 was bad and the law clear, following Leives v. Purser, 6 El. &; Bl., 
 930 ; Hall v. Conder, 2 C. B. N. S., 22, 3 J. N. S., 963. 
 
 In Leives v. Purser (November 10th, 1856), in the absence of 
 fraud or eviction on a covenant to pay royalties for a patented 
 article : Held, on demurrer that the defendant cannot plead that 
 the pa*^ent was void. 
 
 Hall V. Conder (February 20th, 1857) : Held, in the absence 
 of any allegation of fraud, it must be assumed that the plaintiff 
 
IS an in- 
 
 Sec. 26.] 
 
 USTOPPEL. 
 
 235 
 
 was an inventor, and there was no warranty expressed or im- 
 plied that he was the true and first inventor, or that the inven- 
 tion was new and useful ; but the contract was foi* the sale of a 
 patent, such as it was, each party having equal means of ascer- 
 taining its value, and each acting on his own judgment : Camp- 
 bell, C. J., p. 53, S. C, stated that, in the absence of a warranty, 
 royalties paid under an agreement are not recoverable. 
 
 The doctrine in Hull v. Conder, was corroborated in Smith v. 
 Buckingham, 18 W. K, 314, 21 L. J. N. S., 819 ; and Dorab 
 Alky Khan v. Abdool Azeez, L. R., 5 Ind. App., 127. 
 
 The foregoing are authorities on estoppel to this day. 
 
 In the Province of Quebec, however, in Dery v. Hamel, 7 L. N., 
 405, Q. B, (1884), it was held that the sale of a right to use an 
 invention contains a warranty that the invention is new and 
 useful — which is directlj' opposed to Hall v. Conder, etc. 
 
 In Whiting v. Tuttle, 17 Grant, p. 454 (Ont.), during the ex- 
 istence of a license the licensor cannot dispute the validity of a 
 patent obtained by him and afterwards assigned by him for value 
 to another: Strong, V. C, "Yon cannot derogate from your own grant," 
 
 citing Oldha^ni v. Longmead, 1 Web. P. C, 291 ; Chambers v. 
 Grichley, 33 Beaven, 374 ; Kerr on Inj., 424. 
 
 In Gillies v. Colton, 22 Grant, p. 123 (1875) x preliminary in- 
 junction having been granted it was held at the hearing, Blake, V. 
 C, that the defendant was estopped from questioning the validity 
 of the patent which he had assigned : Crossley v. Dixon, 10 H. 
 L., 290; Walton v. Lister, 29 L. J., C. P., 275, etc., cited ; and in 
 Oivens v. Taylor, 29 Grant, 210 (1880), plaintiff who had merely 
 an assignment of county rights had the patentee Powell, joined 
 as co-plaintifF: Held, that notwithstanding the invalidity of the 
 patent, plaintiff was entitled to recover the amounts payable to 
 him under the license during the currency thereof : Vide Burr 
 v. Durijee, 2 Fish., 285 (1862). 
 
 In the absence of warranty there is no implication as to va- 
 lidity. 
 
 In Vermilya v. Cannif, 12 Ont. R., 164, relates to an assign- 
 ment of interest in certain territory in consideration of royalties. 
 Defendant knew before the end of fiist year of contract that 
 
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 236 
 
 ESTOPPEL. 
 
 [Sec. 26. 
 
 others were infringing, but he did not complain or repudiate tran- 
 saction, or refuse to pay, or offer to reassign, or require the alleged 
 infringers to desist, or the patentees to vindicate their patent, and 
 that he had a ))rofitable user to a substantial extent : 
 
 Held (by Boyd, C, June 5th, 1886), that in the absence of 
 fraud or warrant}-, or representation, which induced the bargain 
 and falsified the result, such contract was a purchase of an in- 
 terest in an existing patent. There was no implication as to pa- 
 tent being indefeasible : (Vicle Walker, sees. 283 and 307) ; Hall 
 V. Conder, 2 C. B. N. S., 67 and Smith v. Xeale, 2 C. B. IN. S., 22, 
 commented on and approved. 
 
 " The contract was for plaintiflF's right, such as it was, without regard to 
 whether it coukl be sustained on litigation or not " : (Wells, J., in Smith V. 
 
 Keale.) 
 
 In Beam v. Merner, 14 Ont. Rep., p. 412, action to recover 
 royalties. 
 
 On appeal to Div. Ct. C. P. Held (May 22nd, 1886), sp 
 taining original judgment, that defendants, having used plaintiff's 
 invention under the license, could not raise any objection, as to 
 the validity of the patent. 
 
 Parol Evidence Cannot Vary the License. 
 
 Held, that parol evidence was not admissible to vary the 
 deed, following : McNeely v. McWilliams, IS App. Rep. (Ont.), 
 324. 
 
 As to royalties being payable : Gray v. Blllington, 21 U. C. 
 C P., 288, was referred to with approval. 
 
 Employ^ Estopped. 
 
 In Bonathan v. Bowmanville Furniture Manufacturing Co., 
 31 U. C. Q. B. Rep., p. 413 (1871). 
 
 The plaintiff having been employed by the defendants ex- 
 pressly to make or improve the machines, was estopped from 
 claiming to be the inventor as against the defendants. 
 
 In Lean v. Huston, 8 Ont. Rep., 521. The plaintiffs being 
 patentees in the States, employed one of defendants, a mechanic, 
 to make a model, embodying some improvements, and placed the 
 U. S. patent in his hands, and under pledge of secrecy, imparted his 
 
:o recover 
 
 Sec. 26.] 
 
 ESTOPPEL. 
 
 237 
 
 ideas as to improvements ; defendant so emploj'ed took out the 
 patent tor himself. 
 
 In an action for an injunction and to set aside the patent. 
 Held, that plaintiffs was entitled to an injunction and that de- 
 fendants were estopped from setting up title against plaintiff s^ 
 although the latter's title was not goo(i against the public. 
 
 Consumers' Gas Go. of DanviUe v. American Electric Con- 
 struxtion Co., Limited, U. S. Cir. Ct. of App., 9t':i Dist. (April 22nd^ 
 18!)2), (JO O, G., p. 73.S. In an action for balance due on a written 
 contract, defendant pleaded inter alia, that he had been served 
 with notice of a claim t'^.- damages for infi'ingement by use of the 
 machinery furniBhed by plaintiff": Held, that as [purchaser having 
 had the full use and enjoymen.t and undisturbed possession of it, 
 he caimot, in the absence of fraud, withhold the purchase money, 
 because of an alleged liability on his part to a patentee for in- 
 fi-ini;ement. 
 
 Estoppel on Bankruptcy (Eng.). 
 
 It is not necessary for one or two, or more defendants in the 
 same interest to deliver particulars of objection, and where the 
 patentee had gone into bankruptcy, and his trustee had assigned, 
 the patentee luas not estopi^ed from setting up the invalidity of 
 the patent on the ground of want of novelty and insufficiency of 
 specification : Smith v. Cropper, 10 App. Ca.s., 249. 
 
 Estoppel Not Upheld. 
 
 In Grip Publishing Co. v. Butterfleld, 11 App. R. (Ont), 
 145, relative to infringement of a black leaf check-book. 
 
 One Carter having assigned one-half interest to defendant B, 
 on dissolution of partnership four pionths after this half interest 
 was reassigned by defendant to C, who conveyed to plaintiffs. 
 Boyd, C. (22nd June, 1882), at the original trial : Held, that fol- 
 lowing Chambers v. Crichley, 33 Beav., 374, the defendant was 
 estopped from saying, on account of his dealings as partner, that 
 the non-user or rejection of " a tape " destroys the patent or 
 materially affects its combination of parts. No estoppel in thi» 
 case. 
 
 On appeal to the Court of Appeal (5th September, 1884), 
 
 ! I 
 
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 238 
 
 GRIP V. BUTTERFIELD. 
 
 [Sec. 26. 
 
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 Patterson, J. (deliverin*^ the judgment of the Court), held, that 
 Chambers v. Crichley did not apply so as to estop defendant 
 from disputing the validity of the patent, notwithstanding his 
 reassignment ; and that the judgment of Malins, V.C., in Axmann 
 V. Lund, L. R., IS Eq., 330, is very much against estoppel. 
 
 Memo. — There is nothing to be learnt further from this case. 
 The judgment of the Sup. Ct., 11 Sup. Ct. R. (Can.), p. 291, held that 
 there was "infringement," and that the statement of claim of defen- 
 dant admits " utility" and the Sup. Ct. upheld the original judg- 
 ment, which contains this strange proposition, viz. : that an ele- 
 ment of the combination " a tape hound across the end of a hhick 
 leaf," which the i)laintiff, in his patent, claimed to be an essential 
 part of his invention, and which was abandoned on manufacture 
 us expensive and impracticable, might be dropped out of his 
 claim as immaterial ; which claim remained as good as ever. 
 The inventor claimed it was essential, and made it a prominent 
 feature as ensuring cleanliness, while the Court held it was not 
 essential. This is contrary to the principles laid down in Vance 
 v. Campbell, I Black, 430 (1861) ; Le Fever v. Remington, 13 Fed. 
 Rep., 86 (1882) ; Prouty v. Ruggles, 16 Peters, 341 (1842) ; Dun- 
 bar v. Myers, 94 U. S., 187 (1876) ; Fuller v. Yentzer, 94 U. S., 
 297 (1876) ; Water Meter Co. v. DesjJer, 101 U. S., 332 (1879) ; 
 Roiuellv. Lindsay, 15 Brodix, 441 (1885) ; Peters v. Active Manu- 
 facturing Co. ; and a large number of Supreme Court cases col- 
 lected on pages 454, 455, 15 Brodix. 
 
 The original judgment in Grip v. ButterAeld also held, that 
 defendant claiming to work under an existing patent granted to 
 him subsequent to the date of plaintiff's patent, that the Court 
 had jurisdiction under Morgan, v. Seaicard, 2 M. & \V., 544, 5G1, 
 etc., to declare defendant's patent void ; whereas, the proceedings 
 for impeachment in Canada are specially pointed out in section 
 34, by " sci fa.," as the mode of procedure as to which the 
 Exchequer Court now has concurrent jurisdiction. 
 
 Although the Court of Appeal agreed, at the outset, that there 
 was infringement, yet the judgment in effect was, that there was 
 no infringement. 
 
 iri 
 
Sec. 26.] 
 
 GRIP V. BUTTERFIELD. 
 
 239 
 
 Headnote Erroneous. 
 
 The headnote in Grip v. Butter Held, both in App. Rep. Ont. 
 and Sup. Ct. Rep., noted in Ont. Digest (1880-90), p. 1550, thit 
 the patent ivas void for want of novelty, is erroneous ; in that the 
 Court of Appeal held thf't it was void as not being " a patent- 
 able combination," and the Supremo Court lield tliat it loas pat- 
 entable as a combination, and restored the original judgment. 
 
 Phiintiff 's counsel in 11 Sup. Ct. R., Can,, 291, cited Diui- 
 gcon V. Thompson, L. R. 3, App. Cas. and other cases, to support 
 the view, that the omission of " the tape " from the claim would 
 not prevent the defendants from being liable ; whereas these cases 
 support just the opposite vieiv, viz. : that the omission of an 
 element in a claim, whereby the same effect was produced, would 
 avoid the original combination. 
 
 In Carter v. Hamilton (reported in 3 Ex. Ct. R,, Can., p. 351 
 (1893): L. N., vol. 16, p. 345; Can. L. J., vol. 29, p. 693; Can. L. T., 
 vol. 13, p. 427), this Carter patent for a black leaf check-book was 
 again in que.stion,and in the judgment of Burbidge, J., of the 26th 
 June, 1893, it was held that a check-book, with carbon leaf bound 
 in next the cover, had been anticipated. " The tape " is then 
 treated as an essential part of the claim, disregarding the judg- 
 ments in Grip v. Bictter/ield aforesaid ; and, referring to the 
 Carter's patented improvement in counter check-books, the judg- 
 ment states : " The leading feature of which is the tape, attached to the black 
 or carbon leaf, for the purpose of enabling the person using the book to turn over 
 the leaf or back without soiling the fingers." It was also held that the 
 
 plaintiff's patent was limited to the use of " the tape," and that 
 the defendants did not infringe b}'^ using a clean margin on the 
 carbon leaf for a like purpose. 
 
 Note. — The Sup. Ct., Can., judgment in Grip v. Biitterfi£ld, 
 supra, throughout was ignored by Burbidge, J. This case, Carter 
 v. Hamilton, was heard on appeal before the Supreme Court (Can.), 
 in March, 1894, and on May 1st, 1894, judgment was given dis- 
 missing plaintiff 's appeal, with costs, and sustaining the judgment 
 of Burbidge, J. 
 
 In a recent case (unreported) of The Canadian Mineral Wool 
 
 . 
 
 J I 
 
 ■IC '■ ! 
 
 I 1 1 
 
 i, i ' 
 
I I 
 
 
 240 
 
 LICENSE DETERMINABLE. 
 
 [Sec. 26. 
 
 
 Co. V. Montgomery, triotl before Ferguson, J., at Toronto, on tlio 
 13th and 14th NovemVjer, 1893, in which plaintiff's patent con- 
 tained four elements : — (1) mineral wool ; (2) indented paper ; (8) 
 reinfoi'ce paper ; and, (4) asbestos paper. In order to make out 
 infringement it was necessary that the plaintiff should drop out 
 the " indented impcv" which made with the " reinforce paper " 
 dead air cells, which the patent showed to be an essential part of 
 the invention ; although in actual practice, like " the tape " in the 
 Gri'p V, Butterfield case, siq^ra, the " indented paper " and the so 
 called dead air cells had been abandoned in actual practice, yet, 
 notwithstanding Grip v. Butterfield which was ui'ged as an au- 
 thority, Ferguson, J. refused to admit this, and held plaintiff 
 strictly to the elements claimed in the specification, with the 
 re.sult that no infringement was made out, and the plaintiff's case 
 was dismissed with costs. 
 
 A License Determinable. 
 
 A licensee may repudiate a license and can attack the patent 
 as to subsequent operations, in the event of a suit brought, 
 although he may be liabl(i for royalties up to the time of repudia- 
 tion : See Oivens v. Taylor, 29 Grant, 210 (1880); (FJaynesy, 
 Malthy, 3 T. Kep.). 
 
 In Nuxon v. Noxon, noted in Can. L. T., vol. 14, p. 97 ; Can. 
 L. J., vol. 30, p. 104, decided January 29th, 1894, by Boyd, C, at 
 Toronto, reported in full 24 Ont. R, p. 401. 
 
 The plaintiff was the assignee of certain Letters Patent and the 
 defendants were licensees. The defendants having become owners 
 of a quarter interest in these Letters Patent through assignment 
 from the plaintiff, notified the plaintiff that they would cease to 
 pay royalties after a certain dat^: 
 
 Held, that the parties became at arms length as to royalties 
 by the written notice of determination, and that the plaintiff 
 conld not claim payment thereafter as between licensor and 
 licensee. 
 
 Boyd, C, states : "A license, by parol, in respect of a patent, is clearly 
 determinable by the licensee at his pleasure, as wiis stated by the law lords in 
 Crowley V. Dixon, \Q H. L. Cas., 308, and I see no good reason why the same 
 should not apply to a written licence, such as the present, wh'cli passes no interest,, 
 
Sec. 26-27.] 
 
 JOINT APPLICATIONS. 
 
 241 
 
 l)ut merely makes that lawful, which without it would be unlawful ; so far as form 
 goes, a mere license, under seal is sia much revocable as a license by parol : See 
 McKenzie v. McGlowjhlin, 8 Out, R., llf). 
 
 " If an interest is transferred in a patent, then it requires the consent of both 
 parties to put an end to the transfer, but if the transaction is merely permissive 
 on certain terms to invade the monopoly, then the licensee may, at his option, re- 
 nounce the license and make the machines patented at his peril." 
 
 " The difference between a license being in the form and having the effect of 
 a grant is pointed out in the case of Heap v. Hartley, 42 Ch. I). , 408 and is 
 averted to in the earlier Canadian case of Daf/leinh v, Conhoy, 26 U. C. C. P., 254. 
 
 " It may be that the license, as such, was determined by the act of the pa- 
 tentee in assigning tiie patent according to the doctrine of Coleman v. Fulcr, 1 H. 
 &N.,37." 
 
 N. B. — Though the licensee may determine a license, there is 
 nothing to show that the licensor can withdraw his license, in the 
 ahsence of express provision in the written document creating it. 
 
 <%7. In cases of joint applications or grants, every assignment from one 
 or more of the applicants or patentees to the other or others, or to any other per- 
 son, shall be registered in like manner as other assignments. 35 V., c. 26, s. 10» 
 p(irt. 
 
 Note.— The section 10 of the Patent Act of 1872, of which 
 
 the foregoing is a revision, was as follows : — 
 
 " In cases of joint applications, the patent shall be granted in the name of all 
 the applicants, and in such cases any assignment from one of the said applicants or 
 patentees to the other or to any person shall be registered in like manner as other 
 assignments." 
 
 The meaning is now materially altered ; the term 2i<^tentees, in 
 this section 10 of the Act of 1872, has no sense, for it relates to 
 cases of joint cqyplications for a patent. 
 
 Joint Applications. 
 
 The "joint applications " referred to 
 joint applications of : (1) two or more 
 inventor and an assignee or assignees ; or 
 an assignee or assignees ; it is only as to 
 the event of assignment and registration 
 that this section has any significance ; 
 cants" be "joint inventors," it has no 
 
 in section 27 refer to 
 
 inventors ; or (2) to an 
 
 (3) joint inventors and 
 
 the two latter classes, in 
 
 before patent granted, 
 
 if the "joint appli- 
 
 significance, for there 
 
 
 :h i 
 
 ^h--4 
 
!\ 
 
 242 
 
 JOINT GRANTS. 
 
 [Sec. 27-28. 
 
 is no necessity for an assignment at all in this case, and in any 
 event, before ])atent issued, it is difficult to see what bearing the 
 words " or to any other person " may have, for unless this "otlier person" 
 is to join in the a| (plication and have the patent issue to him 
 jointly with the other applicants, what object is attained by him 
 in procurinj^ an assignment and registering it ; the registered 
 assignees, who are petitioners, are those to whom alone the patent 
 issues. 
 
 Joint Grants. 
 
 Tlie word " grants" in this section is an innovation, its apparent 
 meaning in connection with the word "patentees" thereafter writ- 
 ten, is "Joint grants" of Letters Patent after joint application by 
 the three classes already referred to, in which case by assignment 
 And registration the interest in the Letters Patent may become 
 vested in one or moi-e of the original joint ])atentees, or may be 
 assigned "in toto " to "any other person " by assignment from the 
 joint owners for the time being. 
 
 There might also, of course, be a joint application by two or 
 moi-e legal i epresentatives, or two or more joint assignees of a 
 <leceased inventor or deceased joint inventors, when, bj- assign- 
 ment, duly tiled and registered, and a remodelling of the petition 
 in the Patent Office Form o, Appx. L, the patent might issue to one 
 •executor, adniinistrator or assignee, as the case may be. 
 
 The fact is, the attempt is made in this section to crowd too 
 much into a small space, with inevitable confusion as a result. 
 
 lit 
 
 mi 
 
 PART X. 
 
 Imi'Eachmext and Other Legal Proceedings in Respect of 
 
 Patents. 
 
 /in. A patent shall be void, if any material allegation in ihe petition or 
 declaration of the applicant hereinbefore mentioned in respect of such patent is 
 untrue (a), or, if the specifications and drawings contain more or less than is neces- 
 sary for obtaining the end for which they purport to be made, when such omission 
 or addition is wilfully made for the purpose of misleading (b) ; but, if it appears 
 to the Court that such omission or addition [was an involuntary error, and if 
 
ASPECT OF 
 
 Sec. 28.1 
 
 von) PATENT. 
 
 243 
 
 it is proved that the patentee is entitled to the remainder of hia patent pro 
 taiito, the Co«.rt shall render a judgme t in accordance with the facts, and sliall 
 determine as to costs, and the patent shall be iield valid for such part of tlie in- 
 vention described, as the patentee is so found entitled to ; and two olfice copies of 
 inch judgment shall l)e furnished to the Patent Ottice by the i»atentee, one of which 
 shall be registered and remain of record in the office, and the other of which shall 
 ])e attached to the patent, and made a part of it by a reference thereto. 35 V., 
 c. 26, 8. 27 (c). 
 
 Note. — (a) See section 28. The patent shall be vokl, if for in- 
 stance the statement inthe petition be untrue, that theinvention was 
 " not known or used by any other person before his invention thereof," or " that 
 it liad not been in public use or on sale with the consent or allowance of the 
 inventor thereof for more than one year previous to his application in Canada," 
 or if in the declaration or oath (the term "declaration" in this sec- 
 tion by the Interpretation Act covers " oath "), he stated that he 
 verily believed he was the inventor, when, in fact, he was not "tloe 
 first inventor," or if by taking a false oath the patentee had 
 surreptitiously obtaine^^ .'' i atent for the invention of another, or if 
 it had been printed or described in some public work. The term 
 "untrue" need noi mean that the allegation was fraudulently 
 untrue to the knowledge of the applicant : Vide notes, section 7, 
 Kennedy v. Hazleton, 19 Brodix, 118 (1888). 
 
 (b) Sub-sec. 2, sec. 27, Con. Stat. Can. C, 34 (1859), makes a 
 provision similar to this paragraph marked (b) in section 28, 
 SLLpra, which follows word for word section 15 of the U. S. Act of 
 1836, viz. : " If at the trial in any such action it is made apparent to the satis- 
 faction of the Court that the specification iiled by the patentee does not contain 
 tlie whole truth relative to the invention or discovery to which it refers, or that 
 it contains more than is necessary to produce the described effect (such conceal- 
 ment or addition fully appearing to have been made for the purpose of deceiving 
 the public), etc., etc., the patent shall be declared void." This part (b) of 
 the section was doubtless taken from the said sec. 27, Con. Stat. 
 Can. (1859), and the section appears almost in its present state 
 in the Patent Act of 1869, where instead of being pleadable as a 
 defence, it is as now stated. The present section provides for 
 "more or less," making a deficiency of information as to the speci- 
 fications and drawings equally as reprehensible as a surplusage. 
 It is somewhat difficult to see how it is to be shown that such 
 addition or omission was wilfully made for the purpose of mis- 
 
 lii 
 
 n 
 

 r, 
 
 I: 
 
 t 
 
 Hi 
 
 244 
 
 JUDICIAL DISCLAIMEB, ETC. 
 
 [Sec. 28. 
 
 leading, for this is the crucial point for determining whether 
 the patent is to be declared void, or *.ot, by the Court. The real 
 point at issue is, whether the specifications and drawings contain 
 sufficient information (even though it be more) to enable a 
 person, skilled in the art to which the invention relates, to con- 
 struct the machine or device claimed as the invention ; if the 
 deficiency or redundanc}' in description be such as may be readily 
 detected, and the remedy be known by such .skilled artizan, it is 
 immaterial : Kendriclc v. Emmons, 2 Ban. & Ard., 210 (1875). 
 
 The omission of anything absolutely material to the utility 
 is a fatal defect in a description : Carr v. Rice, 1 Fish., 204 ; 
 Sewell v. Jones, 10 Brodix, 336 (U. S. Sup. Ct., 1875) ; and no 
 excess of description is fatal to validity unless the redundant 
 matter be introduced with fraudulent intent : Curtis, 4th ed., sec. 
 250. 
 
 The reference in this section to " specificatioDs and drawings " 
 may lead to the assumption that it does not refer to a patent for 
 a process or composition of matter, of which drawings form no 
 part. 
 
 Judicial Disclaimer. 
 
 (c) See section 28. If the Court then be satisfied that such addi- 
 tion or omission be an " involuntary error," the Court, in its judgment, 
 .shall declare what the patentee is found entitled to ; in other 
 words the Court makes in eflect "o disclaiTtier" of the addition, or 
 what amounts to " a reissue " as to the omission, the judgment of 
 the Court taking the place of that described under Reissue, Part 
 7, and Disclaimer, Part 8. 
 
 The term " involuntary error " is intended to cover the same 
 ground as " inadvertence, accident or mistake," in treating of reissue and 
 disclaimer. 
 
 This is an additional power as to Disclaimer and Reissue not 
 contained in the U. S. Act, although in the Eng. Act of 1883, 
 sees. 19 and 20, the Court may deal with the question of Dis- 
 claimer, as already referred to in Part 8. In England, when leave to 
 amend is made in pursuance of the order of a Court or a Judge, an 
 official or verified copy of the order shall be left with the re- 
 
Sec. 28-29.] 
 
 INFRINaEMENT. 
 
 245 
 
 quest at the Patent Office. In Canada the office copy of the 
 judgment is registered and an office copy is attached to the patent 
 and made part thereof by reference, in the same manner as a 
 disclaimer, is attached to the patent. 
 
 Should this judicial disclaimer be made during the progress of 
 a suit, the Court doubtless would deprive the plaintiff of costs ; 
 nothing is said as to " damages," which would be dealt with in 
 the way usual in the case of ordinary "reissiue " and "disclaimer." 
 
 ■r ; ' ! 
 
 •' \l-:l 
 
 
 
 
 ■ •-' }f 
 
 
 1 >'-■ . f 
 
 
 
 
 \ '■'■". t: 
 
 
 ■ .- 
 
 
 
 .... ~ i 
 
 i- ; - 
 
 
 
 !•■:■ := 
 
 
 J * 
 
 j ' 
 
 !%9. Every person who, without the consent in writing of tlie patentee, 
 makes, constructs or puts in practice any invention for which a patent has been 
 obtained under this Act or any previous Act (a), or who procures such invention 
 from any person not authorized by the patentee or his legal representatives to 
 m ike or nse it, and who uses it {b) , shall be liable to the patentee or his legal 
 representatives in an action of damages for so doing ; and the judgment shall be 
 enforced, and the damages and costs that are adjudged shall be recoverable, in 
 like manner as in other cases in the Court in which the action is brought (c). 
 35 v., c 26, 8. 23. 
 
 "Note. — (a) Ever since our first Patent Act of 1826 it was 
 neceissary that the consent of the patentee should be in writing ; 
 this consent may take the form of a license to use or manufac- 
 ture, or an assignment of a part interest. 
 
 The party giving the consent need not necessarily be a pa- 
 tentee, for we have seen under section 7, note (a), that one 
 of several joint owners, or owners of undivided interests in a 
 patent, or an assignee of a part owner, may bring an action in 
 his own name to restrain infiingement or for damages, without 
 joining his co-owners, and may deal with the patent as he chooses : 
 Sheehiin v. Great Eastern E. W. Co., 16 Ch. D., 59; Steers v. 
 Rogers, L. R. (1892), 2 Ch. (App.), 13. 
 
 If the patentee merely sells the patented article, and receives 
 the price in the ordinary course of business, as is very often the 
 case, this should suffice without the necessity of a formal written 
 document from the patentee : Vide Dagleish v. Conboy, 26 U. C. 
 C. P. R., 2-54 (1876) ; and parol evidence might be admissible of 
 such sale, and of the receipt of the stipulated price by the 
 assignee : in the event of the purchase of an expensive patented 
 
'■ \' 
 
 2ft& 
 
 INFKINGEMENT. 
 
 Pbc.29. 
 
 \ii 
 
 U 
 
 
 I 
 
 *!( V 
 
 
 maciinB. it would bo well to have some written eraSfln^ af fe&e 
 
 Tiiir tii-st part of the sectiQn is aimed at the illicii 3uuiii£ac- 
 tuTtJi jr user of a patented article — for the putting i% grfictice 
 naeuih- use oi the article itself for the practical purpost sir which 
 it i iinunded. 
 
 ^»i Sae action 29. In the event of obtaining ibe pattmsat article 
 irnmaprarson not authorized to make or use it ; to rendei a. person 
 liftbit tn an. action for damages, it would appear to \<>t r^juisite 
 -Sam is- ijse the article so obt..ined, for this sectioii esjireiftiy mys, 
 '■ (fftid 'ufio lines it" This is the case when a person jiiittuees & 
 patsrmtl article from a manufacturer or dealer wbo imf me arti- 
 cle it «nck for sale, and who apparently bond fide pirriariaes the 
 samt: But where an alleged infringer gives direct imcTictions 
 Id » rnanufacturer to construct an infringing deTJofc. nRm. tKen. 
 i£ Tiitt ace of the party giving the instructions, ' (fu,'< punt per 
 aZtwn. meet per se," and the mere manufacture and liif jussession 
 nf iiit inlringing article, without proof of actual Unt. ^wiuid con- 
 sticiiH ar. infringement, and would, it is conceived, x-miier the 
 peiBirL -K) (Ordering and pi'ocuring the machine liablt Xv aa action. 
 
 •^tnaide the question of manufacturing without lihi written 
 
 eansaffi af the proprietor of the patent, which is alant «irficieat to 
 
 iount an. action for infringement, '</te gravamen of liit infringe- 
 
 mera ftir which damages are recoverable, would apjieKr 5J be the 
 
 U8t vihout ivritten leave of the patented article. 
 
 As us. U'se. 
 
 T&en tlie question is, what constitute* a use witihrir n&fr mean- 
 inr TC uliis ^section : does it mean merely a use iu arj way for 
 profc, ir would an experimental use or an otferini: Jir sale of 
 tite gacented article, by the alleged infringer, sufficf %v make him 
 liabtt ' Vule Note (e), sec. 7 ; and Frost, p. 41S. wi«i» a. mere 
 mutm^ fior sale or use suffices in England ; but, tnyiirr-c. where 
 lufiTt guaK««si()n and exposure for sale, without sale l»fiinr erifected. 
 WBf-3H infinngement : M inter v. Williams, 1 Web. P. 'C. t.}J. 
 
 Ih. Eni^land the working must be by way of uaini; md not 
 ca^'^mtnitinij, so as to operate as an inf ringeniioii _ Jjumea v. 
 
I 
 
 Sec. 29.] 
 
 INFRINQEMENT, ETC. 
 
 247 
 
 Pearce, 1 Web. P. C, 122 ; Muntz v. Foster, 2 Web. P. C, 93-96 ; 
 Frearson v. Lee, L. R, 9 Ch. D., 48. 
 
 Storage of dynamite in England for the purpose of tranship- 
 ment amounted to infringement: Nobd's Explosive Go. v. Jones, 
 L. R., 17 Ch. D., 721. 
 
 Note. — This ease was reversed on appeal, but not as to this 
 point. 
 
 A sale would certainly be an illicit use to put a patented arti- 
 cle to, as would also, it is conceived, a public offering or adver- 
 tising for sale ; why should not also an " experimental " use, 
 without the written authority of the proprietor or proprietors, 
 or one of the proprietors, of the patent, come also within this 
 category ? 
 
 There is not in the U. S. Act or the British Act of 1883, a 
 provision similar to our section, and we have no judicial decisions 
 on points which might possibly arise on the question of what 
 may constitute an infringement under this section. 
 
 In the United States, as afterwards appears, if there be no 
 use of one patented machine manufactured, only nominal dam- 
 ages are recoverable {vide sec. 1212, Sedgwick) ; but in England 
 (see United Telephone Go. v. Walker, 56 L. T., 508), where it did 
 not matter whether the article had or had not been in actual use 
 during any portion of the period. 
 
 i 
 
 • i; 
 
 r ■ 
 
 H' 
 
 r i 
 
 The Bight to Use Implies a Right to Repair. 
 
 The right to use one machine implies a right to repair its 
 parts and to keep it in order, but not to use more than one 
 machine at a time. 
 
 If a license to use one machine covers the whole term, and is 
 not limited to any partirnlar machine then sold, the licensee can 
 repair or rebuild the machine, but he is restricted to the use of 
 one machine at one time : Steam Stone Gutter Go. v. Sheldon, 5 
 Fish., 477, 10 Blatch., 1 ; Wilson v. Stolley, 4 McLean, 275. 
 
 A purchaser of machines from the patentees may repair and 
 perfect them, and their use is not an infringement ; but such 
 purchase does not authorize the use of machines containing 
 patented inventions unless they are the identical machines pur- 
 
 1 1 ' 
 
 :l '' 
 
 i • 
 
 ' ii 
 
 f, 
 
 I . 
 
 * 
 
,?!'■ 
 
 248 
 
 DAMAGES. 
 
 [Sec. 29. 
 
 i- 
 
 chased: Union Metallic Cartridge Go. v. United States Cart- 
 ridfje Co., 2 Ban. &; Ard., 593 ; 8 Fed. Rep., 446. 
 
 Damages. 
 
 By sec. 23, Con. Stat., Can., c. 34 (1859), consolidating 14 and 
 15 Vic, c. 79, sec. 7 (1851-52), any person infringing the patent 
 " shall be liable to an action for the same, in which, besides such damages as may 
 be awarded by the jury, the party injured shall also recover ' <re&fe co.s<s,' to be 
 taxed according to the course and practice of the Court in which the action \i 
 brought. ■' 
 
 This golden section for the lawyers disappeared in the Patent 
 Act of 1869, as well as the provision for assessment of damages 
 by a jur}'. Since 1869, at least, there does not appear to have 
 been any jury trials in patent cases. 
 
 (c) By section 29, in Canada, the infringer shall be liable to 
 the patentee or his legal i-epresentatives in an action of damages, 
 
 iind by section 30 "any action for the infringement of a patent may be 
 brought in any Court of record having jurisdiction, to the amount of the damages 
 claimed," and by section 31, the Court, if sitting, or any Court if 
 the Judge is not sitting, may, in an infringement suit, make order 
 for an account. So in Canada we have an inquiry into damages 
 and account of profits provided for. 
 
 In England You Cannot Have Both an Account of 
 Profits and Damages. 
 
 In England, in addition to the jurisdiction as to an injunction, 
 inspection or account in an infringement suit, provided for in sec- 
 tion 30 of the Patent Act of 1883, the Courts have power undei- 
 Sir Hugh Cairns' Act (21 and 22 Vic, c. 27) to order an account 
 as to profits or an inquiry into damages. A patentee cannot have 
 both, but he must elect which form of relief he will adopt : Vide 
 de Vitre v. Betts, L. K, 6 H. L., 319 ; Neilson v. Betts, L. R, 5 H. 
 L., 1 ; Hills V. Evans, Goodeve, p. 251. 
 
 Lord Cairns' Act. 
 
 By Cairns' Act, compensation can be claimed not only up to 
 the date of the writ, but up to the hearing of the action or ex- 
 piry of patent, whichever shall ^first happen : Fritz v. Hohson, 
 14 01. D., 542. 
 
Sec. 29.] 
 
 DAMAGES. 
 
 249 
 
 License Fee as a Measure of Damages. 
 
 In England, the measure oi' damages is estimated from the 
 ^amount which the plaintiff has been in the habit of receiving for 
 license fees, and damages were fixed as if defendant had been 
 
 working under a license ; 
 
 Penn v. Jack, L. R., 5 Eq., 81. 
 
 Unfair Commercial Competition. 
 
 In estimating damages, with respect to the infringement of a 
 manufactured article, where the j)atentee is the manufacturer, and 
 no licenses have been granted, consideration should be had, as to 
 the damage sustained, by reason of the commercial competition 
 to which he has been subjected : Vide Terrell, 1st ed., p. 177; and 
 Carter v. Fisher, 4 Fish., 409 ; Goodyear v. Bishop, 2 Fish., p. 154. 
 Where there is no license fee, it is proper to inquire how m.any 
 customers were diverted from the plaintiff to the defendant ; 
 whether the plaintiff was ready to supply the market, and was 
 prevented by defendant ; whether, by the competition of the de- 
 fendant, the plaintiff was interfered with in his business, etc., in a 
 sum equal to the profits which he could have made if he had made 
 and sold the goods made and sold by the defendant, over and 
 above what he, the plaintiff, did in fact make and sell. 
 
 Where the defendants had, from time to time, lowered the orig- 
 inal prices, and plaintiffs had to reduce prices to meet the competi- 
 tion: Held (reversing Kekewich, J.), that the plaintiffs were entitled 
 to recover all the profits which would have been made by them if 
 all the sales made by the defendants and the plaintiffs had been 
 made by the plaintiff's at the original prices ; after making an allow- 
 ance for the increased sales, attributable to the connection and exer- 
 tions of the defendants and to the reduction in the prices : {The 
 United Horse Shoe Nail Co. v. SteKxirt, 13 App, Cas., H. L., 401 
 (1888), distinguished, where plaintiffs were not entitled to damages 
 for reduction in price ; they had made the reduction themselves 
 and it was not the direct consequence of the infringer's act) : See 
 American Braided Wire Co. v. Thomson, L. R., 44 Ch. (App.), 274 
 (1890). 
 
 The plaintiff must show that reduction in prices was due 
 solely to the acts of defendant, or to what extent it was so due : 
 
 f » . 
 
 t ■ > 
 
 
 * 
 
i 
 
 
 1 
 
 • 
 
 
 ' -If 
 
 
 
 1 
 
 
 
 ul 
 
 
 
 250 
 
 DAMAGES. 
 
 [Sec. 29. 
 
 there must be some data in order to estimate damages : Boesch v. 
 Graff, 20 Brodix, 167, 133 U. S., 697 (March, 1890). 
 
 The same rule, as to damages being measured by the amount 
 of an established license fee, prevails also in the States, as enun- 
 ciated by the Sup. Ct. in Seymour v. McCormick, 19 Wall., 611, 
 hereafter set out, and applies also in Canada. 
 
 License Fee in a Foreign Country Not Taken as a 
 Criterion for Canada- 
 
 In Wianer v. Coulthard, the Master-in-Ordinary took as the 
 measure of damages a license fee paid by a Canadian manufac- 
 turer of $2.25 per machine with i-espect to a certain impi'ovement 
 in part of a seeding and drilling machine, and disregarded <a 
 license fee of $1 per machine paid with respect to the whole of 
 the device patented in the States, the amount of license fee paid 
 in a foreign country not being taken as a criterion of the value 
 of a license fee in Canada. 
 
 Royalty Not Payable by Both User and Manufac- 
 turer. 
 
 Where the user of an unlicensed machine has paid royalty to 
 the patentee, no further royalty is payable by the manufacturer; 
 a license fee cannot be claimed from both, although either may be 
 looked to : Penn v. Bibby, L. R., 5 Eq., 81. 
 
 Royalty Payable Even Though Non-user. 
 
 In the case of a rental or royalty, the measure of damages is 
 the rental, and it did not matter whether the article had or had 
 not been in actual use, during any portion of that period Dam- 
 ages for infringement against a manufacturer from whom defen- 
 dant bought in a previous suit, is not to be taken as a set-off 
 unless the sum recovered represented the full royalty: Vide 
 United Telephone Co. v. Walker, 56 L. T., 508. 
 
 Interest Allowed on Royalties from the Time They 
 Were Payable. 
 
 And in the event of a license fee or royalty being taken as 
 the measure of damages, interest is allowed in the States from 
 the time these royalties should have been paid ; the damages are 
 
Sec. 29.] 
 
 DAMAGES. 
 
 251 
 
 liquidated at such time as the royalty would have been due : 
 Vide Walker, sec, 571 ; Seymour v. McCormick, 3 Blatch., 222 
 (1854) ; Locomotive Safety Truck Co. v. Penn R. Co., 2 Fed. Rep., 
 G82 (1880) ; Tilghman v. Proctor, 17 Brodix, 552 ; 125 U. S., 136- 
 (1888). 
 
 But no interest is due on damages otherwise measured, dam- 
 ages being unliquidated till ascertained by an action : Gilpin v. 
 Consequa, 3 Wash., 194. 
 
 The same rule, as to allowing interest on license fees from the 
 time they should have been paid, would prevail probably in 
 Canada, although we have no reported judicial decisions on this 
 point. 
 
 English Practice More 'Analogous to Ours Than That 
 of the States. 
 
 Hitherto we have mainly considered the question of damages^ 
 and profits from the English standpoint, and in the main English 
 cases may furnish better analogies than those in the States, for 
 in the latter country there are special enactments bearing on 
 damages and profits in infringement suits. In the U. S. Courts 
 there is not the same fusion of law and equity as prevails in 
 England and Canada, and patent suits are triable both at law 
 by a jury, and also in equity by a Judge, with statutory reme- 
 dies appropriate to each class; and other differences prevail,, 
 which makes it necessary to consider the applicability of certain 
 American decisions to the state of the law in Canada. In the 
 States also there is no obligation to manufacture, and a patentee 
 may keep or assign a close monopoly ; whereas, in Canada, the 
 close monopoly to use only exists for two years. 
 
 In the States, in an action at law, under sec. 4919, Rev. Stat.^ 
 
 .!;fhv! are recoverable by plaintiff on verdict, and the Court 
 outer judgment thereon for any sum above the amount 
 to 1 by the verdict as actual damages, not exceeding three timea 
 iritj amount of such verdict, together with the costs. 
 
 Damages were recoverable by the U. S. Patent Act of 1790^ 
 sec. 4, together with forfeiture of the infringing article to plaintiffs 
 
 And by the U. S. Patent Act (1793), sec. 5, a penalty of three 
 times the sale or licensing price was payable. 
 
 !^!^; 
 
 dMy 
 
 ^ 
 
 
WW 
 
 252 
 
 DAMAGES. 
 
 [Sec. 29. 
 
 ■i ■-:{.. 
 
 ii 
 
 i' ■■ . A 
 
 
 By U. S. Patent Act (1800), sec. 3, three times the actual 
 damage sustained was recoverable. 
 
 By U. S. Patent Act (1836), sec. 14, a provision similar to the 
 present revised section 4919 existed. 
 
 And by sec. 55 of the Patent Act of 1870, all actions relating 
 to infringements were cognizable both at law and in equity, and 
 a provision similar to that in section 4921, hereafter referred to, 
 was enacted. 
 
 In the United States there are two sections (4919, 4921) 
 which bear on the question of damages and profits. 
 
 We have not in Canada or in England any such provision as 
 this, whereby a Judge has a discretionary power to treble the 
 actual damages found by a jury. 
 
 Under sec. 4921, Rev. Stat., U. S., a Court of Equity may 
 assess damages in addition to the defendant's iDvofits, and in esti- 
 mating damages, under these circumstances, the Court follows 
 the rules of law applicable to the assessment of damages already 
 discussed. 
 
 The Supreme Court, U. S., has often refused to measure plain- 
 tiff's damages by defendant's profits in an action at law : Sey- 
 mour V. McGormick, 16 How., 4S0 (1853); Packet Go. v. Sickles^ 
 19 Wall., 611 (1873) ; the express ground taken being that pro- 
 fits, and not damages, were the only subject of enquiry and 
 recovery in equity : Elizabeth v. Pavement Co., 97 U. S., 140 
 (1877). 
 
 There is no recoveiy of interest on infringers' profits : Vide 
 Walker, sees. 736, 737, as finally decided in Tilghman v. Proctor, 
 102 U. S., 707 (1 880). 
 
 The profits which defendant derives from his infringement 
 is not relevant to the question of the plaintiffs' damages. Some- 
 times the profits may be much larger than the plaintiflis' loss : 
 Packet Co. v. Sickles, 19 Wall, 611 (1873); New York v. Ran- 
 som, 23 How., 487 (1859) ; and where smaller, it is no answer to 
 plaintiffs' right to recover full damages : Emerson v. Simon, 6 
 Fish., 201 (1873) ; Dental Vulcanite Co. v. Van Antwerp, 2 Ban. 
 & Ard., 225 (1876). 
 
 

 Sec. 29.] 
 
 DAMAQES. 
 
 253 
 
 Mode of Assessing Damages. 
 
 One method of assessing damages is, by using the plaintiffs 
 established royalty as the measure, according to the rule in Sey- 
 mour V. McCoi'mick, 19 Wall, 611, and this corresponds with the 
 English practice (see Penn v. Jack, ante), as well as with the 
 practice in Canada. 
 
 And another method of assessing damages is, by ascertaining 
 what the defendant's interference with the plaintiffs monopoly 
 prevented the latter from deriving profit therefrom : Zane v. 
 Peck, 13 Fed. Rep., 475 (1882). 
 
 The royalty to be deemed an established royalty, must be 
 uniform ; the sale of a single license is not sufficient : Judsonv. 
 Bradford, 3 Ban. & Ard., 549 (1873); Rude v. Westcott, 19 
 Brodix, 518 ; 130 U. S., 152 (October, 1888) ; but it does not fol- 
 low that a patentee may never vary the rate of royalty, when 
 sufHcient licensees pay and acquiesce in the change : Vide Walker, 
 sec. 557. 
 
 In the case of Seymour v. McCormick, 19 Wall., 611, the U. S, 
 Sup. Ct, on full consideration and without dissent, laid down the 
 proposition that in suits for infringement, at law, where the sale 
 of licenses by the patentee had been sufficient to establish a price 
 for such license, that .price should be taken as a measure of his 
 damages against the infringer. The rule thus declared has re- 
 raained the established criterion of damages in cases to which it 
 was applicable, ever since : Section 1220, Sedgwick. 
 
 It is only where from peculiar circumstances of the case no 
 other rule can be found that the defendant's profits become the 
 criterion of the plaintiff's loss : S. C, 19 Wall., 611. 
 
 Established license fees are the best measure of damages, and 
 special damages beyond this for expense, trouble, etc., are allow- 
 ances by the Court in U. S. A., under authority by statute, to 
 increase damages: Clark v. Wouster, 16 Brodix, 426, 119 U. S., 
 322 (1886j. 
 
 The proof of a license fee for two improvements in fruit driers, 
 is not competent in order to show the damage sustained by in- 
 fringement of one of those improvements : Fhilp v. Xock, 17 
 WaU., 460 ; Seymour v. McCormick, 16 How., 480. 
 
 !. L • 
 
 ■r '■ i 
 
i! ■!■ 'Mr 
 
 254 
 
 DAMAGES. 
 
 [Sec. 29. 
 
 In estimatinpr damages, an inquiry as to how many customers 
 were diverted, may be relevant: Vide section 1228, Sedgwick 
 on Damages. 
 
 In Whittemore v. Cutter, 1 Gallison, 478, Story, J., charged the 
 jury, that where the only proof of infringement was that defendant 
 had made ono of plaintiff's machines, but was not shown to have 
 used it, only nominal d.amages could be recovered : Vide sec. 
 1212, Sedgwick ; and Curtis v. Baker, 4 Fish. ; but contra, United 
 Telephone Co. v. Walker, 56 L. T., 508, where it was held that 
 royalty was payable whether there was actual use or not. 
 
 JSvidence Not to be Conjectural. 
 
 The evidence of damages must be reasonably definite, conjec- 
 ture will not perform the office of proof, nor can imagination take 
 the place of calculation in this behalf ; actual damages must be 
 calculated, which cannot be done without certain data : Garter 
 v. Baker, 4 Fish., 419 (1871) ; New York v. Ransom, 23 How., 487 
 (1859), affirmed, 19 Brodix, 517; Rude v. Westeott (Sup. Ct, U. S, 
 March, 1889), but this rule is not to be used to defeat the onds of 
 justice, and all points of uncertainty should be resolved against the 
 defendant: Fic/e Walker, sec. 565. 
 
 The burden of proving damages is upon the plaintiff, and he 
 must establish his damages by competent evidence, and they must 
 not be left to be surmised or arrived at by conjecture, by the 
 jury: Garretson v. Clark, 111 U. S., 120; Blake v. Rohertson,ll 
 O. G., 877, 94 U. S., 728. 
 
 In U. S. Cir. Ct. of App., 9th Cir., Hunt Bros., Fruit Pack- 
 ing Co. V. Cassidy, 62 0. G., p. 1965 (decided October 24th, 1892), 
 in which nominal damages were allowed, as they could only be 
 arrived at by conjecture, the following cases were cited : — The 
 authorities are full upon the point that a party cannot recover, 
 as damages, the profits to be derived from the manufacture of the 
 whole of a machine, when only a portion of the same contains 
 a patented feature, unless the entire value of the whole machine, 
 as a marketable article, is properly and legally attributable to the 
 patented feature : Garretson v. Clark, 15 Brodix, 194, 111 U. S., 
 120, 27 O. G., 524 ; Bobson v. Carpet Co., 31 0. G., 787, 114 U. S., 
 440; Philp V. Nock, 17 Wall, 460. 
 
Sec. 29.] 
 
 DAMAGES. 
 
 255 
 
 Where the same result is produced, with equal facility and 
 cost, by other methods, open to the public, and in the absence of 
 an established license fee as a criterion of damages the damages 
 must necessarily be nominal: Black v. Thorn, 15 Brodix, 201, 
 111 U. S., 122 (1884). 
 
 A royalty established in one State of the Union is not to be 
 taken as a standard for all the other States : V'ule Walker, 558. 
 
 Money paid in settlement of a suit for an infringement does 
 not establish a royalty ; for various elements enler into a com- 
 promise of an action : Greenleaf v. Manufacturing Co., 17 
 Blatch., 253 (1879); Mattheivs v. Spangenburrj, 14 Fed. Rep., 350 
 (1882) ; Comely v. Marckwald, 19 Brodix, 577 (May, 1889); nor 
 money reserved, as the whole or part price of a patent : La Baw 
 V. Hawkins, 2 Ban. & Ard., 564 (1877) ; RiuU v. Westcott, 19 
 Brodix, 517, 130 U. S., 152 (March, 1889). 
 
 A royalty in a license " to make and use " is no criterion for a 
 royalty " to make and sell " : Vide Walker, sec. 561. 
 
 '•'t 
 
 Actual Damages- 
 
 The term " actual damages " in United States mean such 
 damages as can actually be proved in contradistinction to vin- 
 dictive damages ; these are the damages which the United States 
 Statute contemplates as being trebled : Vide Curtis, 4th ed., sec. 
 337. In Canada, actual, and not exemplary, damages will be 
 awarded : Vide Lanier v. Collette, 5 L. N., 412, S. C. (1882); as 
 to meaning of actual damages : See United States v. McKeever, 14 
 Brodix (p. 414). 
 
 Where there is no established license fee, general evidence of 
 the utility and superiority of the invention may be submitted to 
 the jury, who are to estimate therefrom the damages during in- 
 fringement, and recovery does not vest in infringer the right to 
 continue to use : 21ie Suffolk Co. v. Hayden, 3 Wall., 315. 
 
 In the second method of ascertaining damages in the absence 
 of a license fee, it is necessary to show that the plaintiff could 
 have supplied the demand, and that, but for the infringer, he 
 might have made the sales : Vide Magic Ruffle Co. v. Douglas, 2 
 
V < 
 
 f! 
 
 256 
 
 DAMAGES. 
 
 [Sec. 29. 
 
 I ; 
 
 m 
 
 i; 
 
 Fish., 340 (18G3) ; Sargent v. Manufacturing Co., 17 Blatch., 247 
 (1879) ; and it is also necessary to show what profit the plaintiff 
 would have derived from the trade so divested, and this is ii 
 question of fact, and not a judgment of law : Seymour v. 
 McCormich, 14 How., 480 ; Walker, sec. oG3 ; these damages 
 may be supplemciited by whatever reduction in price the 
 patentee was compelled by defendants competing infringement 
 to make even on goods which he did sell : Vide American 
 Braided Wire Co. v. Thomjison, 44 Ch. D., 274. 
 
 There is a presumption in law in the United States of America 
 that the plaintitt' would have had the patronage so diverted by 
 the defendant, and the profits thus lost are a criterion of the 
 damages: Vide Le Roy v. Totham, 14 How., 156, and cases re- 
 ferred to on Bump., 2nd ed., p. 318. 
 
 In Pitts V. Halt, 2 Blatch., 229 (referred to in Robinson on 
 Patents, vol. 3, p. 336, note 10 ; also in Curtis, 4th ed., p. 4.57, 
 sec. 338), Nelson, J., says : " One mode of arriving at the actual damages 
 is to ascertain the prolit which the plaintiEf derives from tlie machines which he 
 manufactures and sells, and which have been made and sold by the defendant, etc."; 
 this rests on the foregoing presumption. 
 
 Estimating a Reasonable Royalty. 
 
 Where damages cannot be assessed on the basis of a license 
 fee, nor that on lost sales, where the plaintiff is not a manufac- 
 turer, nor on defendant's profits, the proper mode is to ascertain 
 what would have been a reasonable royalty for an infringer to 
 have paid and the claimant to accept : Vide United States v. 
 McKeever, U. S. Sup. Ct. (decided November 20th, 1882), 14 
 Brodix, 414. 
 
 In this case it was stated in evidence that twenty per cent, of 
 the manufacturers' selling price is ordinarily considered by manu- 
 facturers and patentees a fair royalty where the patent substan- 
 tially covers the article sold, and the royalty was estimated on 
 this basis (p. 424). In the judgment of a competent expert, 
 twenty-five cents a box was deemed a fair and reasonable royalty. 
 
 And in discussing estimate of damages, the Supreme Court 
 (p. 425) laid them down, in patent cases, under two headings : 
 
 (1) That the plaintiff may recover in equity the profit which 
 
-r^ 
 
 Sec. 29.] 
 
 DAMAGES. 
 
 257 
 
 the infringer has ninde from the use of the invention ; the in- 
 frit»<,'cr being treated as a trustee of the patentee ; or 
 
 (2) That he may recover (it law the profits which he (the 
 plaintift") has lost by reason of the defendant's infringement ; 
 and tliat these profits lost, where it can properly he done, will be 
 considered as simply the fee which would have been charged if 
 the infringer had procured a license. 
 
 N. B. — The distinction between law and equity Courts still 
 prevails in the United States of America. 
 
 In SufoUc Co. v. Heyden, 3 Wall., 1.5, Nelson, J., says : 
 
 "With a knowledge of these henctits (over the old modes) to the persons who liavo 
 used the invention, and the extent of use by the infringer, a jury will be in 
 possi's.-ion of material and controlling facts that may enable liiein, in tiie exercise 
 of a sound judgment, to ascertain the damages." 
 
 The plaintiff's loss, not the defendant's gain, should be the 
 standard as to damages : Cowing v. Rumsey, 8 Blatch., 36. 
 
 The royalty paid is usually the standard : Vide Pliclp v. 
 Xod; 17 Wall., 4.50 ; Wooster v. Simondnon, 28 O. G., p. 918. 
 
 Actual Damages Not Always to Be Proved Strictly. 
 
 And on p. 427, U. S. v. McKeever, 14 Brodix, the Supreme 
 
 Court stated : " It is not to be supposed that those decisions, which holJ a 
 patentee to the proof of his actual damages, were ever intended to be pushed to the 
 extreme result, otherwise the patentee might be without redress, for an infringer 
 might say : ' The patentee cannot recover our profits for we made none ; he cannot 
 recover a license fee for he has not established a license ; he cannot recover his own 
 profits as a manufacturer, for he does not manufacture, nor seek to manufacture 
 the patented article '; he is without legal redress, and we are free to pirate his in- 
 vention and forestall him in the market, until we render his patent, practically, 
 
 worthless." Vide also Walker, sec. 563-4, as to a reasonable license 
 fee being determined by evidence. 
 
 In making such an estimate as just intimated, every point of 
 uncertainty ought to be resolved against the defendant, for he had 
 it in his power to give accurate data on which to compute. The 
 .statutory provision which enabled a Court of Equity to assess 
 damages in a patent case in U. S. A., originated in 1870 : See 
 Walker, sec. 572. 
 
 The foregoing cases in England and U. S. A., may be consid- 
 ered, when considering the question of damages under the Cana- 
 dian Act : 
 33 
 
'\ 
 
 I 
 
 258 
 
 DAMAGES. 
 
 [Sec. 29. 
 
 In Smith v. Goldie, 11 Prac. Rep., Ont, p. 24, the decree of 
 the Suprerae Court declared that the plaintiff was entitled to an 
 enquiry, and to be paid the amount found due upon such inquiry 
 for damages sustained from the making, constructing, using, sell- 
 ing i)r vending to others to be used, by the defendants, and by 
 the jyersons tc ivhoni tliey have sold, given or let the same of any 
 of the machines since the filing of the bill and six years before, 
 etc. Appeal from judgment of the Master-in-Ordinary (Janu- 
 ary 12th, 1885), who excluded evidence as to persons who had 
 bought from the defendants. 
 
 The Master held that the royalties charged by the plaintiffs 
 was the true measure of damages ; and pointed out that in the 
 States, in addition to damages, profits were accountable by the 
 defendants, but there was nothing like it in our Act. 
 
 Proudfoot, J., on appeal from the Master-in-Ordinary (Janu- 
 ary .3rd, 1S85): Held, that the decree went much beyond what 
 was asked, giving damages as well as an i.ccount of profits, and 
 that there does not appear to be anything in the judgment to 
 warrant such a decree; and states: "No case was cited, nor have I 
 
 found any in wliich this extreme relief was given against a manufacturer ; and I 
 am at a loss to conceive on what principle it can be based. Jjaniages in patent 
 suits are actual damages, not imaginary or vindictive ones. The damage done 
 by tlie manufacturers was complete when the machine was manufactured and 
 sold. Any damage done after that was by the purchaser, and for that he is 
 responsible. 
 
 " If the manufacturer never usetl the machine, he could make no profit, and 
 by Curtis, sec. J>38, he would l>e exonerated. I cannot find from that judgment 
 that the Justices in the Supreme Court intended to make a decree in this form." 
 
 Here there appears to be a not well-founded view by Proud- 
 foot, J., that there was " continvAng damage," and that damages 
 might be awarded against both manufacturer and user : this view 
 arises out of a dictum of Wood, V. C, in Penn v. Jack, a manu- 
 facturer, and other suits against users (cited by Proudfoot, J.) : 
 Vide Goodeve, p. 371 (L. R., 3 Eq., 308, A. D. 1866), in which 
 Wood, V. C, expressed the view above referred to ; but in Penn 
 V. Jack (vide Goodeve, p. 372, 5 Eq., 81, 1867), Wood, V. C, next 
 year, had apparently reconsidered the matter, and declared that 
 the defendant Jack should pay as damages the usual license fee 
 
Sec. 29.] 
 
 DAMAGES. 
 
 259 
 
 ^ 
 
 of two shillings and sixpence per horse power for every ship he built 
 with plaintiff's improvement, and plaintiff"s claim for loss of 
 profits as manufacturer was disallowed with costs of hearing. 
 
 If the manufacturer pays the recognized royalt}', neither in 
 t!ie United States nor in England, nor in Canada, can the user be 
 called on to pay any more. 
 
 Note.— This case of Smith v. Goldie, establishes nothing as 
 to damages, and the decree may not be taken as a precedent ; 
 there was nothing to warrant the form of decree. In Canada no 
 <louble remedy exists, and, the same as in England, j-ou must elect 
 whether you will go for damages or for the profits made by the 
 infringer; j'ou cannot have both, as may be the case in the States, 
 in equity , under their statute : See sec. 4921, Rev. Stat. U. S. 
 
 In Plnkerton et al. and Cote, Montreal Law Rep., 3 Q. B., p. 
 133 (1«86). 
 
 This was an appeal to the full Court o£ Queen's Bench (June 
 -SOth, 1886) from a judgment of the Superior Court, Montreal, 
 which latter Court directed an account of the articles manufac- 
 tured by ^he infringing machine, and the profits realized by rea- 
 son of such manufacture for two years before the 22n<l August 
 1S.S3: and in default of so doing, condemning defendants in the 
 >am of 82,000 damages and interest. 
 
 On appeal to the full Court : Held, that the damages in the 
 
 Court below were held to be the profits arising from all the 
 
 appellant manufactures, and that is not in any sense true. That 
 
 there wa.s no authority for holding that the xlue of the machine 
 
 i> the measure for that which they were obliged to sell at a " rca- 
 
 i>oiuOjle price.' 
 
 " What measure then is the Court to adopt. The rule to award damages 
 is to some cxteut arbitrary ; in a case like the present we have to consider the 
 vase of protection to the patentee, at the same time we cannot overlook the fact 
 that the respondent has quietly contemplated tiie violation of his patent for 
 years, and that the defendants do not appear to be in bad faith, and only bought 
 what was commonly sold and used openly in the trade." 
 
 Lump Sum Awarded. 
 
 The Court further appeared to consider in Pinkerton y.Cot^, 
 that there was a further remedy over against the manufacturer, and 
 
 ■'l^m^ 
 
 {.lU; 
 
V- til 
 •t 'M, 
 
 ido 
 
 DAMAGES. 
 
 :Sec. 29. 
 
 ■waried the judgment of the Superior Court, M-anaruk^ bj awarding 
 3b lump sum of $750. 
 
 In Morin v. Berger, 6 L. N. (Que.), 23C, S. €. l!tS3), a lump 
 ■sam of five hundred dollars was awarded as dioim^s: in Collette 
 vc Ltinier, 9 L. N., 171 (1885), one hundred dolittrf; and in Pink- 
 trtvn V. Cote, Montreal Law Rep., 3 Q. B., mr^niL Eimdred and 
 n&^ dollars. 
 
 CtviL Code of Quebec as to Damages 
 
 la chis case of PinJcerton v. Cote it will Itt mciuwi that the 
 '^utitin'.i Bench Court, Montreal, held that defendamV profits were 
 HUE the measure of damages, and in support of tiiif wiew the Civil 
 
 Caue was cited : "That damages consist in the lose xht irrgfimr daaanatainea, 
 aauffrf the profits of which he has been deprived." 
 
 Ef the Civil Code in the Province of Qneliet' i«- brought into 
 tfifr (j^uestion of determining damages in a suit i'rrr Tifriiigem.ent. it 
 may be that there is one mode of estimating damiti^s in Quebec. 
 •sad another in the English speaking Pro\'ineei- i£ tihe Dominion. 
 
 TTiftches. 
 
 In. this case the Court further found thEi mere had been 
 Riches on the part of the plaintiffs, which in itwiii may oH course 
 materially affect the question of damages even i,; che extent of 
 'tepnving (jne thereof, and that the defendant- "Wire m^t in bad 
 fiiirh. 
 
 'B&ma>ges on Account of greats in Shgiand and 
 in Canada. 
 
 In England, by section 32 of the Act of ISS^ if ^jroundless 
 threats of legal proceedings are made by a pEirarnim by circulars, 
 advertisements or otherwise against an alleged tirrrinfflir. an action 
 tiir damages will lie at the suit of the latter, mit an injunction 
 mav be obtained afjainst the continuance of «niii threats, if the 
 ailejjjeil infringinj; manufacture or article waf inn in fact an in- 
 &ingement ; with a proviso, that the sectiou Kliouii not apply, it 
 the person making such threats, with dne ditigtnue. commences 
 ami prosecutes an action for infringement cid Im- jacent. 
 
 We have not in Canada a similar prorisicni w^ tmac here, even 
 9 the patentee did commence and prosecutt ta. u:tion for in 
 
Sec. 29.] 
 
 DAMAGES. 
 
 261 
 
 fringement with due diligence, he would yet be liable to an action 
 for damages if he fails in his action and had previously threat- 
 ened suit by circular or advertisement, and had thereby diverted 
 trade from the alleged infringer, and caused damage which could 
 be proved. 
 
 As to an action for damages and to restrain threats in Eng- 
 land: Vide Johnson v. Edge, L. R., 2 Ch. App. (1892) ; and what 
 constitutes " due diligence " under sec. 32 of British Act of 1883 : 
 Colby V. Hart, 44 Ch., 179 (1890) ; and Combined Weighing Co. 
 v. Auto- Weighing Co., 42 Ch. D., p. 605. Assignees making 
 threats are not entitled to the benefit of the proviso in section 32 
 as to a suit pending started by patentees : Kensington Electric 
 Lighting Co. v. Lane Fox Electrical Co., L. R. (1891), 2 Ch., .573. 
 
 This Act of 1883 (England) introduces a novel feature. We, 
 in Canada, stand on the same footing as to an action for damages 
 as in England before this Act of 1883, 
 
 In Halsey v. Brotherhood, L. R., 15 Ch. D., 519, referring to 
 Wren v. Wield (L. R., 4 Q. B., 730), the Master of the Rolls stated 
 as to the latter case, that Bradburn, J., considered that to support 
 an action for damages against a patentee for threats, " the statement 
 must not only be untrue, but that it must be without reasonable and probable 
 cause"; that is the judgment of the full Court. For slander of 
 title : See Axmann v. Lund, L. R., 18 Eq., 330 ; Rollers v. Hinks, 
 13 Eq., 355 ; Sellers v. Dickenson, 5 Exch., 312 ; Evans v. Har- 
 low, 5 Q. B., 624 ; the foregoing cases, decided in England previous 
 to the Act of 1883, are applicable to the present state of the law 
 in Canada. 
 
 Where a warning circular was issued and an action begun to 
 restrain the circulation, a cross-action being begun by defendants 
 for infringement: Held, that there being no evidence of bad 
 faith by defendants, they ought not to be restrained from issuing 
 their circular till the action was disposed of, but that they ifiust 
 prosecute their action without delay: Household v. Fairburn 
 ol L. T., 498. 
 
 No Damages Against a Workman. 
 
 In Woodward v. Clement, 10 Ont. Rep., p. 348, an action for 
 infringement against manufacturer and his workman : Hehl, 
 
 ■'' Iflfl ' • - 
 
 :?h^:^| 
 
 
 i:!:.^ ? 
 
 \ :'"':' ■ » 
 
 1 - i- ■ '■ ■- i"; 
 
 h! ■■"''■• 
 
 1 ■ .. ; i^i 
 
 '^'■.\^. 
 
 I ; 
 

 262 
 
 DAMAQES-PROFITS. 
 
 [Sec. 29. 
 
 that damages were only assessable against the master : Delano 
 V. Scott, 1 Gilpin, 489, being cited. Injunction against both: See 
 also Betts v. De Vitre, L. R., 3 Ch. App. Cas., 441. 
 
 Remote consequential damages must be disregarded : Carter 
 V. Baker, 4 Fish. 
 
 As to Damages in the Province of Quebec. 
 
 In Dery v. Hamil, IS Review Legal (Que.), 50, 11 Q. L. R., 24 
 Q. B. (1884). 
 
 The pui'chaser of a patent for things which are of public 
 domain for a number of years, can recover damages from vendor, 
 if he proves that the article is not fitted for the use for which it 
 was intended, and that it is and was worthless at the time of the 
 sale in question, and that it is of no practical utility. 
 
 This decision is directly opposed to the principle in Hall v. 
 Conder, 2 C. B. N. S., 22, 3 J. N. S., 963, and other standard cases ; 
 in the absence of fraud, and where each party was acting on his 
 own judgment, it is difficult to conceive why the purchaser, in 
 the absence of any warranty, should recover damages. 
 
 Vide also Vermilya v. Ganniff, 12 Ont. R, 164, as opposed to 
 this Quebec decision. 
 
 Profits. 
 
 When considering the question of account of profits made by 
 the defendants as a measure of damages, which is another form 
 of relief open to Canadian patentees, another class of cases should 
 be considered, of which the following relate : — 
 
 In illustration of the practice of the English Courts in order- 
 ing an account of profits or an inquiry into damages : Vide 
 Holland v. Fox, 23 L. J. Q. B., 357 ; Bacon v. Spottiauoode, 1 
 Beav., 382. 
 
 Where defendant submits, the plaintiff may be deprived of 
 costs if he insists on an account and nothing be found due over 
 the aniount offered : Niinn v. D' Albuquerque, 34 Beav., 595. 
 
 An account of profits was deemed the equitable relief, and 
 before the Judicature Act was incident to the right for an 
 injunction, while damages was the legal remedy. 
 
wm 
 
 Sec. 29.] 
 
 PROFITS. 
 
 263 
 
 a ■" 
 
 Account of Profits for Six Years Before Action. 
 
 The account of profits extends over six years immediately 
 preceding the action, and there must be no delay in applying for 
 the same : Kernot v. Potter, 3 de G. F. & J., 447 ; Davenport v. 
 Rylunds, L. R., 1 Eq., 302 ; and an account of profits may be 
 taken, notwithstanding the pendency of an appeal : Saxhy v. 
 Easterbrook, 7 Exch., 207. 
 
 If the plaintitt' be an assignee of a patent the account will 
 only be taken from the date of the assignment to him : Elhvoocl 
 V Christy, 5 N. R., 312. 
 
 Stay of Proceedings to Account Pending Appeal. 
 
 Proceedings under an order directing an account of profits 
 will, on appeal, be stayed till tlie hearing of appeal, when the 
 discovery given by the account would enable plaintiff" to take 
 proceedings against the customers of defenutmts ; and the defen- 
 dants, supposing them to be ultimately successful, would thus 
 sustain irreparable injury in theii* business : Adair v. Y'ouvg, 11 
 Ch. D., 136. But vide contra Saxhy v. Easterbrook, L. R., 7 
 Exch, 207. 
 
 Before an order for an account of profits to be taken will be 
 gianted, a case must be established that a defendant has made 
 profits by the infringement : Lister v. Eastwood, 2 Higgins' Pat. 
 Digest ; Bacon v. Spottisivood, 1 Beav, 387. 
 
 The account is one of profits made by the infringer, and not 
 of the loss which the plaintiff has sustained by the infringement : 
 Elhvood v. Christy, 18 C. B. (N. S.), 494. 
 
 If there be judgment for an account, the defendant must file an 
 affidavit giving the number of articles sold ^ y him, and the names 
 and addresses of the purchasers : Murray v. Clayton, L. H., 15 
 Eq., 11.5. 
 
 A patentee in England may prove, imder bankruptcy, an 
 account of proilts : See Watsoyi v. Halliday, 4G L. T. (N. S.), 878 ; 
 and in Canada also if an assignment be made. 
 
 Defendant Treated as Trustee of Profits Made. 
 
 In Holland v. Fox, 3 El. & Bl., 977, Goodeve, p. 2-58, Lord 
 
 Campbell, C. J., .says: "The defendant having admitted that, after notice. 
 
 :f 
 
,.a''&3= 
 
 a¥jp^yi!.gyy^ty<g^'is:f|i^.i^"'y«sg'''»'^^ 
 
 Ui- 
 
 1^; 
 
 
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 ; I 
 
 Klli f 
 
 
 Ml' '^ 
 
 
 W'"" 
 
 
 
 .' ; 
 
 S:S 
 
 
 5:- 
 
 K' * 
 
 
 264 
 
 PROFITS. 
 
 [Sec. 29. 
 
 he would be held liable to account for profits, he did make large profits by 
 continuing to infringe the plaintiff's patent, and as no part of such profits could 
 have been awarded by way of damages to the plaintifi", we think that the defen- 
 dant niiy be considered as a trustee of these profits for the plaintiff; and as part 
 of our final judgment we order that the defendant render an account of these 
 profits and pay over the amount to the plaintiff. 
 
 Definition of " Profits," etc. 
 
 The profits are the difference between the sale price and the 
 cost of nmking and selling. 
 
 As to the cost — (1) The market value of materials on hand at 
 the time infringement began, and the actual cost of materials sub- 
 sequently purchased, are elements : Rubber Co. v. Goodyeo,r,Q Wall., 
 803 (18G9). (2) Money paid to employds in making and selling, 
 even when they are officers or stockholders of the infringing 
 corpoi-ation : S. C, 9 Wall., 803. (tS) Remuneration for the 
 labour of one who conducts the infrmgement. (4) Interest 
 on borrowed money : S. C, 9 Wall., 803, but quei-y as to capital 
 stock. (5) Expenses of selling and advertising: Garretson v. 
 Glarh, 15 Blatch., p. 70 (1878) ; Kirby v. Armstrong, 19 O. G. 
 (1881) : Vide Walker, sec. 718. 
 
 In e>ti mating profits the use of tools, machinery power, and 
 other facilities employed in the manufacture, should be taken into 
 account as well as material, labour, wastage, and expenses of 
 marketing: Vide Gould Manufarturing Co. v. Cowing, 14 
 Brodix, 1 (March, 1882). 
 
 Allowance for Defendant's Salary. 
 
 In Seabury v. Am. Ende. (decided Api-il 2nd, 1894, in Sup. 
 Ct., U. S.), reported in P. O. News, vol. 1., p. 33, when it was not 
 shown what sum, or that any sum was actually paid to the presi- 
 dent of defendant companj', the Supreme Court held that no 
 
 salary was allowable, stating : " To have allowed salaries which had never 
 been paid would have been, as was said in Rubber Co. v. Goodyear, 9 Wall., 804, 
 +r ;vj ^v, as dividend of profits under the guise of salaries." 
 
 ?r:;f^l:,s must be those which result directly from the in- 
 
 '■t'jf^^t^C' .oof the patent, and do not include those which result 
 
 ru*: . •' Vide Pilfer v. Brown, 1 Holmes, 198 (1873); and 
 
 "V^aiLei, v^v.. 711. 
 
 ii s 
 
Sec. 29.] 
 
 PROFITS. 
 
 265 
 
 Profits Without Deduction for Loss is Recoverable. 
 
 Where part of the infringement resulted in profits and part 
 in loss, the |)laintiff is entitled to recover the protits without any 
 deduction as to the loss: Steam Stone Cutter Co. v. Manufactur- 
 ing Co., 17 Blatch., 27 (1879). 
 
 Interest Allowable- 
 Interest would appear allowable on infringer's profits at the 
 legal rate from the end of each year till the date of the final 
 decree : Vide Walker, sec. 738 ; Tilrfhman v, Mitchell, 9 Blatch., 
 17 (1871) ; Gould's Manufacturing Co. v. Cowing, 105 U. S., 257. 
 But Contra : Railroad Co. v. Turrill, 15 Biodix, 140 (Jan- 
 uary, 1884), where profits are regarded as unliquidated damages; 
 atid Littlejield v. Perry, 21 Wall., 207 ; Rubber Co. v. Goodyear, 
 9 Wall, 804. 
 
 If the unauthorized use of a patented process produce a 
 definite saving in the cost of manufacture, the infringer must 
 account to the patentee for the amount so saved ; it is a measure 
 of profits: Tilghmian v. Proctor, 17 Brodix, 552, 125 U. S., 136 
 (1S87). 
 
 Effect of Acquiescence by Plaintiff. 
 
 A plaintiff will not be allowed to claim an account if he has 
 tacitly permitted defendant to infringe his patent, and by his 
 silence or acquiescence induced another to go on spending his 
 money and incurring risk : Vide Crossley v. Derby Gas Co., 1 
 Web. P. C, 120. 
 
 Before the Judicature Act in England, in Courts of Equity no 
 damages or account could be claimed unless an injunction could 
 be granted : Vide Prices Patent Candle Co. v. Bauwcn's Patent 
 Candle Co., 4 Kay. 727. 
 
 In taking an account of profits, the account must show what 
 was the costs of the defendant's forgings both previous to and 
 during the user of the plaintiff's invention: Siddell v. Viclcers 
 (No. 2), 61 L. T., 23.3 ; W. N. (1889), p. 134. 
 
 Where a patentee, in order to compete with an infringing 
 manufacturer, reduces his prices, a claim for loss of profit by rea- 
 34 
 
 !' 
 
 m 
 
■I ? 
 
 5 
 
 1 
 
 266 
 
 PROFITS. 
 
 [Sec. 29. 
 
 u 
 
 'i 
 
 son of such reductions is to be rejected : United Horseshoe Nail 
 Go. V. Stewart, R. P. C, vol. 5, p. 260 (1888). 
 
 Segregation of Profits. 
 
 Profits do not attach to entire machine unless plaintiff show 
 that the feature patented gave the entire commercial value, but 
 should separate the profits made on that feature from the profits 
 on the machine as a whole : 45 Fed. R, 205, affirmed ; also 
 Sup. Ct., U. S., Keystone Manufacturing Co. v. Adams (decided 
 January 8th, 1894), when nominal damages only were awarded: 
 See Musher v. Joyce, U. S. Cir. Ct. of App. (1892), 61 0. G., p. 153. 
 
 The defendant, by proving how much profit was due to other 
 features than those covered by the patent, may confine the re- 
 covery to the residue of those profits, and the burden of proof is 
 on the defendant : Rubber Co. v. Goodyear, 9 Wall., 803 ; Car- 
 ter V. Baker, 4 Fish. ; Elizabeth v. Pavement Co., 97 U. S., 141 
 (1877) ; and when profits cannot be separated, apportionment may 
 be made by dividing the aggregate profits in proportion to the 
 respective cost of the parts : S. C, 9 Wall., 803. 
 
 Where the infringed article has been used on certain articles, 
 the measure of damages is not the profits on the entire article sold, 
 but the defendant's savings from the use of the infringed device 
 over what was known and open to the public before : See Ses- 
 sions V. RomasU (1892), Sup. Ct, U. S., 59 O. G., p. 939. 
 
 The Rule in Whitney v. Mowry. 
 
 The rule laid down by the Sup. Ct., U. S., in Whitney v. 
 
 Moivry, 14 Wall., 620, was: "What advantage did the defendant derive 
 from using plaintiff's invention, over that which he had in using other processes 
 then open to the public, and adequate to eniible him to obtain an equally benefi- 
 cial result ? The fruits of that advantage are his profits." 
 
 Szceptions to the Rule in Whitney v. Mowry. 
 
 The rule in Whitney v. Moim^y, is not of universal applica- 
 tion, and has no application in the case of making and selling 
 the patented article itself {vide Goodyear Rubber Case, the patent 
 for the product, the process patent being invalid) : Vide Walker, 
 sec. 729. 
 
 In Elizabeth v. Pavement Co., 97 U. S., 141 (1877), the defen- 
 
i I 
 
 4'. 
 
 Sec. 29.] 
 
 PROFITS. 
 
 267 
 
 (lants sought to have profits determined under this rule by setting 
 up other pavements as standards of comparison, but the Supreme 
 Coui't would not permit this. 
 
 The rule was also unsuccessfully invoked in Burdeit v. Estey, 
 8 Fed, Rep., 569 (1880), where defendant might have sold another 
 device at nearly or quite the same profit : Vide Walker, sec. 735. 
 
 The standard of comparison must be one known at the time 
 of the infringement : Knoo'. v. Quicksilver Mining Co., 6 Sawyer, 
 436; and need not be absolutely the next best thing known: 
 Vide Walker, sec. 734. 
 
 In Walker, sees. 725, 726, 727, 728, this rule is fully discussed, 
 and the advantage referred to in this rule maj' be either an 
 affirmative gain or in a saving from loss, or in both of these ele- 
 ments, and the fruits of that advantage constitute the recoverable 
 profits in either event. 
 
 This is the Supreme Court rule in Whitney v. Mowi^, 14 
 Wall., 620, already mentioned. 
 
 And in Collette v. Lasnier, 13 S. C. R, 563 (March, 1886), in 
 estimating damages, in which originally the Supreme Court 
 (Quebec) confirmed the Court of Queen's Bench appeal side, 
 assessing the damages at a lump sum of §600. 
 
 Mr. .Justice Gwynne refers to this rule in Whitney v. Moivry, 
 
 and states : " The evidence fails to furnish us with any means of accurately 
 measuring plaintiff's damages. It is only when from peculiar circumstances no 
 other rule can be found that defendant's profits become the criterion of the plain- 
 tiff 's loss, and we have no evidence before us to determine what rule shall govern, 
 the plaintiff has set no value on his license. The estimate of profits is not made 
 by showing that made by plaintiff's machine over a modern precedent and the 
 bust known mode ; but a very old mode, which has lieen improved upon by other 
 modes before the plaintiff obtained a patent for his improvement." 
 
 Assessment of Damages Not Usually Appealable. 
 
 Mr. Justice Taschereau, as to damages in the same case, states : 
 " That a Court of Appeal will not, as a general rule, entertain an appeal from an 
 order assessing damages, but it will do so when shown that the Court below acted 
 
 on a wrong principle " citing Bcdl V. Ray, 30 L. T., N. S., 1 and Bank 
 U. a V. Bradshaiv, L. R., 1 Priv. C, 479. 
 
 " There is nothing to show that tiie plaintiff would have made all the candles 
 had not the defendant infringed. The defendant might have obtained one of 
 plaintiff's machines. Plaintiff's business, notwithstanding the infringement, went 
 
 
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 '.":. '■■',*■ 
 
 
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 '^''fll^ 
 
 1, t • 
 
 lytBKi 
 
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 ^iii 
 
268 
 
 PROFITS. 
 
 [Sec. 29. 
 
 on increasing ; tliere is no evidence of the cost or value of the plaintiff's machine 
 or what would be a fair royalty on it, so that it is impossible to assess damages." 
 
 In this case the original claim for damages was S13,200 dam- 
 ages and SIO.OOO for exemplary damages, and the Supreme Court 
 (Can.) varied the judgment of the Queen's Bench, Appeal side, 
 fixing the danmges at a Ixump sum of $100. 
 
 Note. — This Supreme Court judgment affirms tK -j principle 
 that when no license fee has been established, and no other rule 
 can be found, that defendant's profits are the criterion of plaintift's 
 loss, and that they must be measured by the advantage defendant 
 derived from the use of plaintiff"s invention over that which he 
 had in using other processes and the best known mode then open 
 to the public, to obtain a like beneficial result (the rule in 
 Whitney v. Moivvy), and that you cannot refer it to an antiquated 
 mode. 
 
 And that in the absence of direct evidence bearing on the 
 matter the Court will assess a sum for damages in the same way 
 as a jury. 
 
 In Carter v. Rose, tried at Toronto, April 30th, 1890, before 
 Boyd, C, the Chancellor adopted the novel method, where dam- 
 ages were troublesome to estimate and apparently of no great 
 extent, of getting plaintiff"s counsel to fix a sum which he claimed 
 as damages, and then sending it to the Master, and let the costs 
 depend on the result. If, on a reference, they turned out less, 
 plaintift' would have to pay the costs of reference, if more would 
 obtain costs. 
 
 When the entire profit of a business results from the use of 
 the invention, the patentee will be entitled to recover the entire 
 profits if he elects that remedy : Garter v. Baker, 4 Fisher's Pat. 
 Cas. ; Hurlburt v, Schillinger, 19 Brodix, 542 (1889) ; Sayre v. 
 Scott, U. S., Cir. Ct. of App., 3rd Circuit (May 23rd, 1893), 63 0. G., 
 p. 1818. 
 
 If there be no advantage gained by use of an invention, there 
 can be no profits, and the plaintift"s only remedy in U. S. A. is an 
 action at law for damages : Tilgkman v. Proctor, 17 Brodix, 552. 
 In Canada, if no advantages be gained by the use of the inven- 
 tion, it is ditticult to see how any damages could be recoverable. 
 
<mrr^ 
 
 Sec. 29-30.] 
 
 PROFITS-DAMAGES, ETC. 
 
 209 
 
 Ante-Mortem Profits Not Recoverable. 
 
 In Leslie v. Calvin, 9 Ont. R., 207 (1885), an action by plaintiff 
 against the executors of D. D. C. for an account of all the profits 
 accrued to estate of D. D. C. by user of a patented machine which 
 consisted in the saving of expense to D. D. C. : — 
 
 Held, on demurrer to the statementof claim, that plaintiffhad 
 no remedy against the executors in respect of such profit accrued 
 to him prior to his death, and that the doctrine " actio personalis 
 GUVi j)ersona moritur " applies : Ferguson, J., March 30th, 188.5. 
 
 FIdllips V. Honifray, 24 Ch. D., 439, was deemed decisive ; in 
 
 that case it was held on appeal, "that a remedy for a wrongful act done 
 by a deceased person cannot be pursued against his estate, unless property or the 
 proceeds or value of property belonging to anotlier person have l)eeu appropriated 
 by the deceased person and added to his estate." 
 
 Semble (also following Phillips v. Horn/ray), that if the 
 
 statement of claim could be read to mean that by reason of the 
 
 wrongful act complained of propert}' of a tangible character 
 
 passed from the plaintiff's estate to that of D. D. C, as distinct 
 
 from the saving of expense, the conclusion might bedift'erent. 
 
 m 
 
 Treble Costs as Damages. 
 
 The Patent Act of 1826 for Upper Canada provided for the 
 trial of an infringement suit by a jury for damages and the 
 recovery of treble costs, and section 7 of the Patent Act of 1851 
 (Can.) made the party making, manufacturing or using the 
 patented article without the written consent of the patentee, liable 
 to damages and treble costs as taxed as previously provided. 
 
 Since Consolidated Statute (Can.), c. 34 (1859), this provision 
 as to treble costs has been dropped out ; and there is now no 
 special provision for the trial by a jury of an infringement suit, 
 and a jury is now invariably dispensed with. 
 
 30. Any action for the infringement of a patent may be brought in any 
 court of record having jurisdiction, to the amount of damages claimed, in the 
 Province in which the infringement is alleged to have taken place, and which is 
 also that one of the said courts which holds its sittings nearest to the place of 
 residence or of business of the defendant ; and such court shall decide the case 
 aud determine as to costs. 35 Vic. , c. 26, s. 24, part. 
 
 Ill 
 
''I 
 
 270 
 
 PROCEDURE IN EXCHEQUER COURT (CAN.) [See. 30. 
 
 i 
 
 
 Note. — Actions for infringement of a patent, as they always 
 involve (juestions of injunction and account or damages and 
 relate to matters of more than Provincial interest, are, in Canada, 
 Superior Court actions; as appears to bo also the case in tlif 
 United States and Great Britain. An injunction or execution, 
 however, in a Provincial Court lehites only to the Province in 
 which the action has been brought. 
 
 Exchequer Court Jurisdiction, Since 30th Sept., 1891. 
 
 By 54, 00 Vic, C. 26 (1891), "An act to luneml the Exchequer Court 
 Act," as.sented to 30th September, 1891, the Exchequer Con it 
 Can. obtained concurrent jurisdiction wi*^' the Provincial Courts 
 
 " in all cases in which a remedy is sought respecting the infringement of any 
 patent of invention, copyriglit, trade mark, or industrial design ' : VlCUi .sec- 
 tion 4, sub-section (c), of said Act 1891, cjuite irrespective of the 
 amount of damages claimed. 
 
 Appeal to Supreme Court (Can.). 
 
 And by section 8 of said Act of 1891, amending paragraph {b) 
 of sub-section 1 of .section 52 of the Supreme and Exchequer 
 Court Act (1887), an appeal lies on any question relating to a 
 'patent of invention, copyright, trade mark, or industrial design, 
 to the Supreme Court Can., irrespective of the amount of damages 
 involved. 
 
 The advantage of bringing an action in the Exchequer Court 
 is, that an injunction or execution sued out is enforceable through- 
 out the whole of the various Provinces and tei'ritories of the 
 Dominion of Canada. 
 
 The procedure in Provincial Courts varies according to the 
 Province in which the action may be brought. 
 
 Procedure in Exchequer Court (Can). 
 
 But in the Exchequer Court no writ of summons is issued ami 
 the action is commenced b}' statement of claim, which by Rule i), 
 if over three folios in length, must be printed, and if under three 
 may be either printed or written, or ])artly both, the same ride 
 applies to all other pleading.s. By Ride OJ, pleadings may be 
 amended by written alterations, unless over 100 words in any one 
 case. 
 
 |1' 
 
 -"}' 
 
 'i-:i 
 
Wp- 
 
 Sec. 30.] PROCEDURE IN EXCHEQUER COURT (CAN.) 
 
 271 
 
 The .statement of claim and other pleadings are to be signed 
 by counsel, and the original statement of claim having been duly 
 stamped with a S2 law stamp and under the seal of the Court, is 
 filed of recortl in the Registiar's Office, at Ottawa. 
 
 Certified Copy of Statement of Claim in Lieu of Writ. 
 
 Certified copies of the statement of claim, certified to be true 
 copies of the original on file, under the seal of the Court and 
 iiaiid of the Registrar, and with a 82 law stamp affixed, are then 
 to be obtained from the 'Registrar for each of the parties to be 
 served. 
 
 Endorsement. 
 
 On the back of the statement of claim or information is the 
 form of endorsement of notice to defendant : ( Vide Form 34, 
 Appx. II.) 
 
 The form of pleadings may be those in use in the Province of 
 Ontario in similar actions. 
 
 By Rule IJ, a, party printing any pleading shall, on demand, 
 supply the opposite party with any number of printed copies of 
 pleading not exceeding ten, at five cents per folio for the first copy, 
 and three cents for every other copy. 
 
 By Rule lo, service of the office copy of statement o^ claim to be 
 personal, the original need not be produced at the time of service. 
 
 By Rule 27, if the defendant resides in either of the Provinces 
 of Ontario, Quebec, Nova Scotia, New Brunswick or Prince Ed- 
 ward Island, the statement of defence or demurrer must be filed 
 with the Registrar at Ottawa within one month after service. 
 
 If the defendant resides in either of the Provinces of Mani- 
 toba or British Columbia within two months after service. 
 
 Every application for an order in Chambers, hy Rule J.J-1, is by 
 way of summons ; for form of summons (vide Form 27, Apjix. II.) , 
 and for form of warrant for particulars, vide Form JS, Appx. II. 
 
 After defence filed, hy Rule 86, parties to the suit may be ex- 
 amined for discovery, for which purpose, hy Rale Sf), a subpoena 
 may issue to enforce attendanf^e ; hy Rule S5, pleadings are closed 
 with joinder of issue by either party, and, hy Rule 6J, there can 
 bo no subsequent pleading without the order of the Court or a 
 Judge. 
 
I m 
 
 i 
 
 1 1 
 
 
 Ms- 
 
 272 
 
 PROCEDUBE IN EXCHEQUER COURT (CAN.) [Sec. 30. 
 
 By Rule 40, joinder of issue shall operate as denial of every 
 material allegation of fact in the pleading upon which issue is 
 joined. 
 
 And anj' person filing an affidavit to be used on a motion may, 
 hy Rule 1-io, be cross-examined thereon before the Registrar or 
 any other specified person ; hy Rule 1-37, such affidavit is to he 
 filed before the summons is served. 
 
 Prjecipe orders for discovery, hy Rule 95, may be issued by the 
 Registrar to either party after defence filed, and the opposite party 
 must specify which, if any, of the documents he objects to pro- 
 duce, following the usual form in use in Ontario in ordinary suits. 
 
 By Rule 131, in the absence of special agreement, issues of 
 fact shall be triable according to the laws of the Province in 
 which the cause originated, including the laws of evidence, or by 
 order of the Judge any special fact may be proved by affidavit, 
 or a commission may issue for examination viva voce, or by in- 
 terrogatories. 
 
 By Ride ??^, notice or summons is to be served two clear days 
 before hearing. 
 
 In the Exchequer Court, hy Ride (150, months are calendar 
 months, unless lunar months are specified. 
 
 By Rule 151, Sunday, or a public fast or thanksgiving day, 
 or any other non-juridical day or legal holiday, shall not be 
 counted in the computation of time, when the time for doing any 
 act or taking any proceeding is less than six days. 
 
 By Ride 251, when the time for taking any proceeding ex- 
 pires on a Sunday or a day on which office is closed, the time for 
 doing shall be extended to the day on which the office shall next 
 be open. 
 
 Ride 110 as to trials, was repealed 12th January, 1891, and a 
 new one substituted, whereby a day might be fixed for trial on 
 summons, or ten days notice of trial given as stated, and the case 
 regularly set down, and Ride 110 was repealed on the same date, 
 and a new one substituted, whereby, if the Judge is unable to 
 attend at the sittings, they shall .stand adjourned till he is able to 
 attend. 
 
Sec. 30.] PROCEDURE IN EXCHEQUER COURT (CAN.) 
 
 273 
 
 Sittings of Exchequer Court (Can). 
 
 The Judge holds sittings of the Court at Toronto, at Ottawa, 
 at ^rontreal, P. Q. ; at Sydney, Cape Breton ; at Halifax, Nova 
 Scotia ; at St. John, New Brunswick ; at Charlottetown, Prince 
 Edward Island ; at Winnipeg, Manitoba ; at Vancouver, British 
 Columbia, and other places, and at such dates as may be lixed by 
 Geneml Order published in the Canada Gazette. 
 
 General Rules and Orders of Exchequer Court (Can). 
 
 The general rules and orders of the Exchequer Court of the 
 4tli March,1876, of which there were of the latter 261, {vide Cas- 
 sel.s Manual, 1877), as modified by subsequent general rules and 
 orders (which may be found in the Appendices of the printed 
 volumes of the Exch. Ct. Hep., Can.), are those still in force. 
 
 Subject to such general rules and orders, the practice and pro- 
 cedure, from time to time in force, iu H. M. High Court of Justice, 
 Enirland, in respect of like actions taken in the Exchequer Court 
 by virtue of the Exchequer Court Amendment Act of 1891 shall 
 apply : Vide General Order, 1.3th November, 1891, dated at 
 Ottawa, Geo. W. Buvbidge, J. E. G. — Form 51, Appx. 2. 
 
 Cost of Writing Out Evidence. 
 
 In the Exchequer Court of Canada, where judgment is re- 
 served and a copy of evidence is ordered by the Judge, one of the 
 parties to the suit is charged with the cost of writing out the 
 "vidence ; a special order also has to be obtained to obtain ex- 
 iiil'its off the file even tliough consent of opposite party be obtained, 
 which seems like putting parties to.S4 or !?.5 unnecessary expense. 
 
 Retrospective Jurisdiction of Exchequer Court (Can.). 
 
 As the Court of Exchequei onlj- ac<piired jurisdiction in the 
 matter of infringement of any patent of invention on 30th Sep- 
 tember, 1891, it may be questioned whether it now has jurisdic- 
 tion with respect to causes of action arising prior to that date. 
 It would appear from the following, that a retrospective effect was 
 given. 
 
 In ^laxwell, on Interprv ;ation of Statutes, p. 199, the pre- 
 sumption against a retrospective construction has no application 
 35 
 
 \ 
 
 
 I 
 
 % ■ 
 
 $ ^ 
 
 
 i^' 
 
 I. 
 
i 
 
 ir 
 
 1 
 
 ill! 
 
 ±r* 
 
 RETROSPECTIVE JURISDICTEDK Ha [Sec. 30. 
 
 18 
 
 C() enactments which aft'ect only proceduit biii£ practice of the 
 t'.'oum: Wright v. Hale, G H. & N., '2tl7 ; 30 L 4". Exch. 
 
 " A law which alters procedure may with perfect jirmrturv he nuiile applica- 
 Iile to past as well as future transactions "' : MacaulfiX ■>- HirCory of Kng- 
 
 land. vol. 3, 715 ; vol. 5, 43. 
 
 With respect to a lease made before the J^ wjn passed, the 
 Act was retrospective : Vide Page v. Bficwir-Hl.. ±^ L J. Ch., 398. 
 And on p. 200, Maxwell, two admivaltj cafief in [icated the same 
 view: The Alexander Larsen, 1 W. Ptob., ±S?-: The Ironsides, 
 Lush.. 4;.)» ; Brooks v. Becket, 9 Q. B., 847:; Suaoiiiig v. Eyles, 
 Q. B., 8.58. 
 
 See also Wilberforce's Statute Law ; Hh ''jur'itiorh of Stat- 
 ntf^s. p. Hi2. 
 
 The Bankruptcy Acts were ay^plied !<.■ inhrs contracte(t 
 and settlements executed before these Aci^ •:vrare pa.ssed : Ex 
 ptiHe Somers, 2 De G. M. & G., 2()3, p. ]0(i. ■Sstcates which do 
 m)t interfere with the rights of j)arties, Itul mtEHiy rej^uhite the 
 pnictice and procedure of the Courts are retrosrecuLve : See Ra.fh- 
 hone V. Monn, 9 B. & S., p. 712, 713 : Kirnlr;.i t. Draper, L. R.. 
 
 3 Q. B., 160. 
 
 The Supreme Court of the United States 5hh- laid down the 
 
 -^me rule, and has remarked "how absurd it wiimL be fur a litigant to 
 aiaim aa a vested right the right of delaying juBtiot " : ISifr BiiQ'j)le V. Tihoets, 
 
 -feCowen, Sup. Ct., 384, 392. 
 
 In de Kuijper v. Van Dulken, 3 Exch. Ot. K,, Oin. and <!5>. C. 
 
 4 Exch. Ct. R., Can., Burbidge, J. E. C. intniUu-e^i tliat the Exch. 
 Ct. (Can.), had retrospective jurisdiction in re*5»i«n of the infringe- 
 ment of trade marks. 
 
 Process. 
 
 Prior to the jurisdiction given to tlie IkAtHii^aer Court, the 
 action for infringement had to be broug-ht in liiar Province where 
 tile iiitringeiuent had taken place. So thai -J^ditire the plaintiff 
 lived in Ontario and the infringement toti jince in Quebec, or 
 •^ome other Province, it was very awkward icin+citutti a suit — par- 
 ticularly if the defendants were Goveramtan (itjnjtiract»3n» moving 
 fnnu one Province to the other, as has l»eflL liht oaiie ia one suit at 
 least. 
 
rfp 
 
 Sec. 30.] 
 
 PROC£SS-VENUE. 
 
 275 
 
 Now the Exchequer Court gives greater facilities in such a 
 case, and its process reaches every part of the Dominion. 
 
 Patric V. Sylvester, 2.3 Grant (1870), was an instance of a suit 
 brouglit in Ontario on a patent, granted by the Province of New 
 Brunswick in respect of infringement in Ontario. 
 
 There is no sense in the reference to the Court "having jurisdic- 
 tion to the amount of the damages claimed " in this section ; for damages 
 might be non\iiial merely, the infringement being pi'omptly 
 stopped and the damages be for an amount within the jurisdiction 
 of the County or Division Court, while the infringement might 
 l)e with respect to a very valuable patent ; besides that, damages 
 are always unknown at the outset of a suit, and at the best, at 
 the close of a successful suit are extremely difficult to arrive at. 
 
 The amount of damages endorsed on the writ of summons or 
 claimed in the statement of claim is pure guess work, the int<.'n- 
 tioii always being to claim much more than you expect to get, so 
 as to avoid the awkward position of being found to have sutiered 
 greater damages than you make claim for. 
 
 *i!^, 
 
 (■ ■ ■ ' 
 
 i ;' ' '. ■ \n 
 
 III: 
 
 I' 
 
 Venue. 
 
 The following cases bear on the question of venue : — 
 
 in Goldsmith v. Walton, 9 Prac. R. (Ont.), 10 (1 881), the Master 
 in Chambers held that the provisions of l,ho Judicature Act, Ont., 
 Rule 254 (present Rule 6-53)^ abolishing local venue in Ontario, 
 except in actions of ejectment superseded this section 30 of the 
 Dominion Act ; but held on appeal to Osier, J., that under the 
 Judicature Act the Judge had discretion without discussinj; the 
 question of " ultra, vires," and the venue was laid at Toronto, 
 where defendant resided. 
 
 In Aitcheson v. Mann, 9 Prac. R. (Ont.), 253, the Master in 
 Chambers havino; found that above sec. 35 Vic, c. 2G, was re- 
 pealed by Rule 254, 0. J. A. (now Rule 653), made an order 
 changing ••' ft venue from the county where allegetl infringement 
 occurred, orv ». 'ng defendants to pay plaintiff $134.95, the costs of 
 bringing his witnesses to Brockville. 
 
 On appeal to Boyd, C, October 10th, 1882 : Held, that the 
 plaintiff took his patent subject to the conditions in the Act which 
 
rl 
 
 276 
 
 VENUE-PROCEDURE. 
 
 [Sec. 30. 
 
 
 ■fP 
 
 prescribed whore the venue is to be laid ; under Rule 254 (siipni), 
 plaintiff might have the venue at Belleville if the defendant did 
 not object. 
 
 S. a, on api)cal to Div. Ct., Q. B. D. (Ont.), Held, that this suc- 
 tion as to laying venue was not ultra vires of the Doniinion 
 Parliament, and that the word " may " as governed by the con- 
 text was obligatory and not merely permissive, and that the 
 venue should be laid at the place for holding Court nearest the 
 place of residence of the defendants. 
 
 The section lays the venue "nearest to the place of residence 
 or of business of tlie defendant " in the alternative ; the defendant 
 might reside near a branch oflice of his business, in which case 
 the venue might be laid at the county town nearest the head 
 office, which might be in a di.stant county. 
 
 Foreign Commissiou. 
 
 Smith V. Greeu (June, 1885), Can. L. T., vol. 5, p. 330, to obtain 
 the issue of a foreign commission it is not necessary that the case 
 should be technically at issue ; it is sufficient that some issue be 
 raised on the pleadings, which must infallibly be tried, if the 
 action be tried at all. 
 
 An action for infringement and for an injunction and damages 
 lies for any cause of action arising durinr/ the term granted 
 hy the Letters Patent, and within t1i§ territory covered thereby: 
 See Walker, on Patents, sec. 434. 
 
 An action for infringement is not barred by the lapse of six 
 years in Ontario, or .say Hve years in Quebec, from the time of 
 last act of infringement, although possibly no more than six 
 3'ears' arrears of interest on royalties due, when royalty is the 
 measure of damages, may lie recovered in Ontario (see Wiley v. 
 Lcdyard, 10 Prac. K., Out., 182), or five years' interest on arrears 
 in Quebec. 
 
 When Right of Action Expires in Canada. 
 
 In the States between July 8th, 1870, and January 22nd, 
 
 1874, there was a National Statute of Limitations, whereby 
 •'all actions shall be brought during the term for which the Letters Patent sh.ill 
 be granted or extended, or within six years after the expiration thereof " : SoO. 
 
 55, U. S. Act of 1870. 
 
 m 
 
wmt 
 
 Sec. 30.] 
 
 PROCEDURE -PRESCRIPTION. 
 
 277 
 
 This was done away with when the U. S. Statutes wove re- 
 vist'd in June, 1874, and has no application to any infringement 
 committed since June 22nd, 1874, in U. S. A. 
 
 Judging from the analogy of the patent law in the United 
 States, it would appear that the right to institute an ii.fringe- 
 mcnt suit in Canada expires with the j)atent. Wo have no Stat- 
 ute of Limitation (as was at one time the case in the States) 
 with respect to Letters Patent of Invention, extending th-^ time, 
 within which suit may be brought, beyond the expiration of the 
 patent. 
 
 The Ontario Statute of Limitations of certain actions (c. GO, 
 R. S., Ont., 1887) has obviously no bearing on the subject of the 
 infringement of Letters Patent of Invention. 
 
 In Prance. 
 
 In France infringements cannot be proceeded against unless 
 committed within three years of the date of commencement of 
 the lawsuit, but if the infringements have been continuous or re- 
 peated over a lengthened period, and a part of them have been 
 committed within the three years, an action can be brought for 
 the entire series. 
 
 In Germany. 
 
 The .same three years' prescription after an Act of infringe- 
 ment also prevails in Germany. 
 
 In Switzerland. 
 
 In Switzerland action must be brought within two years of 
 the date of the last infringement, and in the Canton where the 
 infringement took place. 
 
 As to Jury Trials. 
 
 In the Patent Act of 182G, suits for infringement were to be 
 tried by a jury ; this continued to be the practice for a number 
 of years. The Patent Act of 1869 was made paramount to Con- 
 solidated Statutes of Canada, c. 34 (1859), (which coiLsoliduted 
 the Patent Acts of 1849 and 1851) which latter Act of 1859 
 was repealed, so far as inconsistent with the Patent Act of 1872. 
 
 Neither the Act of 1872 nor any subsequent Act has specific- 
 
 f^*' 
 

 278 
 
 JURY AND JURY NOTICE. 
 
 [Sec. 30. 
 
 ally defined how a suit for infringenient is to be tried, and tiiul 
 by jiu'y has not been specifically abolished in ])atent suits: 
 Bonathan v. Bowmanville, 31 U. C, Q. B. R. (1871), tried at 
 Whitby Spring Assizes, in 1870, is the last reported case of a 
 jury trial of an infringement suit :n Ontario. In Beam v. Merncv, 
 14 Ont. R, 412, we have an action to recovev royalties tried 
 before a jury at Berlin, August, 1886. 
 
 Jury Notice Struck Out. 
 
 In VermUyea v. Guthrie, 9 Prac. R., 2G7 (9th October, 1882), 
 a transfer from the Chancery Division to Common Pleas Division 
 was not allowed, and a jury notice was struck out: Held,^>y 
 Boyu, C, that an f .. Tor infringement of a patent should not 
 ordinarily be trie*. t ^ ny. 
 
 If the action be brouglit in the Chancery Division, H. C. J. 
 (Ont.), it would Mit, ^''ider ."nv circumstances, be triable by a 
 jury. Since the Ontario Judicature Act (1881) it has been inniia- 
 terial whether suit be brought in the Queen's Bench, Conmioii 
 Pleas or Chancery Division of the High Court of Justice (Ont.), 
 as a matter of fact, patent suits are usually tried at the Chancery 
 sittings, no matter what division they may be brought in, owing 
 to the usually crowded state of the Assize dockets, except in the 
 country districts. 
 
 No Jury in England Unless Court so Directs. 
 
 In England by section 28, Patent Act (1883), the action shall 
 be tried without a jury unless the Court shall otherwise direct, 
 and the Court may, at the request of either of the parties, if it 
 see fit, call in the aid of an assessor specially qualified to try and 
 hear the case, wltolly or partially, with his assistance : Vkh 
 Badische A nil in and Soda Fahrik v. Levinstein, 24! Ch. J). ,156; 
 48 L. T. (N. S.), 822, where a scientific chemist was called in by the 
 Judge to make experiments personally, each party choosing a 
 chemist to be present at the experiments made in the matter of 
 the validity of a patent for making dyes. 
 
 This English section might well be incorporated into our 
 Patent Act to avoid the possibility of a case of the blind leading 
 the blind, which is quite likely to occur in the case of a suit in- 
 volving a knowledge of electrical or chemical science. 
 
Sec. 30.] 
 
 EXPERTS-PARTIES TO SUITS. 
 
 279 
 
 In Quebec, Experts Galled. 
 
 In Province of Quebec, in Dansereau v. Bellemdve, 12 L. N. 70 
 (afterwards in appeal, 10 Sup. Ct. Rep., Can.), altliough there is no 
 provision in our Act, the Judge appointed two experts, who 
 reported that there was an infringement, and on their report, 
 he awarded 8100 damages and enjoined the defendant. 
 
 In the U. S. A., in uiany States patent suits are still triable, 
 either at law or in equity. If a trial be at law, a jury is called ; if 
 in equitj'', the Judge tries the case without a jury ; but in U. S. A. 
 there is not the fusion of law and equity which prevails in Canada 
 ami England. 
 
 Suggested Addition. 
 
 The words " and damages " might be added to the end of 
 this section 30 to make it conformable to section 29, and the first 
 portion of the section. 
 
 Parties to Suits. 
 
 In the U. S. the plaintiff" in an infringement action may be 
 the j)atentee or sole assignee ; or any grantee may sue alone for 
 infringement within his territory : Wilson v. Rosseaiu, 4 How., 
 64G, Rev. Stat., sec. 4919. 
 
 And an action may be brought by executors or administrators : 
 Vide Rubber Co. \. Goodyear, 9 Wall., 791 (1869); MHlldns v. 
 Elliott, 108 U. S. 
 
 Licensees under patents cannot bring actions in their own 
 names for infringements : Wilson v. Ohickering, 14 Fed. Rep., 
 U17 (1883), and cases cited in Walker, .sec. 400 ; but in equity, in 
 the States, should be joined with the owner : Hammond v. Hunt, 
 4 Ban. & Ard., 113 (1879; ; Birdsell v. Shalliol, 15 Brodix, 354 
 (1884), and grantees of interests in districts, from which the grantor 
 i« excluded, should join the grantor as party to the suit. 
 
 In the U. S., where a patentee has assigned undivided inter- 
 ests, the joint owners must sue jointly for infringement : Moore 
 v. Marsh, 7 Wall, 515 (1868) ; Otis Manufacturing Co. v. Crane 
 Manufacturing Co., 27 Fed. Rep., 558 (1886), which does not seem 
 consistent with the view that each may deal with the patent as 
 he chooses without liability to account : Vide note (a), sec 7. 
 
 I I 
 
 f li 
 
11 
 
 ti •— ■• 
 
 280 
 
 EXPERTS-PARTIES TO SUITS. 
 
 [Sec. 30. 
 
 Expert Evidence. 
 
 Tlie evidence of experts as to the construction of a specifica- 
 tion is inadmissible, and except as to the meaning of scientific 
 terms, or as to tlie working of mechanical appliances or as to 
 what such working will bring about, expert evidence should not 
 be admitted : Gadd v. Mayor, etc., Manchester, R. P. C, vol. !) 
 (1892), p. 530. 
 
 The opinions of experts are to be taken into consideration but 
 are in no wise binding on the COurt, per Lord Esher, M. R. : Lead- 
 heater V. Kitchln, R. P. C, vol. 7, p. 247 (1890). 
 
 
 Parties to Suit in England. 
 
 In England, however, one of several joint owners may bring 
 an action in his own name : Sheehan v. Great Eastern R. W. Co., 
 16 Ch. Div., 59 ; and this would appear to be the more logical view. 
 for under note (a), sec. 7, we have seen that it has been settled 
 both in U. S. and England that one of several joint owners of a 
 patent can deal with it as he chooses, without liability to account 
 to any of his co-owners. 
 
 Defendant has no right to force plaintiff to sue the manufac- 
 turer also : iMoser v. Marsden, R. P. C, vol. 9 (1892). p. 214. 
 
 The assignee for a district may bring an action for infringe- 
 ment, but the infringement must be within his district : Dunne- 
 clif V. Mallett, 7 C. B., N. S., 209. 
 
 But a mere licensee can maintain no a«tion against any one 
 else for the infringement of a patent : Dero-sue v. Fair'ie, 1 Web. 
 P. C, 155 ; Menard v. Levinstein, 2 Hem. &; M., 528. 
 
 But an exclusive licensee, that is, exclusive within an area. 
 may use the name of his grantor in an action : Renard v. Levin- 
 stein {supra), but is liable to give his licensor security for costs : 
 Evans v. Rees, 2 Q. B., 334. 
 
 A licensee, who has the exclusive right to manufacture and 
 sell a patented article, can maintain a suit in equity against the 
 patentee, if the latter infringes by making and selling himself: 
 Waterman v. Skipman (decided April 18th, 1893), U. S., Cir. Ct. 
 of App., 2nd Circuit, 64 0. G., U. S., p. 713. 
 
Sec. 30.] 
 
 PARTIES TO SUITS-APPEALS. 
 
 281 
 
 Mortgagors of a patent can sue to restrain infringement 
 without joining their mortgagees whose names appear on the 
 register : Van Gelder d' Co. v. Sowerhy Bridge Flour Society, 
 R. P. C, vol. 7, p. 208 (1890), 44 Ch. D, 374. 
 
 The assignees in insolvency as well as executors and admini- 
 strators, may bring an action in their own name : Bluxam v. 
 Elsi-e, G B. & C, IGO. 
 
 An action may be brought against the manufacturer and the 
 user, or either of them, as well as employer and employee, though 
 damages are not recoverable against the latter : Woodward v. 
 Clement, 10 Ont. R, 368. 
 
 An objection to the validity of a patent, on the ground of the 
 expiration of a foreign patent for the same invention, cannot be 
 takon at the hearing, unless raised in the answer : Bovell v. 
 Guodier, L. R., 2 p]q., 195. 
 
 A licensee cannot sue in his own name without joining the 
 piitentoe as co-plaintiff, the exclusive license being simply an 
 authority to do lawfully that which would otherwise be unlawful, 
 and not being a license coupled with or equivalent to a grant : 
 Heap V. Hartley, 42 Chy. D., 4G1. 
 
 N, B. — The meaning of a grant may be taken to be the same 
 here as in United States, being 'a conveyance of an interest in a 
 territory from which the patentee is excluded. 
 
 Where a ])atent had been established in a previous action the 
 suspension of injunction and account pending appeal was refused : 
 Oitn v. Steel, R P. C, vol. 3 (1886), p. 121. 
 
 Jurisdiction of County Court. 
 
 A County Court (Eng.) has no jurisdiction to try a patent 
 case in which the validity of the patent is disputed : Held, by 
 the Court of Appeal, that the right put in issiie was a franchise : 
 ReguHi V. County Court Judge of Halifax, R P. C, vol. 8, p. 338. 
 
 Appeals to the Privy Council. 
 
 There is an appeal to the Privy Council from the judgment 
 of the Supreme Court of Canada, but not of right. By section 
 71 of the Supreme Court Act, 49 Vict., c. 13.5 (1886), "the judg- 
 ment of the Supreme Court shall in 
 
 
 f 
 
 1 
 • 
 
 : i 
 
 cases 
 
 COUClUSlVf 
 
 no 
 
 36 
 

 
 ISIffl' 
 
 282 
 
 APPEALS TO THE PRIVY COUNCIL (ENO.) [Sec. 30. 
 
 appeal shall 1)C hrouglit from the judgment or order of tlie Supreme t.'ourt t(i iuiy 
 court of appeal established l)y the I'arliauient of Great Hritain and Ireland, by 
 vhieh appeals to Her Majesty-in Council may he ordered to be heard : saving any 
 right which Her Majesty may lie graciously jjleased to exorcise by reason of iier 
 royal prerogative. 38 V., c. II, s. 47." 
 
 In a i)atent case, the tii',st steji is to apply for " leave to dp. 
 2'>eal" for 'pr'imd facie tliere is no right to appeal to the Privy 
 Council, and it is a matter of some difficulty to obtain the re- 
 quisite leave. In Smith v. Goldie, 9 Sup. Ct. K., Can., 40, special 
 leave to appeal was refused : See p. 1549, Ont. Dig. (1880-1890), 
 this is the only patent case in which leave was applied for. The 
 Privy Council considered there was only a (juestion of fact in 
 dispute, and as to the construction of a document, and on these 
 grounds declined to interfere. 
 
 The cases go to show that the Privy Council will not advise Her 
 Majesty to admit an appeal from the Supreme Court, Can., save 
 where the case is of gravity, involving matters of public interest 
 or some important question of law, or affecting property of con- 
 siderable amount, or where the case is otherwise of some public 
 importance, or of a very substantial character : Prince v. Gannon, 
 8 App. Cas., 103 ; Johnston v, St. Andrews, 3 App. Cas., 159 ; 
 Valeri v. Langlois, 5 App. Cas., 115. 
 
 It is not enough that the questions involved are of great im- 
 portance to the parties, or calculated to atti'act public attention : 
 Dumoulin v. Langtry, 57 L. T." N. S., 817. 
 
 Special leave to appeal was refused in a case involving only 
 an issue of fact : Canada Central R. W. Co. v. Murray, 8 App, 
 Cas., 574. 
 
 In Prince v. Gagnon (supra), special leave to appeal from the 
 Suj)reme Court of Canada was refused, the case depending on a 
 disputed matter of fact where there liad been a gift or sale of 
 goods to the value of £1,000. 
 
 Johnston v. *Si^. Andreivs {supra) : It is Her Majesty's preroga- 
 tive to allow an appeal. The Privy Council declined to advise its 
 exercise where the amount at issue was onlv $300, and where the 
 question was the construction of a particular contract. 
 
 Dumoulin v. Langtry (supra) : Where the case will not be 
 decisive of any principle of law, the Privy Council will not give 
 
Sec. 30.] APPEALS TO THE PRIVY COUNCIL (ENO.) 
 
 283 
 
 c attention: 
 
 leave to appeal from the unanivious decision of the Courts below 
 (nine Judges being unanimously against plaintiff), on the ground 
 that the questions involved are of great consequence or calculated 
 to attract public attention. 
 
 Canada Central li W. Co. v. Murray {supra) : The petition 
 must state fully and succinctly the grounds upon which it is 
 based, the record not being before their Lordships until forwarded 
 by the ])roper authorities. 
 
 The Privy Council expect parties to contine themselves to the 
 petition, and will not allow them to wander into extraneous matter, 
 such as the record and proceeding'., >}ver which the Board, until an 
 appeal is permitted and papers are sent to England by the proper 
 authorities, have no control, and which they cannot accept as correct 
 on an " ex parte " statement, which an application for leave to 
 appeal is. 
 
 There are no fixed dates *or the sittings of the Privy Council ; 
 there are sittings early in the year, during July and August, 
 and the Fall Sittings usually commence the first Tuesday in 
 November. The date of sittings is known two or three weeks 
 l)efure they commence, and the usual practice for the Board is to 
 hear on the first Saturday of the sittings, all petitions for leave to 
 api)eal whiclr up to that time have been deposited. 
 
 It is not necessary in applying for special leave to appeal to 
 go to the expense of having a certified copy of the record for- 
 warded by the official of the Court below, to the Registrar of the 
 Privy Council. It seems to be a mistake commonly made in this 
 country, that a certified copy is required. A certified copy is 
 only required to be forwarded after special leave to appeal has 
 been granted. 
 
 For the purpose of preparing the petition for leave to appeal, the 
 solicitors in England require an uncertified copy of the entir ro- 
 cecdings in the Supreme Court of Canada, a similar copy of the 
 formal judgment of that Court, and a similar manuscript or type- 
 written copy of the reasons given b}' the Judges of that Court. 
 
 Two copies of the appeal book and factums in the Supreme 
 Court should be sent for the use of the English solicitors and of 
 the counsel employed on the case. 
 
 *•;/ ' 
 
 
 '■ 
 
 1 
 
 i 
 
 : 5 
 
 
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 284 
 
 APPEALS TO THE PRIVY COUNCIL (ENO.) [SeC. 30. 
 
 I! 'J < 
 
 ^ 
 
 
 r 
 
 
 : 1 
 
 ! f 
 
 i r 
 
 1 \ 
 
 U 1 
 
 ^ 
 r 
 
 t 
 1 
 
 ,!■' 
 
 '! 
 
 An application foi* leave to appeal is ex parte, no notice beino 
 rccjuired to bo ^iven to the other side. But if the other side i,'et 
 wind that an application is to be made, and yive notice of oppo- 
 sition at the Privy Council Office, London, England, their solicit(ji- 
 in P^nglnnd, who give the notice, arc entitled to be served wiMi a 
 copy of the petition, and to attend and oppose at the h 
 If an ap])lication for special leave is unsuccessful, the op[<uTint; 
 parties are entitled to their costs. 
 
 There is no niininuun limit of the amount which the Privy 
 Council take cognizance of in case ot" an application from Cauiula 
 for leave to appeal, Her Majesty exercises her royal prerogative. 
 It is only in the case of an " appeal of ri(/ht," where no special 
 leave is wanted, that the Privy Council refuse to take cognizanct 
 of matters involvin<r trivial sums. 
 
 The minimum limit has been fixed by Order-in-Council or 
 Colonial Statute at a ditierent figure for diflerent colonies. In 
 Ontario the limit is S'J,000\vhevG there is "a ri(jht to appeal" but 
 this has no applicability in the case of Letters Patent of i "cn- 
 tion. 
 
 The counsel who is to hold the brief at the argument >^v. ..es 
 the petition, which has to be signed by the solicitors, and not by 
 the parties themselves. 
 
 The rule is, that the material facts should be stated succinctly, 
 and the grounds for contending that the judgment of the Court 
 below is wrong, should also be stated shortly and concisely — it i> 
 not proper to set out the judgment, in a petition, in full. 
 
 The reason why the petitioner feels aggrieved should be 
 stated, also the grounds upon which he conceives himself entitleil 
 to have s|)ecial leave to apjjl}^ also the points on which the 
 Judges of the Supreme Court (Can.) have gone wrong in point of 
 law. 
 
 Form of Petition. 
 
 The petition is addressed to " The Queen's Most Excellent 
 Majesty in Council," and is entitled, " In the matter of an action 
 lateh^ depending in the Supreme Court of Canada." Between 
 A B and C D (set out style of cause in Supreme Court). The 
 
Sec. 30.] APPEALS TO THE PRIVY COUNCIL (ENG.) 
 
 285 
 
 notice beini: 
 
 humble petition of 
 
 slioweth 
 
 (1) Hero sot out 
 
 the j»iilj,'inent,s below and state sbortly the j,'rouncl.s on which the 
 Snpreiiie Court <fave judgment. (2) Here .state reasons why the 
 ]ii'titioner feels aggrieved. (3) Here state the grouiul upon which 
 till' ajiplicant conceives liiniself entitled to have special leave to 
 ajipoal ; and that the petitioner is able and willing to enter into 
 tliL- required secuiities for the costs of an appeal herein. 
 The petition concludes as follows : — 
 
 " VdUi- iietitioner tlierefore most huri^ ly prays that Ytmr Most Kxtfllont 
 Mujisty ill Council will be gracimisly p ca.ic' to ciiiL'r that your petitiomr shall 
 havf special leave to appeal from the said judr'uient of the saiil Supremi- Court 
 i.i CiiiiH(la. and that tiie said Supreme Court niay ha ordered to trauKUUt forthwith 
 the tiiuscTJpt of the pleadings and evidence and other proceedings in the said 
 iii.ittcr to the Privy Council OHice, and that the said judgment of the said Court 
 (li>iiiissing, etc., he set aside, and that Your Majestj' may lie graciously ideascd to 
 iiuike .siu li further or other order as to Vour Alajesty in Council may appear just 
 .nil proper. And your petitioner will ever jiray. 
 
 Bond in $2,000. 
 
 It leave to appeal be allowed, the petitioner must give a per- 
 .soiiul bond to the respondent or resi)ondents, such bond to be ex- 
 ecuted by the appellant or aj)i)ellants, <tv one or more of thein, 
 and by two sufficient sureties, in the penal sum of !?2,()00. 
 
 The cost of obtainitig leave to appeal, if no Canadian lawyer 
 makes a special journey to England, .so as to be present, may be 
 put at from -SSOO to .*?1,()00, the English .solicitors' charges are 
 about £G0, and counsel fee from £50 to £100, and more, besides 
 the costs of the ('anadian .solicitoi*. 
 
 If the appeal be allowed, all the printing has to be done over 
 again in England, the printing is on both sides of the pages and 
 the hook is difierentl}' gotten up from that in Canada. 
 
 Ill re Smart, the printing had been done in Canada by mis- 
 take, but had to be all done over again, at much expense, in Eng- 
 land. 
 
 lie.sides re Smart, there have been several Ontario cases where 
 leave to appeal ha.s been allowed, notably', in the matter of the 
 Baldwin Eatate ; Dugyan v. London and Canadian Loan and 
 Aijency Co. ; Cameron v. Bickford, etc., etc. 
 
t :>,- 
 
 i } 
 
 !-' 
 
 ^ t 
 
 286 
 
 INFRINGEMENT. 
 
 [Sec. 31. 
 
 The costs of an appeal after leave has been obtained are veiy 
 considerable ; counsel fees are regulated by the number of folios 
 in the case. 
 
 Further particulars as to appeals may be obtained in Mr. 
 Latte3''s work and Macpherson's work, to be seen in Osgoode Hall 
 Library, Toronto. 
 
 o 1 . Ill any action for the infringement of a patent, the court, if sittini:. or 
 anj- julge thereof if the court is not sitting, may, on the application of ihe pliiin 
 titf or (lefemlant res-pectively, make such order for an injunction, restraining the 
 opposite iHirty frf)ni further use, manufacture or sale of the 8ul)ject matter of the 
 patent, ami for his puni:>hment in the event of disobedience of such order, or for 
 inspection or account, and respecting tiie same and the proceedings in the action, 
 as the court or juilge sees tit ; but from such order, an appeal sliall lie under the 
 same circumstances, and to the same court, as from other judgments or onlers of 
 the court in which the order is made. .35 V., c. '2(i, s. 24, ixirf. 
 
 
 xSOTE. — This and tiie preceding section formed together ."sec- 
 tion 24 of the Act of 1872. 
 
 Infringement. 
 
 The question of infringement is a very broad one, and it is 
 impossible to lay down any universal rule, each case must be 
 dealt with by itself. 
 
 Infringement of patents for machines usually takes place 1-y 
 the substitution of " equivalent parts " ; we have dealt with the 
 question of " mechanical equivalency " under section 10, note ("j. 
 If indeed there be substantial identity between the patentcl 
 article and the alleged infringing device, which is not often the 
 case, no difficulty can arise in determining the matter ; but usually 
 it is a matter of prime importance to deterinine the question of 
 infringement ; admissions of infringement in the pleadings, or the 
 unequivocal admission or the determining of infringement ly 
 preliminary examination of the parties, alleged to be guilty of 
 infringement, may settle the question before the day of trial ; in 
 which case the plaintitls may bo in position to file their patent 
 and close their case without jioinjj into evidence, leaving it to the 
 opposite side to attack the patent so as to bring up the question 
 
— TTHT 
 
 Sec. 31.] 
 
 INFRINGEMENT. 
 
 287 
 
 lied in Mr. 
 
 of validity, which may be a mixed question of law and fact ; of 
 law, as to the sufficiency of the specification, and of fact, as to 
 the f[aestion of anticipation. This has already been largely dealt 
 with under section 16, as well as when treating of "double use," 
 '■ aggregation," " mechanical skill," " omission of an element," 
 'change of form," "duplication," "substitution of material," 
 etc., etc., " anticipation " and " publication " as bearing on validity : 
 See notes to section 16. 
 
 It is not infringement to make use of or sell anything which 
 is described but not claimed: Waterbury Brass Co. \\ Miller, d 
 Blatch., 93 (1871); Toohe>jv. Harding, -t Hughes, 253 (1880). 
 
 Machines and manufactures, being both of a tangible nature, 
 are siibject to the same rules and conditions with respect to the 
 question of infringement ; change of function, or substantial dif- 
 ference in the result produced are evidence of a new combina- 
 tion such as may avoid the charge of infringement. 
 
 Any person may accomplish a result performed by a patented 
 device, provided he employs means substantially different from 
 tliose shown in the patent : O'RelUu v. Morse, 15 How., G2 (1853). 
 
 When the improvement is in a well-known machine for effect- 
 ing an old object, the plaintiff must be conaned to the particular 
 details invented by him : Boyd v. Horrocks, G R. P. C. (1889), p. 
 1.52. Bovill V. Plvim «£• Rands (1856), 11 Exch. R, p. 718. 
 
 A patent for a combination is not infringed by a combination 
 which dispenses with one of the elements, and substitutes there- 
 Tor one that is substantially different in construction and opera- 
 tion, but serving the same purpose : Crompton v. Belknap Mills, 
 3 Fisli., 536 ; Curtis, 4th ed., p. -iOl. 
 
 Omission of an Element. 
 
 Complainant's patent is not infringed, since the defendant 
 does not employ one of the specified elements — the cards — of the 
 coinjtlainant's construction: See V'lncenl v. Riijby, 04 O. G., p. 
 StJl (1893) ; and this principle prevails even where the patentee 
 has claimed more than is necessary to the successful working of 
 his device : McClain v. Ortmayer, 141 U. S., 415. 
 
 h 
 
288 
 
 INFEINGEKI3IT. 
 
 [Sec. 31. 
 
 Ill 
 
 mM 
 
 
 G 
 
 i 
 
 See also Lush v. Miller, New BnmK^Jufc EL (1872), where it 
 was held no infringement to u<e pait ai' iLi noaibination. 
 
 Infringement— Essential DiffeTffrwfgs 
 
 A patent for a water condensiug ims;nit -^ m)t infringed by an 
 air condensing engine, although the lati^i' in-voLved water conden- 
 sation as a secondary part : See Ihm-iu* t.. Falcon Work.i, R. F. 
 C, vol. 2 (1885), p. 197. 
 
 Immaterial Variations- 
 Patent for pavement ligJds, havrno 5 r it* object lights so 
 constructed as to divert the light iu inh inclined direction into 
 the rooms which it is desired to light. Ij iw'ntr glass moulded so 
 a.s to consist of an angle or series tc isl^j—. The ilefendaiits 
 used lights of glass moulded so a> xo p■niHi^'t of " curve : Hdd, 
 that the defendants had infringed : BoynDil v. Pnvenient LUjht 
 Co., R. P. C, vol. 1, p. 207 (18!!i4). 
 
 Mere Making an Infringement. 
 
 The mere making of an article fdr ^irt purpose of sale or use 
 is an infringement, although no act.uaJ si^jt x ase ha.^ taken place : 
 Vide Frost, p. 413; Muvtz v. Fi^er.W-^^^ P. C, 10 1: Jones v. 
 Pearce, 1 Web. P. C, 125 ; it is also ]<:■ --<':<-l 'n section 2I> of our 
 Patent Act, that every person who. v ni ..- rhe consent in writ- 
 ing of the patentee, makes, con^irncU .■• , ( ■< ■-/ practice the pat- 
 ented invention, is guilty of an iufiimr^iiu-ion. 
 
 • 
 
 Infringement of One Claim STrffinss 
 
 Tl.e infringement of one of several (lihautt iniringes the j)atent 
 in Canada, U. S. A. and England : Coll t.. Sr„M Co., 1 Fish., 108: 
 Pitts v. Wcniiple, 2 Fish.. 10 iNa*)!; MiCtymb v. Eariwst. 1 
 Woods, 195 (1871), and a nundier of c.^^i^'-iniler s^c. .'J39. Walker. 
 2nd ed. ; Terrell, 1st ed., p. 149 ; Buu;}.. iiid etl.. p. 29t) ; Hunter 
 v. Carrick, 28 Grant, 489, et al. 
 
 In England, a patent since the Pjaitno Act, 1883, may have 
 more than one claim (and provided e^ninr (jitiini i.-* valid), a patent 
 may be infringed by infringing any out u-m : (rUlett v. Wdh]), 
 9 Car. & P., 33G ; Smith v. L. «t 3'.-!' iL W i.,,.. 2 El. k BL 7G. 
 
TT-T 
 
 
 Sec. 31.] INFRINGEMENT-ENGLISH VIEW OF. 
 
 289 
 
 In Canada it does not matter whether all the claims he valid 
 or not, provided the one sued on is. 
 
 English Gases as to Infringement of Essential Fea- 
 ture, etc. 
 
 The following recent English cases apparently point to the 
 doctrine novel in Canada, that there may be infringement, even 
 though the whole of a claim be not pirated, provided the " essen- 
 tial " part of the invention be taken. In the United States and 
 Canada, the strict rule is, that if an element can be dropped out 
 of a claim, infringement of that claim is avoided. In England, 
 however, the trend of cases go to show that claims are not so 
 strictly treated or scrutinized as in the States, or indeed as in 
 Canada, while the genei'al scope of the invention, as treated in 
 tlie body of the s|)ecification, is considered in England as material. 
 Since the British Act of 18(S3, providing for claims, they have 
 been held not to be absolutely essential. 
 
 In a case where plaintiff's invention consisted of several items, 
 it was held that the defendants had not taken a sufficient part of 
 the combination to constitute an infringement: Garrard v. Edge, 
 6 \l l\ C. (1889), p. 375. 
 
 In 'The Automatic Welgkiiifj Machine Co. v. The Xafional 
 Ej:hlb'itloi}8 Association, Limited, 8 R. P. C, p. .S-to (1801); The 
 Automatic Weiyhivg Machine Co. v. Kniyld, G R. P. C, 207 
 (bSSi)), previously tried, was followed as determining the " essen- 
 tial feature " of plaintiffs' invention, which the defendant, in that 
 casr, had not taken. 
 
 In this KniijJit Case, it was held, on appeal, that the (n^entud 
 jiiirt of the plaintiftis' automatic weighing nuichine was the intro- 
 duction of the brake in the weighing, and indicating part of the 
 mechanism, so that the index did not operate to show the \veight 
 on tlio dial till the coin was inserted. 
 
 And held by Williams, J., " that tho decision in Kn'njhl'* Cajtf. waa, 
 tliat tlic t'Hseucc of tlie invention consisted in tlie separation of tlic indicating and 
 weigliiiig parts of the machinery l>y means of separate spindles, that this showed 
 adistiiict essence or line of thought independently of the combination descrilie*! ; 
 thiit ill such a case there might he int'rjngement, even though tlie arrangement of 
 parts ill the alleged infringing machines was dilFerent and new parts 8u)>stituted, 
 wliidi were not 'mechanical equivalents,' and even though there might l>e valu- 
 
 37 
 
 ■ i : . 
 
 I 
 
Pi 
 
 \i\. >■; 
 
 290 
 
 INPRINOEMENT-ENOLISH VIEW OF. [Sec. 31. 
 
 I'.'t 'i- 
 
 i • 
 
 1 ii • 
 
 I 
 
 I 
 
 able improvements, and that in the present case the same separation between I lie 
 
 weighing and indicating parts had been adopted, and defendants had infringed." 
 
 Lister v. Leather, 8 El. & Bl., 1083, commented on. It was 
 
 argued there that " if a patent be taken for a combination of A, B and C, it 
 couhl not be infringed by using a combination of B and C only ; we aru of 
 opinion that the answer to this depends upon what A, B, and C do, how they con- 
 tribute to the object of the invention and wliat relation they bear to each other. 
 Cases may possibly be su^'gested where the use of B and C might not be un in- 
 fringement; but more easiiy cases may be put where the use of B and C would be 
 an infringement." 
 
 To infringe a couibination it is not necessary, in Enghind,that 
 every element should be taken, per L. Halsbury : Miller <£• Co. 
 V. lie Clyde Bridge Steel Co., R. P. C, vol. 9. 
 
 The essential part of an automatic weighing machine held to 
 have been taken and the invention infringed : Automatic Weujh- 
 in(f Co. v. National Exhibitions Association, Ld., R. P. C, vol. 9 
 (1892), p. 41. 
 
 In Thomson v. Moore, G P. O. R. (Eng.), 42G, the question 
 was whether the defendant had taken the pith and substance of 
 the invention underlying the invention. It was held that defen- 
 dant had so taken it, and that there was infiingement, the dift'er- 
 ence only being in non-essentials. 
 
 In Flower v. Lloyd (1877), W. N., 132, it was held by the 
 Court of Appeal that in order to constitute an infi'ingement of a 
 patent for a combination, there must be an adoption of that 
 which constitutes the essence of the invention : See also to same 
 effect United Telephone Co. v. Harrison (1882), 21 Ch. D. ; Sdkrs 
 v. DicJdnson, 5 Exch., 324. 
 
 The foregoing English cases show that the (jues-zion of infringe- 
 ment is differently regarded in England. In Canada and U. S. A., 
 if an element is dropped out from a claim, infringement is 
 avoided. 
 
 This mode of viewing " infrlnfjenient " in England, based on 
 these foregoing decisions cited, has apparently not been reversed 
 on appeal, and if this be the law, it certainly makes it much 
 harder to evade a patent in England than in the States or Canada 
 where the whole invention and its subsidiary parts are centered in 
 the claim or claim.s. In the case, 8 R. P. C, 345, ante, there is 
 
: )'i 
 
 Sec. 31.] 
 
 INFRINQEMENT. 
 
 201 
 
 nothing in the claims to indicate what was held to be the " estsea- 
 tial feature " of the invention ; to find this it would be necessary 
 to look to the specifications and drawings. This would not an- 
 swer in the States, nor hitherto in Canada. A startling feature 
 also of this decision is that there may be infringement although 
 new j)arts be substituted which are not " mechanical equivalents." 
 This has never been so held in Canada or in the States ; it 
 ap[)ears of doubtful correctness. 
 
 Infringement. 
 
 A combination of known mechanical contrivances producing 
 a new result, held to oe infringed by a machine producing the 
 same result, by use of " mechanical equivalents " with some alter- 
 aiiuus and omissions which did not prevent the new machine from 
 Ijiing one which took the substance and essence of the patented 
 invention : Foxwell v. Bostock, 4 DeG. J. & S., 298. 
 
 As to this case, however. Lord Cairns, L. C, in Harrison v. 
 Anderston Foundry Co., L. R., 1 App. Cas., at pp. 577- '>88, said : 
 
 " It is said to have been iletermined in tliat ease, that wiiere tliere is a patent 
 for a combination, there must be a discovery or explanation of the novelty, and 
 the specification must show what is the novelty and what is the merit of the 
 invention, 1 cannot think tliat, as applied to a patent for a combination, that is 
 or was meant to be the effect of tiie decision in FoxwtU v. lioslocl:. If there is a 
 patent for a combination, the combination is itself ex-necessitate the novelty, and 
 the combination is also the merit, if it be a merit, wliich remains to be proved by 
 ividence." * 
 
 In Moore v. Bennett (1884), 1 P. O. R., p. 14:i ; Edmunds, on 
 Patents (1890), pp. 137, 138, Foxiuell v. Bostock is positively in- 
 terpreted to be shortly " where you have a claim for a patent resting upon 
 a ooinbiiiation, you must have that so clearly made out on the specification that 
 the piililic can know that what j'ou claim is in truth the combination, not the 
 specified things which make up the combination, but the combination itself." 
 
 See also lioivdiffe v. Morris (188G), 3 P. O. R., p. 24 ; Edmunds, 
 p. 1 :}'.>. 
 
 From these English cases, it may be inferred that claims have 
 not the same significance or prominence in England as in Canada 
 or the U. S. 
 
 But vide contra, Clark v. Ad'ie, L, R., 10 Ch. App. Cas., 674. 
 
 Use by defendant's pupils for experimental purposes, is in- 
 t'rini^fenieLt of a patented device : See United Telephone Co. v. 
 Sharpies, R. P. C, vol. 2 (1885), p. 28. 
 
 ■B : ■>> 
 
2!>2 
 
 INFRINGEMENT. 
 
 [Sec. 31. 
 
 It is no defence to an action for infringement that before the 
 patent was (obtained the plaintiff had employed defendant to 
 manufacture a certain number of the ai'ticles, if defendant, after 
 he had notice of the patent sold the articles without the authority 
 of the plaintiii: Clark v. Gi'i piths, in Appeal, vol. 24 New Brunswi-jk 
 11., p. 567. 
 
 The directors of a company, whose servants infringe an in- 
 vention, are personally liable : Betts v. De Vitre, L. R., li Ch. 
 App. Cas., 441. 
 
 The assignees of a patent may bring suit for infringement 
 against the original grantee: Walton v. Lavater, 8 C. B. N. S,. 
 102, in which case the grantee could not set up the validity of 
 the patent. 
 
 It is innnaterial whether the defendant was aware that the 
 thing was patented or not : SteveiiH v. Keating, 1 Mac. cV: G., 
 059 ; approved in Heath v. Umvln, 25 L. J., C. P., p. 19 ; ihniU 
 v. Piatt, L. R , 3 Ch. D., 18,5. 
 
 If the invention be for a comV)ination, whereby an already 
 well-known object is produced, it is no infringement to make 
 another combination to attain the same ol)ject. The patent is for 
 tlie method of combining old and well-known materials, and it' 
 another method is adopted there is no infringement : Curtis v. 
 riattin. L.), 85 L. J., Ch., 852. 
 
 Certificate in Infringement Suit, England. 
 
 In England, if a plaintiti' in an infringement suit bo successful 
 the Judge may (under section 81, Patent Act of 188.S) certify that 
 the validity of the patent came in question then in an}" subse- 
 (|uent suit, if successful, the ])laintitt" .shall have full charges as 
 between solicitor and client unless the Court or Judge certifies 
 that he ought not to have them. 
 
 We have no such provision here in Canada, and ndecd tlie 
 ditlerenee ])etween ta.xable party and party costs here and taxalile 
 .solicitor and client costs is not of much moment in favour of the 
 latter. 
 
 As to Costs. 
 
 In England, also, costs are apportioned according to the issues 
 in which the plaintiff was or w.is not successful. 
 
 m 
 
Sec. 31.] 
 
 INFRINGEMENT. 
 
 20.3 
 
 And as to the particulars of objections the Judge is to certify 
 to the successful party whether they were reasonable and proper 
 otherwise no costs are taxable in respect of them. 
 
 Where defendants denied infringement but did not impeach 
 the validity of the patent, and issue was joined ; on defend.ant 
 applying for leave to amend so as to impeach validity, Held, that 
 leave must be granted on payment of all costs by the defendants : 
 Sec United Telephone Co. v. Basmno,^. P. C, vol. 2. (1885), p. 70. 
 
 In Kn'teherhocher Go. v. Ratz, Prac. R. (Ont.), vol. IG, p. .'JO, 
 ail action by plaintiffs against defendant for infringement of a 
 patent. The defendant was, before action, notified of the in- 
 fringement but denied it. In the action the defendants, besides 
 denying the allegations in the statement of claim, set up that 
 thev had not used the machine alleged to be an infrinj^ement and 
 (lid not intend to use it again, and ottered to give a covenant 
 against further use, and paid $10 into Court as damages. This 
 tlie plaintiffs accepted, and moved in Chambers for the costs of the 
 action, which the Master gave them, November 8th, 1893 ; but, 
 Roijcrtson, J., on apjieal, ordered that the parties should pay, each, 
 their own costs, up to the time of motion (which the defendant 
 had previously offered), and that the plaintiffs should jiaj' the 
 costs of the motion and appeal. Upon a further appeal a Divi- 
 sional Court composed of Boyd, C, and Meredith, J., there was a 
 division of opinion, January 22nd, 1 894, and the appeal was dis- 
 inissod without costs. 
 
 Boyd, C, held that there was nothing to take this case out of 
 the ordinary rule, that the person in the wrong shall answer in 
 costs: Fennessij v. Day, .")5 L. T., N. S., 161 (188G) ; Burgess v. 
 im, 36 Beav., 244. 
 
 Meredith, J., thought the Court could not properlj- entertain 
 the appeal. 
 
 Dismantled Machine Held an Infringement in Eng- 
 land. 
 
 Where defendants dismantled the telephone machine by tak- 
 ing out the Blake elements, and kept the separate parts stored in 
 a storehouse : Held, to be an infringement of the Blake trans- 
 mitter patent, of which the plaintiffs had obtained an assignment. 
 
 'If! 
 
 ;i 
 
 \s 
 
If 
 
 4 I 
 
 f. I 
 
 
 20-i 
 
 INFRINGEMENT. 
 
 [Sec. 31. 
 
 The Court refused to order the destruction or delivery up of the 
 infringing machine: United Telephone Co. v. London and Gluhe 
 Telephone and Maintenance Co., 2G Ch. D., 766. 
 
 N. B. — It is difficult to see how, under our section 29, thi^ 
 would 1)e considered an infringement in Canada. 
 
 Doubts concerning infringement an; resolved by Coui'ts in 
 favour of the defendant, although a Court may be satisfied that 
 defendant may have infiinged, yet if it have any real doubt it 
 will find defendant not an infringer: Roper w ManafacturiiKj 
 Co., 20 Fed. Rep., 853 ; Mallory Co. v. Hickok, 25 Fed. Rep., 827. 
 
 Infringement in most foreign countries is an offence punLshaMi- 
 by fine, and in case of repetition by imprisonment, and is consid- 
 ered also a wrong, which may be rediessed by damages. 
 
 In Canada, United States and Great Britain infringement is 
 merely the subject for civil proceedings, and no suit in Canada or 
 U. S. A. can be maintained with respect to infringements occur- 
 ring prior to the date of Letters Patent, nor in the United Kingilom 
 before the final acceptance of the complete .specifications which 
 occurs within ten or twelve weeks before the .sealing of the patent. 
 
 As to Sale, etc, of Single Element With Intent to 
 Use With Other Elements. 
 
 The manufacture and sale of a sinifle element of a conibiiia- 
 tiun with intent that it .shall be united to the other elements, and 
 so complete the combination, is an infringement: >^axe v. ILoa- 
 niond, Holmes, 45G ; Wallace v. Holmes, 9 Blatch., 05 ; Barnes v. 
 ^traunn, 9 Blatch., 553; Schneider v. Poiintney, 21 Fed. Rep., 
 399. 
 
 The Supreme Court, U. S., in Morgan Envelope Co. v. Alhanij 
 Perforated Paper Co. (decided March PJth, ISfKi), i-eported in 
 P. 0. News, vol. 1, ]). 25, was of opinion that these last nanieil 
 cases have no application to one where the element made by tho 
 alleged infringer is an article of manufacture peri.shable in its 
 nature, which it is the object of the mechanism to deliver, ami 
 which mu.st be removed periodically whenever the device is put 
 to use. The Court was referring to an oval roll of toilet paper 
 used on a fixture, and the question to be decided was whether, 
 
: I 
 
 Sec. 31.] 
 
 INFRINGEMENT. 
 
 295 
 
 [ntent to 
 
 conceding the combination of the oval roll with the fixture to be 
 
 a valid combination, the sale of one element of such combination 
 
 with the intent that it shall be used with the other elenient, is 
 
 an iiilViiigenient. The Supreme Court, U. S., held this to be no 
 
 inil in^X'luent, and added : " Of course, if the product itself is the subject 
 of a viilitl patent, it wouhl be iin iufriiigeinent of that patent to pureiiase such 
 proihict of aiiotlier than tlie patentee ; l)ut if tlie pro(hjct In; uiipatental>le, it 
 is giving to the patentee of tlie macliiue the benefit of a patent ui><)n the product, 
 liy in|uiring such product to be ijonght of him." 
 
 He who owns a territorial right under a patent for a machine 
 may si-ll the products of the machine outsi<lu his territory with- 
 out being an infringer : Siinpsoii v. Wilson, 4 How., 70i). 
 
 A patentee of a car brake licensed a railwjxy company to use 
 his device ; a creditor of the company ojjerated the railway and 
 u.iL'd tile brake, the creditor was held not an infringer: EndijJt 
 V. Chmnhetiain, 1 Biss., 307. 
 
 The use of infrinoins: articles made tlurinj; the life of the 
 patent will be enjoined after the patent expires: Bovinij Co. v. 
 Sliclilon, 18 Blatch., 50. 
 
 Members of a partnership can be sued individually as in- 
 tVingers, but the secretary of a partnership association is not 
 individually liable: l^yler v. Galloway, 21 Blatch., 6G. 
 
 As a rule absence of Intent to infringe is no excuse : Ilaives 
 V. Witshharne, 5 O. G., 491 ; McCormlck v. Gray, Xrii-dl v. Elliott, 
 and Ciirtifi v. Piatt, refei'red to in Higgins' Digest, p. 400. 
 
 Mere changes in form, niuaber and s/re or loeation do not 
 avciid infringement unless it brings with it a change of fiuiction, 
 so fis to establish a substantial difference: Werner v. Kin>j, 90 
 r. S., 218. 
 
 In a recent suit relating to the Edison patent for the incan- 
 descent lamp, it was held that what was known as the " Novak " 
 lamp, which required a much less attenuated atnn>sphere (a part 
 lieing bromine vapor), was an infringement; this was afKrmed in 
 tlie Circuit Court of A{)peals sitting in New York, which decided 
 against the Waring Electric Company; thus holding that the use 
 of an inert gas in a partial vacuum was an infringement of the 
 Edison patent. 
 
 1 
 
 ijff ■ 
 
 h. 
 
 ■ ' '• . '- 
 
 V 
 
 
 t 
 
 
ll 
 
 lii 
 
 it. 
 
 % 
 
 r 
 
 296 
 
 JURISDICTION OF U. S. COURTS. 
 
 [Sec. 31. 
 
 Ill a suit brought by the General Electric Co. v. The Ddc'm 
 Electrical Co. of Sprlnf/field, Mafis., it wa.s held b}' Colt, J., tlmt 
 the repairing of incandescent lamps by the renewal of the burnt- 
 out or broken carbon filaments constituted an infringement of tlie 
 Ellison patent. This finding was attinnod in the Appellate Court: 
 But see Mor(jan Envelope Co. v. Albany Perforated Paper Co. 
 ante. 
 
 Jurisdiction of U. S. Courts. 
 
 An injunction against infringement of a patent in U. S. A. 
 can only be obtained in a Federal Court: Store Service Co. v. 
 Store Service Co., 31 0. G., 1.561. 
 
 State Courts in U. S. A. may foreclose a mortgage of a pat- 
 ent: Iron WorlcH v. MontoAjue, 108 Mass., 248, or a suit relat- 
 ing to licenses : Merxerole v. Collar Co., Blatch., JJ.50 ; or to 
 enforce a contract to assign a patent: Binwy \. Aniiarn, 107 
 Mass., 94 ; although Federal Courts only have jurisdiction in in- 
 fringement suits. 
 
 In U. S. A. all suits for infringement or to annul a patent, 
 must be brought in a United States Circuit Court, of which the 
 Suprenu' Court of the District of Columbia is one, and in the 
 district in which the defendant is an inhabitant: See U. S. Stats. 
 at large, c. 86G, p. 483. 
 
 Circuit Courts of Appeal (U. S). 
 
 An Act to estaldish Circuit Courts of Appeal, approved Marcli 
 3rd, 1891, provides that all appeals and writs of error from a 
 United States Circuit Court must be taken to a Circuit Court of 
 Appeals, but cannot be taken to the Supreme Court, U. S. ; though 
 
 any such Circuit Court of Appeals " may certify to the Supreme Court. 
 U. S., any (lucstions or problems of law concerning which it desires the instruc- 
 tions of that Court for its proper decision," and " it shall be competent for tlio 
 Supreme Court to re{[uire by vi'riiorari or otherwise any aucii case to be certilidl 
 to the Supreme Court for its review and determination." 
 
 Now, practically, the U. S. Supreme Court takes no cognizance 
 of patent suits, except those relating to inventions of national 
 importance, and then onl}' by certioraH. The press of business 
 was such that the U. S. Supreme Court was at one time about 
 
Sec. 31.] 
 
 INTERIM INJUNCTION, ETC. 
 
 297 
 
 five \x'ars in avrears with its judgments, and Circuit Courts <>f 
 Ap|>oal were instituted ts relieve the pressure. 
 
 There are some eight Circuit Courts of Appeal for the whole 
 of the States, each Court having jurisdiction within specified 
 districts. 
 
 Design Patent (U. S)— Damages. 
 
 For infringement of a design patent in the States by Act 
 approved February :24tli, 1887, S2.^0 is recoverable, and in case 
 (lofondaTit's profit exceed this amount he shall be liable for the 
 surplus. 
 
 N. B. — In Canada designs are registered in the office of the 
 Minister of Agriculture, Trade Mark and Design Branch, and ai'e 
 not ])ut through the Patent Office as patents. 
 
 Interim Injunction. 
 
 This section 31 follows somewhat the wording of section 30 
 of tlie English Patent Act of 1883, as to injunction, inspection 
 and account ; it also sjjecifically refers to a Court motion or trial 
 as well as to a motion in Chanibers. The Court deals with the 
 question of a final order for injunction, whei'eas an interlocutory 
 judgnient may be obtained from a Judge on motion Ijefore trial. 
 
 The way this section is framed it would appear that the 
 (iofeuilant, as well as the plaintiff, was entitled to an injunction, 
 inspection or account. The defendant might possiljly get an 
 order for " inspection," but it is not clear what he would have to 
 do with an injunction or account. 
 
 On a motion for interlocutory judgment, instead of granting 
 an injunction, an account is sometimes ordered. In some recent 
 univported cases, among them Carter v. Ohlfield (1st June, 1892, 
 Toronto, Ont.), an order was made for account instead of injunc- 
 tion, i-equiring the defendant to give security for a stated amount 
 until trial. 
 
 An interlocutory judgment will only be granted when there 
 is a fair primd facie case of validity made, this may be by (1) 
 long undisturbed enjoyment : Penn v. Bihhy, 3 L. J., Eq., p. 308 ; 
 Uimtz V. FoHter, 2 Web. P. C, 95 ; Betts v. Menzies, 3 Jui-., N. S. 
 358 ; or (2) by the validity of the patent having previously been 
 38 
 
 ij 
 ill 
 
 f^ i 
 
 I: '■ 
 
' ■ - 
 
 ' / '' ' 
 
 'It 
 
 ■" 1 
 
 
 lii 
 
 298 
 
 INTERIM INJUNCTION. 
 
 [Sec. 31. 
 
 (letonuined in a Court of l:i\v : Vide Diuhjeon v. Thompson, 22 
 VV. R. 404 ; TcnvU, 1st ed., p. 101 ; or (;3) by the adiui.s.sion <jf 
 the dot't'ivhint as to the validity ^of the patent ; or (4) by being su 
 placed in relationship to the patentee as to be estoppe<l tioin 
 deiiyiiiL,' validity : See cases collected in Higgins, p. 97. 
 
 As to 'primil facie evidence of validity: Vide Gardner \. 
 Bivodhiirsf, 2 Jur., N. S., 1041 ; Renard v. Leuinstei)!., 10 L. T.. 
 X. tS., 177. 
 
 Material to be Used on Motion for Interlocutory 
 Injunction. 
 
 In ap|)lying for an interlocutory injunction, the atiidavit 
 shoidd clearly pijint out in what the alleged infringement c<jii- 
 sists : Hidl V. Thompson, :i Mer., 024 ; Befts v. Wilniof, L. K.. 
 Ch., 289. 
 
 If the plaintitt' \>, the first inventor, he nnist distinctly swear 
 to that fact, as also to the sufliciency of the specification: Vide 
 Uidl V. Tliompson {supra). 
 
 If the plaintitf is an assignee, he must swear to the best of hi- 
 belief: See Gardner v, Broadhent (Hitpra). 
 
 The affi<lavits must state the facts at the time of swearing, tu 
 show the invention is new and useful now : See Hall v. TlioiHj'- 
 «('>' (sapra); Swa/rtz v. Dela Rue, o Rus.s., 322; vide Daniels. 
 p. 1492 ; pp. 208, 204, Hindmarch. 
 
 The .same i-equirements as to the affidavit also prevail in i\\v 
 States : Vide Rogers v. Abbott, 4 Wash., .574 ; Bump., 2nd c^\.. p. 
 398 : Walker, .sec. 002. 
 
 The affidavit should also show that the invention had Vtocn in 
 active use. Where the plaintiff failed to prove ar live u ver. 
 when the patent had been in force eight y ' rlocutorv in- 
 
 junction was refused : Pliinptoii v. Mai >ii, 44 L. .1 '\\.. 
 
 'I'ol ; also Heagh v. Magill, W. N. (1877), p 2. 
 
 The plaintiff must make out his title clearly > the patent 
 and there must be also a presumption of validity as well as of 
 infringement in order to obtain interlocutory infringement : Vidi 
 Walker, .sec. 605. 
 
Sec. 31.] 
 
 INTERIM INJUNCTION. 
 
 299 
 
 i best of lii- 
 
 Presumption of Validity. 
 
 TIk; ])rcsuinption of vnli<Hty <lo(>s not arise on the bare pro- 
 ilnction of Letters Patent, but will always arise it' the patent has 
 Utii i)fevi<)usly adjudicatcil on: Vide Atldiific (iitiiit I'oivder 
 Co. y. Goodiff'ur, ',i Ban. ^ Ard., 107; Kcrhif Bawf MunnfdctiLr- 
 iwi Co.y. White, '> Ban. & Anl., 2G3 (1880) ; Goodyear v. Hush, 
 D Ki^li., 4.")() ( 18<J8), or by public acijuiescence in the patentee's 
 riu'lits in tlie followinjjf case, it was for two years : Vide Sdvc/ent 
 V. Si'UiP'dve, 2 Curt., a')" (18.).')); if the ac(|uiesconce stops the pre- 
 sumption also ceases : Vida WoUensrck v. k^arr/i'iif, 'V'\ Fed. Rep., 
 HW '1888). 
 
 When the defendant admits or does not deny in his plead- 
 iii-> the validity of the patent, a sutHeient presumption arises: 
 Vidr Nev} York (rrape Siujar (.'o. v. Anierlcan Grape Sufjar Co., 
 10 Frd. Hep., 83;') (1882). 
 
 A decree pro confcj-iso in one case does not J'aise a suiticient 
 prisiMiij)tion in another case tot;rantan interlocutoiy injunction: 
 Eorelt V. Thatcher, 3 Ban. *: Anl., 437 (1878). 
 
 No acquiescence in an oi-iginal patent gives rise to i)resump- 
 tion of validity in case of a reissue, unless the claim intringed in 
 the reissue be also in the original : Vide Gro>rr Sewlnrj Co. v. 
 Wdlniias, 2 Fish., 144 (18(jt)) ; Poppenhasen v. Falhe, 2 Fish., 
 IM il8Gl). 
 
 Infringement or danger of infringement must be clearly .shown 
 ill nider to entitle to a preliminary injunction; a moderate pro- 
 Wtiilitv that defendant intends to do something in infringement 
 \vi)uld siirtice: Vi<le Walker, see. <)7(). 
 
 Siiit.i " quia timet " are rare, and Courts do not general 1\' in- 
 terfere unless rights liave been violated, yet where defendant 
 evinces an intention and claims a right to interfere, the Court 
 may grant an injunction, although no actual infiingement maybe 
 shown : Frearson v. Lee, L. R., 9 Ch. D., 48 ; C^'ossle;/ v. Becerley, 
 1 Wrb. P. C, 119. 
 
 Bonds Taken in IJ. S. to Secure Damages. 
 
 In the United States bonds may be taken instead of the in- 
 teili^cutory injunction if the plaintiff lias been in the habit of 
 
 / . 
 

 300 
 
 INTERIM INJUNCTION-BONDS. 
 
 [Sec. 31. 
 
 1 << 1 
 
 i'-l 
 
 .^. 
 
 \m\ 
 
 W ! 
 
 
 l^ i 
 
 I'eceiviiifi royalties for licenses instead of makinj' and sellin*' «jr 
 using himself, while permittiiig no one else : McMillan v. Con- 
 rad, 16 Fed. Rep., 128 (1888); New York Grap^' Sugar Co. w 
 A'^iyierican Grape Siojar Co., 10 Fed. Rep., 837 (1882); but in 
 Canada after two j'ears, under section 37, there is no such thincj 
 as an exclusive use of a patented article, as is the ca.se in the 
 States, so the cases are not directly applicable. 
 
 Where an infringin<]f machine contains costly parts not covered 
 by plaintiff's patent, bonds may be given: Bahrein v. Bernartl, 
 4 Fish., 447 (1872) ; or where an action is pending against a 
 manufacturer from whom defendant received the articles : Irvln 
 v. McRohPits, 4 Ban.^ Ard., 414 (1870); or where the prior jud::- 
 ment on whi.-h the right to a preliminary injunction has Ijeen ap- 
 pealed to the Supreme Court, which appeal is stHl pending : \V*:lh 
 v. Gill, 6 Fish.. 93 (1872) ; or where an injunction wouhl be very 
 damaging to defendant and of no great benefit to plaintiffs : I{i>p 
 v. Boston Bail. I Advertiser, 14 Fed. Rep., 914 (1883); /)o/».y 
 Harvester Rah' Co. v. Marsh,Q Fish., 387 (1873); or where a 
 discontinuance would be against public policy : Gaudet v. I'lil- 
 mer, 10 Blatch . 220(1872). 
 
 But a bond can l)e required from defendant, oidy where an 
 interim injunction would go if the bond be not given : Arru'rie-in 
 Millimj Co. V. Atlantic Milling Co., 3 Ban & Ard., 173 (1877). 
 
 In Edison Electric Light Co. v. Colutnbia Incandescent Lamp 
 Co. (decided April 21st, 1893), U. S. Cir. Ct., E. Dist., Missouri, 
 6o O. ft., p. 133. an interim injunction vvas refused and a bond 
 wa.s retjuiretl from defendants in ^20,000. 
 
 In the Slates if defendant submits to an injunction, whert-ly 
 .serious injury may Ite caused him, the complainant may be eallfl 
 on to give lx)nds : Consolidated Fruit Jar Co. v. Wliltney, I Ban. 
 ^' Ard., .361 (1874); Sla'tleg v. Brennan, 4 Fi.sh., 198 (1870,: 
 Brammer v. Jonex. 3 Fish., 340; Allis v. Sfoivell, 15 Fed. Rep., 
 242. 
 
 On application for preliminary injunction, where infringement 
 wa,s plain, the patent was presumed valid a id injunction gi'anted, 
 unless defendant gave sufficient bond to secure damages which 
 might be decreed : See Palmer v. Mills, June 29th, 1893 ; Go 0. 
 G., p. 1069. 
 
Sec. 31.] 
 
 INTERIM INJUNCTION-LACHES. 
 
 301 
 
 In patent cases, the infringement, upon which a preliminary 
 injunction will be granted, must be without reasonable doubt and 
 the rights of the patentee clear, and failing in prior adjud'cation 
 in favour of the validity of a patent, there must be shown such 
 cont'nued nublic ac(|uiescence in the exclusive right asserted as 
 raises a presumption of validity of the patent. 
 
 Dissolving Interim Injunction. 
 
 An " interim injunction" may be dissolved at anytime by 
 proving facts which would have been fatal at the hearing of the 
 motion, if good excuse is shown for the delay in adducing these 
 facts: VoujKj V. Lippman, 5 Fish., 2.'}0 (1.S72) ; lim^sey v. Wldi 
 L'j, '2 Fish., 125 (1800); or if the granting of the prelinjinary 
 injunction was erroneous in point of law : Stram GaiKje Co. v. M'd- 
 Ui\ II Fed. Rep., 71!) (1882) ; or if plaintitf, during suit, assigns 
 all his interest in the patent to another: Kinsman v. Farkhurstr 
 bs Huw., 289. 
 
 Laches- 
 
 No interlocutory injunction will l)e gi-anted if the jtatentee 
 has not proceeded with reasuJiable speed to prosecute infringeis : 
 Lnsh V. Hague, I Web. P. C, 201 ; Bacon v. Jones, 4 My. & Cr., 
 43n: Jhkhon v. Beneeke, 12 Beav. 
 
 Where plaintiff knew of infringement in August, wrote letters 
 of complaint in November, and conuucnced suit following >Iuly, 
 an interlocutory Judgment was refu.sed : Bocill v. Con!'.', L. 11., I 
 h[., ;}N8. 
 
 Knowledge of infringement in August, 18.'}.'), existed, and an 
 application for interlocutory injunction in I8.'i9was refused: Bacon 
 V. Jo/ff's, 4 My. & Cr., 4.S;i (supra). 
 
 Vide also Walker, .sec. 084, where eighteen months' drhiy in 
 oin- cast', and two years' <lelay in another was held to constitute 
 ladits, but where three months' delay ilid not. 
 
 Where there was a delay of two months after filing bill, dur- 
 in^r which time defendant had filled up his stock of inlVinging 
 aitioles with plaintiff's' knowledge, interim injunction was re- 
 fused • ^'e1J Manufacturing Co. v. Superior Drill Co., U. S., 04 
 0. C, p. ll.S;}(May 27th, 1893). 
 
 If" 
 
 I 
 
302 
 
 INTEEIM TSJUSCiaSS, 
 
 [Sec. 31. 
 
 ■f'i 
 
 ^h'i 
 
 H 
 
 I ■ '"" 
 
 Undertaking as to Damag^es 
 
 Antl in Ontario, where an iuteTlctpia-jnr injunction is nvantoJ, 
 the plaintiff", in the order, is requriti^ «-> ^ve an undertuxinif to 
 abide any order the Court may iuak+ a-* Uu the payment of ilaui- 
 ages by him to the defendant in rfSTttut; ot injury sustained Iiy 
 the reason of the injunction, folic^sTjatr che Enjjjlish practice : 
 Wakefield v. Duke of Bacdeiufl.. ]I1 Jiinr., X. S., o2:J ; Piimi>tijn 
 V. Spiller, 4 Ch. D., 2SG. 
 
 The form of undertaking in tbe xirdttv d* .xh follows, viz. : " The 
 
 plaintiti' by his said counsel liereliy undertakiiu: ii utiitti l»y aiiy order the Court may 
 make aa to damages, in case it should hcreanitr ix ir opinion that the det'emliuit 
 has sustained any, hy reason of this in juuiitim^. ^uii-ii ■ iie pLiintiff ought to pay. " 
 
 In cases of enier<^ency, the ord«T iua.5 ^">e made ex partr in 
 Ontario b}' Rule 1134, when to ]»rciDt«tCoa notice, might entail 
 serious or irreparable mischief. 
 
 Age of Patent Material to Rai^jbu. 
 
 Where the patent in Enj^laiad ttu-i- nen years ol<l, and its 
 novelty had not previously been cbiLa^ntred. it must, for the pur- 
 pose of an interlocutory motioB. b^ t!'*jtnei{ ** a ^rood patent, and 
 infrinf^ement having ;»•/*>< a fac'i-^ bntu ■*'*cabli.shed. plaintifi's w<re 
 entitle<l to an interlocutory injuiKtica: :^ill>to v. Liunnonth, R. 
 P. C, vol. 2 (1885), p. 1. ' 
 
 Undisturbed enjoyment of a paat»iiii 6)r *tx years entitles to 
 an interlocutor}' injunctioi' : J-iirl ~ v. Kmff, R. P. C, vol. 3 
 (188«)), pp. .•'iTO, 380. 
 
 Interlocutory injunction app]i*'J ^ r n a patent three years 
 old, injunction x'efused : Littt-cr v. _ . .u. I R. P. C, p. ll-t 
 (1884). 
 
 Must be Free from Doubt. 
 
 The Court is not bound to deradt- •S^u't'Cfal and ilifficult qms- 
 tions of law on a motion for a ]>reimaziary injunction, and whfn' 
 there \s> doubt as to eomplainautV sariW or iletendant's infringe- 
 ment : Vide Zinseer V. Cooh'ul^,17 FvL Elep.. ySH and Bumi),, 
 2n.l ed., p. 408. 
 
 To warrant the exercise of 1.^ ^a.rrTU)rdinary power of the 
 Court in granting a preliminary iii;ynnici«)a. the ca.se presented 
 
Sec. 31.] 
 
 INTERIM INJUNCTION. 
 
 303 
 
 should he free from ambiguity or confusion: See Popi)€iih>i$en 
 V. Folke, 2 Fish., 181 ; S. C, 4 Blatch., 493. 
 
 Balance of Convenience. 
 
 Interlocutory injunctions may be granted, or an account n»ay 
 be ordered to be kept, and in adopting eithei' course, the Court 
 will be influenced by the balance of convenience, and the pruba- 
 bility of injury to either side : Xeilson v. Thompson, 1 Web. P. 
 C. '17S;B,'edson v. 'l.ilpine, L. R., Ch. D.. 289. 
 
 In Plimpton v. ,,riller, L. R., G Ch. D., 412, the difficulty to 
 be determined is keeping tilings in datti quo till trial, and the 
 jirinciple recognized in this case is, that if the defendaiit-s U' an 
 old fuid established trade an interlocutory injunction would not 
 l)e granted, the Court will not stop a going trade ; Itut if <iefen- 
 dant's business wore new and large sales were made of the in- 
 fringing article, to stop irrc|)arable damage an interlocutory in- 
 fiingenient may be gi'anted. 
 
 Balance of convenience where more harm would be done to 
 defendant by granting it than to phiintifl" by refusing it, the bal- 
 ance of convenience was in favour of refusing it : WulLei' v. 
 Clarlc, II. F. C, vol. 4, p. 111. 
 
 Interlocutoiy injunction in balance of convenience: Ken- 
 sin</tuii, etc., Eledvlc Lujldimj Co. v. Lane Fox Mectricdl Co., R. 
 P. C, vol. 8 (1891), p. 277 ; see also Plimpton v. Splller, 4 Ch. 
 D., 280. 
 
 Injunction granted on the balance of convenience, the defen- 
 dants being a new company with a very small ca})ital and tlie 
 patent being 12 yeai-s old : liracher ■ , Braclier, Denn d; Co., R. 
 P. C, vol. 7, p. 420 (1890). 
 
 Owing to the balance of convenience an injunction was not 
 g;ianted, though infringement was made out contrary to an 
 uiidertakiiig given by the defendant: Thompson \. IJuyhes, R. 
 P. C, vol. 7, p. 71 (1890). 
 
 In Carter V. Uldfield (an unreported case, Ont.), an application 
 was made before Robertson, J., for an Interim Injunction to re- 
 strain the alleged infringement of Letters Patent for a black leaf 
 check book, which patent had been sustained in Grip v. Buttfr- 
 lidd, 11 Sup. Ct. R. (Can.), 291, previou.sly refeired to. 
 
 
 11 
 
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 804 
 
 INTERIM INJUNCTION. 
 
 [Sec. 31. 
 
 In the judgment delivered June Ist, 1892, Robertson, J., states 
 "I do not think I could grant the 'interim injunction' asked for here, on the 
 ground tiiutl uni not satisfied that the defendant has not met the plaintiffs ciise 
 Hulliciontly to create a gra\<; doiiht, not only to ilie validity of the plaintiffs 
 patent, hut wliether slie has infringed upon it," and lie ordered the defen- 
 dant merely to keep an account until the matter was <lisposed of 
 at the trial, and give security in a bond with two sureties, in a 
 penal sum not exceeding S200. 
 
 In the reasons for judgment he refers to the rule laid down 
 in P/riiiftfoii V. Sit'd/cf, 4 Ch. 1)., 2.S(). .Fames, L. J., states : "Tlun 
 
 will aiuajs lio, no doul(t, the greatest possihlo dilliculty in detenuining w hat is 
 the hesl mode of kctjfiiig tilings in sinlii quo, for that is really wluit tlie Court lia> 
 
 to d(»~t() keep tiling.^ in ^tulii '/in, until tiie final deei.sion of the question ;" iUnl 
 then the C^OUrt says : " We will not stop a growing trade ; we will not adopt 
 a course which will residt in any great difficulty in giving compensation on one 
 side or the otluT. " Anil Brt'tt, •). A.: " I'lu're will he a hardship on tlic 
 one side or on the other, and the <juestion is on which side does the halance apjicai' 
 to lie ? Now, if the trade of the defendant he an old and cstahlished trade, I 
 sliould say the liardshi]) upon him would l)e too great if an injunction weregraiiteil. 
 IJut whereas here tiie trade of the defeuilant is a new trade, and he is the sollfi 
 of goods to a vast nuinl>er of people ; it seems to nie to he less inconvenient and 
 less likely to produce irrepaiaiile damage to stop him from selling than it would In; 
 to allow him to sell and merely keep an account, etc. Therefore, as a ride m 
 conduct, I think that in such ii case as this, it is hetter where a traile of the di fen- 
 dant is a new f)ne, ami not an olil cstahlished trade, and where there are likely 
 [O he man}' customers in the new trade, t-j say that you will act against the new 
 trader hy injunction, whensas, if he were carrying on an old trade you would ftct 
 the other way." 
 
 Besides havinggrave doubts us to the validity of the patcfit.Jiot- 
 withstanding thcdrcisioii in (irii) y. Jhi.ftrrfichf, and as to iiifriiigf- 
 nient ; as an additional ivasou for merely oiilering an ac(;oinit. 
 
 Robertson, . J., states: "And hesides (as suggested hy Uaggally, .1. A., in 
 his dissenting judgment in the Fliin|>ton ease), it may he that some new comhiiia 
 tion or invention may lie discovered which will mak(! the defendant's hook if it 
 should he fouiul to he no infringement on the plaintiti's patent useless in tliu 
 course of some months. If, therefore, the defendant has not infringed the ])lain- 
 tifl's patent how will it he possihle to ascertain the measure of damage which she 
 will have sustained hy reason of the injunction— hut if the injunction is not 
 granted itml the defendant is reipiiretl to keep an account of all the hooks .she 
 may sell and the ])r<itits she has nnule hy them in the meantime, the means will 
 he afl'orded for ascertaining the loss which the plaintifl's vill have sustained hy 
 the continuance hy the defendant of that which may have heeu an impiopur 
 )>usiness.°' 
 
'^•il 
 
 Sec. 31.] 
 
 INJUNCTION. 
 
 305 
 
 After considering a number of American cases, as well as 
 
 Eniflisll authorities, lie states "the fact being in my judgment that the 
 praitice in England in motions o this kind is the more logical and correct, and 
 c(msei|uently the moree(iuitalile.' 
 
 Final Injunction. 
 
 By Con. Stat. Up. Can., c. 23, .see. 12 (18.51)), the Court or a 
 Jii(l<;e was empowered to grant writs of Mandamus or Injunction 
 after action brought, and they might l»e applied for " ca;^)ar<r," 
 ami as to keeping account, giving securit}' or otherwise. 
 
 In Iluvtlvtjtun V. Lutz, 13 U. C. C. P. R., 108, it was held that 
 this Act did not give the Court power to order an account of 
 profits or to ordtjr the defendant to pay. 
 
 l)y sub-sec. 8, sec. .53 of the Ontario Judicature Act, the Court 
 may grant hitct'locuturij, as well iisjinai injunctions, and by sub- 
 •st'ction 9, where the Court may grant an injunction, it may also 
 award ilanuiges. 
 
 By this section 31, the Court or a Judge ma}' grant an order 
 fur inspection or an account, both of which are generally prelimi- 
 r.aiy to the trial, although a final account is taken before a referee, 
 u.sually after the |)laintiti' has established his right. 
 
 In the event of an injunction being disobeyed, proceedings for 
 cunlempt of Court may be instituted in Ontario. 
 
 Suspension of Injunction. 
 
 Wiiere an injunction is ordered in Ontario and the parties 
 oiijoined give the security recjuired, pending an appeal to the 
 Cciiut of Appeal (Out.), all proceedings on the injunction are 
 stayed and a writ of sequestiation caimot be olttained pending 
 the appeal : McGarvey v. Towti of Sirathvoi), Ont. 11., 138 ; 
 (.''/,'/ ('/ Toronto v. Stnxt Railway Co., 12 Trac. 11., 301, Court 
 of Ajjpeal. 
 
 But (piery ? In the case of the infringement of a patent, 
 \vliei(! a reference for an account or danuiges has V)een granted 
 Ijut not yet ascertained, would the defendant be allowed to go on 
 with his infringement by barely giving security for 5?400, the 
 costs of appeal, and security for the taxed costs of the (Jourt 
 buluw ; the damages might far exceed in amount tho costs, and 
 
 'W 
 
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 il. 
 
 i 
 
 f 
 
 i 
 
 
 
 
 
 
 306 
 
 INJUNCTION. 
 
 [Sec. 31. 
 
 the defendant mirjht be worthless, so as to render it impossible to 
 recover dainaj^es when ascertained, and thus for two or three 
 years defendant might be enabled to profit by his own wron*,'- 
 doing without redress to the jdaintiff. 
 
 In England an injunction will not be suspended pending an 
 appeal : Flo^ver v. Lloyd, 30 L. T. R., N. S., 444. 
 
 In a suit for injunction the i)laintiff must not only prove 
 that the alleged infringing article was not made at his own factory, 
 but also that it was not made at any of his factories abroad : 
 Belts V. WUmot, L. R, G Ch, 239. 
 
 If at the trial the plaintitt" succeeds, he will not only be entitled 
 to an injunction restraining the defendant from infringing, hiit 
 also to recover damages, or to have an account of the profits made 
 by defendants from the infringement. 
 
 In England the Court may order the destruction of the 
 infringing article, as indeed the Court also maj^ in Canada : Ikttn 
 V. de Vitre, 34 L. J., Ch., 289, 291 ; Keedham v. Oxleij, 8 L. T.,N. 
 S., 604 ; Plhnj^ton v. Malcolrnson (Seton on Decrees, 4th ed,, 
 p. 354). 
 
 An injunction granted to restrain the sale of a complete ma- 
 chine will be violated by the sale of the component parts of the 
 machine in such a way that they can easily be put together by 
 anyone: United. Telephone Co. v. Dale, 25 Ch. D., 778. 
 
 A plaintiff may be enjoined from selling or using, after the 
 expiration of the jiatent those specimens of the patented thin|f 
 which he unlawfully nuule before that expiration : Hoot v. Hail- 
 way Co., 105 U. S., 210(1881) ; American Diamond Hock Boring 
 Co. V. Marble Co., 2 Fed. Rep., 353 (1880) ;. Crosaley v. Beverley 
 1 Web. P. C, 119. 
 
 Where Injunction is Refused. 
 
 An injunction in the States will be refused if the infringing 
 defendant should die before decree, even though the suit be re- 
 vived against the legal repicsentative, who does not continue 
 the infringement: Draper v. HiuUon, 1 Holmes, 208 (1873). 
 But damages may be lecovemble in Canada if property or the 
 proceeds or value of property belonging to plaintift" has I teen 
 
)rofits made 
 
 Sec. 31.] 
 
 INJUNCTION-ESTOPPEL. 
 
 307 
 
 apjiropriated by the deceased and added to his estate: Leslie v, 
 Calrin, 9 Ont. Rep , 207. 
 
 A preliminary injunction will not go to enfoif.e a forfeiture 
 of a license for non-payment of royalty if the royalty be paid 
 within a time fixed by the Court: Goodyear v. Rubber Co.,S 
 Blatcli., 4.55 (ISoO). 
 
 An injunction will not be granted when the only infringe- 
 ment has been long discontinued, and no probability is shown of 
 its bi'ing continued ; on appeal reversing the trial Judge. The 
 Court having no jurisdiction in a Palatine Court under Lord Cairns' 
 Act to grant damages, unless an injunction may also be granted, 
 the action Wias dismissed, without costs, defendants getting costs of 
 appeal : Proctor v. Bayley (C. A. Aug , 1889), (5 R. P. C. (1889), 
 p. .5.S8 ; 59 L. T., Ch. 12. 
 
 Where a threat to trespass had been abandoned no injunction 
 was granted: Stannard v. Vestry of St. Giles, L. R., 20 Ch. Div., 
 1!)0. 
 
 An action lies for an injunction to restrain threats against an 
 alleged infringer, and for damages, which we have treated on 
 under the head of damages. 
 
 In Canada actions for damages for infringement may be 
 Itrought under sees. 29 and 30, and under sec. 31 for injunction, 
 • tc, the remedies are distinct or joint, as may be desired ; in the 
 Judicature Act, sec. 53, sub-sec. 8 and 9, an award for damsiges 
 seems incident only to the right to an injunction. 
 
 Estoppel. 
 
 Wlien a defendant has once submitted to an injunction, it is 
 improper for him on being attacked for a second infringement, 
 either directly or indirectly, to raise arguments against the 
 validity of the patent : ^foore v. Thompson, R. P. C, vol. 7, 
 p. •'J2.') (1890) ; but he may show that he has not infringed : Can- 
 'oUan Mineral Wool Co. v. Montgomery (unreported), tried 
 before Feiguson, J., Toronto, Ont., Nov., 1893. 
 
 If once the thing complained of has been done the Court may 
 interfere, notwithstanding any promise not to do the same thing 
 aj,'aiii, while the defendant may revoke a threat : Loah v. Hague, 
 1 Web. P. C., 200. 
 
 4 I 
 
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 308 
 
 INJUNCTION-INSPECTION. 
 
 [Sec. 31. 
 
 Where a defendant had consented to an injunction in a piv- 
 vious .suit, on a subsequent action for a new infringement, he was 
 estopped by the consent injunction previously obtained from sot- 
 ting up the invalidity of plaintirt's patent: Thomson v. J/ot»/e, 23 
 L. 11., Ir., 59J) (C. A.). 
 
 Intent to Infringe- 
 Where there was intention to infringe, the Court held that 
 although there was no actionable intriugemont and no dainfii;f.s 
 could be awarded, there was evidence of intention to infringe, and 
 following Frearson v. Lee, L. R., 9 Ch. D., 48, granted an injuiK- 
 tion : Doiviimj v. B'dUnyton, R. P. C, vol. 7, p. li)l (1890). 
 
 Writ of Injunction. 
 
 In the writ of injunction a concise description of the particu- 
 lar thing which the Court forbade the defendant to make, use ui 
 sell should be inserted, so that if defendant continues to mak^'. 
 use or st'U that thing after Ijeing served with the writ, a motion 
 nuiy be made to connnit. 
 
 Inspection. 
 
 The inspection refeired to is an inspection of the instruiiitiit 
 manufactured, or machinery, or process with a view to evidence 
 of infringement, and does not refer to an inspection of books ; 
 Vidi V. i<mlth, i\\ L. J., Q. B., :]42. The Caiuidian section retVis 
 also to the three classes of the Knglish section, viz. : Injunctiuii, 
 inspection and account and tlie nu-aning is the same. 
 
 It must be shown, however, that the inspection is material fir 
 the pui'pose of proving the plaintiff's case: Batley wKyavd-, 
 L. R., 11) Eq., 90 ; Amie>i v. Kelseij, 22 L. J., Q. 11, 84. An appli- 
 cation may be maile as .soon as the action is nounnenced aiul 
 before statement of claim : 6*. C. 
 
 As to the form of allidavit necessary in England to sup[)ort an 
 application for inspection : See tihaw v. The Bank of En<jl((ii<l. 
 22 L. J., Exch. 20 ; Meadows v. Kirhnan, 2G L. J., Exch. 9, 2(t">. 
 
 Where tlie plaintifi" and defendant are competitois in trade an 
 order to inspect the defendant's works should be confined to scion 
 
Sec. 31.] 
 
 INSPECTION-SECRET PROCESS. 
 
 309 
 
 litic men and not include the jilaintirt' liiniself : Flovxr v. Lloyd, 
 W. N. (1876), p. 1()9, 230. 
 
 The order may direct that machinery inspected be put to work 
 (Uii ini,' inspection, and that a sample of i^oods may he taken : Dav- 
 it]]H)ft V. Ji-'pmn, 1 N. R, 307 ; as also samples for the purj)ose 
 of cliemical analysis: Patent Type Foundhif/ Co. v. \V(dtei\ 
 John., 727 ; but a similar order was refused by the Coui't of Ex- 
 cluMiuer in Ptdent Type Foundry Co. v. Lloyd, .5 H. A: N., 192. 
 
 Secret Process. 
 
 Where a process is a secret one, the publication of which 
 iiii;,flit do ineparable damage, if it proved eventually to be no in- 
 fiiiij^aanent : the Court probably would not order a disclosure of 
 tin- i»i-oce.ss. 
 
 Ill Ihidische Anilin und Soda Fahric v, Levinstein (18S3), L. 
 K.. 24 Ch. Div., 150. 
 
 The Judge, at the trial, called ujwn the defendant, after sev- 
 inil days trial, to disclose the secret process or submit to an ad- 
 vt-rst.' judgment. Whereupon the trial wa.s continued with elo.sed 
 iluors, no one being present exce])t the professional advisers but 
 ride contra : Pifjijott v. Anylo- American Teleyrapli Co., 19 L. T. 
 R., N. S., 40. 
 
 In an action for an account against a licensee, on a plea of 
 "leiiial of u.ser and of " secret process," the .question of user being 
 iiiiUnial to the issue. The patentee is entitled to ask to what 
 'Xtf'iit dofendaiit had used this or that particular process claimed 
 aiul also to obtain the names of some (jf his customers ; but he 
 cannot compel disclosure of the secret process : Ashwoiih v. 
 Ruhrri,, 4.5 Ch. D., 023. 60 L. .T., Ch. 27. 
 
 Ill an action of iiifringiiuent defendants refu.sed to answer a.s 
 to thf comiiosition of an alle<'ed infrinjiini; article, on the ground 
 that the right to discovery depended on the valitlity of the patent, 
 and that it was a trade .secret : Held, that the <iuestion must be 
 answered : See Benno Jajfc, Etc., Fabric v. Richardson d' Co., 62 
 b.J., Ch., 710, 10 R. P. C.,'l36. 
 
 No order for discovery may be made with respect to articles 
 not in the po.sscssion of the defendants : Garrard v. Edge, 58 L. 
 J.. Ch. .397. 
 
4 
 
 -i 
 
 ?('• 
 
 
 
 1 
 
 1 
 
 81? 
 
 li- 
 
 tm 
 
 li ■ 
 
 310 
 
 INSPECTION-ACCOUNT. 
 
 [Sec. 31. 
 
 Wlierc plaintiffs havo obtained an onlur for inspection of pro- 
 ccs.s u.soil by defendants. Tlie defendants obtained a similar oiiltr 
 as the latter should be able to describe to the Court the actual 
 process carried on by the ])hiintifts under their patent: ^^ ///i 
 Mitlhuj Co. V. Robinson, 55 L. J., Ch. 287, 34 W. R. 194. 
 
 Inispection of defendant's works refused on the ^'rountl that 
 the validity of a contract was disputed and there was simw^ 
 evidence by the defendant that he was not infringinfj : McDoiUjall 
 V. PavtliKjton, R. P. C, vol. 7, pp. 851, 472 (LSOO). 
 
 The ri<,'ht to inspection is not an absolute right but a liglit td 
 be given at the discretion of the Court, to be exerciseil with 
 judicial discretion : S. 0. 
 
 LdchcH sufficient to <lefeat a right to an interlocutory juilg- 
 ment is no ground for refusing an order for inspection : Pakn> 
 Typ! FoundiiKj Co. v. Walter, -John., 727. 
 
 Inspection by plaintiff limited to processes as to ^v•hieh a j^rniw 
 facie case of infringement is made out: Cheetlunn v. Uldkam. K. 
 P. C, vol. o (1888), p. 617 ; following Germ Millimj v. liobimon. 
 1 R. P. C, 1). 217. 
 
 Defendants may be allowed to inspect plaintiffs' processes: 
 Chcethain v. Ohlhain (No. 2), p. G22. 
 
 The plaintiff allowed to inspect with his solicitor and two 
 experts : Chectluwi v. Oldham, p. 021, ami to make experiimiit-. 
 
 Account (Interlocutory). 
 
 We have already noticed under Injunction the alternative t" 
 an injunction, viz. : tin; keeping an account of the articles uuukoi 
 .sold, and also an account of the profits arising therefrom, witli or 
 without giving bonds. If the action be found in favour of tiif 
 defendant, the plaintiff will have to pay the expense of kecpiiii; 
 such account : See Vidi v. Smith, 3 El. & Bl., }JG!>. 
 
 The iiuestion of final account has already been fully dealt 
 with umler the heail of Vroiits in this section. 
 
 The account may be taken, notwithstanding the pendin;: of 
 an appeal : See Saxhy v. Easterbrook, L. R., 9 Exch., 207. 
 
 Di.^covery of names of customers ordered to be given in iin 
 action for an account against a licensee, though defendant denied 
 
ercisetl witli 
 
 s processes : 
 
 Sec. 31.] 
 
 PARTICULARS OF BREACHES. 
 
 311 
 
 user, as tho question of icaer was material to tlie (jtiestion to hv 
 (locided : Anhivorth v. Roberts, R. P. C, vol. 7, p. 451 (1890). 
 
 Particulars of Breaches, Etc. (Can). 
 
 in Sviilh v. Grcei/, 11 Prac. Ren., Ont, p. 174-, on an appeal 
 from a judgment of Proudtbot, J., to the Divisional Court Clmn- 
 cery IJivision, Ferguson, J., quoting the above section, held that 
 the Court or a Judge has general power to make such or<ler as 
 may seem fit respecting tfi<; procecdlmjs in the nctlon, and had m* 
 doubt that the delivery of particulars is a procefdhit/ ; in Thr. Lon- 
 don, Brvjltfon, ftc, R. W. Co. v. Tlte London, ('hdt/iani, etc., R. W. 
 Co., L. R., 3 Q. B., 170, the taxation of costs was heKl to be a 
 proccedhif) within the meaning of the word as used in the section 
 of the Act there in f[uestion. 
 
 No Specific Enactment as to Particulars in Canada 
 
 We have no legislation bearing directly on the ([Uestion of 
 particulars in Canada, except as bearing on " w/. /((." ])roceedings. 
 which latter are regulated by the English practice under the 
 Patent Act, 15, 16 Vic. (1852), c. 83. 
 
 By section 41 of that English Act " the placu or plact-s at or in 
 
 wliifli and in wliat niaiincr the invention is allej^ed to have l>een useil or |nili- 
 lislii'd prior to tiie ihite of the Letters I'ateiit shall be stated in snch [larticularis. '" 
 
 By section 29 of tho English Patent Act of 188.S the omission 
 as to " time " is now corrected, and the defendant must state in 
 his particulars on what grounds he disputes the validity of the 
 patent, and if one of those grounds is want of novelty, nnist 
 state the time and place of the previous publication or user. 
 
 In Cwm-shnj v. Tome//, L. R., 2 Ch. D., 533, and Floicer v. 
 Uuyd, 20 Solicitors' Journal, 8G0, under the Act of ls.')2, givini;' 
 the places of tJie user merei}' did not sufhce, without giving also 
 the names and addresses of the persons alleged to have used the 
 invention. 
 
 By the Act of 1883 (Eng.) the plaintiff nuist deliver with his 
 statement of claim, or by order of the Court or the Judge at any 
 subsecpient time, particulars of the breaches complained of. 
 
 The particulars of breaches should give the defendant full 
 notice of tho matter complained of, so that the defendants shall 
 
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 .'{12 PARTIOULABS OF BREACHES AND OBJECTIONS. [Sec. 31. 
 
 Mot hv taken bj' sniprise : Sec XrcillHUii v. Oxley, 1 Hem. A: M., 
 !>4.S; (htrtln y.'piutt, H L. T., N. S., G57 ; Z^'u^/r// v. K>/nod:L. \i., 
 1!) K(|.. 231. 
 
 Particulars of Breaches and of Objections. 
 
 Where the patent consists of two or more jjiocesses, or dis- 
 tinct and severable inventions as indicatetl l)y the claims, the 
 partiouhirs of breaches sliould distinj,'nish which of the processes 
 or claims has liten infrini,'ed, if tht;se processes or claims are 
 wholly distinct from each other: See 7\iU>ut v. de la Roche, 1.') 
 C. B."^ .SIO; Eh'drk Tel. Co. v. Notf, 4 C. B., 402. .See also 
 Perry v. Mitchell, 1 Web. V. C, 2G9. 
 
 Particulars of bieaclies wliere the plaintift' had complaint-d 
 specifically with resi)ect to three out of four claims: Held, that 
 the paiticulars informed the defendant of what the plaintiff says he 
 has done in infiin<;x'n>ent, and that it was not the office of particu- 
 lars to answer an interro<^atory as to the construction of the patent : 
 Wcnhdm Co. v. Champion Oas Lamp Co., p. 22, R. P, C. 5, G3 
 L. T., S27. 
 
 Where a whole specification is relied on particulars are not to 
 bo given: Xcftlefolds v. Reynolds, R. P. C, vol. .S (l«!Hi, 
 p. 410. 
 
 in Ontario the practice usually followed is that of the more 
 general form of .statement as to breaches in the United Status; 
 Itut on aj)plication the defendants may obtain particulars as to 
 time and place of the matters complained of; the reference to the 
 pai,'es and lines, as well as the clnims which are alleged to \v,\.\v 
 been infrinj^'ed. 
 
 In Prome v. Pagnnelo, 2 S. C. R., p. 311 (l.S.')2). In an 
 action for infringement of a Lower Canada patent tlie allegation 
 of infringement " In the County of Montreal " was held sufHeient 
 indication of place. According to the present practice in Ontario 
 further and better particulars would be ordered. 
 
 In defendants' particulars of objection.s a greater degree of 
 particularity is required than in plaintiH's' ])articular.s of breaches. 
 The object i.s to limit expen.se to parties and to prevent patents 
 being u|)set by some unexpected turn of the evidence : Fisher 
 V. Deioiclc, 4 Bhig., N. C, 706 ; 1 Web. P. C, 264. 
 
Sec. 31.] PARTICULARS OP PUBLICATIONS, ETC. 
 
 318 
 
 • I'articnldVfi of hrravltes," must he. «listiiij,'iiislio<l from 
 " ptirticuhirs of ohjedion for toniit of nocelfy." hi tlio latter 
 casts the purtioular instances may not be within thf knowled^je oi 
 till' patfutoe, and must he .specified. In the former the fh'fendant 
 imi>t know whether and in what respect he has hcen ^'uilty of 
 iiitVinijeinent. Wlierc the phxintift' was the owner of three 
 patents relatin;^ to a kih), the second and tliird heinj,' for improve- 
 iiniits on the first, and his phiint indicatetl in the case; of eacli 
 patent the infi'injjcment of wliich lie complained : I/t'hl, over- 
 niliii;; the Hiy[h Court, that this was a sutticient eompliance with 
 the Act. The whole object is to give the defendant fair notice 
 of the case he has to meet, and it is immaterial whethei* it lie on 
 the plaint itself or a separate paper: Lodtjar*l v. Ihdl, II App. 
 Cas.,048 (P. C). 
 
 As rdtjections to the validity of the patent had not been 
 flejivered, evidence t(» show that it was invalid for want of 
 novelty could not be read b^' defendant, antl as leave to amend 
 tile paiticulai's had never l)een made, leave oiii,dit not now to be 
 givoii, and the appeal should be dismissed: Cropper y. Smith 
 ho. 2), 20 Ch. D., 700. 
 
 It had previously Ir-ch lield in Croppfr v. Sni'tth, tliat tlio 
 patent was invalid becau.se the patentee had claimed a subsidiary 
 coiiiliination as his invetition, but ])articulars had not been ren- 
 ilei('(l as recpiired. 
 
 'i\ 
 
 Particulars as to Publications. 
 
 In Curtis v. riiift, H L. T., N. S., (j^)7, the names and places of 
 it'sidence of the prior users, as well as special reference to parts 
 of books where ))rior ])ublication was alle^fe(^, were onlered. 
 
 If prior publication is in books and newspapei's, the plaintiff 
 i> entitled to know the name of the book or newspaper, ami to 
 i.'et such details as will enable them to be found : .fours v. Jifiytr, 
 •'> Man. & (ji., 208 ; Palnier v. Cooper, !» E.xch., -I'M ; see London 
 "nil 1,1'iccstcr Hosiery Co. v. Hit/ham, p. !H, Higgins on Patents. 
 
 In Plimpton v. Spiller, 20 Solicitors' Journal, HUd, the defen- 
 ilant was rc(iuired to set out the date of the United States patent, 
 til' Maine of the patentee, the page of publication and to identify 
 
 40 
 
m-'m^ 
 
 ',iU 
 
 PABTIOULARS OF PUBLICATIONS. 
 
 ■ 
 
 ; 
 
 ; 
 
 [Sec. 31. 
 
 m 
 
 
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 the dru'.vings, and to state whether they were contJiine'l in books, 
 ami what books, 
 
 Defemhints must point out distinct!^ , though not necessarily 
 by pa;,'e and lino, where such anticipations were to be found, the 
 objtct being to prevent surprise : Holliday v. IIepi>ei\stnU liro<. 
 C. A., 41 Ch. D., UVJ. 
 
 In the United Stntes the same rule prevails. The Supnine 
 Court, in Silsbj/ v. Foote, 14 How., 2lS, held that mere referciic.- 
 to ill" book, without defining the page where publication occurre<l. 
 was iiisuttieient. 
 
 In X'jtt/efulds V. l{runol(ls,(Jo L, T., ()99 (lSi»l), on applica- 
 tion for further particulars : Jfdd, on appeuJ, that it wa.s nm 
 nt'Ces,sary to give pages and lines of each alleged anticipatiii;. 
 patent, or what use defendant meant to make of all the citaiiun>. 
 
 The plaintiff may be ordered to point out by reference to th*- 
 pages and lines, the parts of the specification he alleges to i-*' 
 infringed : Lamh v, Xottl)i;/liavi MiinHfactar\n<) Co., Setun .«ii 
 Decrees. 4th ed., vol, 1. :}4!) : Wren, v. Wi'dd, L. R.. 4 (I H.. I'bS 
 
 In the United States, infringement is stated in the ileclaratiuu 
 in general terms, and it is sufficiently specific if it plainly all<:.'r- 
 that the defendant without the leave or license of the patentee <li'l 
 make or sell the patented article within the t'^rril.ory, and duiiii.' 
 tlie time covered by the plaintiffs patent; the time of the in- 
 fringement is properly specitieil if stated to lie on a certain <Iav 
 or between specifie«l dates. Walker, sec. 4M4, 
 
 In an unrepi)rted case, The. London und I.dnraxJiirc BoKtei'i 
 Co. v, ir,'fli(ihi, referred to on page 1)1, Higgins on Patents, Kn,' 
 The defendant fuid to give ])articulars, with reference to p^ge^ 
 and lines, of alleged anticipating specifications, an<l also wli:it 
 pc)rtions of the plaintiff's inventions are alleged to have Ixxn 
 published or used prioi to the dates of |)laintiff s Letters Patent* 
 wiiii reference to tlij claims. 
 
 As to particulars of objections, where reference to pag»> an<l 
 line of specification nee I not be given, l)ecaiise the claims allcge'l 
 to be infringed Inid been poinied out : Ckeetham v. Oldhuia (No. 
 3), K. P. C'„ vol. 5, p. ()24. 
 
 For application for further })articulars, see CiiselUt v. Le>-(n- 
 sOhi, K R. P. C. 47a {C. A.) ; lioyd v. Farrer, 57 L. T. R., N. S., 
 800 : Fouler v. Gaul, 3 R. P. C. 
 
m 
 
 Sec. 31.] FURTHER PARTICULARS-COSTS. 315 
 
 Further Particulars. 
 
 If the p8rticulm>i are not sufficiently full, the plaintiff should 
 apply at Chanihors for an order for fuller and hotter particulars, 
 otherwise he cannot ohject to their generality at the trial, and 
 the only thing will be to see whether the particulars delivered 
 include the evidence tendered by defendant : Xeilson v. Ildi- 
 fovd, 1 Web. P. (J., H31 ; if the plaintiff has allowed such words 
 %s "and elmwherv " to stand until the trial, the defendant will l)e 
 allowed to give evidence of priur user anywhere : ILdl v. Holland, 
 2.') L. ,1., Kxch.; »sy.rs v. llinvartli, L. K.. 12 Eq., 826. 
 
 Further and butter particulars were ordered of an objection 
 that an invention was publisheil from Ls,*i2 to lS(j2: Smitlt v. 
 Lany, K. P. (J., vol. 7, p. I4S (LSOOj. 
 
 As to (^osts of Particulars in England and Canada. 
 
 In Kngland the defendant will not, under section 21), Act H'.i. 
 be fiititled to the costs of his particuhus (tf objections, even in 
 case of a non-suit if tin; .Fudm- has not eertitied to them as roa- 
 soiial)le and proper ; llonihuU v. lilooiut i\ 10 K.xch., .')."{.S ; nor 
 will the plaintiff be so entitled without a similar certiticate. The 
 certificate shoultl be as to the determination of each objection. 
 
 It would be well in Cana<la if there were sutne similai pro- 
 vision a.s to particulars ; as matters are now in ( )ntario, partieu- 
 lars are put in with reekless profusion, with little or no regard 
 as to their bearing on the points at issue, thus adding to the 
 expense and delay in the determining of the u'l.tter; a long 
 period of the time of trial being oecupied in sliiwing that (he 
 citations hj ve no bearing whatever on the subject nuitter of the 
 suit. 
 
 In Knglan'l by .'> and G Wni. IV'., c. M3, .sec. +1, the defendant, 
 en pleading to an action for infringement, sluili give the plaintiff 
 notice of any objtcLions on which In- means tt» rely ; this was 
 lUppUinented by ; .i and 1(> V^ic, c. S'.i, before r«'ferred to. The two 
 |inivisions were very similar, and the sam<> cases apply to lioth. 
 Tluse Acts dealt meii-ly with the i'al'nlit;i «)f the patent, and an 
 objection to the want of registration of an assignment of the 
 patent to the p!aintit1 might be taken, although not iti the notice 
 
 
 I ! 
 

 :U(i 
 
 NAMES AND ADD££BSIS m PSIOK USERS. [See. 31. 
 
 
 I? , 
 
 i 
 
 II 
 
 u 
 
 ^^' 
 
 of objections : CJtolUi v. JlomuahU L. J., Q. B., 449. Undor 
 the Act of 1<S!>,S (Ell*,'.), all ol';«etJciii^ oi-ist be statt-d. 
 
 It was not sufficient notic- rf' ao; ;» ^'^"r.ion to say that tlio in- 
 vention had \vl)()lly or in ]ian '-rum nueii I't^tore, hut it ouijh.t to 
 point out wliat parts were j»rtA jjn*iljr m iwe r Hfnth v. IJmviii, 
 I Weh. P. C, 551 : liusselU-. Loimm, It L J . Exch., 439. 
 
 The Names of Prior Users amd their Present Ad- 
 drf 3ses to be Given 
 
 The plaintiH' ought to i>e ]>ut h, •;< ft+^t^Hsinn ofall the<lotendaiit 
 knows liiniself, and to have *;uctj aiJ.'cm.ition as would enaltle 
 him to make the neecr^sarv en<fiiiTO+ uti the places named, and 
 iiientity the instances alle<;ed rli- !iUUt->* <ji prior users and their 
 present addresses should W ghto: iti^^o : l'n/.infr v. Hooper, per 
 Parke H., !) Excli., 2:i6, thii^ (ikoHutai w;i> under the English 
 Act of l.s.")i'. See alsti : BiiJiku*- t S[<icknuzit, 4 Hing., N. (',, 
 V.\i\ (ui/loii;,)/ V. Wi-aik'n. 1 W.i. P. C^ »»(«.!. 
 
 Names an«l addresses <>f ju-ja! vt^mv*- BKoMs V v'i^'^n ; AUid.ice 
 St/)ulicate v. Mc/rur'ti J\i1i ,<U K.?' *.'.. vol. .^ ( L^yij, p. '.i'2\. 
 
 In Carpenter v. Smith 1 \V-t-l-. P «;. il>.> (,*.), the names ami 
 addresses of prior users was i • 1 .;-. • . ..ier the early practice. 
 
 Althoiigli it is a recugni/.-'l ji'-eiru* that one litigant simll 
 not he peiinitted to in<juire ^^ if waac witnes.se.s the other is 
 going to call at the trial, still in l lan.'nc -uit th»' more imp(Mtni.t 
 principle is that neither ]iHnT - 
 that the plaintiH' should liiur 
 critically each antici]»ati(>n. 
 
 In forei'Mi commissions in r 
 possilile to conceal the naui- - 
 although unnamed witut - 
 commission, still one n.ni 
 some days pievicuis notjce td -Uit 
 innst he given to tlie > ]>]n><.\u ]nmy! . 
 •'h. U, 21 , Aniii>,n- V If-,//- • ^i-'w 
 followi'il in this I'rovine. ..f • 
 
 Although it iias 1« . .. ..; 
 
 names and addi'esses of prioi 
 the English Act of 1SS3. 
 
 . raken hy surpnse, and 
 {^[.ortunity of examinini: 
 
 nits in Ontario, it is not 
 
 --. ■, l'»>fore e.xa.!>i»!ation, 
 
 •iiti. Pii.'d in the order lor 
 
 . -r I,.' in the order, and 
 
 of the other witnesses 
 
 V!>lt .V'"///i V. lidiiHcf, 25 
 
 R.. 21.' which eases are 
 
 in Eii'danil to t'lve the 
 
 ht not nn^uired oven now i 
 
 HI 
 
cvfii now in 
 
 Sec. 31.] INSUFFIOKSNOY, ETC., OF SPECIFICATIONS. .317 
 
 As to .Insufficiency and Sufficiency of Specification. 
 
 Whevf': the notice of objection imply statetl tliu specification 
 to be insufficient, it was held that any objection to the sufficiency 
 of" the specification was admissible at the trial: Xiilton v. 
 Uavfoi'd, \ Web. P. C, XVI. 
 
 If insufficiency of specification In; pleaded, «»r given in |>.ar- 
 ticulurs, thcMJefeiidant may be eulleil upon to state in what re- 
 sptct tiiu s])ecificatioii is insu'ficit'nt to diiect a competent work- 
 man, so that the plaintiH' may know the case lie has to meet, if 
 it 1k! in the knowledge of the defendant. To .set up at the trial 
 in^t ;Iiciency of the specification it should be specially pleaded, 
 lliis is the practice in the States : See Wnlker, .sec. 454 ; Ltxrin 
 Co. V. Him/in.^, \(}'i U. S.. .*)S(). in llrath v. I'mnn, loM. vV: \V.. 
 the objection that the specification was insufficient was enougli 
 without lAjilaining why ; the litiLjaiit not being ex]>ecte<l to 
 argue his case on [taper before he went into Court, w»dch >eenis 
 reasonable ground, though nui lati'ly foHowed in Ontario. 
 
 ii" d''f»ndant knows of a particular defect in the specification 
 m Li il. natun; of the invention, and that it did not »utficit'ntly 
 (k'scrilte how it was to be perlbrnied, he should point it out, that 
 the plaintiff ndglit not be taken by surpri.se: Ci'(Hi»i>Um v. 
 AiKjlo Atncrican Bviisk Electric Lujld CorpufHtion, ti') Ch. D., 
 2.s;{. 
 
 In a pati'iit action for iid'ringem.'nt delV'udantH denied the 
 vulidity of pUiintifl's' patent. In thei • pariiculari of objections, 
 they saiil (inter (tliu) the ptlaintifls" specification 'nIik.-u imi nuilicii-ntly 
 ileHci'ilie 1111(1 iiMccitaiii tlic iiiitiiic nt tlit> .illi'^cil invciitioti, ai.d tliu maiiiier in 
 wliicli til • ^,ann• in to In- iicrfciiiiii'il, uimI iIocm imt .>iillii iti.tiy iliatiiigiiiMli whic'i of 
 tliu iiiiittcix iiiiil tliiii>;M t'li'K'iii ili'.s>'i'il)t'il till' |iluiistili clii iiiM to luivi- invtiit*.*!.'' 
 
 //('/(/, by North, .1., that the particulars were im ufjivii r.f, and tliat 
 till \ ought to .st«te the groinids on which the specification wa.s 
 iillf!.red to be insttlUcient : Hiuthjirlil V. iirecnvMif (iHiJ.S^. W. N., 
 17(t. 
 
 As to Amendments of Particulars 
 
 I'articidars are allowed to iie amended in England on tlte 
 terms that the plaintiff sixaild be put into the same position as 
 tM costs a.s if the propo.sed amended particuhirs had Ut-n delivered 
 
 '% 
 tl 
 
 ■ < t 
 f 
 
 I \ 
 
 ' 
 
31H 
 
 PARTIOULARS- FIB8T INVENTOR. 
 
 [Sec. 31. 
 
 fi 
 
 il 
 
 I 
 
 n 
 
 it. 
 
 
 i 
 
 
 « 
 
 
 iBiia; 
 
 1 
 
 
 in the first instance : Jiaird v. Maulcx Patent Earth Closet Co., 
 L. K., 17 Cli. D.. i:{9 (n.); Edi.'<on Telephone Co. v. India Rubber 
 Co., L. 11., 17 Cli. 13., 187 ; or tiiat the defendant be put on such 
 terms as to costs as the Judije or Court seems just. The deftii- 
 dant should not lie pernutted to keep back his main objections, 
 thus inducinj^f the plaintid' to proceed, and then amend his par- 
 ticulars at the last moment. This metiiod is aimed at in Ontario, 
 and sometimes cH'ected without anj' liability oji the defendant as 
 t(» costs or otherwise ; Itut in one inst mce (luu'eported) where fresh 
 1 ibjections were adduced on the day of trial, the trial was adjourned 
 at defendant's expense, so as to give tlie plaintiff the opportunity 
 to meet the.se new objections just .sprung on him. 
 
 After examination of plaintiff in a patent action, the defendant 
 aiiplied to i)ostpono the trial on the ground that he liad discov- 
 ered new facts, showing the alleged invention was not new at 
 tlie date of the patent, and to amend the particulars. Applica- 
 tion refused : Mjsx v. M„lln(fs, 33 Ch. D., ()i:i. 
 
 Particulars as to First and True Inventor. 
 
 The Hiiglish Act of iiS.SJJ, sec. 20, sub-.sec. 3, does not reijuiro 
 more than general grounds of oVijection, and a statement that the 
 plaintiff vuis nof the true inventor may suJfice : V\de Terrell, 
 1st ed., p. 20S. Ill Ontario, however, it has of late been the 
 practice to re(|uin' the defendant to state who is so consid- 
 ered, although (hi^ mav be diflieult to arrive at ; for where there 
 are sevci-al anticipations, it nuiy be <liHicult to say who was the 
 first inv«'ntor out of the several anticipators, although all may lie 
 anterior in point of time to the plaintiff, and any one may surfice 
 to cut out the plaintiff; besides that the prior invention may 
 luive been a .secret one unconununieated to any one and abandoned, 
 and not suflicient to cut out tiie plaintiff as an independent in- 
 ventor. 
 
 In England the Court will not re([uire tlie defendant to say 
 who was the first and true inventor: Jtiisxcll v. Ledt^am, 11 M. 
 vV VV., 047 ; Jones v. lierger, I Web. P. C, 544, which is more 
 reasonable than the recent Ontario practice. 
 
Sec. 31.] 
 
 PARTICULARS IN ENa. AND U. S. 
 
 .SI 9 
 
 Fraud. 
 
 If fraud be set up, the particulars of the fraud should l>e 
 clearly set out : Russell v. Ledaam, 11 M. & W., G47. 
 
 Costs of Objections in England. 
 
 Where the plaintiff's case in Enj^land breaks down ut the 
 .ijiening, on the ground that liis invention was not a |)r()i)er snl)- 
 jtct for a patent, the (-efendant is not entitled on taxation to his 
 costs of particulars of objections since the Court will not go into 
 tlicso particulars merely to certify to their costs. Costs dis- 
 allowed as to particulars not having certificate of the Judge. But 
 it (Icciiled, on result of cro.ss-examination of plaintitf's witnesses, 
 ami n<»t on validity, the Court may look into particuhirs with a 
 view of certifying. LoiKjhotlom v. t>lniAr,\\\ Ch. ])., 40. 
 
 The Court lias discretionary power as to costs of objections; 
 ^ci^ rarncll v. vl/os', Liddell i- Co., 29 Ch. D., 32."). 
 
 N. B. — In Canada the successful defendant would gft his 
 costs of particulars in any event; in England by sec. 29 of the 
 Act of 1883, the Court or a .Judge has specially to certify us to the 
 cost of particular-s without regard to the general costs of the 
 ca'jc. 
 
 Privileged Communications— when and when not. 
 
 Communications between plaintiff and his solicitor are privi- 
 leged and need not be divulged, but not so communications with 
 his solicitor in the ca])acity of patent solieitor : Mosrlei/ v. Vic- 
 inria Rubber Co., ").') L. T., 482. 11. P. C., vol. .S (ISSG;, \\ '.VA. 
 
 Practice as to Particulars in U S. 
 
 Under Revised Statute 4920, V. S., notice of want of novelty 
 must state the names of prior patentees and the dates <>f their 
 liatiiits where prior patents uiv idied nn, and the mmifs and 
 n'sidcncos of the ])ersons alleged to have had the prioi' knowledge, 
 and where and by whom the thing patentccl was used. Nothing 
 is saiil how j)ri()r publications are to be identihed in the notice, 
 hut the title of the publication and pag(! must he ]»ointed out : See 
 Slip. Ct. decision, S'Usb;/ v. Foote, 14 How., 2lH ( iM.Vi). 
 
 The word " where " and the word " residence ' in the U. S. 
 
 
 i' 
 
 I 
 I 
 
 1 
 
 > 
 
 ! 
 
 ■ 1. 
 
n i 
 
 It 
 
 i '( ■ 
 i ' i' 
 
 320 
 
 PARTIOULARS IN U. S. AND ENQ. 
 
 [Sec. 31. 
 
 statute refer to cities, villa<,'vjs or towns, and not to particuhir 
 houses, factories and farms: Wise v. AUis, 1) Wall., 737 (l(SGi)). 
 
 hy this section 4!)20, notice must bo in writinj^', and must lie 
 served on the defendant or his attorney at least thirty days hi'fore 
 the trial of the case ; it is not the purpose of the statute to 
 oMige tile defendant to give notice of antici])atirig niatter hefoie 
 taking icstlmony, and thus to enable the plaintitf to tamper with, 
 the witnesses. In the States the evidence is taken down and 
 jM'inted before the day of trial, in which respect the practice 
 diHi-rs from that in England and in Canada, wlieie the evidence 
 is heard before the trial Judge on the day of trial. 
 
 Practice as to Particulars in England. 
 
 Defendants were entitled in an action to restrain threats t(i 
 have the particular nuichines or parts of nuichines alleged to ln' 
 an anticipation pointed out : Lan' v. AiikiL'orth, \\. V. C, vol. 7, p. 
 SO (ISKO). 
 
 In an action t<» restrain threats of legal proceedings, no 
 defence can l)e based on the ground that wliat the rUd'endant diil 
 was " liDiiii /idi'," or that it was done on a privileged occasion, 
 r. //., in answer to a {)rivate' empiiry : S/,l)nK'i' d- Co. v. S/i<i>'d 
 6'a(l.S(U{), 1 Ch., 4I.S. 
 
 There need be no piirticulars of objections of " (joiend puhlir 
 h)U)ir't;l</r," this must be jtroved by ordinary cjvidence with ivfn- 
 ence to welbknown books: llnltiiliiij v. Ilcppcitfttdll, li. W ('.. 
 vol. () p. '.i'H\ ( ISNih. 
 
 I'aiticulars allowed i<i be amended on the ovo of trial on tcini- 
 as U) all costs iK'casioind : I'lnhcr v. Mai/nnn Fillir Jii(/iiilt' Cn.. 
 .') R.. r. • '.. p. •207 iH.'SSj ; aUo during trial on terms, the trial being 
 adjourmd to alio"/ of the obbaining of riliabje evidence : llhilnj 
 A- Co. V. biC-iun A r.^ 4 11. r t '. , !««!>). 
 
 The Tateiit Ac:, IS.S.S ;Kng.;, .sec. 'J9, gives th.- Court at tli. 
 trial of a patent actiiti discretion t- go liey')nd the particMlui- 
 of ol)iectioiis, independently of the power of anutidnient of pnriicii- 
 lars. lint, I in v. Il'nm-I,. K. P. C. V .'.. p. 22G (iHSh). gut n 
 wiietber a Court in Cana<hi wuuld exercise hucIi discretion. 
 
 The def«'ndant.s nniMt state which of the plamtitl* -» claims In- 
 
T^T' 
 
 Sec. 31.] 
 
 PARTICULARS. 
 
 321 
 
 alligetl to V)e anticipated l>y tho spocifications cited, and tlie 
 alli'Lfed anticipating machines nui.st be shown ; hut the defenchmts 
 iiicd nut state wiiich chiinis in particular he alleged tu he anti- 
 cipHted therehy : /%(/ v. Farmv, R. P. C, vol. T), p. :V.\ (IS«8). 
 :u h. 'I\, .S0() ; and Il((sl<i„> <i' Co. v. JIdll, 4 R. V. ('., p. '20'). 
 
 huticulars nnist show as to which of the claims caeh of the 
 ol)it'Ctions was pointed ; Ildrris v. liothivell, II. V. ('., vol. :{ (INHO), 
 p. 24:{. 
 
 Ill particulars of breaches the plaintitl may not bo called on 
 t(i Ljivc the names (d" the pei'soiis to whom he alleged the <le- 
 loiiilant had sold, and the dates of the sales, at the early stage 
 of the action : Ra.^sdl v. Hotficfd, R. P. C, vol. 2, p. 144 (IScSS). 
 
 Where tlx- claims infringed were specifically referred to, 
 tliuiigh the pages and lines were not, it was held that sullicient 
 |iiuticular.s had been given: Chunk KivjuHvvlinj Co. v. \\"iIhoi\. 
 W. P. C.,voI. ;}, p. 123(1.SS<J.) 
 
 hefcndant nuist point out what part of the speciHcations relie<l 
 nn were anticipations, and what parts were dainn.'d by plaintili's 
 spt'cification : Foiiier v. G<iiU, R. P. C, vol. 'i, p. 247 (liS«SG). 
 
 I'lirticidars must be given showing, at which of the six claims 
 each of the anticipating oljjections as to publication and usur 
 was pointeti, and the paits of book.s and s[)cciHcations nmst be 
 iiidicatiid without relying on the whole : Harris v. liothiccil, 
 11. !'.("„ vol. .*{, p. 24;J(lH8<i). 
 
 Practice as to Particulars in Canada. 
 
 In Siiiitfi. V. Grecijy 10 J'rac. Rep. (Boyd, C, Noveniber 1 0th, 
 bSN4), on a motion to conmut defendants for unsatisfactory 
 Hiiswersintiieir examination for discovery, it was held that where 
 a party delivers particulars, he will be precluded from going out- 
 Mili them ait the trial, but such is not the rule where he is 
 Lxaniined, and knowledge of objections is iivpiired suUseiiuent to 
 l>is examination. 
 
 lU-nhoiv V. Lav\\% Ch. D., wn.s cited as governing "you nrc not 
 <'iititli'>( to 8CC wliut oviilt'iice your oppuiKiil is preimred to give in HUpport of his 
 
 Hirch V. Mather oiid Crottsley v. Tomey (si^jra) were referred 
 
 41 
 
mu 
 
 V i.1 
 
 i 
 
 i 
 , 'i 
 
 J] 
 
 
 M' 
 
 822 
 
 PARTICULARS. 
 
 [Sec. 31. 
 
 to. There is no Icirislution in Ontario similar to that in tlio 
 Enj,'Iish Patent Acts as to particulars. 
 
 In iSmith V Grcoij, 10 Prac. Kej)., the Chancellor lieM that in 
 (Ontario the ijeneral law applicahle to tliseovery fjoverns in jiatent 
 eases. 
 
 A defendant may lie proverly intoiTo^^'ated as to the !^nd\m(l> 
 of attack iiin- a plaintiff's patent, and there should he a fair jiikI 
 full disclosuii' of the particular lines of attack, but no such indi- 
 viduali/in;,' of the jH-rsons who are alleiffd to he juior users as 
 would eiuihle the plaiiitifl to fix upon the defendant's witnesses. 
 
 Prior to \]\i' foreuoin"' decision, the practice in ( >ntario had 
 heen to ohtaiii the names and ad<lresses of jtrior users, hut in 
 Smith V. Ihaamn'art (KJth May, ISM.')) followed the foregoing' 
 decisioti, tlie intnu's ami inhhrsscs were excluded. 
 
 However, on /'>l/i Ma^/, JSS',, in SmU/i v. (iire;/ (No. 2), on an 
 .■t|tpeal from an order of the Master in ('hand)ers, I'roudfoot, J,, 
 made an ordi'i' whereliy the names of priDr usn's, as well as ///( 
 '/«/r.s' (I lit/ (in-Kslons (if Hiicli use, wero ordei'cd to he ^dvun, revert- 
 ini,' to the old practice. 
 
 This .same (pjestion came up in Smith v. (nrci/, II I'rac. H. 
 Ont., p. I(j!>, hefore the Chancery Divisional Court, Dec. ;<nl, 
 l^^"), on . •Ill appeal from the judifment refeired to of l'r()udf( >t, 
 .1., on the j)art of ilefendants, and so far as ifiviiii,' the names of 
 the pi'ioi' iiHi'is has settled the practice in ( )ntario. 
 
 In thi;i ease the del'endants denied the novelty of the InNcn- 
 tioiis, and that the plaintifl' was the Hrst and true inventor. 
 
 Jlclil (Hoyd. C., disst-ntinjjf), that the defendants shonlil 
 • leliver particulais under these defences, showing in what res|u'et 
 the defendants deny that the plaintiff's patent was for any new 
 machine, I'tc, and the dates and oeea-iions when, aiiil the j>hicis 
 "■linr, the prior user of said invention or any material part took 
 jilace, an<l also the names of the persons by whom the prior 
 user was had. 
 
 iJoyd, C,, who dissented, was of opinion that in the ahsence 
 of anj' h'i^dslation or Rules of Court \\\nm the suhjeet, the .Judy;e 
 has no pov/er or right to prescribe so minutely what shall he dis- 
 closed in particulars, and that the statute, ',i') Vic, e. ^(i, sec. :'+ 
 
[Sec. 31. 
 
 ,0 that in the 
 
 • heUl that in 
 erns in patent 
 
 to t!u; j^rtiniiiU 
 1)0 a fair iiii«l 
 D no such inili- 
 ■ prior users as 
 lilt's witnesses. 
 in < )ntarit> liad 
 y users, \>\\i in 
 the l*(»rei,'oin^' 
 
 / (No. 2), on an 
 S ProuiU'oot, J., 
 i, as well as the 
 10 iriven, revert- 
 
 V, 1 1 Prac. U. 
 'ouit, J)*'e. ;<i'l, 
 1 of rrouilf' it, 
 
 <_r till' iiaUK'S of 
 
 (if the iiiv.ii- 
 
 iiiventui'. 
 ndaiits shonlil 
 ill what resptct 
 lis for any luw 
 tiitil (he {>l<i<'<^ 
 tt-rial part took 
 
 houi the l)ii"V 
 
 ill the ahsenir 
 ,j('ct, the .liuliiL- 
 lilt shall he .lis- 
 ic, C. '20, sec. i* 
 
 Sec. 31.] 
 
 PARTICULARS. 
 
 323 
 
 (Can), now .sec. 'M, Patent Act, <,'oe.s no further tlinn to justify 
 siicli <,'eneral order for particulars as is usual in other cases. 
 
 [Note. — The order should have been extend«Ml to the present 
 aililre.sses of the prior users, and the headnote in Smitk v. Greey, 
 11 I'lac. U. (Ont.), is defective in that no reference is made to the 
 jilaces where the prior user took place, for insertion in the order,] 
 
 Aj)art from s|)ecial legislation the Court can jirevent surprise 
 nil iiiisadventun! hy re<^'ulatin<j the prcjceedings : Ehdric Tit. 
 Co. v. Xoff, 4 C. li., 4G2. 
 
 r.oyd, ('., held that the matter of practice was settled hert; in 
 .l/;//.s' v. Scott, ri {].C.,(l B. II.. .'{(iO (l.SoO), that the defendant 
 was not hound to ^dve the names of prior users, and that there 
 li!i<l heen no change since. 
 
 Keri,Mison, J., held that sec. 2+ of the Patent Act of ls7"2, 
 
 wliicli first appears in the Patent Act of 1809, ;.;avi- jin-isdietif)n ; 
 
 iiid as in Canada wo had no s))eeial legislation as in Kuifland, 
 
 the enactments ami practice in Kn<,dand should j^ui«lo, ami the 
 
 'I'll r of Proudfoot, .!.. was not too comprehensive. 
 
 In Mi:ikin<f an order for paiticiilars of the defence the Itetter 
 jiractice is to provide merely for exclusion »jf evidence in case of 
 !in |iarticulars or insutlicient particulars In-in^j delivered, and \h)t 
 U) order the excision of the defence if <,'ood per se. 
 
 .\nd wlu'n hoth excision of the pleadin;.,' and exclusion of the 
 ■viijiiiee were pro\ided for in an order, 
 
 //'A/, that the decision of a .Iud<,'e in Chamlu-rs in strikini,' 
 '111 llie provision for excision ^va^ rii;litly exercised: .See Ao.'O/t 
 V. I'uifcrson, Can. I.. T., vol. 14, p. M. KJ Pr.nc. R., Ont., p. -tt) ; 
 til. judgment is reported at length in HI Prac. U., Ont. 
 
 The Master in the Hrst instance ordereil hoth. Meredith, .1 , 
 m aiipea', llth I )ec., l.S!).*}, strilek out that part of the oi'der re- 
 iiitini'; to the excision of defence. ( )n ajipeal to the Divisional Ut. 
 'liy. on 22nd .Jan., 181)4, judgment was given upholding 
 •Ml Tclith, ,)., costs to defendants in any event. 
 
 lioyd, (,'., states in oH'ect, that the piactice a:> to particulars i.s 
 t Summon Law origin, and that the usual form wa.s to stay all 
 
 f ' 
 

 32+ 
 
 PARTICULARS. 
 
 [Sec. 31. 
 
 ! 
 
 5 ' 
 
 ))i-()ct'c(lin;,'s till tlicy wdc <lcliv('r(Ml, ami tliat llulf 4.').s, Foi-ins 
 Mi-, I'.V.i, apply tt) plaintifls in Ontario, lait no form is ;^fiv(ii 
 ai"plicalil(' to <lL'tVn<lant.s. IJy 15, IG Vic, c. s:}, sec. 41 (Inipi. 
 parliculurs are to 1)0 <fi\vu of lircaclu's coniplainiMl ol', and l>y tlr- 
 fentlants of olijoctions lolifii mi : I'^linrr v. ('onjirr, U Kx., 'I'W ; 
 tAstti V. Lfdther, 2 K. \ 15., p. I().'{<). in which tlu; pi-nalty inr 
 (U'fanit was that no cvidcncL' shonhl In- allowoil, and that in 
 t'hitty, llth vi\.. |ip. '2\0, '2l\ tlieru was an aitfi'tiativc oidii 
 cither to cxcludi' cvidt lift' or strike out tltdence, Imt this dm- 
 not ol)tain in patent cusi's. 
 
 In Canaila wc* should have legislation lieariiii,' on the i|nesti.iii 
 of particulars in patt-nt suits in the same way hs in Kny,land aii'l 
 the United States. The names and ])laces of residence of ])rii)r 
 users were rc(|uired to lie furnished in the States Ky tli.' 
 Patent Act of ls:{(i. in En^dand now Ky the Act of l.SS.S l-uth 
 time and place of [)rior user is retjuired to he finnishcd, Imt tin- 
 luunes are overlooked in the Act, thouj^di they are also rei|iiii.<l 
 Ity numerous judicial decisions. 
 
 Our Con. Stat., Can., c. *]4, sec. 20, suh-sec. 2, enacts that in 
 " scl. fa." proci'cdinj^'s the |»ractice of tlie (j)ueen's Mench in Kiii,'- 
 land shall prevail, whereby particulars of olijections had to be 
 di'livered with the pleas. This is still tho practice. 
 
 In lUiU anil Socket Fasffucr v. Kmitzer (decided Nov. <Itli 
 l.S!»:}j, Sup. Ct., U. S., (i.5 O. (J., p. l.^'H, where the appellee lia^l 
 encunjhered the record witii copies of somt; tifty innnateri.ii 
 patents, lie had to j»ay half the cost of printinj^ the recoril, 
 following; liaili'.'aij Co. v.Stnvart, !)5 U. S., 270-284, and the Idth 
 Rule of Court. 
 
 In t)ntnrio we .should also luvve n Rule of (>ourt (tn tlii^ 
 (juestion. 
 
 The objection tlint the plaintiff is not " the first and true in- 
 ventor," si ould not be introduced, unless it is intendeil to raise 
 the (jue.stion whether he or Homebody else was in fact the tii>t 
 and true inventor: Thompson v. Macdonald, R. P. C, vol, S 
 (KSOl). p. <>. 
 
Sec. 32.] 
 
 DISCLAIMER BY THE COURT. 
 
 '\2n 
 
 •» ». Wlu'iicvur the |iliiiiitiir, in lUiy siuli nclioii, faiU to xuBtain liin nation. 
 1m(;iiihi< liJH B])i't'ilii'.iti<in .mil cliiiin fml)ra(.'L' iiutro than tliiit of wliiuli lu' wim tlif 
 'ir."' invt'iitor. luul it iiiipciUM that tin- ilcffiKlaiit nsccl or iiifrinntMl iiiiy ]iart >>i tlif 
 rivi iitioii justly ami tiiily >.|M'cilitMl aii<i I'laiincil an new, I lie court may iliHciiiniiiati.', 
 —ami tliL- juilgmcnt may lie iiiii1«i<m1 accord iii),'ly. .Ti \'., r. •_•(>, s. •«'.'». 
 
 Disclaimer by the Court. 
 
 .NoTi;. This .scciioM is ill cli'ccL aLraiii Lnvini: the ( 'uiirt the 
 linwcr of " ilisclaiiiicr " alicad}' icIVrrtMl to UM<lfr srction 2n, notes 
 I'-Miiid (f) ; so ji pati'iitt'L', in (.'anadn. 1ms unlimited chances of 
 Miiieinhnent under sections 24. 2S and 'i'2 : this .section may have 
 liii'l its oiiijin in 1 1' \'ic.. c. '2k 
 
 It refers to a case where the speciMcation and claim are too 
 I'lciaii ; ai'd to a s|iecilication with nn\y Diff dniui ; if it were 
 1' I'l ralihi to a specilication with srririil chiinis, one mi;,dit under- 
 >t;ind reailily how the phiintili" miL,'ht hi' held entilleij to succeed 
 I- I" the \alifl claims which had lieen inlVinued, while as to the 
 in\ .did (,'laims sueil on they mi-^ht lie ahandonod, and a set-oti' 
 wiili respect to costs Incurred hy lirinj,dn^' them into suit, mi^^dit 
 I '■ made liy the Court. 
 
 I> is a rare case, when a patt-nt includes a ninnliei- of claims, 
 ii:ai ail of them ai'e included in an infrin<fcnient suit, infrinoe- 
 iiii'iit, as a matter ol" fact, ;^'eni!rally taUes place with respect to 
 "II' or two out of half a dozen or nioi'e (ilaims. 
 
 The only case in which a speeilicution with one claim may 
 ' iiilirace moi-e than that of which the |)atentee was the first in- 
 vi iitor, and yet afti'r elimination of the ohl, leave somethiui,^ for 
 'III- defentlant to infrino-e, which renuiant has ljet>n .justly an<l 
 truly claimed as new, would lie in ^uch a ca.se as Tuck v. Jiram- 
 i'ill. <i I'.latch., !)') (IS(5,S), refi-rred to un.lei' note (f), «cc. 24, 
 where the claim was f<ir"<' jKuki ii<f for j)isti)ns" si) cut that 
 'lie thread or waip shall run in a <lia'4onal direction fiom th(^ 
 iiie or center of the roll of packino and rolled into form either 
 ill I'onnecrtion with the India ruhher core or other elastic material, 
 '" ii'ifhovi, as herein .set forth.. 
 
 Here snch a thine; without a core was old which the patenttH^ 
 li-claimed, leaviui,' the rest of the claim valid and etit^ctual. 
 
 Now the Patent office here a.s well a.s in the U. S. object to a 
 
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 326 
 
 DISCLAIMER -DEFENCES. 
 
 [Sec. 32-33, 
 
 claim in the alternative form, such as stated, and it would almost 
 surelj' be rejected ; possibly the section 32 did not contemplate 
 this case, what then did it contemplate ? for it is of Canadian 
 origin and unlike anything in England or the States. 
 
 This section is also contradictory, for if the specitication and 
 claim embraces more than that of which the patentee was the 
 first inventor, how could the defendant use or infringe any part 
 of the invention justly and truly specified and claimed as new, 
 except in the very rare and obsolete alternative form of claim 
 referred to in Tuck v. Bramhitl {supra), from the context it 
 would appear that \^ should be read in the plural, claims, which 
 would make the section intelligible. This is the fourth method 
 we meet with in ou At to cure or avoid the effects of a defective 
 specification, which, then as now, are very numerous ; the section 
 might be made to mee, icdern wants by putting " claims " in tht- 
 plural, and as each clfi^. , ..i we have shown, stands for a separate 
 invention and maj' be vievred iu the light of a separate patent, 
 the Court is then in position to discriminate with respect to any 
 of these claims which are valid and have been infriniied : Hiuiter 
 v. Carrick, 28 Grant, Cli. R, Ont., 489 (1881), is a case in point. 
 
 This section 32 provides no method for correcting the de- 
 fective specification and claim, as is the case in sections 24 and 28. 
 
 ■■* . 
 
 •»•». The defendant, in any such action, may plead specially as matter of 
 defence, any fact or default which, hy this Act, or by law, renders the patent void : 
 antl the Court shall take cognizance of that special pleading and of tlie facts con- 
 nected therewith, and shall decide the case accordingly, '.i'i V., c. 2(i, s. 26. 
 
 Note. — This is the same as in the Patent Act of 1872, only 
 that " would render " now becomes " renders." The defences to a 
 suit for infringement of a patent are very numerous, and most of 
 them peculiar to this branch of the law. 
 
 Defences in a Patent Suit Enumerated- 
 
 The defendant may plead (I) that the subject matter of the 
 Letters Patent was not the statutory subject of a patent ; or (*••) 
 that it was not an invention ; or (3) that it was not novel at the 
 time of its alleged invention ; or (4) that it was not useful at 
 
Sec. 33.] 
 
 DEFENCES IN A PATENT SUIT. 
 
 327 
 
 that or any time ; or (5) that the inventor had actually aban- 
 doned the invention before application was made therefor ; oi- (ft) 
 that the inventor had constructively abandoned it by allowing 
 it to be on public use or on sale ivith his consent or alUnv- 
 ance for more than one year before such application ; or (1) 
 that the invention claimed in the original patent is substan- 
 tially different from anything indicated, suggested or described in 
 the original application therefor; or (8) thot the patentee 
 .surreptitiously or unjustly obtained the patent for that which was 
 in fact the invention of another who w.as using reasonable dili- 
 gence in adapting and perfecting the same ; or (t>) that the in- 
 vention was made by another jointly with the sole applicant ; or 
 (10) that it was made by one only of two or more joint appli- 
 cants ; or (11) that for the purpose of wilfully misleading the 
 puhlic the specification and drawings contain more or less than is 
 neces.sary for obtaining the end for which they purport to hv 
 maile ; or (I'-i) that some material allegation in the petition or 
 declaration of the applicant was untrue ; or (tli) that the descrip- 
 tion of the invention in the specification is not in such full. 
 clear, concise and exact terms, as to enable any person skilled in 
 the art or science to which it appertains, or with which it is most 
 nearly connected to make, construct, compound and use the same : 
 or ( 1 4) that the claims of the patent are nebulous and indis- 
 tinct, and do not embrace operative combinations or processes ; 
 or (I."*) that the patentee unreasonably delayed to enter a 
 needed disclaimer ; or (H») that the original patent was surren- 
 dered and reissued in the absence of every statutory foundation 
 therefor; or (IT) that the claims of the reissue Patent are 
 liroader than those of the original, and that the reissue was not 
 applied for till a long time had elapsed after the original was 
 granted; or (18) that the reissue Patent in suit covers a ilifier- 
 eiit invention from any suggested, indicated or described in the 
 ori^•inal specification and drawings ; or (It)) that the patent had 
 been repealed by " sci.fa.," or that i)roceedings were pending ; or 
 C'O) that the patent legally expired before the alleged infringe- 
 ment began ; or ('-Jl) that the plaintiff has no title to the patent, 
 or no such title as can enable him to maintain the action ; or 
 
~ ._ ^^■x^MM'i^^'^^ 
 
 ^HBH 
 
 IT- U 
 
 '.■ I 
 
 328 
 
 DEFENCES IN A PATENT SUIT. 
 
 [Sec. 33. 
 
 V i 
 
 |i 
 
 •I !| 
 
 11 
 
 t J 
 
 
 (!42) that the defendant has a license, which authorized part or 
 all of the thinos which constitute the alleued infrint-enient; or 
 (?i3) that the defendant has a release discharging him from lia- 
 Itility on account of part or all of the alleged infringement : or 
 (34) that the defendant is not guilty of any infringement of the 
 patent on which he is sued ; or (35) that the plaintiff is estopped 
 from enforcing his right of action or setting up cause of estop|)el ; 
 or (30) that the plaintiff has not within two years of the date 
 of the patent, or of an authorized extension, commenced to manu- 
 facture in Canada, and after connnencement, continuously carry on 
 the construction of th.e invention patented in such a manner that 
 any person desiiing to use it may obtain it or cause it to he 
 made for him at a reasonable ])rice at some manufactorj- or 
 establishment for making or constructing it in Canada ; or 
 (3T) that after the expiration of twelve months from the grant- 
 ing of the patent or any authorized extension of such period for 
 one year, the plaintiff had imported or caused to be imported into 
 Canada the invention for which the patent is granted ; or 
 (38) that the patent had not been applied for in Canada within 
 one year from the date of the issue of the first foreign patent for 
 the sam ' invention ; or (3*>) That more than three months after 
 the date of issue of a foreign patent for the invention, the defen- 
 dants had commenced the n^.anufacture of the article so patented 
 abroad, and that the Canadian patentee had not given the notice 
 required under sec. 8 of the Patent Act ; or (30) that the 
 patented invention had been described in a book, or other printed 
 publication before the date of the application therefor ; or 
 (31) that the i)atented invention had been previously described, 
 or described and claimetl in (Canadian or foreign patents ; or 
 (33) that the alleged infringing article was the specific article 
 manufactured prior to the issue of the Canadian Patent ; or 
 (33) That the patent on which the action is brought is not pro- 
 perly signed or countersigned, or sealed with the seal of the 
 Patent Office ; or (34) That the action was brought after the 
 expiry of the Letters Patent ; or (35) that a prior foreign patent 
 limiting the life of the Canadfan patent had expired prior to the 
 act of infringement complained or of the bringing of the action 
 
 illli 
 
Sec. 33.] 
 
 DEFENCES IN A PATENT SUIT. 
 
 329 
 
 fcment : or 
 
 as the case may be ; or (30) that the patent on which the suit 
 i>; iii'ought does not clahnand cover an art, machine, maniifactnre 
 (ir composition of matter, or any impi'ovement thereon, but does 
 claim and covers an abstract principle ; or (3T) that the said 
 alleged invention had been known or used prior to the allei^etl 
 invention thereof; or (J5H) that the said patent on which the 
 action is brought luis an illicit ol)ject in view (setting out the 
 illicit object) ; or (IJO) that the alleged invention is merely the 
 result ot mechanical skill ; or (40) that tlie alleged invention 
 was merely the substitution of a known '" meclianical equiva- 
 lent " or" ecpiivalents " for a part or parts of an existing machine, 
 ()]• the substitution of a known " chemical etpiivalent " as the 
 case may be; or (41) that it is not a combination but a mere 
 'aggregation" of elements; or (4*i) that it was merely a dupli- 
 cation of parts without change of function; or (43) that it was 
 iiierel}' the omission of an element without any n(^w mode of 
 ojtoration of the parts retained; or (44) that it was merely a 
 change in form or size without the production of any new mode 
 of operation. 
 
 The first fourteen defences relate to original ])atento and any 
 one of them if maintained might void the patent ; as to the effect 
 of unreasonably delavino- to ent' r a needed disclaimer: Vide 
 ilisclaimer : there is great latitude in Canada with respect to dis- 
 claimers ; the first fourteen also relate to reissue patents, for many 
 of the original faults are retained in reissue patents, although 
 patents are surrendered and reissued for the pui'pose of curing 
 faults occasional through inadvertence, accident or mistake. 
 
 As to the first six defences : Vide notes sub-sees. 1 and 2, 
 sec. 7 and sec. IG. 
 
 As to the defence under number (J, ante, it may be specially 
 noted that in the Court of Appeals, District of Columbia : 
 
 [n re Daniel Drav'baiKjh, 07 O. G.. p. !)28, (decided May 7th, 
 18!)4), with reference to the words of ti:o U. S. Act, " not in public 
 use or on sale for more than two years prior to iiis application," they Were 
 held to mean the creation of a limitation of two years within 
 which a patent of invention must be applied for after it has gone 
 
 
 48 
 

 [ 1 
 
 
 
 
 IMiit 
 
 
 r-tJh 
 
 
 
 
 
 M 
 
 ;■! •';i>i' 
 
 1 
 
 ^ ■• 1 
 |- ! 
 
 i 
 
 1 
 
 H'f 
 
 1 
 
 ■t':^ 
 
 
 
 r :■ 
 
 
 ifl 
 
 1;; 
 
 4f^ 
 
 r!i 
 
 i 
 
 380 
 
 DEFENCES IN A PATENT SUIT. 
 
 [Sec. 33. 
 
 into public use, either vj'ith or ivitliout the knowledge, consent or 
 allowance of the applicant. 
 
 The original U. S. Act of 1793 was interpreted by the Su- 
 preme Court in Pennoch v. Dialogue (2 Peters, 1), as if the words 
 " with the consent or allowance " had been included therein, and 
 the U. S. Act of 183G inserted the words " with the aitplicaatii 
 consent and allowance." 
 
 In Andrews v. Hovoj, 123 U. S., 2G7 : 124 X:. S., 094, tlin 
 patent had issued under the Act of 1S39, when the words •' v:ith 
 the consent or allowance " had been omitted : after full considera- 
 tion and motion for rehearing, it was held, all the Justices of thy 
 Sup. Ct. U. S. concurring, that two years public use of an inven- 
 tion, before the application was made, whether with or without 
 the consent of the patentee rendered the patent invalid. 
 
 As the present U. S. section 4!S86, like the -Act of 1839, has 
 no reference to the consent of the applicant, an<l is held to mean 
 " with or without the consent, etc.,'' re Daniel Dra.-> >av.<jh, supro.. 
 it is a question whether the provision of our section 7 '' I'.'ith th>: 
 consent or alloiuance of the inventor thereof" is to be read like 
 the U. S. section as " ivith or without the consent ' so as to make 
 one year's use prior to the application for the patent in Canada, 
 even though u'ithout the consent or allowance of the inventor 
 fatal to the validity of the patent. 
 
 Following the maxim " expressio itniits exclusio alteriiis" the 
 wording of our section " with the consent or allowance of the invontoi- 
 thereof' may be taken to exclude the converse, so that an un- 
 authorized iise for more than one year prior to the application 
 should not be fatal to the validity of a Canadian patent. 
 
 It may also be noted that the U. S. Act of 183d refers to " //*' 
 consent of the applicant," while section 7 of the Canadian Act 
 refers to the consent of the inventor ; as the applicant may \v<i 
 be the inventor the term "applicant" is much better, being more 
 comprehensive, and our section should be amended in this respect. 
 
 As to defences numbers 9 and 10 : Vide Part IX, Assignments. 
 
 As to defences numbers 11 and 12 : Vide notes to sections 10 
 and 28. 
 
 As to defence 13 : Vide note (a), sec. 13. 
 
Sec. 33-34.] DEFENCES IN A PATENT SUIT. 
 
 331 
 
 Defences 16, 17 and 18 directly assail reissues as reissues : 
 Vide Part VII., Reissue of Patents, p. 172-194. 
 
 Defence 19, if " sci. fa." proceedings were pending, a stay of 
 action might be obtained until the " sci. fa." proceedings were de- 
 termined : Vide section 34. 
 
 Defence 20 will be available when the patent has expired 
 through non-payment of fees, or after having lived its full term. 
 
 Defence 21, as to the question of title : See Part IX, "Assign- 
 ments." 
 
 Defence 24 : See " infringement " under section 31. 
 
 Defence 25 : See " estoppel " under notes to section 26. 
 
 Defence 26 and 27 : See notes under section 37. Even before 
 the jurisdiction of the Minister of Agriculture, and his Deputy 
 was taken away, it was held by Mr. Tache in the Telephone Manii- 
 faduring Co. of Toronto v. The Bell 'Telephone Co. of Canada : 
 See Appx. 2, vol. 2, Exch. Ct. R. (Can.), p. IS, Revue Legal 463 and 
 9 Legal News (Que.) 27, that under section 33, "any fact or defauli 
 
 which by this Act or by law wouhl reiuler the patent void " includes t.liat 01 
 
 nou-manufacture and " importation " under the 37th section, 
 which might be pleaded, though the question was to be decided 
 at that time exclusively by the Minister of Agriculture or his 
 Deputy. The section was, however, at that time somewhat in- 
 consistent, seeing that the Minister had " exclusive" jurisdiction ; 
 now, although in the same words, as then, it is quite consistent. 
 Defences 28 and 29 : See notes {a), (b), (c), under sec. 8. 
 Defences 30 and 31 : See notes (d) and (e), section 16. 
 Defence 32 : See note to section 46. 
 
 See section 21 of Patent Act. 
 See note (d), section 8. 
 See sub-sec. 2, sec. 7. 
 Defences 37 and 38 : See note {d), section 7. 
 For defences 39 to 44 inclusive : See note (a), section 16. 
 
 Defence 33 : 
 Defence 35 : 
 Defence 36 : 
 
 ill 
 
 •»4. Any person who desires to impeach any patent issued under this Act, 
 may obtain a sealed and certified copy of the patent and of the petition, affidavit, 
 specitiuation and drawings thereunto relating, and may have tiie same filed in 
 the ofiioe of the prothonotary or clerk of the Superior Court for Lower Canada 
 in Quebec, or of any of the divisions of the High Court of Justice for Ontario, or 
 
 ) . 
 
m 
 
 332 
 
 IMPEACHMENT BT SCL FA. 
 
 [Sec. 34. 
 
 7 fi 
 
 I 
 
 ill 
 
 of the Supreme Court in Nova Scotia, or oi litt srapreme Court in New l>ruiis 
 wick, or of the Supreme Court of .Tudicatm* m Priace Edward Ishinii, or c)f tin 
 Su|)remc Court in British C'olumliia. or of t]ie Co<imrn ot t,fneen's Bench in Manitoba, 
 or of the Supremo Court in tliu Nurth-'WetiT Ttsnrnsociea, acuurdin^ to the domicile 
 elected by the patentee, as aforesaid, o.- in JlL* lotBoe of the Registrar of the 
 Kxche(juer Court of Canathi, — which courtfi. iit»|)*ci;1iively. shall adjudicate on the 
 matter and decide as to costs : and if the dtamkile elected by the patentee is in 
 the District of Keewatin, the Court of <i>Qti«a* Kenoh of Manitoba shall have 
 jurisdiction until there is a superioi' court im untfc Lfetriot, after which such supe- 
 rior court shall have jurisdiction. 3."> V., c. fW, *. 29'; 37 V., c. 44, s. 1 ; 38 V., 
 c. 14, s. 8 ; 4!) V., c. -'."), s. 14. The Tat^nt Ata (.l!>S«). .13 V., c. 1.3, s. 1. 
 
 2, The jiatent and documents aforesaid Hbuffl then be held as of record in such 
 courts respectively, so that a vi'it of ncirt /ia,ni,%-i under the seal of the court, 
 grounded upon such record, may issue for tibt irefeal of the patent, for cause as 
 aforesaid, if, u])on ju'oceedings had ujkju the mT-H ia accordance with the meaning 
 of this Act, the patent is adjudged to l)e vf>.,i. 35- V.^ c. -Q, s. 29 ; 37 V., c. 44, 
 s. 1 ; 38 v., c. 14, s. 8 ; 49 V., c. 25, b. 14. 
 
 This sub-section 1 was suUstitutrt^l W the .-unending Act of 
 1S<)0 for sub-sec. 1, sec. 34, of the Piiilteiiiit Act of 188G, Revised 
 Statutes (Can.). The only differeiiiCTr Wing that in addition to 
 the Courts named in the Act of !>*>*;. the Exchequer Court of 
 Canada was indicated wherein ]'ioc-.bciiiiiiu'-> mio-ht be taken for 
 the repeal of a patent. 
 
 Section 29 of the Act of iSTf Inad a similar provision, and 
 contained both sub-sections 1 and tt "A this Act ; but the CVnnts 
 only in Queliec, Ontario, Nova Scotia, New Brunswick, Manitoba 
 and British Columbia were alluded to: the ten Courts mentioned 
 in the present section indicate th*- expansion of the J^ominion 
 since 1872. 
 
 ":| 
 
 Sci. fa. First in 1849 in Caxiada. 
 
 Proceedings for the re])eal of a |)ai6ent by sci. fa. were tirst 
 introduced by sec. 17, 12 Vic, c. S-l. the Patent Act of Canada, 
 1849, and were required to be institimtifeil within two years of the 
 date of the patent, or in the term ol «,*<.»nrt next after .said two 
 years, and not after. This provisiom again appears in sec. 20 of 
 the Consolidated Statute of Canada, ic. 34 (1859). 
 
 Besides the provision of the Co«*>Iifiated Statute of Canada 
 (1859), c. 34, by Consolidated Statute of Upper Canada, c. 21, 
 
Sec. 34.] 
 
 IMPEACHMENT BY SCI. FA. 
 
 :}33 
 
 22 ^ IC. (18.59), "An Act respecting the practice anil procedure in suits insti- 
 ttittil on belialf of the Crown in matters relatini; to tiie revenue and the repeal of 
 
 Letters Patent " was passed, whicli |)rovi(]e<l tluit Superior Courts in 
 Upper Canada might issue writs of " scire fdc'ias " to repeal Let- 
 ters Patent, and that the practice shall be the same as in Eng- 
 land, and that the fiat of the Attorney-General was to he obtained 
 and that an exemplification of the Letters Patent was to be tiled, 
 on which the writ of '^ scire facias" was to be founded. 
 
 The writ derives its name from the fact that the sheriff by 
 his warrant to his Vtailifis directs tliein to make known (scire 
 facias) to the defendant that he ap'pear in the Exchequer Court 
 within days of the service of the writ on him. 
 
 In Rerjina v. Pa.tee, 5 Ont. Prac. Ptep., p. 292, Jan. .5th, 1871, 
 a " sci. fa." to set aside a patent was issued at the instance of a 
 private relator without the fiat of either tne Attorney-General 
 of the Dominion or of Ontario having been first obtained : Held, 
 that a fiat was necessary, and the Attorney-General of Ontario 
 was the proper party to grant it. 
 
 This decision has not been followed in Ontario in the only 
 case we have subsequently reported ; the fiat was that of the 
 Attorney-General for the Dominion, dated Jan, 23rd, 188.5: Regina 
 V.Smith, 7 Ont. R., 4-l() ; Rcgiua v. Patee, probably followed the 
 Upper Canada Act, 22 Vic, c. 21, just referred to. 
 
 In Attorney-General and Bate, 27 L. C, Jurist, and 6 L. N., 
 271, Sup. Ct. R. (1883), (Taschereau, J.) " Sci. fa." to set aside a 
 patent under 3.5 Vic, e. 20. Proceedings had been taken in the 
 name of the Attorney-General of the Province of Quebec, and 
 objection was made that action could only legally be brought 
 in the name of the Attorney-General of Canada. The action was 
 dismissed. Confirmed in the Court of Review. 
 
 Since the Patent Act of 1869, the two years limit within 
 which " sci. fa" proceedings were to be instituted, has been 
 dropped out. 
 
 Proceedings for the repeal of patents by " sci. fa." have 
 hitherto been rare ; the new jurisdiction of the Exchequer Court, 
 hereafter referred to, will, however, add to the number of reported 
 cases. 
 
I'p'^i 
 
 (I i 
 
 334 
 
 IMPEACHMENT BT SCI. FA. 
 
 [Sec. 34. 
 
 ljiMi|'i 
 
 First "Sci. fa" Case in Canada. 
 
 The earliest case reported in Upper Canada is IVte Queen v. 
 Hall, 27 r. C, Q. B. (1807). 
 
 Held, that the eft'ect of Consol. Stats. (Can.), c. 34, see. '10, 
 sub-sec. 2, enacting that the proceedings, on "sci. fa." to repeal 
 a patent shall l»e according to the law and practice of the Court 
 of Queen's Bench in England, is to introduce the Imp. Act, 
 15 and IG Vic, c. 83, of 18.52, the Consol. Act taking effect .")th 
 Dec, 1S.5U, and that leave to deliver particulars of the breachen, 
 Avhich shcndd have been delivered with the declaration, could only 
 be granted as if the declaration were delivered " de novo" that as 
 n jui'v had been sworn in, this, therefore, could not be done, and 
 a verdict was jtroperly directed for the defendant. The Court 
 on a motion for a new trial allowed the plaintiff to deliver parti- 
 culars on terms. The patent related to improvements on lumber 
 waggons, and it was suggested that the defendant was not the 
 tiue inventor, but that one Thompson Smith was. 
 
 This tleeision still holds good, and it is necessary to file par- 
 ticulars along Mith the declaration in sci. fa. proceedings, tlie 
 English practice laid down in the Imp. Act of 1852 being still 
 followed. 
 
 B}' the Imp. Patent Act of 1883, sec. 26, the proceeding by 
 " scire facias " to repeal a patent is abolished in the United 
 Kingdom, and revocation of a patent may be obtained on petition 
 to the Court. 
 
 Common Law Right of Crown to Repeal (Bng.). 
 
 If it appears that the Crown, in granting Letters Patent, has 
 been deceived in any material particular bj'' a false representa- 
 tion or suggestion oi the grantee, the Crown had by common law 
 a right to proceed by "scire facias" to repeal and cancel the pa- 
 tent : Bex V. Butler, 3 Lev., 220, 221 ; it was also available for 
 anj- subject who could show that a void or illegal patent operated 
 to his prejudice : Bex v. Aires, 10 Mod., 354, and as every one 
 was assumed to be prejudiced by an illegal patent, all were en- 
 titled to institute an action on obtaining the fiat of the Attorney- 
 General : Vide Form 42, Appx. 2, giving leave to sue in the 
 
Sec. 34.] 
 
 IMPEACHMENT BY SCI. FA. 
 
 335 
 
 name of the Crown. The tiat is only granted on comlition that 
 the prosecutor provided a sutHcient bond ; Vide Form 43, Appx. 
 2. to secure the defendant his taxed costs as between attorney and 
 clit'iit, in the event of the patent not being annulled. 
 
 The writ is in the nature of a pleading and sets out the eftect 
 of the patent and the suggestions upon wliicli the prosecutor 
 sL'oks the repeal of the patent (vide Appx. 2, Form 44), and 
 miiy include anything which shows the ])atent was originally 
 vniil, or that it had become so since it was made. 
 
 The writ is directed to the Slieriii to sunnnon the defendant 
 to ai)i)ear in any of the Courts mentioned, to show cause why 
 the said Letters Patent .should not be repealed. 
 
 Upon the retui'n of the writ the defendant enters an a]>pear- 
 ance. The prosecutor then files and delivers his declaration : 
 Vide Form 47, Appx. 2, along with his particulars of objections : 
 Vide Form 4S, Appx. 2, and the defendant his pleas : Vide Form 
 49, Appx. 2, or demurrer if the matters alleged in the writ are 
 not sutKcient to repeal the patent. 
 
 Stay of Proceedings in a Suit while " Sci. fa." Pending. 
 
 In Smith v. Uj^ton, G Mac. & G., 251 (Tyndall, C. J.), the 
 Court stayed proceedings in an action for infringement, to await 
 the result of a motion pending on a "scire facias" upon the 
 terms that the phiintiff should pay the defendant any costs which 
 \w may have incurred in preparing for trial, and the costs of the 
 motion in the event of the patent being annulled. 
 
 Repeal in Great Britain by Proviso in the Grant. 
 
 In the United Kingdom under a proviso contained in the 
 grant, the Crown has the right to annul the Letters Patent for 
 oause shown without any proceedings by petition, or otherwise, 
 this is also by common law an old prerogative of the Crown (4 
 
 Inst. 88). 
 
 Grounds for Repeal. 
 
 Most of the matters which may be set up as a defence to an 
 action of infringement : Vide notes to section 33 are grounds 
 upon which patents Inay be sought to be repealed. 
 
iium 
 
 33G 
 
 PROCEDURE BY SOI. FA. 
 
 [Sec. 34. 
 
 
 liii 
 
 The person who is the patentee, and has the custody of the 
 patent itself, must be made defendant ; and where interests have 
 been assigned, the assignee or assignees must also Ije joined ; or 
 where there are joint interests, the joint patentees must be defen- 
 dants. In case of the death of a patentee or assignee, the legal 
 representatives sliould be made defendants. The style of cause 
 should be: Her Majesty the (^ueen at the relation of .4 Ji (plaiii- 
 tirt'j V. C D (defendant). 
 
 Burden of Proof on the Informant. 
 
 An action by " ticlre fd.clas" differs from an action of infrin :,'•.■- 
 ment in this respect; that the burden of proof is on the infor- 
 mant attacking the patent. 
 
 Patentee Has Reply. 
 
 The patentee has to open the ease, and has the advantage of 
 reply. 
 
 B}' sub-sec. 7 Oi sec. 26, Imperial Act of 1883, it is enacted 
 that the defendant shall be entitled to begin and give evidence 
 in support of the patent, and if the plaintiff gives evidence im- 
 peaching the validity of the patent, the defendant shall be 
 entitled to reply. 
 
 In Ontario there is now no writ of " .sci. fa. " except as to these 
 proceedings to annul a patent ; and beyond the English practice 
 and precedents and two or three Canadian cases, we have nothing 
 to guide us. 
 
 In an ordinary suit for infringement in the Provincial Courts 
 or the Excheijuer Court, in which the defendant is successful, the 
 patent only becomes null and void as to the defendants and those 
 claiming through them. If it is desired to annul the patent 
 entirely, it is necessary to do so by " sci. fa. " proceedings, and to 
 file the certificate of the judgment in the Patent Office in com- 
 pliance with the 3.5th section of the Patent Act (Can.). 
 
 The Crown alone has the right of demanding that Letters 
 Patent granted under the Patent Act be annulled : Tfie Unwi 
 Navigation Co. v. Reatony, 20 L. C. Jur., 306. 
 
 Where the repeal of a patent is a principal object of the 
 action, the proceedings should be by " sci. fa." : See Lainer v. Col- 
 lette, 5 L. N., 412, S. C. (1882). 
 
Sec. 34.] 
 
 PROCEDURE BY SOI. FA. 
 
 337 
 
 Re/jina v. Smith, 7 Ont. Rep., p. 440, was decided by Mr. Jus- 
 tice Rose (23rd January, 188.5) in favour of the defendant ))atenteo 
 on a demurrer. The Crown demurred on the o-round that tho 
 matters set up in the pleas were not sufficient in law to l)ar the 
 Queen from impeaching the Letters Patent : Held, that the 
 statute (the Patent Act of 1872) does not require the deli v. i-y of 
 a model prior to the issue of a patent: Vide Note to section 14. 
 
 This is the only sci fa. decision wc have had in the Provincial 
 Courts of Ontario since 1867. 
 
 In Quebec in The Attorney-General and Bate, 6 L. N., 227, 
 S. G. (1883), just the opposite view was taken on sei. fa. and the 
 patent declared void ; but see contra, Campbell v. Bate, 1.5 R. L., 
 467, S. 0. (1886). 
 
 In Rerjina v. Smith, the suit should have been enti lod Reg. 
 at the relation of E. C. Holden v. Smith, Holden beinfj the party 
 at whose instance it was sought to annul the pater : A ./ertitipd 
 copy of the Patent No. 10,543, and certified cop'es of the oath and 
 petition were fiiol in the Q. B. Div., Osgoode Hall, Toroic o. 
 
 "Sci. la." Proceedings in Ontario. 
 
 The pra^'cipe filed for the writ of " sci. fa." is for the repeal 
 of the Letters Patent, giving the name and address of the appli- 
 cant and the name and address of the patentee and setting out 
 all the grounds relied on for repeal, and that the writ should be 
 
 directed to the Sherift* of the county of , dated and signed 
 
 by the solicitor for the applicant. 
 
 The fiat filed is granted by the Attorney-General for the 
 Dominion, and this appears to be the proper practice, notwith- 
 standing Regina v. Patee, 5 Ont. Prac. R., 292, supra ; it was on 
 the condition that the applicant, James C. Holden, give to the 
 satisfaction of the Clerk of the Queen's Bench Division, H. C. J.,. 
 Toronto, a bond executed by applicant and two sureties, each in 
 the penal sum of S2,000. 
 
 Bond. 
 
 The bond for security of costs in Regina v. Smith, ante, was 
 a joint and several bond in the penal sum of $2,000, executed by 
 E. C. Holden and two sureties, conditioned to pay all costs atid 
 43 
 
 
11 
 
 338 
 
 PROCEDURE BY SCI. FA. 
 
 [Sec. 34. 
 
 charges, etc., to be taxed as between attorney and client, and not 
 as between party and party, to the patentee or his legal I'epresen- 
 tatives in the event of the letters not being adjudged to be void 
 or vacated, cancelled or disallowed by means of the writ of scire 
 facias. 
 
 A notice of allowance by the Registrar,Queen's Bench Division, 
 is endorsed in the margin. 
 
 Amount of Bond Excessive. 
 
 The amount of this bond ($2,000) in Regina v. Smith, appears 
 excessive, and is just double that now required in the Exchequer 
 Court of Canada. 
 
 A. bond in .Sl,000 by the informant and two sureties, joint 
 and several, would now probably suiiice in Ontario. 
 
 The writ of " sci. fa." with the return of the sheriff is also 
 filed. The writ is in the nature of a pleading, and sets out the 
 effect of the patent and the suggestions for repeal : Vide Form 
 44, App. 2. There was also a withdrawal of prosecution as to 
 certain of the suggestions. 
 
 An appearance in Regina v. Smith, ante, was filed Septem- 
 ber 10th, 1884, and a declaration embodying the writ of 
 ■" scl. fa." was also filed and served, as well as the particulars of 
 objections, which were also filed and served along with the 
 declaration. 
 
 Pleas by defendant in answer to the suggestions in the declar- 
 ation, filed. 
 
 " Demurrer " on the part of tne Crown that the matter set 
 up in the pleas are not sufficient in law to bar our Lady the 
 Queen from impeaching the patent. 
 
 This " demAtrrev " was argued and found in favour of the 
 defendant. 
 
 The " demurrer " in Regina v. Smith, contains an erroneous 
 request that the Letters Patent be delivered up to the Registrar 
 of the Queen's Bench Division to be destroyed. He has only to 
 certify as to the judgment and has nothing to do with destroying 
 the Letters Patent : See as to annrlment, sec. 35. 
 
 By the present Patent Act proceedings may be instituted in the 
 Q. B. Div.,C. P. Div., or the Chancery Div., and are not confined as 
 
Sec. 34.] 
 
 PROCEDURE BY SOI. FA. 
 
 339 
 
 n the declar- 
 
 "avour of the 
 
 formerly to the Q. B. Div., and may also be taken in any of the 
 Courts mentioned in this section 34, sub.-sec. 1. Proceedings are 
 now usually taken in the Exchequer Court. 
 
 Jurisdiction in 1890 Given to Exchequer Court. 
 
 Sub-sec. 1, sec. 1, 53 Vic, c. 13, substituted in 1890 for the 
 sub-sec. 1 in the Patent Act of 1886, first gave jurisdiction to the 
 Exchequer Court of Canada in the matter of the repeal of Letters 
 Patent by sci. fa. 
 
 And by sec. 4, sub-sec. (6), 54, 55 Vic, c. 26, "An Act to further 
 amend the Exchetiuer Court Act," assented to 30th September, 1891, 
 the Exchequer Court was clothed with jurisdiction : {h) " In 
 all cases in which it is sought to impeach or annul any patent of invention, or 
 to have any entry in any register of copyrights, trade marks or industrial de- 
 signs made, expunged, varied or rectified;" SO that the jui'isdiction is 
 doubly provided for. 
 
 There is no special advantage gained in instituting set. /tt. pro- 
 ceedings in the Exchequer Court beyond the fact that an appeal 
 lies to the Supreme Court from a refusal by the Exchequer 
 Court to grant an order nisi, or, if an order shall liave been 
 granted, from the decision of the Court on motion to make the 
 same absolute : See Exch. Ct. Rule 231. Whereas if proceedings 
 are instituted in the Provincial Courts, there are intermediate 
 <appellate Courts to be passed before the Supreme Court can be 
 reached, thus making the procedure more expensive and cumber- 
 some. 
 
 Proceedings by " sci. fa." in any of the Provincial Courts, 
 under sees. 34, 35 and 3G of " the Patent Act," are quite as 
 effectual to annul a patent as proceedings in the Exchequer Court 
 of Canada. 
 
 Bond for $1,000 in Exch. Ct. (Can.). 
 
 A joint and several bond in the penal sum of .Sl.OOO made by 
 informant and two sureties is also required in the Exchequer 
 Court, Canada, as well as one to at least that amount in the Pro- 
 vincial Court.j of Ontario and possibly also in those of the other 
 Provinces. The Province of Quebec is the only other Province 
 besides Ontai'io where sci. fa. proceedings are reported to have 
 been instituted. 
 
 Si 
 
I -^^ 
 
 ^ 
 
 340 
 
 SCI. FA. FORMS, ETC. 
 
 [Sec. 34. 
 
 The procedure has not been well settled in the Exch. Ct. 
 (Can.) as yet, but it follows that already indicated for the Pro- 
 vince of Ontario, which would doubtless be followed in the other 
 Provinces and Territories of the Dominion, but the tendenc}' will 
 undoubtedly be to institute proceedings in the Exchequer Court, 
 as the Judge holds circuit from the Atlantic to the Pacific oceans. 
 
 N. B. — For form of pleadings in a " sci. fa" case in the Exch. 
 Ct. (Can.), see report of The Queen v. La Force, 4 Exch. Ct. E, 
 (Can.), pp. 15-24, where they are printed in full; the.se pleadings, 
 of cour.se, maj- vary to suit the circum.stances of each case. 
 
 it 
 
 1 
 
 ■M 
 
 fi 
 
 li 
 
 
 Forms in *' Sci. fa." 
 
 The Forms 42, 43, 44, 45, 46, 47, 48, 49 and 50, set out at 
 length in Appendix 2, are forms that have been used in the 
 Exchequer Court of Canada. Of course, they are subject to varia- 
 tion, and have to be adapted to the circumstances of each par- 
 ticular case. 
 
 Form 52a, A'^'px, 2, is the general order of the Exchequei- 
 Court of Canada of the 5th December, 1892, containing the Rules 
 relating to the impeachment of Letters Patent; and Form 51, 
 Appx. 2, the general order as to procedure in the Exchequer 
 Court of Canada, and Form 52b is the general order of the 8th 
 February, 1894, relating to filing consents, etc., and as to special 
 cases. 
 
 Documents to be Filed. 
 
 The documents referred to in sub-sec. 2, sec. 34, are the certified 
 copy of the patent, specification and drawings, and a certified copy 
 of the aflidavit and petition, as well as certified copies of any assign- 
 ments or other documents relating to the title to the patent, 
 cei-tified under the seal of the Patent OflBce by the Commis.sioner, 
 or pos.sibly the Deputy Commissioner, who by sec. 21 has now 
 power to sign patents as well as the Commissioner. 
 
 The writ of " scire facias " is to be under the seal of the 
 court from which it issues, and signed by the clerk or registrar 
 of the Court. 
 
[Sec. 34. 
 
 Exch. Ct. 
 r the Pro- 
 1 the other 
 idency will 
 juer Court, 
 iific oceans. 
 
 n the Exch. 
 Ixch. Ct. R 
 e pleadings, 
 case. 
 
 I, set out at 
 used in the 
 ject to varia- 
 of each par- 
 
 e Exchequer 
 nff the Rules 
 id Form 51, 
 e Exchequer 
 er of the 8th 
 as to special 
 
 e the certified 
 
 certified copy 
 
 of any assign- 
 
 the patent. 
 
 lommissioner, 
 
 ;. 21 has now 
 
 le seal of ^^^ 
 \k or registrar 
 
 Sec. 34-35.] REPEAL AND ENTRY OF JUDQMENT. 
 
 341 
 
 
 Omission in Sub-Sec. 2, Sec. 34. 
 
 The words "And the said patent shall be repealed" have appar- 
 ently been omitted after "for cause as aforesaid," in this sub-section. 
 Their insertion would make the meaning more apparent. 
 
 37 Vic, 0. 44, sec. 1, referred to, amends sub-sec. 1, sec. 29 of 
 the Patent Act of 1872 : " The Supreme Court in the Province 
 of New Brunswick," being substituted for " The Court of Queen's 
 Bench in the Province of New Brunswick." 
 
 38 Vic, c. 14, sec. 8, amends the same sub-section in proceed- 
 ings for impeachment in Prince Edward Island. The certified 
 documents are to be filed with the Clerk of the Supreme Court 
 of Judicature there. 
 
 And by 49 Vic, c 25, .sec. 14 (1886), the Sup. Ct. of the 
 North-West Territories is to have all the rights, etc., of a Court of 
 Record, as exercised by Her Majesty's Superior Courts in Eng- 
 land, on the 15th July, 1870. 
 
 ot>. A certificate of the judgment avoiding any patent shall, at the request 
 of any person filing it to make it of record in the Patent Office, be entered on the 
 margin of the enrolment of the patent in the Patent Office, and the patent shall 
 thereupon be, and be held to have been void and of no effect, unless the judgment 
 is reversed on appeal as hereinafter provided, 35 V., c. 26, s. 30. 
 
 Note. — This is substantially the same as in the Act of 1872, 
 with verbal alterations. The word "voiding" is now changed to 
 "avoiding," which is not so correct; ''in order to make it of record" 
 
 would be better than as it is now. It is also difficult to 
 see the object in having the words " and be held to have been " in- 
 serted before void, for it is the filing of the certificate of judg- 
 ment in the Patent Office, and the entrj- thereof on the margin of 
 the enrolment, which rendered the patent void and of no effect. 
 
 Time Should be Allowed for Appeal before Final 
 Entry of Repeal- 
 There should be some time limited after the filing of the 
 certificate of judgment in the Patent Office before the entry on 
 the margin of the enrolment, consummating the repeal, be made, 
 in order to give the pauotitee time to appeal, and there should be 
 
! 
 
 ;:■■ h ' 
 
 
 ■ ' 'J 
 
 1 
 
 ; 1 
 
 
 
 
 ! 1'? 
 
 
 -i;; ,i 
 
 
 r ^.■: 
 
 1 
 
 
 
 J ■ ■ i 
 
 342 
 
 APPEAL IN RE REPEAL OF PATENT. [See. 35-36. 
 
 provision to notify the Patent Office that an appeal is pendiii^-, 
 so as to stay the entry on the enrolment. The patent should not 
 be finally repealed until after a lapse of say three months after the 
 filing of the certificate of the judgment. 
 
 It is presumed that a certificate of judgment means a certified 
 or office copy of a judgment. In Ontario, the Court of Appeal is 
 the only couit which issues a certificate of jiulgment. 
 
 The fee payable on registering a judgment by sec. 39 is 84. 
 
 Ill 
 
 dW. The judgment declaring or refusing to declare any patent void shall he 
 subject to appeal to anj' court having appellate jurisdiction in other cases decicltd 
 by the court by which tlic judgment declaring or refusing to declare such patent 
 void, was rendered. ,35 V., c. 26, s. ,31. 
 
 Note. — The judgment referred to is that of a Superior Court 
 (see section 34) ; after having been referred to the Appellate 
 Courts of the Provinces in which proceedings were instituted, 
 the final Court of Appeal is the Supreme Court of Canada. 
 
 It 
 
 VA'.t: 
 
 Appeal from Provincial Courts. 
 
 An appeal to the Supreme Court, Canada, is always understood 
 to be from the Court of last resort in the Province where the judg- 
 ment was rendered in such case (vitZesec, 11, Supreme Court Act) ; 
 under very exceptional circumstances the Supreme Court has per- 
 mitted a direct appeal to itself without resort to the last Appellate 
 Court of the Province, but not in any patent suit. 
 
 Appeal from Exchequer Court (Can.). 
 
 Under par, 8 of the Exchequer Court Amendment Act, e. 2G, 
 
 54, .5,5, Vic. (1891), paragraph lettered (6) of sub-section 1 of section 
 
 52 of the Exchequer Court Act, Canada, 50-1 Vic, was repealed 
 
 and the following substituted : 
 
 " (h) Relates to any fee of office, duty, rent, revenue or any sum of money 
 payable to Her Majesty, or to any title to lands, tenements or annual rents, or to 
 any question affecting any patent of invention, copyright, trade mark or indus- 
 trial design, or to any matter or thing where rights in future might be bound." 
 
 By this, an appeal from the judgment of the Exchequer Court, 
 
 Canada, in a " sci. fa." proceeding is provided for. 
 
Sec. 36-37.] 
 
 APPEALS-FORFEITURE. 
 
 343 
 
 Notwithstanding the bond given on obtaining the writ of sci. 
 /a., a further bond in $50 is required on an appeal to the Supreme 
 Court. 
 
 The general or broad wording of this section 36 might have 
 made a judgment on a " sci. fa." in the Exchequer or Provincial 
 Courts, appealable to the Supreme Court, without any special 
 enactment. 
 
 As to Adducing Fresh Evidence on Appeal. 
 
 Where defendant moved for leave to adduce fresh evidence 
 on appeal as to anticipation he had discovered after the trial : 
 Held, that the motion must be refused because no issue as to 
 novelty had been raised at the trial : Hinde v. Osborne, R. P. C, 
 vol. 2 (1885), p. 45. 
 
 i 
 
 PART XI. 
 
 Forfeiture of Patents. 
 
 oT. Every patent granted under this Act shall be subject, and be expressed 
 to be subject, to the following conditions : — 
 
 (a) That slich patent and all the rights and privileges thereby granted shall 
 cease and determine, and that the patent shall be null and void at the end of two 
 years from the d.ate thereof, unless the patentee or his legal representatives, or 
 his assignee, within that period or any authorized extension thereof, commence, 
 and after such commencement, continuously carry on in Canada the construction 
 or manufacture of the invention patented, in such a manner that any person 
 desiring to use it may obtain it, or cause it to be made for him at a reasonable 
 price, at some manufactory or establishment for making or constructing it in 
 Cau(ula ; 
 
 {b) That if, after '.he expiration of twelve months from the granting of a. 
 patent, or any authorized extension of such period, the patentee or patentees, or 
 any of them, or his or their representatives, or his or their assignee, for tlie whole 
 or a part of his or their interest iu the patent, imports, or causes to be imported 
 into Canada, the invention for whicii the patent is granted, such patent shall bo 
 void as to tlie interest of the person or persons importing or causing to be im- 
 ported as aforesaid : 
 
:W:ST'' 
 
 ft t; 
 
 I 
 
 III! 
 
 344 
 
 FORFEITURE OF PATENTS. 
 
 [Sec. 37. 
 
 2. Any question which arises as to whether a patent, or any interest therein, 
 has or has not become void, under the provisions of this section, may be adju(U- 
 cated upon by the Exchequer Court of Canada, which court shall have jurisdiction 
 to decide any such ([uestion upon information in the name of the Attorney General 
 of Canada, or at the suit of any person interested : 
 
 3. This section shall not be held to take away or atl'ect the jurisdiction which 
 any Court other than the Exchequer Court of Canada possesses. 35 V., c. 26, s. 28; 
 38 v., c. 14, s. 2 ; 45 V., c. 22, s. 1. The Patent Act (1886). 53 V., c. 13, 8. 
 2 (1890) ; 54, 55 V., c. 33, s. 1 (1891) ; 55, 56 V., c. 24, s, 6 (1S92). 
 
 2. Whenever a patentee has been unable to carry on the construction or 
 manufacture of his invention within the two years hereinljefore mentioned, the 
 commissioner may, at any time not more than three mouths before the expiration 
 of that term, grant to the patentee an extension of the term of two years on his 
 proving to the satisfaction of the commissioner tiiat he was, for reasons beyond 
 his control, prevented from complying with the above condition : 
 
 •». The commissioner may grant to the patentee, or to his legal represenfci- 
 tives or assignee for the whole or any part of the patent, an extension for a 
 further term not exceeding one year, beyond the twelve months limited by this 
 section, during which he may import or cause to be imported into Canada the in- 
 vention for which the patent is granted, if the patentee or his legal rep jsenta- 
 tives, or assignee for the whole or any part of the patent, show cause, satisfactory 
 to the commissioiier, to warrant the granting of such extension ; but no extension 
 shall be granted unless application is made to the commissioner at some time 
 within three mouths before the expiry of the twelve months aforesaid, or of any 
 extension thereof. 35 V., c. 26, s. 28 ; 38 V., c. 14, s. 2 ; 45 V., c. 22, s, 1, 
 
 Patent Act of 1869, Section 28. 
 
 Note. — By .sec. 28 of the Patent Act of 1869, patents were 
 for the first time granted conditionally on the manufacture of the 
 patented device, and it was declared that the patent should be 
 void " at the end of three years from the date thereof, unless the patentee, or 
 his assignee or assignees, shall, within that period have commenced, and shall, 
 after such commencement, continually carry on, in Canada, the construction or 
 manufacture of the invention or discovery patented, in such manner that 'iu,' 
 person desiring to use it may obtain it, or cause it to be made for him i'.t c- ■ 
 fionable price, at some manufactory or establishment for making or construcli 
 in Canada." 
 
 Importation. 
 
 And by the Act of 1869 the patent was also to be void if 
 after the expiration of eighteen months the patentee, or his 
 assignee for the whole or part of his interest in the patent, im- 
 
 m 
 
[Sec. 37. 
 
 Dterest therein, 
 may be acljudi- 
 Eive jurisdiction 
 ttoruey General 
 
 isdietion which 
 v., c. 26,3. 28; 
 53 v., c. 13, 8. 
 
 construction or 
 mentioned, the 
 i the expiration 
 vo years on his 
 reasons beyon<l 
 
 ;gal representi- 
 extension for a 
 limited by this 
 Canada the in- 
 igal rep jsenta- 
 ise, sati^jfactory 
 ut no extension 
 
 • at some time 
 isaid, or of any 
 
 • •>' s 1 
 
 )atents were 
 icture of the 
 it should be 
 he patentee, or 
 iced, and shall, 
 construction or 
 inner tliA* nay 
 r him ct c i 
 construct .i • 
 
 be void if 
 iitee, or his 
 patent, im- 
 
 Sec 37.] NON-MANUFACTURL IMPORTATION. 
 
 345 
 
 ported or caused to be imported into Canada the invention for 
 which the patent was granted. In this Act of 1869 there was no 
 provision for extending the time within wliich manufactui'e was 
 to take phice or impoitation was permissible ; nor was any special 
 tribunal appointed, but the ordinary Courts were left to adjudi- 
 cate with respect to anj' breach of the conditions on which the 
 patent was granted. 
 
 Act of 1872. 
 
 By the Patent Act of 1872, which took effect on the 1st of 
 September, 1872, the Act of 1869 was repealed and re-enacted in 
 much the same words as formerly ; by sub-sec, 7 of sec. 28 of the 
 
 Act of 1872 it was enacted " that such patent and all the rights and privi- 
 leges shall cease and determine, and the patent shall be null and void at the end 
 of two years from the date thereof unless, etc." ; tllUS cutting down the 
 time within which manufacture was to be commenced by one 
 year, and the time after the date of the patent, within which im- 
 portation of the patented device was permissible, w'as reduced to 
 twelvemonths; in other respects the wording was the same as 
 in the Patent Act of 1869. 
 
 By sub-section 2 it was provided that " whenever a patentee has 
 beon unable to carry on the construction or manufacture of his invention within 
 the two years hereinbefore mentioned, the commissioner may grant to the pat- 
 entee a further delay on his adducing proof to the satisfaction of the commissioner 
 that he was for reasons beyond his control, prevented from complying with the 
 same ; but no such further delay shall be thus granted in any case in advance of 
 the time hereinbefore prescribed " ; but no provision was made as to the 
 extension of time relating to importation. 
 
 It was also provided that in case "disputes should arise as to 
 
 whether a patent has or has not become null and void under the provisions of this 
 section, such disputes shall be settled by the Minister of Agriculture or his 
 Deputy, whose decision shall be Hnal." 
 
 Act of 1875, c. 14, s. 2. 
 
 By sec. 2, cap. 14, 38 Vic. (1875), sub-sec. 2, sec. 28, of the Act 
 of 1872, just quoted, was repealed, and a new one substituted, 
 which is the same as sub-section 2 of the present Patent Act ; 
 whereby the Commissioner may at any time, not more than three 
 months before the expiration of two years from the date of the 
 patent, grant to the patentee an extension of the term of two 
 44 
 
'W^- 
 
 .! v.:i 
 
 ii 
 
 li i 
 
 'I; 
 
 ■ i 
 
 I 
 
 i 
 
 ■; 
 
 34G 
 
 FORFEITITEE OP PATENTS. 
 
 [Sec. 37. 
 
 years, within which manufacture in Canada must take place, on 
 proving to the satisfaction of the CoHnamissioner that he was for 
 reasons beyond his control prevemfel from complying with the 
 condition as to manufacture. 
 
 While in the Act of 1872 it wz^ provided that no further 
 delay should be gi-anted in advance of the time prescribed, which 
 is directly opposed to this enactujenit. 
 
 Act of 1882, c. 22, s. 1. 
 
 By the amending Act of 1S82, sec. 28 of the Act of 1872, was 
 again amended, and the present s[il)>-«Gtion 3 of the present Pat- 
 ent Act was first enacted, authorizamijj the Commissioner to extend 
 the time for importation for a peiiicni not exceeding one year if 
 application be made within thrt* naonths of the expiration of 
 the twelve months mentioned m tli<c first sub-section of section 
 28 of the Act of 1872, 
 
 R. S. 0. (1886), c 61, s. 37- 
 
 On the 1st March, 1887, the Reviae+l Statutes of Canada came 
 into force, and by 49 Vic, cap. '61,.«ec. 37, the provisions of sec, 
 28 of the Patent Act of 1872, imd of the amending Acts of 
 1875 and of 1882, were revii^e<i imd consolidated. The words 
 " assignee or assignees " in the Act of 1*72, were changed through- 
 out into '♦ legal representatives"'; tlj<e Words " or discovery " in the 
 Act of 1872 were struck out, leaving the word "invention" by 
 itself, appjirently showing that a "^ifi-eorer^/ " was not synono- 
 mous with "invention." In the tJiiite*:! States the term "invention 
 or discovery " is still retained in th<eir patent laws. 
 
 In other respects the changes imafie by the Revised Statutes 
 (1886), cap. 61, sec. 37, were mereBy verbal and formal. 
 
 Act of 1890, c. 13, s. 2. 
 
 By 53 Vic, cap. 13, sec. 2, aw^uteti to 24.th April, 1890, sub- 
 see. 1 of sec. 37 of the Patent Aci, EL S. C, cap. 01, was repealed 
 
 and a new sub-section was subi?titiaite«i. 
 
 The wording was the same a.s in the Revised Act, except that 
 the words " or his assignee " after "Ikieailpepreaentatives" in sub-sectiou 
 
Sec. 37.] 
 
 CHANGE OF JURISDICTION. 
 
 347 
 
 1, which were struck out when the statutes were revised in 188G, 
 were again restored, and the words " or any authorized extension of such 
 period " Were added after the words " twelve months from the granting 
 of ;i patent,' referring to the clause prohibiting importation. 
 
 Jurisdiction of the Minister of Agriculture Taken 
 Away. 
 
 That portion of the Revised Act of 1886 which conferred 
 exclusive jurisdiction on the Minister or the Deputy of the Min- 
 ister of Agriculture, making the decision of either of them final, 
 in any qriestion as to declaring a patent null and void for breach 
 of condition relative to manufacture or importation, was finally 
 struck out by the Act of 1890, and the jurisdiction of the said 
 Minister or his Deputy was entirely abrogated, and the following- 
 inserted at the end of tht new sub-sec. 1, sec. 37, of the Patent Act: 
 
 " And anj' difference which arises as to whether a patent has or lias not become 
 null arid void under the provisions of this section may be adjudicated upon by 
 the Exchequer Court of Canada, — which Court shall have jurisdiction, upon infor- 
 mation in the name of the Attorney-General of Canada, and at the relation of any 
 person interested, to decide any such question ; provided that this section shall 
 not be held to take away or affect the jurisdiction which any Court, other than 
 the Exchequer Court of Canada, possesses." 
 
 This has been amended by the Acts of 1891 and 1892, here- 
 after referred to, until it appears as now set out in the text of 
 section 37. 
 
 Jurisdiction of Exchequer Court of Canada and Pro- 
 vincial Courts. 
 
 This enactment altered the whole procedure ; hitherto all the 
 decisions relating to breach of condition by non-manufacture and 
 importation have been decided by the Minister of Agriculture or 
 his Deputy ; now the Exchequer Court of Canada has jurisdic- 
 tion, apparently concurrent with the Provincial Courts, and the 
 first decision is not final, for there is now the usual appeal to the 
 Supreme Court from the final Courts of Appeal in the various 
 Provinces, and by section 8 of " The Exchequer Court Amend- 
 ment Act of 1891 " there is also an appeal on " any question affecting 
 any patent of invention " to the Supreme Court of Canada. 
 
Iplf ! 
 
 1. . 
 t 
 
 ■IK 
 
 
 
 
 
 
 1 
 
 i, iU. 
 
 L 
 
 348 
 
 FORFEITURE OF PATENTS. 
 
 [Sec. 37. 
 
 Now "non-manufacture" within the time limited by this 
 section 37 and " importation" beyond the authorized time, of an 
 article patented in Canada, may be specially pleaded in defence 
 to an action of infrinrjement. 
 
 Up to the 24th April, 1S90, Provincial Courts had no juris- 
 dicMon relative to declaring a p.atent void for non-manufacture 
 and unauthorized importation, the Minister of Agriculture or his 
 Deputy having exclusive jurisdiction, the decision of either under 
 the former state of the law being final. 
 
 In Bell Telephone Co. v. The Telepltone Manufacturing Co. and 
 the Minister of Justice, 7 Ont. Rep., p. 605, on a motion to pro- 
 hibit the Minister of Justice from adjudicating as to the voiding 
 of patent 7789, under sec. 28 of the Act of 1872, Osier, J., on 
 November 21st, 1884, held that the Minister of Agriculture or his 
 Deputy had been appointed a judicial tribunal, and cites the 
 decision of Mr. Tache, the Deputy Minister of Agriculture, in 
 Barter v. Smith, referred to with approval in the judgment of 
 the Supreme Couvt, Smith v. Goldie, 9 Sup. C. R., p. G8, where Mr. 
 
 Tache states : " The legislature has certainly not without intention provided 
 for a kind of paternal tril)unal formed by the Commissioner of Patents the natural 
 protector of patentees, which intention can be no other that every case should l)e 
 adjudicated on in a liberal manner." 
 
 And in the matter of the Bell Telephone Co., 9 Ont, Rep., p. 
 339, on a writ of " certiorari " to bring up before the Court all 
 proceedings before the Minister of Agriculture, and his decision 
 on an application to declare a patent void, it was held by the 
 Common Pleas Divisional Court (Ont.), on June 27th, 1885, that 
 the Minister of Agriculture had jurisdiction under see. 28 of the 
 Act of 1872, and that he had " ministerial " and not "judicial" 
 authority : following Henry, J., of the Supreme Court rather than 
 Osier, J. 
 
 In an unreported decision of Spragge, C, in Smith v. Goldie, 
 tried at Toronto, about 1881, the bill was dismissed on the ground 
 of importation after twelve months after the date of the patent, 
 this case was referred to in Smith v. Goldie, 7 App. Rep. (Ont.), p. 
 <)28 ; and also in Smith v. Goldie, 9 Sup. Ct. Rep. (Can.), 46, where 
 
 Henry, J., says : "Spragge, C, decided the patent was void for importation 
 
 and non-manufacture : " these cases were appeals from said decision of 
 
Sec. 37.] NON-MANUFAOTURE-IMPORTATION. 
 
 349 
 
 Spragge, C. ; this adverse decision of Sprague, C, was rendered, 
 notwithstanding the same patent had been upheld on the question 
 of ''non-manufacture" and " importatioyi " by Mr. J. C. Tachd's 
 judgment, before referred to, dated the loth February, 1877. 
 Tills last judgment in Barter v. Smith, which is one of our leading 
 cases in Canada on the question of non-manufacture and importa- 
 tion, was strangely overlooked. 
 
 Act of 1891, c. 33, s. 1. 
 
 By 54, 55 Vic, cap. 33, sec. 1 (18Pi), the sub-section substi- 
 tuted by sec. 2 of 53 Vic, cap. 13, for sub-sec. 1 of sec. 37 of the 
 Patent Act, cap. 61, Revised Statutes, Canada, was amended by 
 
 striking out " and at the relation of any person interested," and substitut- 
 ing therefor the words " or at the suit of any person interested." 
 
 Act of 1892, c. 24, s. 6. 
 
 By 55, 50 Vic, cap. 24, sec. 6 (1892), sub-sec 1 of sec. 37 of 
 the Patent Act, cap. 61, Revised Statutes, as enacted by sec. 2, 
 cap. 13, of the Act of 1890, and amended by sec. 1, cap. 33, of 
 the Act of 1891 was repealed, and the present sub-section one was 
 substituted. 
 
 The old sub-section 1 of section 37 of the said Patent Act, as 
 it stood amended in 1891, was sub-divided into parts (a), (b) 2 
 and 8, (a) and (6) being the conditions on which the patent was 
 granted. The new sub-divisions 2 and 3 of this sub-section 1, 
 clash now with sub-divisions 2 and 3 of this section 37, and we 
 have now a double set of 2 and 3 in this same section 37. The 
 sub-divisions of sub-section 1 should have been all four lettered 
 tt, h, c, d, to avoid confusion. 
 
 In paragraph (b) of sub-section 1, the wording has been slightly 
 altered from that in the Act of 1890, and the words "or patentees, 
 or any of them," have been added after the word " patentee " ; and it 
 
 further reads, " and his or their representatives, or his or their assignee," the 
 
 word "legal" having been dropped from before "representatives," 
 and the words " or their " inserted twice. 
 
il 
 
 
 i;j.1l 
 
 . ■|l, 
 
 
 
 r-: V 
 
 i ' 
 
 3.50 
 
 FORFEITURE OF PATENTS. 
 
 [Sec. 37. 
 
 New Sentence Added. 
 
 And the following words have for the first time been added 
 at the end of parjlgrapll (b) : " Sucli patent slmll Ite void as to the interest 
 of the persou or persons importing or causing to bo imported as aforesaid." 
 
 In paragraph 2 of sub section 1, the word "«pieation" ha.s been 
 substitut'^'l for "dirt'erenoe," and the words "or any interest tlierem " 
 has been added aftei- " patent " ; the words •' null and " have b(,'en 
 left out before "void"; " to decide any such (juestion " has been placed 
 inunediately before "upon information in tlie name of the Attorney-General 
 of Canada." 
 
 Paragraph .3 of sub-section 1 is the same as in the Act of 1890. 
 
 Having tiaced the wording of this important section from its 
 inception in the Patent Act of 1869 down to the present time, 
 we may shortly review some of the leading features of this .sec- 
 tion 37 as it now stands, before considering the cases already 
 decided as to " non-uianufacture " and " importation " by the 
 Minister of Agriculture or his Deputy. 
 
 None of the principal foreign countries, except France, Tunis, 
 Turkey and Peru, make restrictions as to the importation of 
 patented articles. In these countries patented articles must not 
 be imported except under special permit, which can be obtained 
 for about 810. 
 
 France and Tunis now belong to the International Union, and 
 citizens of the countries in this Union (vide note sub-section d, 
 section 8) may import without restriction. 
 
 i 
 
 The Object of this Section. 
 
 The object of this section, which has been substantially in 
 the same form since the Patent Act of 1869, was to protect and 
 encourage home manufactui'es and Canadian labour and as stated 
 by Deputy Minister Tachd, "to guard against the danger of Canadian pat- 
 ents, granted to aliens, being made instrumental to secure the Canadian market 
 in favour of foreign patents to the detriment of Canadian industry." 
 
 "The Patent Act of 1869, removing other disabilities, extended the right of 
 obtaining patents to every resident of one year in Canada, and subjected all pat- 
 ented inventions to the condition of manufacturing within three years and of not 
 importing after eighteen months, the decision of the question, as to whether or 
 not a patent had lapsed for reason of non-compliance, was left to be pleaded and 
 to the ordinary Courts to adjudicate. The law of 1872 extended the right of 
 
 'iii' ■>■ 
 
Sec. 37] NON-MANUFAOTURE -INPORTATION. 
 
 351 
 
 ulitiiiiiing patents to all-coiuers, iinil inuviiled ii speciiil trilmiial to apply the law, 
 ill tlie niaunur luuiitionuil ill the JHtli section lieieinhefore (luoted" : inCG JiilV- 
 
 tei' V. Sinit/i, vol. 2, Exch. Ct. Rop. (Can.), p. 4!S0. 
 
 Gonuitious on Which Patents are Issued 
 
 Every Canadian patent now issued, followin;,' the strict wording 
 of tiie Act, .should be expressed to bo subject to the condition.s as 
 to " manufacture " and " importation " .set out in paragraphs (a) 
 and (b) of sub-section 1 of this section. 
 
 Formerly these conditions vvei'c printed on the face of the 
 patent, and at one time the section of the Patent Act relating 
 thereto was endorsed on the patent; these conditions have always 
 remained the same, the only changes being with reference to the 
 time within which manufacture was to take place or importation 
 1)0 allowed, and as to the time when application for exten.sion 
 should be made and the " quantimi " of such extension. 
 
 Now, notwithstanding the express provision at the l)eginning 
 of this section, all definite reference to the conditions as to manu- 
 facture and importation have been dropped out of the present 
 form of Letters Patent. All that is now said is " provided that the 
 grant hereby nia<le is subject to the conditions contained in Acts aforesaid " 
 (referring to the Patent Act, c. 61, Revised Statutes of Canada, 
 and the Acts amending the same). Every person knows this with- 
 out being told, but the intention originall}' was to call special 
 attention to these conditions as to " manufacture " and " impor- 
 tation " on the patent itself. 
 
 It is enacted that " Every patent granted under this Act shall be subject, 
 -.111(1 be expressed to lie subject, to the followinjz conditions" : — 
 
 " Aoid he expressed to he subject," means that paragraphs (a) 
 and (h) of sub-section 1 should be specifically referred to. 
 
 As to Provisions for Working, etc, in U. S. A. and 
 United Kingdom. 
 
 In the United States there is no provision, such as we have, 
 as to " manufacture " and " importation," but a patentee there 
 has an " exclusive " interest in his patent ; he is under no obliga- 
 tion to manufacture under it, nor utilize it in any way, nor even 
 to license any party so to do. 
 
i.f 
 
 
 352 
 
 FORFEITUEE OF PATENTS. 
 
 [Sec. 37. 
 
 In the United Kingdom, by sec. 22, Act of 1883, the patentee, 
 if he does not work his patent, or supply the reasonable demands 
 of the public, or if any one is prevented from working an inven- 
 tion of his own to the best advantage, may be subject to " com- 
 pulsory license" In moat European countries, and elsewhere, 
 there are strict provisions as to manufacture within time limited 
 and as to importation, and the patent becomes forfeited on failure 
 to observe these provisions. 
 
 Art or Process Excluded. 
 
 This section distinctly says "every patent granted under this Act 
 shall be subject, etc., to the following conditions," but then paragraph (rt) 
 refers to " the construction or manufacture of the invention patented in such a 
 manner that any person desiring to use it may obtain it, or cause it to be made 
 for him, etc., at some manufactory for making or constructing it in Canada^ etc." 
 
 This language seems clearly to exclude " an art or process," 
 and refers to " a machine," " a moMu/acture," or a " compositioni 
 of matter." 
 
 An " art or process " is defined in the note to sub-section (c) 
 of section 2. 
 
 The definition of " an invention " is the same in Canada as 
 in the United States ; indeed we have adopted it from the U. S. 
 Patent Statutes. 
 
 By sub-sec. (c) of sec. 2 of this Act " an invention " means 
 
 '* any new and useful art, machine, manufacture, or composition of matter, etc, 
 
 See note . to sub-sec. (c), sec. 2 of this Act, where the different 
 classes of inventions are discussed and distinguished. See also 
 section 7. 
 
 The intention may possibly have been to include every class 
 of invention the subject of Letters Patent, including " a pro- 
 cess " ; but if this be so, why was it not so expressed. Now, 
 notwithstanding the opening of the section, " a process " may be 
 excluded from the operation of this section. 
 
TTW- 
 
 [Sec. 37. 
 
 le patentee, 
 3le demands 
 ig an inven- 
 ctto "com- 
 1 elsewhere, 
 time limited 
 ,ed on failure 
 
 Sec. 37.] NON-MANUFACTURE-IMPORTATION. 
 
 353 
 
 under this Act 
 mragraph (a) 
 
 vtentecl in such a 
 
 use it to be made 
 
 in Canada, etc." 
 
 1'^ or 'process" 
 " composition 
 
 sub-section (c) 
 
 e in Canada as 
 from the U. S. 
 
 ention " means 
 on of matter, etc, 
 re the different 
 hed. See also 
 
 ude every class 
 luding " a pvo- 
 pressed. Isow, 
 roces!*" maybe 
 
 A " process " may be claimed to be excluded. This section 
 was enacted to encourage home manufactures and Canadian 
 labour, as we have shown. Now, a process is not a tangible pro- 
 perty or an article which can be manufactured ; it is merely a 
 series of acts, and is outside the language of this section, and 
 outside the reason of it, but a patented machine used in carrying 
 out that process would come within the meaning of the section. 
 If this be so, then the section should read " Every patent granted 
 under this Act, except one for a process, shall be subject, etc." 
 
 With reference to conditions lettered (a) and (6) it may be 
 said, that in the ten decisions, hereafter referred to, of the Ministei" 
 of Agriculture or his Deputy, they have never been construed 
 strictly. Barter and Smith, the first decision, 15th February, 
 1877, is still considei-ed the leading authority, and it was ap- 
 proved of in 7 Ont. Rep., p. 605, as well as in Smith v. GohUe, i> 
 Sup. Ct. Rep. 
 
 Barter v. Smith. 
 
 In this case it was proved that none of the patented machines 
 had been put up in Canada within the time piescribed, and that 
 there had been some importation after the authorized period, yet 
 
 the general conclusion arrived at was "that the respondent having re- 
 fused no one the use of his inventions, and that the importation, assented to l)y 
 him to be made being inconsiderable, having infiicted no injury on Canadian man- 
 ufacturers, and having been so countenanced, not in defiance of the law, but evi- 
 dently as a means tc create a demand for the said inventions, which the patentee 
 intended to manufacture, and did, in tr oflFer to manufacture in Canada, he 
 has not forfeited hia patents " : See Barter V. Smith (1877), vol. 2. 
 
 E.X. Ct. R. (Can.), p. 49-t. 
 
 The Meaning of " Carry on in Canada the Construc-^ 
 tion or Manufacture." 
 
 In paragraphs (a) and {b) "the words carry on in Canada the con- 
 struction or mamifacturt with their context cannot therefore mean anything else 
 tlmn that any citizen of the Dominion, whether residing in Prince Edward Island, 
 in Rritibli Columbia, in Ontario, Quebec or elsewhere on Federal soil, has a right to 
 exact from the patentee a license of using the invention patented, or obtain the 
 article patented for its use at the expiration of the two years del.iy, on condition 
 of applying to the owner for it, and on payment of a fair royalty. The worda 
 
 45 
 
354 
 
 FORFEITURE OF PATENTS. 
 
 [Sec. 37. 
 
 M 
 
 r 
 
 J-- 
 
 4 
 
 importHor caii.^en to he imporUd into Garada cannot mean anything else than injury 
 to home labour, which injury, if actually done by or with the connivance of tlie 
 patentee, must decidedly entail forfeiture of his patent " : bee BdVtev V. 
 
 Smith (1877), vol. 2, Ex. Ot. R. (Can.), p. 484. 
 
 Construction or Manufacture Defined. 
 
 The Deputy Minister of Agriculture lays down as the raean- 
 intj of " condviiction or manufacture of the invention" in para- 
 graph (a) as follows : — 
 
 " In order to arrive at a correct interpretation of the viovAs constmction or 
 manufacture, of the iuvention, it is necessary to well understand and carefully con- 
 sider the nature of the obligation therel)y imposed. 
 
 " As to patents, it applies to evtrij patent (jranttd ; as to subjects, it applies 
 to every conceivable nl)ject which may be invented or improved ; as to persons 
 who have the right to exact it, it applies to all inhabitants of the Canadian Con- 
 federacy ; as to extent of territory, it applies to the whole Dominion from 
 Ocean to Ocean, and to every Province and locality therein ; as to time, it applies 
 to 13 out of 15 years of the longest patent and to 3 out of 5 years of the shortest. 
 
 " 'J'his simple enunciation of the nature of things to which the law refers, is 
 sufficient to ilemonstrate that the law maker could not have had in contemplation 
 to force, on penalty of forfeiture, the patentee to actually fabricate his invention 
 with his own capital, within specific establishments, with liis own tools, and to 
 keep stock for every moment of the existence of his privilege ; and where ? All 
 over the Dominion, and whether he has purchasers or not. 
 
 " The patent might be for a process, for an object to be used in conjunction 
 with something else for an improvement on another patent still in existence ; it 
 might be for a railway bridge, switch or spike ; it might be for a mail bag, and in 
 all these cases it does lie within the powers of others than tlie patentee to say 
 whether the invention shall or shall not be void at a given time or at any time : - 
 " Therefore the real meaning of the law is that the patentee must be ready 
 either to furnish the article himself or to license the right of using, on reasonable 
 terms, to any person desiring to use it. But again, that desire on the part of sucli 
 a person, is not intended by the law to mean a mere operation or motion of tlie 
 mind, or of the tongue ; but in effect a honil fide serious and substantial proposal, 
 the otter of a fair bargain accompanied with payment. As long as the patentee 
 has been in a position to hear and acquiesce to such demand and has not refuseil 
 such a fair bargain proposed to him, he has not forfeited his rights " : Oee 
 Barter v. Sr)iith (1877), vol. 2, Ex. Ct. R. (Can.), pp. 482, 483. 
 
 " The offer of a fair bargain accompanied with payment," 
 should read " accompanied with an ofer of payment" ; there can 
 be no payment if the proposal is declined. The whole of this is 
 based on tiie theory of a demand by the customer and a refusal 
 by the patentee, in order to lay the foundation for a forfeiture. 
 
Sec. 37.] 
 
 EXCLUSIVE USE, ETC. 
 
 355 
 
 Paragraph (a) refers to a single " patentee and his legal representa- 
 tives or his assignee," while paragraph (b) refers to " the patentee or 
 patentees, or any of them, or his or their representatives or his or their assignee." 
 There may have been no necessity for the latter, as the Interpre- 
 tation Act, R. S. C. (188G), sub-sec. 21, sec. 7, declares, "Words im- 
 porting the singular nnmher or the masculine gender only includes more persons, 
 parties or things of the same kind than one, and females as well as males and the 
 converse. " 
 
 The two paragraphs ought, however, to be uniform, as the 
 same class is referred to in both. 
 
 The construction or manufacture of the patented article is to 
 
 be carried on in such a manner "that any person desiring to use it may 
 obtain it, or cause it to be made for him at a reasonable pi-iee." 
 
 Exclusive Use. 
 
 The patentee then can only have an " exclusive use " of his 
 own patented invention for two years from the date of his 
 patent, or during any authorized extension of such time, except 
 as to a process, as surmised. 
 
 If the patent be for a " product " to be made by a special pro- 
 cess, and the patentee had patents on both the " process " and the 
 "product" he might, it is conceived, have a monopoly in the sale 
 of the patented product, provided he was able to supply the 
 whole demand of the public, so that any person desiring to use it 
 might obtain it. 
 
 If the patentee had a patent on the " product" and not on the 
 'process," as was the case with the Goodyear rubber patent for 
 vulcanized India-rubber, he might still have a monopoly of the 
 sale, provided no one were able to evade his patent on the product. 
 
 In any event, it is conceived, tliere may be a monopoly in a 
 "process," and the patentee may have an " exclusive " right. 
 
 The causing it to be made for him must refer to a making 
 with the assent of the patentee, after a " reasonable 2)rice " has 
 been agreed on. Otherwise the causing it to be made without 
 uuthority would be an infringement. 
 
 A Reasonable Price. 
 
 Then the question arises, what constitutes a " reasonable pi'ice," 
 and who is to be the arbiter in determining it. 
 
 r. 
 
- .1"" 
 
 
 il^ 
 
 m-, ■> 
 
 m 
 
 i; 
 
 
 1 
 
 i 
 
 
 1 
 
 , : 
 
 356 
 
 FORFEITURE OF PATENTS. 
 
 [Sec. 37. 
 
 The "reasonable price" must vary according to each partic- 
 ular class of invention ; a patented machine of a complicated 
 nature, such as " an envelope nialdng machine," may be capable 
 of supplying a very large demand, and may have been the result 
 of years of patient toil, experiment and thought, and the result of 
 a very large expenditure of money ; while another machine may 
 have been the result of a sudden thought, be simple in its nature, 
 and the cause of little expenditure of time or money, and be capable 
 of supplying a small demand comparatively, while in both cases the 
 demand may yet be " in embryo," and it may turn out that the 
 simpler and less expensive device, may eventually give birth to a 
 vastly greater demand than the more meritorious and expensive 
 machine, and therefore be more profitable. As the aim in both in- 
 stances is the making of money, and the supply of a public demand 
 or want, what rule is to be laid down when the possibilities of 
 making money, or the demand, are not yet ascertained ? The 
 relative cost of construction of the two devices can form no cri- 
 terion, for the royalty can be in no way based upon such cost, for it 
 can bear no ratio thereto. The question is a very difficult and 
 complicated one to answer, and the answer to it, in the absence 
 of any well established license fee, which the patentee has hitherto 
 l>een willing to take and the public to pay, must necessarily be of 
 an empirical or arbitrary nature. 
 
 No stated rules have been laid down, but evidence of estab- 
 lished royalties on cognate devices, if any there be, may afford 
 some but inadequate assistance. 
 
 A patentee may be entitled to raise the amount of a royalty 
 which he has previously been in the habit of accepting; it may 
 have been an inadequate sum, and he is not always bound 
 always to accept such sum ; so a license fee may not be always a 
 guide. 
 
 How is the " reasonable price " to be determined if the pa- 
 tentee and proposed customer differ in their views ; the patentee 
 who foresees, or thinks he foresees, the eventual possibilities of bis 
 device may put an altogether fabulous value on his own machine, 
 particularly if he wants to secure a monopoly of the use of his 
 machine, if, for instance, he can supply the market with envelopes 
 
Sec. 37.] 
 
 A REASONABLE PRICE, ETC. 
 
 357 
 
 at a rate so much less than any other machine in the market, and 
 thinks he can develop a trade ; while the proposed customer, who 
 may, in some measure, realize some, of the advantages, but may 
 not give them their proper value, would be pretty sure to go on 
 the opposite tack and minimize everything 
 
 After great expense, enterprise and a lapse of years, and the 
 luxury of some law suits, a patentee may have succeeded in estab- 
 lishing a market and price for his patented invention ; how is the 
 royalty to be estimated when rival manufacturers are desirous to 
 step in and reap where he has sown, and in some cases to cut 
 rates with some specific object in view ? The system in the States 
 where no conditions whatever are imposed, commends itself to 
 one's reason ; the assumed danger of the importation of foreign 
 patented articles, to the detriment of Canadian manufacturers 
 should not have much weight. " Compulsory licenses," as in Eng- 
 land, which were approved by +i^'^- representatives at the Vienna 
 Congress by a large majority, are preferable and more just than 
 the Canadian system, although " compulsory licenses " in the 
 United Kingdom are not a success ; the custom duties alone should 
 be a sufficient protection. This provision as to manufacture in 
 Canada might very well be dispensed with. 
 
 i^' . !■, 
 
 Compulsory Licenses in the United Kingdom. 
 
 In the United Kingdom by sec. 22, of the Act of 1883, if (a) 
 a patentee does not work his device, or {b) does not supply the 
 reasonable requirements of the public, or (c) if any person requires 
 the use of the invention in order that he may work an invention of 
 which he is possessed to the best advantage ; if any of these three be 
 proved to the Board of Trade, on the petition of any person in- 
 terested, the Board may order the patentee to grant licenses, on such 
 terms as to the amount of royalties, security for payment or other- 
 wise, as the Board, having regard to the nature of the invention and 
 till! circumstances of the case, may deem just, and any such order 
 may be enforced by " mandamus." 
 
 This seciion 22 has practically been inoperative, and few 
 applications have been made to the Board of Trade, and no order 
 
mi^ 
 
 I] 
 
 358 
 
 A BEASONABLE PRICE, ETC. 
 
 [Sec. 37. 
 
 has been made in any ease for a compul.sory license. Up to en<l 
 of 1887 there had only been one informal application, which was 
 withdrawn. In 1888 there was one application. 
 
 It may be, however, that these provisions induce patentees in 
 grant licenses rather than appear before the Board : See Edmunds 
 on Patents, p. 4G2. 
 
 Determining as to the Reasonable Price. 
 
 In the United Kingdom, then the Board of Trade may fix on 
 " the rea-sonahle jjvice," a,nd there is no appeal from the decision 
 of the Board ; but in Caiiarla nothing is said about this matter, so 
 it may be inferred by some that if a person desires to bring the 
 matter to a decision he must make the patentee a pecuniary 
 offering in xyriting, and on the patentee refusing to accept the 
 offer the party may then institute proceedings in Court, setting 
 out the facts of the case and of the of5er and refusal, and pay the 
 money so tendered by him to the patentee into Court, and the 
 Court may then be in a position to determine whether the offer 
 is a reasonable one and should or should not be accepted, and 
 what is " the reasonable price " to be paid, making the costs 
 depend on the result ; but then we ai'e met with this difficulty, 
 the tribunal under this section is not to be asked to determine 
 what is the " reasonable price," but to determine whether or 
 not the patent is to be declared null and void for breach of 
 conditions. This "reasonable price" is one of the conditions 
 precedent, so it would appear that a person making a definite 
 offer and meeting with a refusal may a.sk the Court to annul the 
 patent, which the Court may do if the Court considered that 
 there had been an offer and a refusal of " a reasonable price,' 
 which reasonable price it has been found impossible to determine 
 by the parties themselves. This does seem harsh and arbitrary, 
 for a Canadian patent may be voided for an alleged breach of a 
 condition which has never been determined and which may never 
 have been capable of determination. The compulsory license and 
 the fixing of an amount to be paid by an independent tribunal, as 
 in England, seems more equitable. 
 
 The English provision, however, is still imperfect and appar- 
 
Sec. 37.] 
 
 A REASONABLE PRICE, ETC. 
 
 S59 
 
 :t and appar- 
 
 ently inoperative, but is better than ours, the interests of the 
 pubUc appear to be more regarded than those of a private rival 
 iiianufacturer, who may desire to use the invention for his own 
 private gain. 
 
 What may be " the reasonable requirements of the publw,'^ 
 which the patentee in England must supply, appeai-s very in- 
 definite. Do rival manufacturers constitute the public ?* 
 
 If it be a machine which is to be supplied ; the public are more 
 Interested in the product of a machine than in the machine itself, 
 and if the patentee, by enlarging his establishments, can supply 
 the whole demand for tlie product of his patented article, why 
 should he not be entitled to do so ? The interests of home manu- 
 facture would be quite as well protected. 
 
 The true reason for this section may not be the protection of 
 Canadian industries, as suggested in Barber v. Smith by Mr. 
 Tache, but the low^ering of the prices of commodities in the public 
 interests, by inducing competition and cutting rates, the patentee 
 havinfj all the time the advantaue of the royalties which he receives. 
 
 And this view appears to have suggested itself to Sir John 
 Thompson in The Royal Electric Co. v. The Edison Electric Light 
 Co. on the question of selling the patented invention " at a rea- 
 sonable 2^rice," who says : " Probably the evil which that part of the stat- 
 ute was principally inteiulecl to prevent, was the exaction of exorbitant prices 
 under the monopoly secured by the patent " : See vol. 2, Exch. Ct. Rep. 
 (Can.), vol. 2, pp. C08, 009. 
 
 Mr. Tache, in Barter v. Smith, docs not consider the question 
 of " a reasonable 2>}'ic(i " as one coming under the jurisdiction of 
 the Minister of Agriculture or his Deputy, for he refers to sec. 21 
 of the Patent Act of 1872 (now section 44 of the Patent Act), as 
 setting up "a special and exceptional mode of settling upon the price to be 
 paid to the patentee " by the Government of Canada, viz., by the report 
 of the Commissioner of Patents as to what may be a i-easonable 
 corapensation for the use thereof: See Barter \. Smith, \o\. 2, 
 Exch. Ct. Rep. (Can.), p. 483. 
 
 The Court to Fix the Amount. 
 
 If it were the intention that the Courts should determine what 
 is " a reasonable price" there could then be no ground for an- 
 

 111 i 
 
 W 
 
 
 360 
 
 A REASONABLE PRICE, ETC. 
 
 [Sec. 37. 
 
 nulling a patent because the j;«at»tntee refused to accept an unde- 
 termined amount, so we are on the horns of a dilemma, which has 
 not yet been solved, and the Jr»cjjcal conclusion is that the Courts 
 should be specially required t^» fix on the amount of the royalty, 
 and to compel the patentee to grant a license on the receipt of 
 such amount, as is the case in tJuie United Kingdom ; but it would 
 be better if the whole provivicnn a^ to manufacfare were wiped 
 out as is the case in the V. S. A. 
 
 The addition of the words '*a]t»o«ne manufactory or establishment for 
 making or constructing it in Canada.*" wool*'! lead one to suppose that tlie 
 obtaining of a patent involves the necessity of supplying one's self 
 with the burden of a manufa^jtofy or establishment in Canada to 
 make or construct the patented article within a couple of years or 
 so of the date of the patent, wJi'^i'tliier the article be demanded or 
 not, and before the patentee ha/d time to create a market, unless 
 the" authorized extension'' of ifUch time be taken as providing 
 for this, as to which see note to» *i!i!>-section 2. It must be borne 
 in mind that by a strict interpretation of this section one must 
 •' commence, and after such commenutaDitBint tfimtinuously carry on the construction 
 or manufacture, etc.," there is to i*e no kt up to it, whether the article 
 is wanted or not, on pain of voMance of the patent, which is one 
 of the absurdities of this flection. The only way is to do as 
 Mr. Tacht^ did in Barter v. Snrdh, and substitute a totally differ- 
 ent set of words as the meaning of the present agglomeration. 
 
 Barter and Smith establishes the ifact that "it is not incumbent on 
 a patentee to show that he has ma.d^ «idtiiTe efforts to create a market for his 
 patented inv-ention in Canada; but it jvs&x Epon those who seek to defeat the 
 patent to show that he neglected or rtf a«el tfn sell the invention for a ' reasonal)le 
 price 'when application was made to Mim nherefor." See headnotc 2, vol. 
 
 2, Ex. Ct. R. (Can.), p. 455. 
 
 Meaning of Sale for a Reasonable Price Modified- 
 
 But as to this in T/te Roy<d Ekdric Lifjkt Co. of Canada, and 
 the Edison Electric Light Co., decideti by the Honourable John 
 Carling on the 25th Noveml*er, 1SS9, on the report of the Hon- 
 ourable Sir John Thompson, Miniiiter of Justice, being the last de- 
 cided case, the question of "a mde for a reasonable price," has 
 been somewhat modified ; for it ikoa there decided that, "Where 
 
 1:1 
 
Sec. 37.] 
 
 IMPORTATION. 
 
 3G1 
 
 the article patented is of delicate and skilful manufiicture, and one from which 
 the patentee can only reap the reward of his lahour ainl expenditure through its 
 being esteemed successful by the public, it is reasfuiable for him, at a time when 
 public opinion in respect of it is in suspense, to decline to sell his invention un- 
 conditionally to those who, by unsjuitable use, would fail to derive benefit from it 
 themselves, and would create an impression in the public mind that the invention 
 was ii failure. If, upon application made to him, for the purchase of his invention, 
 he imiJoses a limitation in respect to its use, he ought not to be held thereby to 
 have forfeited his patent, unless it appear that such limitation was imposed for the 
 purpose of evading compliance with the provisions of the statute, which require 
 him to sell tiie patented invention at a reasonable price" : bee lieaclnote, VOl. 
 
 2, Ex. Ct. R. (Can.), p. 577. 
 
 Importation. 
 
 As to the interpretation to be placed on paragraph (6) re 
 importation into Canada beyond the time authorized, it was 
 hold in Barter and Smith (1877), vol. 2, Ex. Ct. R. (Can.), p. 45.5, 
 
 notwithstanding some unauthorized importation, that "the in- 
 tention of the legislature in enacting the provisions of section 23, .S.") Vic, ch. 26, 
 which prohibit the patentee from importing his invention in a manufactured state 
 alter the expiry of a given time from the granting of his patent, was to protect the 
 imlustrial interests of Canada, and the prohibition should not be extended to 
 operate a forfeiture in cases where the character and circumstances of the importa- 
 tion tend to promote rather than prejudice such interests ": See headnote 3. 
 And in the same case "If after the time has expired wherein the 
 patentee may have imported the invention without prejudice to his rights, he 
 consents to the importation by others, such importation brings him within the pro- 
 hibition of the statute and avoids his patent " : See headnote 4. 
 
 And in The Toronto Telephone Manufactwrlncj Co. and The 
 Bell Telephone Co. of Canada (1885), see headnote 2, vol. 2, 
 
 Ex. Ct. R., p. 495, it was held that " Tlie importation of the component 
 pans of a telephone, in such a state of manufacture us simply to require putting 
 togetiier in Canada to make the completed instrument, falls within the prohibi- 
 tion of section 28 of 3j Vic, ch. 26, as amended by 38 V^ic, ch. 14, sec. 2 ; "' 
 this view has been modified, or at least has not been followed 
 in The Royal Electric Co. and The Edison Electric Light Co. 
 (18{:?9) : See case No. 10 hereafter set out in this Part XL 
 
 " Connivance by the patentee in an improper importation is e(iual to importing, 
 or causing to be imported, within the meaning of the statute " : See headnote 
 
 i, Toronto Telephone Manufacturing Co. and The Bell Telephone 
 Cv., vol. 2., Ex. Ct. R. (Can), p. 495. 
 46 
 
mW — "*"^ 
 
 l 
 
 i| Ijlli 
 
 in 
 
 4] 
 
 ■M 
 
 I 
 
 362 
 
 NON-MANUrACTURE. 
 
 [Sec. 37. 
 
 In Mitchell and the Hav cock Ins2)lrator Co. {\S8G) : ' Wlun 
 the subject of a patent is a new combination of old dcvicea, the patentee cannot 
 import such devices in a manufactured stJite, and simply apply his combination tn 
 them in Canada, without violating tiie prohibition against importation contained 
 
 in sec. 28 of the Patent Act of 1S7*2 " : See hejullioto 2, vol. 2, Ex. Ct. 
 
 R. (Can.), p. 53U. 
 
 As to this, Sir Jolin Thompson, in IVte Royal Electric Go. of 
 Cavdda v. The Edison Electric Light Co. (1889), expressed this 
 view : — 
 
 " The elements in th.it case were themselves machines, and the Deputy 
 Minister seems to have entertained the view that the patentee was bound to 
 manufacture the machines in Canada, although his patent was only for a coml)iu,i- 
 tion of those machines." 
 
 " While I do not think the case to be one in point, or one from which any 
 inference can be dr.awn to affect this case, unless it be an inference from the fiiot 
 that a very severe view was taken, at tiiat time, by the Deputy Minister of Agri- 
 culture, of the requirement in the patent law as to the manufacture in Canada, I 
 must add, as respects tliat inference, that, if the case were admitted to be one in 
 point, I should have very great difficulty indeed in advising you that tlie Han- 
 cock Inspirator case was correctly decided, or that it should be followed " : See 
 vol. 2, Ex. Ct. R. (Can.), p. Oil. 
 
 Views on "Importation" and "Manufacture" Mo- 
 dified. 
 
 In The Boyal Electric Go. v. The Edison Electric Light 
 Co. (1889), just referred, the views on the question of " imimrta- 
 tion" and " mamifactiire" were much modified, explained and 
 broadened in the interest of the patentee, the intention being to 
 treat him, as to the conditions imjtosed by the Act, with the 
 ' utmost liberality possible, and as this is the latest case, wherein 
 the previous cases had been reviewed, and the judgment emanated 
 from the Minister of Justice, it may be taken as a standard case of 
 the highest authority and governing, on the question of " manu- 
 facture " and " imiportation" where it is applicable. 
 
 It was held by the Minister of Justice in this case "That if 
 an article imported by a patentee and used by him in the construction of his inven- 
 tion i.s a common commercial article, employed for many purposes, and is not 
 specified in the patentees' claim as an essential part of his invention, such importa- 
 tion does not operate a forfeiture of the patent " : Headnote 1, S. G, 
 
Sec. 37.] 
 
 IMPORTATION. 
 
 363 
 
 Test as to Right to Import. 
 
 And it was also hold that " A fair test of the patentee's ability to 
 fretly import any artiele recjuired in the construction of liis invention, is to ascer- 
 tain if it is open to every person in Canada to manufacture, import, sell and use 
 the same without thereby infringing the patent in (juestion. If tlie article is thus 
 pait of the public domain, the patentee is at liberty to import it or to purchase it 
 ill Canada for the purpose of such construction " : Headnote '2, *S'. C 
 
 And as defining the meanino- of the words "The invention for 
 
 which the patent is granted," it was held that "There is no express provis- 
 ion in the statute imposing the i)enalty of forfeiture for importing into Canada the 
 various parts of the invention in respect of which the patent was granted, much 
 less for importing one of its parts. The words of the statute are ' the invention 
 for which the patent is granted,' and they ought not to be extended ))eyond their 
 plain meaning. In administering the statute the minister can only apply the 
 [lenalty to the otteiice which the statute forbids. He cannot apply it to an 
 attempt to evade the statute": Headnote 4. See vol. 2, Ex. Ct. R. 
 (Can.), p]). 576-577, S. C. 
 
 As to Unauthorized Importation. 
 
 The new words added " such patent shall be void as to the interest of 
 the person or persons importing or causing to be imported as aforesaid," IS a pro- 
 per amendment. We have seen that one of the several joint 
 owners of a patent, whether the joint interest bo acipiired by 
 assignment or by joint invention, may deal with the patented in- 
 vention as he chooses, without liability to account to the other 
 joint owners. So it is only equitable that the other owners, who 
 have had nothing to do with the breach of condition, should not 
 sutfer thereb}'. 
 
 As to sub-sections 2 and 3 referring to the jurisdiction of the 
 Provincial Courts, and of the Exchequer Court of Canada, it may 
 be assumed in view of the principles laid down in Barter v. Smith, 
 that questions relating to " non-manufacture " and " importation" 
 will be treated in a "paternal manner," and not after the strict 
 letter of the law ; for if the strict letter of the law were insisted 
 on, it may be seen that but few if any patents would be sustain- 
 able, when a question of non -manufacture or importation arises. 
 
 Principles Which Should Govern. 
 
 As to the principles which should govern a tribunal in deter- 
 mining as to the meaning and intent of this section, Mr. Tache in 
 
 II 
 
r 
 
 i 
 
 1 
 
 
 1 ■ ''* 
 
 1^ 1 
 
 
 i 
 
 ^:,:Hi«i 
 
 11 
 
 I'i 
 
 It 
 
 'i;? 
 
 .li! 
 
 364 
 
 FORFEITURE OF PATENTS. 
 
 [Sec. 37. 
 
 Barter v. Sniifh, vol. 2, Ex. Ct. R. (Can.), p. 4S1, lays down 
 "The duty of tliis tribmiivl is, tliercfore, on one liiiiid, after liaviiig Hatinficd itself 
 of the facts, to apply the remedy if the mischiefs provided against Ijy tlie .Statute 
 have been really committed in intent or effect ; and, on the other hand, to gu.ir.l 
 against the crncl injustice of inflicting such a punishment as the total destructinu 
 of an acfjuired and vested right, when no real damage was either intended or done, 
 The common principle of justice which says that when there is no injury inflicteil 
 no damages are to be granted, and that when no oilonce has been committed no 
 penalty is to be imposed, must govern the matter as well as the principle that no 
 ofTender should be sheltered from the punishment for otFence or injury perpetratcil 
 by him." 
 
 Burden of Proof Not on Patentee. 
 
 And as afi'ecting proeeduro it is also laid down in Barter 
 
 V. SmitJi, SUpVd, p. 47G : "it is appinent that this case, being one in whicii 
 the disputant urges the forfeiture of an ac(iuircd right which the respomuti' is 
 presumed not to have lost nor alienated, the burden of proof cannot be admitted o 
 lie on him who holds a public title which must be taken as good so long as nothing 
 to the contrary is established, even if the evidence involved the proof of a negative. 
 In this case the evidence does not rest on establishing a negative but on ascertain- 
 •ng the existence of positive facts." 
 
 And again in Barter v. Smith, sujjra, p. 480-481 : "So far, the 
 
 intention of the legislature, as shown by the history of the legislation, is evidently 
 to guard against the danger of Canadian patents, granted to aliens, being made 
 instrumental to secure the Canadian market in favour of foreign patents to the 
 detriment of Canadian industry ; for, in the measure that the right of taking 
 patents was extended, the remedy against the dreaded danger was made more 
 ample, but at the same time the jurisdiction over such cases of disputes as might 
 arise was transferred from the judicial tribunals to the administrative tribunals, 
 evidently for the purpose of avoiding an overstrict application of the provision 
 made against the possible evil of a patent being taken for the sole purpose of de- 
 priving Canada from the use of a useful invention. The iSth section is also in- 
 tended as a sort of protective policy in favour of Canadian labour. The Legisla- 
 ture has, certaiidy not without intention, provided for a kind of paternal tribunal, 
 formed by the Commissioner of Patents, the natural protector of patentees, which 
 intention can be no other than that every case should be adjudicated upon in a 
 liberal manner." 
 
 It is to be hoped this section 37 will receive the .same liberal 
 interpretation in the Courts that it did before the Minister of 
 Agriculture and his Deputy, otherwise, as the section is now 
 worded, few patents will stand the test. 
 
 The judgment in Barter v. Smith, as we have shown, has 
 been endorsed in the Ontario Courts, as well as in the Supreme 
 Court (Canada) in Smith v. Goldie, 9 Sup. Ct. R, 46. At p. 09 of 
 
Sec. 37.] NON-MANUFAOTURE-IMPORTATION. 
 
 3G5 
 
 tlio Supreme Court Report Henry, J., .states, refcrrinp; to Mr. 
 Tachd'sjud foment in Barter v. Smith : "i concur fully in his conclu- 
 
 siotis as I do in iiis reasons." 
 
 In the United State.s there was for a few years an obliijation 
 cast on aliens by the Patent Act of July, 1832, to introduce into 
 public use the patented invention within one year from the date 
 of the patent, othem i ie it should become absolutely void, with- 
 out resort to legal process ; or in case the same, for any period of 
 six months after such introduction, shall not continue to be 
 publicly used in the United States. This Act was i-epealcd by 
 the U. S. Patent Act of 1836. 
 
 Mr. Tache states : By the ISth section of the Act of 18.36, the defendant 
 in iui action of damages, was permitted to plead the general issue : at the end of 
 
 the enumeration of defects, we read : — " or that the patentee, if an alien at 
 
 the time the patent was granted, has failed and neglected, for the space of eigh- 
 teen UKmths from the date of the patent, to put and continue on sale to the public, 
 on reasonable terms, the invention or discovery for which the patent issued ; in 
 either of which eases, judgment shall be rendered for the defendant with costs." 
 
 The provisions of this clause were invoked in one ctwe of an assigned alien's 
 rigiits : Ikitham v. Lowber, Blatch., C. C, vol. 2, pp. 49-51. Messrs. .Justices 
 Nelson and Betts, State of New York, decided :— 
 
 " That even if the plaintiffs took their right with the condition attached to 
 alien patentees, yet they h.id satisfied the statute : that they need not prove that 
 they hawked the patented improvement to obtain a market for it, or that they 
 endeavoured to sell it to any person ; but that it rested upon those who sought to 
 defeat the patent to prove that the plaintiflTs neglected or refused to sell the 
 patented invention for reasonable prices when applicatioi. was made to them to 
 purchase." 
 
 See Barter v. Smith, vol. 2. Ex. Ct. R. (Can.), p. 487. 
 
 This is the nearest approach to similar legislation in the 
 States, and the onus was cast on the party seeking to defeat the 
 patent, and an interpretation very liberal to the patentee was 
 
 given. 
 
 The refusal of a patentee in U. S. A. to furnish his device 
 when requested does not justify the use of an infringing article : 
 Masseth v. Reiber (January loth, 1894), 07 0. G., p. 143. 
 
 The new jurisdiction of the Exchequer Court and of the other 
 Courts, established by the Act of 1890, and the removal of the 
 jurisdiction from the Minister of Agriculture or his Deputy, to- 
 gether with the right of appeal have already been alluded to in 
 tracing the history of this section. 
 
 
 
 
 -^■i^-'^ 
 

 '06 
 
 PROCEDURE. 
 
 rSec. 37. 
 
 U 
 
 i i 
 
 f 
 
 Two Modes of Procedvire Now. 
 
 By the Act of 1891 the change of and " at the relation of " into 
 " or at the suit of " has given two different modes of procedure ; 
 either by information in the name of the Attorney-General of 
 Canada, or by an ordinary suit "of any person interested," the latter 
 may be taken to mean, any person among the public not under 
 ilisabilities. 
 
 As the Act of 1890 provided for "an information in the name of the 
 Attorney-General of Canada, and at the relation of any person interested " 
 when proceedings were taken in the Exchequer Court of Canada, 
 the pioceedingc were cumbrous and formal. Before the Attorney- 
 General of Canada signed the information it was then necessary 
 that there should be a certificate from counsel, that the informa- 
 tion tendered was a true copy of the draft as settled. 
 
 A certificate from the solicitor of the relators, with an under- 
 taking as to costs, etc., and a certificate of a notary as to a sworn 
 .statement by the solicitor of the relators to the statement of fact;?, 
 etc., in the information. 
 
 By the Act of 1891, "and at the relation of any person interested' 
 was struck out and " or at the suit of any person interested " substituted. 
 
 This appears to leave the procedure as now set out in Rules 
 4, 5 and of the Exchequer Court, the information being accord- 
 ing to the Form Schedule A, and to be signed by the Attovuoy- 
 General of Canada, or some person duly authorized to aflix his 
 signature. 
 
 Instead of these proceedings in the name of the Attorney- 
 General an ordinary suit between plaintiff and defendant may 
 now, it ai>pears, be instituted either in the Exchequer Court or any 
 of the Provincial Courts, and this iorin of procedure will, doubt- 
 less, be adopted, though the practice is not yet settled in any way. 
 
 The proceeding by information in the nanie of the Attorney- 
 General appears to be confined to the Exchequer Court, Canada, 
 the ordinary^ form of procedure in the Provincial Courts appeai-j 
 to be applicable. 
 
 Paragraph 8, Sub-Section 1, Section 37. 
 
 This paragraph, as to juinsdiction of courts other than that of 
 the Exche(iuer Court, dates from the 24th A))ril, 1890, when 33 
 
 Hii 
 
m 
 
 Sec. 37.] NON-MANUFACTURE-IMPORTATION. 
 
 3G7 
 
 Vic, c. 13, came into force, and when the jurisdiction of the Min- 
 ister of Agriculture or his Deputy was taicen away. The Pro- 
 vincial Courts, now, inferentially have jurisdiction on questions 
 of "non-manufacture" ov "Impovtatlon" ; this jurisdiction may 
 better have been conferred directly, in the manner that section 
 30 confers jurisdiction on the Provincial Courts in infringement 
 suits, or as section 34 expressly empowers Provincial and Terri- 
 torial Courts to deal with the impeachment of Letters Patent. 
 
 Since the special tribunal of the Minister or his Deputy was 
 done away with, " non-7nanufactare" or unauthorized "impor- 
 tation " may be grounds for " sci. fa. " proceedings in the Pro- 
 vincial Courts to void a patent under section 34. 
 
 Difficulties of Provincial Courts Dealing with Ques- 
 tions Under Section 37. 
 
 Should Provincial Courts undertake to deal with the question 
 of "non-manufacture" or "importation" there is nothing to 
 give effect to their decrees beyond the province or territory in 
 which proceedings were instituted. Section 35, whereby the 
 recording of certificates of Decrees in Provincial Courts, etc., has 
 the effect of rendering a Dominion patent void, has only relation 
 to " sci, fa." proceedings, and not to an ordinary suit. Then again, 
 what right, for instance, would an Ontario Court have to inter- 
 fere in the matter of unauthorized importation in British 
 Columbia. 
 
 This paragraph 3, of sub-section 1, appears inoperative as to 
 Provincial Courts ; one would be forced to proceed in the Exchc- 
 (ii'.er Court, Canada, to void a patent for the Dominion. " Non- 
 manufacture" and "importation" may be good as a defence in 
 an infringement suit, and will doubtless be pleaded in Provincial 
 Courts. 
 
 If Courts, other than the Exchequer Court, have not now 
 jurisdiction to void a Dominion patent for breach of condition us 
 to manufacture and importation, how can the conferring of juris- 
 diction on the Exchequer Court, Canada, to do so, affect a jurisdic- 
 tion which the other Courts do not possess : See paragraph 3, 
 section 37. 
 
3G8 
 
 EXTENSION OF TIME TO MANUFACTURE. [SeC. 37. 
 
 As to Extension of Time to Manufacture. 
 
 Sub-.sec. 2. Whereby the term within which manufacture is 
 to take place, may be extended beyond the two years from the 
 date of the patent, is defective, in that it does not provide for 
 more than one extension, and does not in any wise limit the length 
 of .such extension ; so that now, at any time within three months 
 before the expiration of the two yea»s, the Commissioner of Pa- 
 tents may, on proof to his satisfaction, of the impossibility of 
 manufacture bj'^ the patentee extend the period for sixteen years, 
 until the final expiry of the patent ; and it is also evident that 
 the Commissioner having made one extension, if it be only for 
 three months, may be considered "functus o^cio " and may be 
 unable to grant a second extension for any reason whatever ; this 
 would appear to be the c;ise according to the wording of the Act, 
 but the practice has been otherwise and the Commissioner of Pat- 
 ents has been in the habit of making a series of extensions, of 
 one year each, as to manufacture, so that sometimes five or six 
 extensions or more may be endorsed on the patent. 
 
 As to the first eventuality, which appears clear, Mr. Tachd in 
 
 Barter v. Smith, states: 
 
 •' The effect of the delay of two years and the effect of any further extension 
 thereof means, that during that time the patentee is permitted to withdraw en- 
 tirely (the Government excepted) the use of hia invention from the Canadian 
 public, that he can refuse the use of it to all and everyone, under any and every 
 circumstance. It follows that the granting of a long delay would amount to de- 
 priving, during such time, Canadian industry of the use of such invention, which 
 could not be imported and which the inventor would not be bound to furnish ou 
 any condition. As it is logically necessary to carry the argument to the extent 
 that there are many cases in which the ditticulty being of all times, the delay, of 
 necessity, should be carried to the whole duration of the patent, it amounts to 
 saying that the Commissioner of Patents is empowered to grant, and in fact forctil 
 to grant, that Canada should remain for a long period of time, or the whole period 
 of the duration of patents, quoad the utility of certain inventions, in a state of 
 industrial inferiority as compared with all other countries : See vol. 2, Ex. 
 
 Ct. R. (Can.), pp. 48.5-G. 
 
 Mr. Tache, in Barter v. Smith, supra, pp. 492-3, says tlie 
 " extension can of course be grante<l by the commissioner only as a continuation 
 (without inter ruj)tion) of the respite of which it is the mere prolongation. When 
 the statutory delay has expired, a patent is either voided or in operation, according 
 to the spirit of the law, and no other proceeding, on the point in question, can in- 
 tervene, unless a dispute is raised." 
 
Sec. 37.] EXTENSION OF TIME TO MANUFACTURE. 
 
 369 
 
 Only one Extension for Time to Import. 
 
 By sub-sec, .3, sec. 37, the Commissioner is empowered to 
 fjrant an extension of time to import "to the patentee or to his legal 
 representative or assignee." By the Interpretation Act this extends 
 to plural patentees, etc., expressly mentioned under paragraph (h), 
 section 37, ante ; but, having granted one extension for a period 
 not exceeding twelve months, he can grant no more. 
 
 Surplusage. 
 
 The words " or any extension thereof " at the end of the paragraph are 
 evidently a surplusage, and should be struck out, for they may be 
 taken to mean that a second extension might be obtained to 
 run into the third year, which is not the case, the beginning part 
 of this sub-section being express as to one extension only. 
 
 It is to be inferred, however, that if there be several joint 
 owners of a patent, that an extension of time granted to one of 
 tliem, either as to manufacture or importation, will not inure for 
 the benefit of the other co-owners, but that each owner must make 
 application or join with the other owners in an application for an 
 extension of time in order to save his own interest in the patent. 
 
 No Provision as to Extension when There are Plur- 
 ality of Owners. 
 
 The section as originally drawn only contemplated a single 
 interest in a patent, whereas the new sub-section (b), introduced in 
 1S92, contemplates the very possible contingency of a plurality 
 of interests. Provision should be made in this section as to 
 application for extension of time to manufacture or import in the 
 event of a plurality of owners, each of whom may be dealing 
 independently with the patented invention, as we have seen he is 
 entitled to do. 
 
 I. 
 
 Barter v. Smith, 15th February, 1877. 
 
 In the first case tried, Barter v. Smith, decided by the Deputy 
 Minister of Agriculture, Mr. Tach^, 15th February, 1877 : See 
 Appendix No. 2, vol. 2, Ex. Ct. R, p. 455 ; one of the three pa- 
 tents in dispute, No. 2409, was for a "process of milliny" and 
 47 
 
 111 
 
 III 
 
 m 
 
•■■ I'll 
 
 Hi 
 
 370 
 
 NON-MANUPACTURE-IMPORTATION. [See. 37. 
 
 he adjudicated with respect to it, and dechxred that it, as well as 
 two others, Nos. 2257 and 2258 for the flour-dressing machines, 
 had not become null and void. We have already discussed whether 
 a pi'ocess iKitent came within the operation of this section and gave 
 reasons for supposing that it did not. As to this process patent, 
 Mr. Tache states in his judgment in Barter v. Smith, supra, p. 491 : 
 " The disputant, aiming at the process of milling patented under No. 2409, has trieci 
 to connect patent No. 2257 with patent No. 2409, as heing necessarily dependent 
 on each other in the way of cause and effect, or rather object and means, but has 
 failed in that, and, by his evidence, has in fact, proved the contrary of his proposi- 
 tion, in establishing that Smith's process does not require any special plant or 
 machinery ; but can be added to any mill by ordinary tools and workmanship, and 
 with ordinary materials, which is, besides, made plain by a careful study of the 
 patents." This is hardly correct, for a "process is a Piode or method of 
 operation, or an act or series of acts performed upon the subject matter to be 
 transformed and reduced to a different state or thing." So you Can hardly 
 say, as here, that this process "can be added to any mill by ordinary tools," 
 although it may be necessar}'- to utilize a machine for the purpo.se 
 of carrying out the process. 
 
 The evidence in this case was altogether documentary and by 
 affidavit. 
 
 We have already given the findings in this case, the leading 
 features beino- : 
 
 As to Non-manufacture Not Creating Forfeiture. 
 
 That although a patentee may not have commenced to manu- 
 facture the patented article within the period limited, yet so long 
 as he is in a position either to furnish it or to license its use at a 
 reasonable price to any person desiring to use it, his patent ought 
 not to be declared forfeited. 
 
 Importation Not Creating Forfeiture. 
 
 And as to "Importation " it was also found that the provis- 
 ions which prohibit the patentee from importing his invention in 
 a manufactured state, after the expiry of a given time fi'oni the 
 granting of his patent was to protect the industrial interests of 
 Canada, and the prohibition .should not be extended to operate a 
 forfeiture in cases where the character and circumstances of the 
 importation tend to promote rather than prejudice such interests. 
 
Sec. 37.] 
 
 CASE No. I. 
 
 371 
 
 Mr. Tach^ states in Barter v. Smith " As to importation, it is 
 
 proved that the macliines imported at Thorokl by Messieurs. Howland and Spink, 
 more than twelve months after the date of the patent, are of Sniitii's invention 
 No. 2257 ; that Smith was neither the consignor, nor the consignee, nor the 
 owner thereof ; that he did not actually import them but that he consented to 
 the importation, which action amounts to causing them to be imported. It is 
 clear that Smith's consent in this instance was not intended to defy the law, that 
 it did not cause any appreciable injury to Canadian industry, l)ut iiad for its 
 object to bring the merits of his patents and process before the Canadian public, 
 with the honest intention of manufacturing in Canada as his efforts to introduce 
 his process in Lawson's mill proves." See vol. 2, Ex. Ct. R. (Can.), p. 491. 
 So that although here there was an actual case of unauthorized 
 importation, admitted to be the case, nevertheless it was declared 
 tliat the patent was not forfeited. 
 
 Chancellor Spragge, in Smith v. Goldie, tried about 1881, de- 
 clared this same patent, upheld here in Barter v. Smith, to be 
 void on account of this unauthorized importation ; this judgment 
 was finally revei-sed in Smith v. Goldie, 9 Sup. Ct. R.,p. 40, where 
 Mr. Tach^'s decision in Barter and Smith, was endorsed and ap- 
 proved of ; Chancellor Spragge had in some way overlooked, 
 apparently, the prior judgment in Barter v. Smith (1877). 
 
 The provision as to " importation " has been further extended 
 by the decision in The Royal Electric Co., of Canada, and Tlie 
 Edison Electric Light Co., No. 10, hereafter referred to. 
 
 Importation of Parts to be Put Together. 
 
 As showing the difference between an answer to a letter put 
 in the abstract relative to " construction " and " importation," and 
 the decision of a case presented with all its bearings and particu- 
 lars, the following letter and answer from the Patent Office h- 
 referred to in Barter v. Smith, vol. 2, Ex. Ct. R. (Can.), pp. 493-4: 
 
 The letter written contained the following question ; — "Isiocon- 
 sidered as ' construction ' sufficient to hold the patent, if an article composed 
 of various parts is imjiorted in parts and put together and constructed in a Cana- 
 iliiui iiumufactory ?" 
 
 The letter in answer was as follows: — "You ask if the manufac- 
 turing clause of the Patent Act would be complied with by importing the whole 
 of the parts of a machinery to be only put together in Canada ? Evidently this 
 would not be in compliance with the requirements of the law." 
 
 To such an interrogation no other than an answer based on the supposition of 
 a breach of the law could be safely given. But if, departing from the abstrp -tion 
 
f 
 
 11 
 
 
 # 
 
 372 
 
 NON-MANUFACTURE-IMPORTATION. [Sec. 37. 
 
 of the al)Ove given question, the investigation were made as regards a certain 
 patent, under specific circumstances, the conclusion might *)e widely different from 
 the general answer. In fact, it is not difficult to imagine a case in which the im- 
 portation of all and every one of the component parts of an invention, to he simply 
 put together in Canada, would not be an importation in the meaning of section '28 
 of the Patent Act, but, on the contrary, would be the only means of o))eyiii!.' tlie 
 statute as to mauufacturinfj, and therefore to all intents and purposes, in full com- 
 pliance with the spirit of the law and the nature of the contract : such would Ije 
 for example, the case of a patent granted for a composition of matter, all thu in- 
 gredients of which would be products not to be found in the country; a compoiuul 
 of exotic gums and extracts, for instance, or a medicine composed of portions of 
 tropical plants. 
 
 Tiiis is sufficient to illustrate the difference of cases, every one of which must 
 stand on its own merits, viewed in the light of the facts confronted with the spirit 
 of the law. 
 
 This onestion comes up again directly in the next decicled ciise. 
 li. 77 o onto Telephone Manufacturing Co. v. The Bell Tele- 
 l)hon- ., <^a I again in X. The Royal Electric Co. v. Edison 
 Electric Light Co., in which cases there were diverse answers. 
 
 The Fin^ 'ng. .^e S. C, p. 494. 
 
 " The conclusion is, tliut the respondent having refused no one tlie use of his 
 inventions, and that the importation, assented to by him to be made, being incon- 
 siderable, having inflicted no injury on Canadian manufactures and having been 
 so countenanced, not in defiance of the law, but evidently as a means to create a 
 dcmaiul for the said inventions, which the patentee intended to manufacture and 
 did, in fact, offer to manufacture in Canada, he has not forfeited his patents." 
 
 This ease of Barter v. Smith is a standard case of much import- 
 ance, and an authority which may guide future decisions, so long 
 as this section 37 retains its present shape ; copious extracts 
 have therefore been made therefrom. 
 
 II. 
 
 The Toronto Telephone Manufacturing Co. v The 
 Bell Telephone Co., of Canada, 24th January, 1885. 
 
 The next case which came up was The 'Toronto T'lephooc 
 Manufacturing Co. v. The Bell Telephone Co., of Canada, decided 
 by the Hon. J, H. Pope, Minister of Agriculture, 24th January, 
 1885, nearly eight years after Barter and Smith. Reported in 
 vol. 2, Ex. Ct. R. (Can.), p. 495, and 8 L. N. 34 (1885). 
 
 It was a dispute raised as to the existence of Patent ^o. 
 7789, granted 22nd August, 1877, to Alexander Graham Bell, now 
 
Sec. 37.] 
 
 CASE No. II. 
 
 373 
 
 owned by the Bell Telephone Company, of Canada, for alleged 
 forfeiture on the ground of non-manufacture and of importation. 
 This case was the cause of considerable litigation in the 
 Ontario Courts. 
 
 In 7 Ont. R., p. 60-5, it was sought to prohibit the Minister of 
 Agriculture from adjudicating on this case. Osier, J., (November 
 21.st, 1884), found this section, as then constituted, confeiring e.xclu- 
 sive jurisdiction on the Minister or his Deput3% not " ultra vires," 
 it lieing chiimed that a Dominion Court had been created ibr adju- 
 dication on property and civil rights in the Province of Ontario 
 contrary to the provisions of the British North Ameiica Act. 
 
 And again in Ont. R, p. 38}), before the Common Pleas 
 Divisional Court, June 27th, 188.5, on a motion for a " vrrit of 
 certiorari " to bring up all proceedings before the Minister of 
 Agriculture, and his decision in this case of the 24th January, 
 188.5, declaring this Patent 7789, void, it was held that the Min- 
 ister of Agriculture had jurisdiction as to the (question whether a 
 ])atent had become void for non-compliance with conditions as to 
 manufacture and importation. 
 
 The parties appeared before the Minister of Agriculture b\^ 
 their counsel, on the 20th October, 1884. It was endeavoured to 
 adjourn the case until new legislation could be obtained giving 
 the Minister power to summon witnesses ami to administer oaths 
 to them. This not being granted, the intention was intimated of 
 applying for the " lurit of prohibition " just referred to. This 
 writ was refused before the resumption of the case on the 24th 
 November. There was an enormous mass of documentary evi- 
 dence adduced, as well as an oral examination of witnesses taken. 
 
 These points are now, however, immaterial, as the jurisdiction 
 of the Minister of Agriculture and liis Deputy has been taken 
 away, as alread'^ mentioned, in 1890, by .53 Vic, c. 13. 
 
 Finding as to Importation of Parts. 
 
 It was heltl that " The importation of the component purta of a telephone 
 in such a state of manufacture as simply to recpiire putting' together in Canada to 
 niiike the completed instrument falls within the prohibition of the section " : See 
 
 vol. 2, Ex. Ct. R. (Can.), p. 49G. 
 
• ■ 
 
 ill 
 
 I 
 
 'I 
 
 
 374 
 
 NONMANDPACTURE-IMPORTATION. [See. 37. 
 
 This finding has be>en subject to such modification as to be 
 j.ractically reversed (if tiiiiai; were possible), in The Royal Electric 
 Co. of Canada v. Tfoe Effis&n Electric Light Co., decided on No- 
 vember 2.5th, 1889, No- X-. infra. 
 
 The same line of reasoning or test adopted bj^ Sir John 
 Thompson in that case would be equally applicable in this ; any 
 of the component paTls aBk-jjrett and proved to have been imported 
 in the manufactured -^t&yy, could have been made in Canada 
 by any ])erson who wishie.(i to do so, without infringing the patent. 
 
 As Sir John Thompson pnts it in Royal Electric Co. v. The 
 Edison Electric Co. : See Xo. X., reported in full, p. .589, vol. 2, 
 Ex. Ct. R. (Can). 
 
 "It does not seem ieawi!Ui.^ifc that a person wlio has been placed expressly 
 under ti: - protection of tht VaMmi Law, a.s a reward for inventive genius, aiul 
 for expenditui-e of lalK)iir ami cajiiluJI in devi-sing a patented article, should he sub- 
 jected to enormous peualtieB for rfiiocn^ what everybody else may do, and I do not 
 think that such would be a cfjrtvt' «i'.iwtruction of the law." 
 
 Importation of the Invention is Prohibited, not the 
 Parts 
 
 Besides, that which i'^ prKuhibited is the importation into Canada 
 of " the invention for which iL* iidcent ia granted," i.e., the combination, 
 and not one or more of tJine component parts separately. 
 
 Dr. Tach^ in Baii^r v .^mitk, pp. 403-4, vol. 2, Ex. Ct. R., 
 
 also remarks : " In fact, it i« unt difficult to imagine a case in which the im- 
 portation of all and even" cin* ■'A the component parts of an invention, to be 
 simply put together in Canada, wtimki not be an importation in the meaning of suc- 
 tion 28 of the Patent Act, Inut, looi the contrary, would be the only means of 
 obeying the statute as to THioxa^ •■:.•■ '~r:-.-n<x. and tlierefore to all intents and purposes, 
 in full compliance with the s]..-.: .: the law and the nature of the contract." 
 
 The finding, therefore, of the Hon, J. H. Pope, in this case, is 
 open then to .serious doul>t on this question of the importation of 
 parts to be put together in Canada, and may be said to be over- 
 ruled. 
 
 It was held that raw material does not fall under the applica- 
 tion of this section. Amon;::^ other things, however, rubber 
 handles in a manufacture*! ^^tate had been extensively imported. 
 It was also shown that Canaiiian labour was only benefited to the 
 extent of from 2-5c to 30c. for each telephone put together in 
 Canada. 
 
Sec. 37.] 
 
 CASE No. II. 
 
 375 
 
 As to " importation," it was shown as follows, vol. 2, Ex. Ct. 
 
 R. (Can.), p. .518; " During the first year of the existence of the patent the 
 liati-ntee or his legal representatives, imported, or caused to be imported, about 
 rive hundred instruments ready f'Ji' US'-', as tliey had a right to do ; a few days after 
 the expiration of the twelve montlis the}' also imported, or caused to be imported, 
 sevcuty-tive complete instnnnents, wliich latter importation l)eing inconsiderable, 
 m.l apparently done in good faith, and not with any intention to evade the law, 
 
 IS (k-cLired not to have forfeited tiie patent." So that importation after 
 
 tWL-lve months of matter of insignificant value may not affect the 
 
 vaiitlity of the patent. 
 
 Refusal to Sell. 
 
 • Upon application being made to the respondents to purchase a number of 
 thtir telephones for private purposes they refused to sell the same, accompanying 
 sucii refusal by the statement, ' We do not sell telephones but we rent them.' 
 //•/'/, that the respondent had thereby afforded a good ground for forfeiture of 
 
 their patent." See heaclnote 3 to this case, vol. 2, Ex. Ct. R., p. 49.5. 
 
 As to Rental. 
 
 One is unable to see bj' what process of reasonino- the Minis- 
 ter of Agriculture arrived at the conclusion that the payment of 
 an annual sum for a license would not be a compliance with the 
 statute, which provides that the invention nmst be rendered so 
 
 available by the patentee " that any person desiring to use it may obtain it 
 at a reasonable price." 
 
 Why should not this mean a licensing at an annual rental ? 
 A> a matter of fact, licenses are usually paid for in annual or 
 liai f vearly payments. 
 
 The Minister interprets the term " to license " as meaning " to 
 *'// the use of the invention," but even so, a sale maybe by 
 annual or half-yearly ]iayments. 
 
 The Minister, in effect, held the patent invalid, because the 
 payment, instead of being in one lump sum, was proposed to be 
 ■spread over a number of years. There is nothing in the statute 
 to show how the ]")ayment is to be made, provided the parties 
 aL'ree upon what i.s termed a " reasonable imce." If the parties 
 can agree upon this, it must be assumed to be " reaHonahle." The 
 dilficulty with this word reasonable arises when the parties cannot 
 agree. So long as the public has the use of the telephones it is not 
 'laninified in any way. What use would a telephone instrument 
 
376 
 
 NON-MANUFAOTURE-IMPORTATION. [Sec. 37. 
 
 M 
 
 Mil : 
 
 iiiMi 
 
 be by itself, as a general thing, without the use of the lines, the 
 central stations, and the employes of the Telephone Company i 
 You might rent the use of these latter, but you could not sell 
 them in anywise to each particular customer. There ii>"ght, of 
 course, be a private wire between houses or stations, but this is 
 hardly to be contemplated. 
 
 Sir John Thompson in The Royal Electric Co. of Canada v. 
 Edison Electric Lujht Co., No. X., also inclines to the view ex- 
 pressed by the Hon. Mi'. Pope in this case No. II., as to importing 
 parts to be assembled and put together in Canada, but at the 
 same time intimates that he could not have concurred in the 
 
 judgment, viz. : " The ciiae of the Bell Telephone is more in point. A glanw 
 at tlie decision will indicate to you liow far (and it seems to have Ijsen vci'y fan 
 the patentees carried the attempt to evade th" law I^y introducing the patuntuil 
 machine in pieces, with the intention of merely assembling these pieces in Canada, 
 besides positively refusing to sell these instruments in Canada. Without saying 
 whether I could have been able to concur in the conclusion arris'ed at in tlial casu 
 or not, I have simply to observe that the introduction of the parts in this cast- 
 bears verj' little analogy to the introduction of the parts of the telephone, etc. : 
 See vol. 2, Ex. Ct. R. (Can.), p. 610. See also S. C, p. 599, whore 
 
 he also states : " if the parts were for use, ready to be assembled, and iiiuroly 
 rc(|uiring to be assembled in order to produce the patented invention, as seems to 
 have been the case with regard to the Bell Telej)hone, we should have to con- 
 sider the question as to wliether tlie invention foe which the patent was grantoil 
 was not really imi-orted into the country, although imported in parts. We 
 should then have to consider, with much doubt and diHiculty, whether the ikmi- 
 •alty provided by the statute should not be attached to that offence to prevent an 
 evasion of the law." 
 
 As to the importation of parts to be put together in Canada, 
 Sir John Thompson's remarks here are somewhat inconsistent 
 with his finding in No. X. 
 
 The Minister of Agriculture ends his decision in this case No. 
 
 II., as follows : 
 
 " The conclusion is, that the patentees, the respondents in this case, or their 
 representatives, having extensively imported tlie patented articles, after tlie ex- 
 piration of twelve mouths from the date of their patent ; having not manufactured 
 in Canada the siiid articles to the extent they were bound to do, after two years 
 of the existence of their privilege ; having resisted and refused to sell or deliver 
 licenses as required by the statute, to persons willing to pay a reasonable price, 
 for the private and free use of the patented invention, they have forfeited their 
 patent. 
 
Sec. 37.] 
 
 CASE No. in. 
 
 377 
 
 "Therefore, I decide that Alexainler (Jraham Bell's patent (No. 7789) for 
 ' Bell's System of Telephony ' has become null and void, under the provisions of 
 section 28 of 'The Patent Act of 1872.'" See vol. 2, Ex. Ct. R. (Can.), 
 p. 523. The report of this case in 8 L. N., p. 34 (iSMoj, is as fol- 
 lows : "Accidental delay, hy which importation arrived a day, or so after the 
 expiration of twelve months, held not to avoid the patent. 
 
 " The importation of manufactured parts to be put together in Canada avoids 
 the patent. 
 
 "Refusal o sell unconditionally the right to use an invention or to license 
 avoitls the patent." 
 
 For the opposite view, where a rental sufficed and an out and 
 out sale was held, not necessary under this section 37 : See Case 
 No. VllL, Brook v. Broadhead, infra. Decided by Deputy Minister 
 Lowe, 17th September, .! S8D. 
 
 As to Importation of Parts. 
 
 And as to the view that the importation of parts to be 
 assembled and put together in Canada did not void a Canadian 
 patent, Sir John Thompson, in The lioi/al t'lectrlc Light Co. v. 
 
 Edlxon Electviti L'ght Co., states: "To api)ly this idea to the case in 
 hand, it would ho unsafe to apply the penalty of forfeiture to tlio iMipt)rtation of 
 the various articles out of which the patented article is produced, on the theory 
 that Parliament, having proliihited under this penalty the importation of 'the in- 
 vention for which the patent is granted ' it may likewise iiave intended to pro- 
 hibit, under the same penalty, the importation of the various articles out of whicii 
 'the invention for which the patent is granted ' is made. Even if we thought tiie law 
 had been violated by importing these parts, it woulil ))e better to sutler the risk 
 of the law being infringed, for tiie time being, and to invite the attention of Par- 
 liament to the subject, in order to have an explicit declaration t)f its will." See 
 
 vol. 2, Ex. Ct. K, pp. 597, 598. This appears oppo.sed to his 
 stated views ju.st quoted from p. GIO, of these Ex. Ct. Re[>orts. 
 
 !■ 
 
 III. 
 
 The Telephone Manufacturing Co. of Toronto v. The 
 Bell Telephone Co. of Canada, 19th Doc, 1885. 
 
 This is the, third case between the same partie. > in No. II., 
 and is reported in vol. 2, Plx. Ct. R. (Can.), p. 524. 
 
 This is a case of dispute raised against the existence of three 
 patents granted to Thomas Alva Edison (now owned by the 
 Bell Telephone Company of Canada), namely : — No. 8026, issued 
 48 
 
378 
 
 NON-MANUFACTURE-IMPORTATION. [Sec. 37. 
 
 the 17th October, 1877; No. 9922, issued the 1st May, 1879, n\u\ 
 No. 9923, issued tlie 1st May, 1879, for alleged forfeiture on the 
 j^round of non-manuf<icturiv(/ and of imiiortlng, in the terms of 
 section 28 of " The Patent Act of 1872," and was decided by Mi. 
 Tache, the Deputy Minister of Agriculture, on the 19th Decenibor, 
 ISS.j, eleven months after the ])revious case, No. II,, when Bull's 
 patent for a telephone was annulled. 
 
 These patents comprised a variety of impi-ov ts on the 
 
 telephone. No. 8026 having nineteen claims, including some 
 covering the "phonograph," the carbon button, mica dia- 
 phragm, etc. 
 
 It appear6d that some SI 2 worth of carboi\ buttons had been 
 imported after the time was up, as to which Mr. Tache found 
 (p. 534, 2 Ex. Ct. R,, Can.) "the ullegation of importation after the expira- 
 tion of twelve months from the j,'rantiii).' of each of tlie three patents involved in 
 tills case, lias not lieeii in any way sustained by evidence. It was not even neces- 
 sary to examine whether the few articles imported after twelve months frnm tlie 
 ilatcs of any one of tiiese patents could he properly, or to what extent properly, 
 qualihed as ilk'uiil importation^^, for tin- simple reason that the insignificance of 
 their total value forbids the view of their being susceptible of alTecting in the 
 least any patent. The counsel of the disputants has, with c 'imiendahle good 
 faith, admitted this in saj'ing : 'I do not rely upon the iinpor' is as Ijeiiig nf 
 themselves importations sufficient to upset those patents with re proof.'" 
 
 As to non-manufacture and refusal to sell, the same evidence 
 was relied on as in the last case, No. II., between the same parties, 
 when patent No. 7789, Bell's patent, was declared null and void. 
 In this case, however, Mr. Tachci declared that this evidence could 
 not serve to destroy three other distinct patents (Edison's), unless 
 it is specially proved that the same refu.sals which applied to 
 Bell's one patent, was also extended to Edison's three patents- 
 Nothing of the kind was proved. 
 
 Finding. 
 
 Mr.Tachdf ound (2 Ex. Ct. R. Can., pp. o37-8),as follows : " riiere- 
 
 fore, the voidance of one patent for telephones does not, by any means, entail the 
 voidance of another patent for telephfuies ; because they stand as distinct combina- 
 tions. Bell's patent was declared mill and void, by the Minister of Agriculture, 
 because there was ample proof of importation, in forbidden time, having taken place 
 to the notable detriment of home labour, and because there was sufficient proof of 
 refusal to sell, which amounted to non- manufacture ; while in this, Edison's casti 
 there is no such proof as applied to any one of the three Edison's patents. 
 
[Sec. 37. 
 
 Sec. 37.] 
 
 CASE No. IV. 
 
 ire on the 
 3 leniis of 
 led l.y Mr. 
 December, 
 hen Bell's 
 
 ts on tlie 
 
 iWu^f some 
 
 mica 
 
 (lia- 
 
 s had l»een 
 'ache found 
 
 ter tlie expira- 
 [its involved in 
 tot even neces- 
 onths friiin the 
 Ktent proiierly, 
 nsigniticiuu'e of 
 affect in;^ in the 
 mentlable good 
 18 as being »l 
 
 rc proot. 
 ne evidence 
 ;anie parties, 
 ill and void. 
 lidencc could 
 ion's), unles:5 
 applie'l to 
 ree patents- 
 
 )\VS : " There- 
 Uims, entail the 
 [istinct combina- 
 of Agriculture, 
 Lving taken place 
 liifticient proof of 
 |ia, EdiHon's m<, 
 
 patents. 
 
 " In this case, tliere is absence of tlie proof, without which no patent slnniM 
 be considered forfeited. 
 
 "Therefore, Thomas Alva Edison's Patents No. 80'i(t, for teleplionie torn- 
 niuiiication, No. 9,022, for iinprovenientH in telepiione, and No. !)I)2.S, for inij)rove- 
 niciits in teiepiioncs and circnits, have iu)t lieconie null ami voi<l under the 
 provisions of Section 28 of ' Tiie I'alent Act of 1S72.' " 
 
 Here, Mr. Tacht' apparently endorsed the view of the Mini.ster 
 in the last ca.se, No. II., on the question of " a refusal to sell" and 
 a " proposal to rent " ; as to which, See No. II., ante. 
 
 And Sir .John Thompson, in The Royal Electric Go. of 
 Canada v, TJie Edison Electric Lif/ht Co. (i^ee ca.se No. X., and 
 Y[). G09, 610, of reported oase, vol, 2, Ex. Ct. R, Can.), in discus.sin}^ 
 the price demanded (Si i)cr lamp), to those who would not use the 
 Ellison plant, while the pri -e to per.sons who used the Edi.son 
 
 plant was only 81. Says: "All this was very different from the 15ell 
 ■j'lk'plione Case, where tiierc was a distinct refusal to sell on any terms, the 
 answer being : ' We do not sell telephones ; we lease them.' " 
 
 This would also indicate that Sir John Thorn) )Son inclined to 
 tlie same view as to an annual rental, not being within the term 
 •a reasonable price" mentioned in .he section, although in No. 
 X., he held that the patentee might, under circumstances, reason- 
 ably refuse to sell his invention unconditionally ; which appears 
 inconsistent. 
 
 This case is also reported in the Quebec Reports, IS R. L., 408, 
 II L. N., p. 27 ; where one of the headnotes .states : " A patentee is, 
 '.vithin the meaning of the law, in regard of his obligation to manufacture, when 
 he hiis kept himself ready eitlier to furnish tlie patented article or to sell the 
 ligiit of using, thoug;i, may be, not one single specimen of the article has been 
 jiroduced, und he may have voided his patent by refusal to sell, although his 
 patents were in general use. 
 
 This case is also reported in 34 O. G., 250 (January 12th 
 
 1«8G). 
 
 IV. 
 
 Mitchell V. The Hancock Inspirator Co., 22nd January, 
 1886. 
 
 Tlii.s case was decided by Mr. Tach^, the Deputy Minister 
 '>t' Agriculture, on the 22nd day of January, 1886, about thirteen 
 months after the decision in Case No. III., and is reported as Robert 
 Mitchell V. The Hancock Inspirator Co., in vol. 2, Ex. Ct. R. 
 (Can.), p. 539. 
 

 380 
 
 NON-MANUPAOTURE-IMPORTATION. [Se& 37. 
 
 
 > 
 
 I 
 
 1' 
 
 This case of dispute is raised against the existence of Patent 
 No. 7011, granted the 24th January, 1877, to J. T. Hancock, tor 
 " The Hancock Inspirator," now owned by the Hancock Inspira- 
 tor Company of Montreal, for alleged forfeiture on the ground of 
 non-compliance with section 28 of "The Patent Act of 1872." 
 
 It arose out of an action brought by The Hancock Inspira- 
 tor Company against one Mitchell for infringement, and was 
 referred by the Sujjerior Court of Montreal to the tribunal of 
 the Minister of Af;riculture. 
 
 Illegal " importation " and " non-manufacture " had boon 
 jileaded by way of defence, and the (question came before Mr. 
 Justice Mathieu on a demurrer. 
 
 The only question relied on \vas"illeaal importation," and 
 on which alone the decision was based. The owners of the patent 
 had never received any demand for license to manufacture from 
 the disputant nor any other person, except certain name 1 
 licensees, and had never refused to sell the patented invention tu 
 anyone. 
 
 The invention in question was a combination of two old ami 
 well-known sets of apparatus, one known as the " lifting injector' 
 or " ejector," and the other known as the " injector," two well- 
 known machines. Patent No. 7011 appeared to be a new 
 arrangement or combination of these two devices. 
 
 Combination Defined. 
 
 Mr. Tacho in this decision defines a comhinution as follows :— 
 
 " It is arj,'ue(l tliat iiiasinucli as tlie patent covers an invention which consists 
 of A new comhination of old elements, tlie importation of the elements in their 
 separate state is not the importation of the invention. This is opposed to tne 
 very nature of things, as admitted in all countries in matters of patents. A new 
 combination of known elements is an invention to all intents and purposes, anil as 
 sueli is patentable, and confers ' o the person having devised such new comltiua- 
 tion the rights and privileges of an inventor, even if the novelty consisted in :i 
 trifling mechanical change, provided, in the latter case, some econonucal or other 
 result is protluced someway different from what was obtained before. The com 
 bination then is the invention, and, when patented, is the essence of the ])ateiit : 
 it must be taken as a whole, not the elements as several things to be sejiiirately 
 discussed, and the cond)inati()n another tiling, but the elements as combintd, niu 
 thing, to stand with all the privileges conceded by law, and, reciprocally, witli all 
 the (diligations imposed on all patentees: See pp. 548, 549, of reportOtl 
 case. 
 
Sec. 37.] 
 
 CASE No. IV. 
 
 ,381 
 
 The headnote, No. 2, to this reported case, in the Ex. Ct. Re- 
 ports (Can.), vol. 2, p. .539, is as follows : «• Where the subject of a 
 patent is a new combination of old devices, the patentee cannot import such de- 
 vices in a manufactured state, and simply apply his combination to them in 
 Canada, without violating the prohibition against importation contained in section 
 •2S of ' The Patent Act of 1872.'" 
 
 Note, — Instead of " apply his combination to them " it WOuld be 
 more correct to say "comhine them." 
 
 Finding. 
 
 ^Ir. Tache concludes his decision as follows, see pp. 5.50-1, Ex. 
 
 Ct. R. (Can.), vol. 2 : "In tlie present case the importation of the invention itself 
 lasted for several years of the existence of the patent, till a comparatively recent 
 (late, covered a large number of the patented articles and .amounted in the aggre- 
 gate to a large sum, many thousamls of dollars. ' It seems hard, says the counsel 
 uf resi)ondent, after the company trying so many years to introduce tliis invention 
 into the country, tiiat the patent should be set aside.' It is undoubtedly very 
 iianl ; if it were a matter of sympathy or of sentiment in all probability the 
 patentee would continue to enjoy the privileges to which inventors are so well 
 entitled ; Imt it is a matter of the fulfilment of obligations and administration of 
 the law, in a case where no legitimate doubt can come to the rescue of tiie patent. 
 As regards the part of the petition of the disputant which asks for costs, tiie an- 
 swer is that there is no awarding of costs to parties coming before this tribunal. 
 
 "Therefore, John Theobold Hancock's patent. No. 7011, for an ' Inspirator,' 
 lieedUie null and void, under provision of section 28 of the Patent Act of 1872.'" 
 
 This Finding Discredited. 
 
 This ver}' positive decision of Mr. Tache in the "Hancock In- 
 spivdtor case " has been ver_\ much discredited by the decision of 
 Sir John Thompson, on the JJOth October, 1889, in the liuyul Elec- 
 tric Co. of Canada, and Edison Electric LigJd Co., wherein he 
 •stiites : 
 
 " The case of the Hancock Inspirator, decided in January, 188(J, was nuich 
 relied on by counsel for tl.e petitioners, .as going farther than the j)eiitioners were 
 askinj.' you to go to forfeit the present patent. I do not regard that as a decision 
 in point. The one point which the Deputy Minister there decided Wiis that wlien 
 a [latent was a patent of a new conibinacion of old elements the patentee might 
 not import the old elements, and simply ap[)ly his cond)ination to perform the 
 fuuctions described in the patent. Tiie Deputy Minister forfeited the patent be- 
 cause he thought the patentee was bound to manufacture, and not import, all the 
 elements, as well as to apply the combination in Canada. The elements in that 
 case were themselves machines, and the Deputy Minister seems to have entertained 
 the vit^w that the patentee was bound to numufacture the machines in Canada, 
 although his patent was only for a uombiuation of those machines. 
 
 Hjp: 
 
., 1: 
 
 382 
 
 CASE No. V. 
 
 [Sec. 37. 
 
 " While I do not tliink the case to be one in point, or one from which any in- 
 ference can be drawn to afifect tliis case, unless it be an inference from the fact that 
 a very severe view was taken at that time by the Deputy Minister of Agriculture, 
 of the rerjuirement in the patent law as to the manufacture in Canada, I must add, 
 as respects that inference, tiiat, if the case were admitted to be one in point, I 
 should have very great ditficulty indeed in advising you that the Hancock fnxpir- 
 ator case was correctly decided, or that it should be followed " : See Vol. 1, 
 
 Ex. Ct. R. (Can.), pp. GIO, GU. 
 
 Headnote in Revue Legal. 
 
 In the report of the Hancock Inspirator case in Quebec in 17 
 llevue Le<,'ill, 484, S.C.( 188.5). Tlie headnote is: "Proceedings before the 
 Minister of Agriculture or his Deputy to declare the patent void, etc., is no bar to 
 the defendant pleading every fact or default which under the Patent Act annuls a 
 patent.'' 
 
 It is also reported in the Legal News (Quebec), p. 50, Minister 
 of Agriculture, 188G, wliere it is stated : " That a patent for a new 
 combination of old elements, the importation of the elements in their separate 
 state to be merely put together in Canada, i. " importation within the meaning 
 of section 28 of the Patent Act of 1872." 
 
 Y. 
 
 The Qurney Manufacturing Co. v. A. Harris, Son & 
 Co., 7th July, 1886. 
 
 This, the fifth ease heard under the terms of section 28 of 
 the Patent Act of 1872, and is not reported in the Ex. Ct. R. 
 (Can.), but is printed oi- reported by the Patent Office, and is con- 
 tained in a book containing all the cases decided under this sec- 
 tion by the Minister of Agriculture which may be found in Osgootle 
 Hall Library, Toronto, and in the County of York Law Library, 
 Toronto, and is entitled The Gwrney Manufacturing Co. v. .1. 
 Harris, Son <t' Co. 
 
 This is a case of dispute raised against the existence of Patent 
 No. 4195i, granted on the 19th December, 1874, to James F. 
 Gordon, now owned by A. Harris, Son & Co., for alleged forfei- 
 ture on the ground of "n<m-maniifacturin(j" in the terms of the 
 section 28 of " The Patent Act of 1872." 
 
 It came before the Deputy of the Minister of Agriculture Mr. 
 Taehu, and the petition, which is addressed to the Minister ot 
 Agriculture, bears date the 18th February, 1886. 
 
Sec. 37.] 
 
 CASE No. VI. 
 
 383- 
 
 The case was heard on the 6th April, 188G. 
 
 Judgment was delivered by Mr. Tache on the 7th July, 1886, 
 without reporting the arguments, and without taking up several 
 incidental points raised in this case, owing to his severe illness. 
 
 Decision. 
 
 "la this instance there is absence of the proof without which no patent 
 should be considered forfeited. 
 
 " Therefore, ] decide tiiat Jatrics F. Gordon's patent (No. 419.3) for ' Gordon's 
 Self-binding Harvester ' has not become null and void under the provisions of sec- 
 tion 2S of the Patent Act of 1872. " 
 
 VE. 
 
 Wright and Hibbard v. The Bell Telephone Company 
 of Canada, March 3rd, 1887. 
 
 The sixth case, was one decided by the Hon. John 
 Carling, us Minister of Agriculture, on 3rd March, 1887. Between 
 James A. Wright and Wm. G. Hibbard v. 'fhe Bell TelephoiiQ 
 Company of Canada. 
 
 The following is the decision voiding the " Blake Transmit- 
 ter" patent : 
 
 "This is an application to have patent Xo. 10021, granted on the 28th day of 
 May, 187!), to Francis Blake, Jr., for improvements in speaking telephones, 
 -called 'Blake's Transmitter,' now . owned by the Bell Telephone Co. of 
 Canada, declared void for alleged forfeiture on the ground of importation con- 
 trary to the provisions of section 28 of ' The Patent Act of 1872,' and for 
 failure to manufacture the same within the time prescribed ; and having heard 
 Mr. Christie, Q. C, and Mr. Archibald, and Mr. Roaf, for the petitioners, and 
 Mr. L.'isli, Q. C, and Mr. S. G. Wood, for the respondents, and the petitioners 
 having submitted satisfactory proof of the importation by the respondent of the 
 •several mechanical parts or elements composing the Blake Transmitter, at various 
 dates, after the expiration of the time limited by the 28th section of ' The 
 Patent Act of 1872,' and such importation not being denied by the respondents, 
 I tliirefore decide that the Francis Blake patent (No. 10021) for 'Blake's 
 Transmitter,' has become, and is null and void, under the provisions of section 
 2S of ' The Patent Act of 1872.' " (Now Revised Statutes of Canada, c. 01, s. 37. > 
 
 This case is not reported in the Ex. Ct. Reports (Can.), but is 
 in the book in Osgoode Hall Library and County of York Law 
 Library, in case V., referred to. 
 
iiiiiii i 
 
 
 ilW 
 
 384 
 
 CASE No. Vn. 
 
 Yll. 
 
 [Sec. 37. 
 
 Wright & Hibbard v. The Bell Telephone Co. of 
 Canada, May 9th, 1887. 
 
 This is the seventh case before the Minister, between 
 the same parties as No. YI., J. A. Wright and W. C. Hibbard, 
 petitioners, The Bell Telephone Company of Canada, respondents, 
 ar»d was decided by the Hon. John Carling, May 9th, 1887. This 
 case is fully reported in vol. 2, Ex. Ct. R. (Can.), p. 552. 
 
 It related to three patents, No. 802G, and Nos. 9922 and 0923. 
 These patents, known as " The Edison Patents," after some 
 mesne assignments, were finally assigned to the respondent com- 
 pany on the 5th July, 1882. 
 
 Illegal Importation Relied on. 
 
 The petitioners relied solely on importation contrary to law, 
 and no evidence of failure to manufacture was offered. 
 
 There was evidence of importation of a large number of arti- 
 cles, such as Blake transmitters, carbon buttons, boxwood pieces, 
 keys, screws, guages, etc., of a total value of many thousands of 
 dollars. 
 
 For the respondent it was contended : — 
 
 1st. That tlie articles imported were all articles of coinnierce that any one 
 could import, and that there was therefore no importation contrary to law : 
 
 2nd. That the articles imported were not used in the construction of the 
 Edison inventions, but of the commercial instrument nuide and used by tlie com- 
 pany. 
 
 The respondent company examined Mr. Lockwood, an expert, at considerable 
 length, and from his evidence it appeared that the commercial instrument made 
 and used by the company as a telephone does not embodj', and is not an infringe- 
 ment of any of the elements or claims of any one of the three Edison patents. It 
 was clear from the evidence, and it was admitted, that the articles imported were 
 used in the construction or manufacture of the commercial instrument used by 
 the company, and, therefore, if a conclusion were reached that this instrument did 
 not embody and would not, if manufactured by any one, constitute an infringe- 
 ment of the elements or claims of the Edison patents, it would become unneces- 
 sary to consider the question as to whether or not the importations complained 
 of were importations of articles of commerce, or, taking them as a whole, of the 
 commercial instrument used by the company. 
 
 Finding. 
 
 The Minister concludes his judgment by finding as follows : 
 See p. 556, Ex. Ct. R. (Can.), vol. 2 : 
 
1 
 
 Sec. 37.] 
 
 CASE No. Vm. 
 
 385 
 
 " In view, therefore, of the statement made by the company by its counsel, 
 ami l)eing myself of opinion that the weight of evidence compels me to that con- 
 ohision, I have decided, and do now decide, that the commercial instrument used 
 by the respondent company as a telephone does not embody the elements or 
 cliiims of any of the Kdison patents, and that its use or manufacture by any one 
 would not constitute an infringement of the Edison patents, which would there- 
 fore not be affected by the importations complained of, whatever view might 
 otherwise be taken of the effect of such importations. 
 
 For these reasons and on these grounds, I dismiss the petition, and citilare 
 dial, notwithstanding anything that lias been shown to me on this application, 
 till' three patents for telephones hereinbefore mentioned, granted to Thomas Alva 
 Edison, and now owned by the respondent company, are not void. 
 
 The headnote or syllabus to the reported case in the Ex. Ct. 
 Reports (Can.), in this case is as follows : — 
 
 '■ To b .ig an importation by the patentee within the prohibition of section 
 37 of the Patent Act (R. S. C. c. 61), it is necessary that it consist of or atfect the 
 particular invention in respect of which the patent has been granted." 
 
 
 VIII. 
 
 Brook V. Broadhead (17th September, 1889). 
 
 This is the eighth case decided by the Deputy Minister 
 of Agriculture, and was between James Brook, as jjetitioner, 
 and Elizabeth K. Broadhead, respondent, and was decided by Mr. 
 J. Lowe, the Deputy Minister of Agriculture, on the 17th Sep- 
 tember, 1889, and fully reported in vol. 2, Ex. Ct. Rep. (Can.), 
 p. 502. 
 
 This is a petition to the Minister of Agriculture, bearing date 
 the 2.)th April last, to have declared null and void the patent No. 
 637'), granted to L. W. Whipple, on the 31st July, 187G, for 
 " improvements on mackincs for making napped fabrics" on the 
 ground that the invention had not been manufactured in compli- 
 ance with the 37th section of the Patent Act. 
 
 In November, 187G, the patent was assigned to one Harriet T. 
 Strong, who, in March, 1882, assigned to the respondent. The 
 machine was capable of manufacturing different classes of goods. 
 
 The respondent denied the allegations of the petition, and 
 pleadtid want of good faith on the part of the petitioner. 
 
 49 
 
s 
 
 386 
 
 NON-MANUFACTURE-IMPORTATION. [Sec. 37. 
 
 Evidence. 
 
 The evidence showed that the respondent in 1882, by ui,a'ee- 
 ment, licensed the Penman Mauufacturinij Co. of Paris, Out., to 
 manufacture horse-blankets, and agreed to supply a patented 
 machine for this purpose at a certain rental, the machiiio to 
 remain her })roperty.. and to be returned to her at the expiration 
 of the patent ; the respondent, by the deed, divested hersolt' of 
 the right to manufacture or license others to maniifacture the 
 said class of goods. In April, 1884, another agreement \va> 
 entered into by the same parties for a certain other class of goods. 
 
 The Penman Manufacturing Co. having failed to pay the 
 royalty stipulated, legal proceedings were instituted by the 
 respondent ; and it was charged that the petitioner was put for- 
 ward V»y the Penman Company to offer to purchase a machine 
 from the respondent to serve the purjwses of the Penman Com- 
 pany in view of the lawsuit. 
 
 For the petitioner it was contended that Mr. Tacht^'s rulini,' in 
 Barter v. Smith (see No. I.), to the effect that the patentee was 
 not bound to keep his invention in stock so long as he was ready 
 to furnish it or license the use of it to any person desiring it, was 
 wrong, and that the respondent had rendered herself unable 
 either to supply or license the invention by the terms of her con- 
 tract with the Penman Compan}*. 
 
 The following is the decision by the Deputy Minister. Mr. 
 Lowe (see 2 Ex. Ct. Rep. (Can.), p. 5G7) :— 
 
 Finding. 
 
 "The mnin 8iil)ject for the consideration of this tribunal is, to iU'^certain 
 whether tlie allegations in his petition are supported by the evidence adchiced. 
 The .STtli section of the Patent Act does not reijuire the patentee or his repre- 
 sentative to manufacture the invention personally, but in such manner that any 
 person desiring to use it may obtain it at a reasonable price. The evidencf e.stal)- 
 lishes that these conditions were complied with. The petitioner is tlie only per 
 son wlio is proved to iiave applietl for it, and he could have obtained it, as he 
 knew, from the Penman Manufacturing Company, and indeed from the nsiiou 
 dent as well, as shown by the letters of the company, and that of Mr. .Multatt. 
 aljove referred to ; but he refused to have anything to do with it because hu coulil 
 not, as he expressed it, buy it out and out from the respondent. This was not 
 required of the respondent by the terms of the Patent Act, as above stated, ami 
 as is clearly and ably shown at length by Mr. Tach€ in the case of Barter v. Sm'tlh, 
 the ruling in which has been accepted as the settled jurisprudence on this subject. 
 
Sec. 37.] 
 
 CASE No. IX. 
 
 387 
 
 ^2, by aifree- 
 aris, Out., to 
 a patented 
 macliino to 
 le expiration 
 id herself of 
 nfacture the 
 I'eeniont \vas 
 lass of 'j^ooh. 
 [ to pay the 
 ,ited by the 
 was put foi- 
 ^e a niacliine 
 *eninan C'oiu- 
 
 "I therefore decide that the patent, No. 6375, granted to L. W. Whipple, 
 on the 31st July, 1876, for 'improvements in macliines for making napped 
 fal)rics,' has not become null and void under the provisions of the 37th section of 
 tlie Patent Act." 
 
 A Rental Suffices, a Sale not Necessary- 
 Tins decision distinctly recognizes the fact that you can let 
 out a machine for an annual rental by way of complying with the 
 priivisions of this section, and that it is not necessary that you 
 should sell it out and out. It is directly opposed to the view 
 taken by the Hon. Mr. Pope in Case No. II., ante. : The Toronto 
 Telephone Manufacturing Co. and The Bell Telephone Co., in 
 which he held that the refusal to sell, accompanied by the state- 
 ment, " We do not sell telephones but we rent them," afforded gOod ground 
 for the forfeiture of the patent. 
 
 N.B. — In the suit of Broadhead v. Penman Manufacturivg Co. 
 on the question of liability under the agreement as to royalties, 
 the plaintiff succeeded at the trial before Street, J., and in the 
 Court of Appeal (Ont.), but on appeal to the Supreme Court 
 (Can.) it was held that the Penman Manufacturing Co. were not 
 liable to pay any further royalties, and the action was dismissed 
 •with costs. 
 
 IX. 
 
 Richard J. Doyle v. Fred. Ransome, 18th November, 
 1889. 
 
 The ninth case tried before the Deputy Minister of Agri- 
 culture, Mr. John Lowe, wherein Richard J. Doyle was petitioner, 
 and Frederick Ransome was respondent, was decided on the 18th 
 November, 1889. 
 
 This case is not reported in Ex. Ct. Reports (Can.), but is in 
 the liook, before referred to in cases V. and VI., in Osgoode Hall 
 Lihrary and County of York Law Library, Toronto, and the fol- 
 lowing is the text of the decision : 
 
 " Decision." 
 
 " This is a petition to have the patent No. 24961 granted to the respondent, 
 on thu IGth day of September, 1886, for "improvements in manufacturing 
 cemuuta," declared " null and void," on the ground that the invention had not 
 
 II 
 
i 
 
 i 
 
 1 
 
 
 
 
 
 
 
 I ^ 
 
 ■ 
 
 ? 
 
 i 
 
 ! 
 
 i ' i 
 
 ;i 
 
 i 
 
 388 
 
 KON-2SA3fUPACTUEE-IMPORTATION. [Sec. 37. 
 
 been manufacture)! in Cmaab in accordance with the provisions of the I^Ttli sec- 
 tion of the Patent Act. 
 
 " Evidence in this €«««• wt« taken in .lune last, before the Deputy Com- 
 missioner of Patents, iai<i 4i'j«iB)tA having arisen as to his jurisdiction in cases of 
 dispute arising under iL-e atlnonre recited section of t)ie Statute, the trial was litlij 
 de novo before me, as I>e|Miily Miniater of Agriculture, on the 29th October, liist. 
 
 " Air. James MasBCBiL. «j', C, appeared on behalf of the petitioner. TIm- 
 respondent did not ajipeair, aua-I vtas not represented by counsel. 
 
 " The evidence of tii* piiaiioner and another witness, William Rohinmu, con- 
 clusively establisheil, XhaX. ttte invention has never been manufactured in Canada. 
 This is also a<lmitte<i by \h^ rtspondent, in certain letters written and addresseil 
 by him to a patent agent La ifcis city, aa an answer to tlie petition, and which were, 
 for this purpose, pn>duc*il as the trial. In these letters, the respondent admits 
 that he never mauufibftiiiii^Ki the invention in Canada, but states, thai it was 
 owing to the failure on tft* part of the petitioner, as president of the North 
 Avurican Clmnical Mivim-j tmrt Mitniifartiiriiui Company, to carry out an agree- 
 ment, whereby the ooDafmiuj waa to manufacture the invention in Canada aii.l 
 pay him a royalty therwML 
 
 "The petitioner, in lii«*«T<lenee, denies this agreement, and states tiuitthe com- 
 pany offered to pay the rtasf^nmient a reasonable sum for the right to manufacture 
 the invention in Canada, Ibiaa ttiiat he refused to accept the offer. I have no power 
 to enter into the n.erits *ji s mikiinderstanding of this nature between the jwrties 
 in this case, and can onlj im'niiiire into the allegations of the petition and ascertain 
 whether, in fact, at; allfcgifei therein, the provisions of section .37 of "Tlie Patent 
 Act," have been contrar-tiatKL 
 
 " It was alleged, in tibe |«e<tifiTon, that the invention had been imported after the 
 time prescriljed by the StaSiulle. hat in view of the evidence a))ove referred to, it is 
 not necessary to pronouiicie om thia point. 
 
 "I therefore decid*, duat Bhe Patent No. 24961, granted to Frederick I!an- 
 some, on the lOth Se]jteiHii5j<er, I»8t), for ^ imprufemeiitu in mantifaciuritiij fuumi.' 
 has become null and vciid, nmieT the provisions of the 37th section of the Patent 
 Act." 
 
 Note. — Ha<i this deci-»ion been based on the ground that the 
 mining comj>any had offered to pay the respondent a reasonable 
 sum for tlie ri'dit to manufacture the invention in Canada, and 
 tliat lie had refused to accept the otter, a.s alleged ; we could then 
 understand that it wa*»iven on the lines laid down in Bade rand 
 Smith, No. I., ajvf'e; !j«t here the Minister states that he has no 
 power to enter into this question, and that he could only emiuire 
 into the allegations of the petition as to non-tnanufactiue iu 
 Canada within two yeary from the date of the patent, etc. And 
 as the resjiondent haul admitted, and the evidence showed that the 
 invention had never been manufactured in Canada, on this giound 
 
Sec. 37.] 
 
 CASE No. X. 
 
 389 
 
 the Deputy Minister declared the patent null and void ; although 
 the respondent further stated that it was owing to the failure on 
 the piirt of the petitioner to carry out sin agreement that there 
 was 110 manufacture in Canada. 
 
 This case it is conceived, can hardly be taken as a precedent. 
 
 This was first instituted before the Deputy Connnissioner of 
 Patents, but as doubts were entertained as to his jurisdiction, it 
 wa> finall}^ tried before the Deputy Minister of Agriculture. The 
 Minister or his Deputy, at that time, alone having jurisdiction. 
 
 X. 
 
 The Royal Electric Co. of Canada v. The Edison Elec- 
 tric Light Co. (25th November, 1889). 
 
 This is the tenth and last case decided by the Minister of 
 Airriciilture or his Deputy before their jurisdiction was taken 
 away on 24th April, 1890, by 53 Vic, c. 13. 
 
 This case, as to non-manufacture and illegal importation, was 
 between The Royal Electric Co. of Canada (petitioners) and Tlw 
 E'Viwii Electric Light Co. (respondents), relative to Edison's 
 Incandescent Lamp Patent. 
 
 By a strange oversight, the number and date of the jiatent in 
 question granted to Edison in Canada was omitted from the 
 <leeision ; nor is the patent identified in the reasons for the deci- 
 sion furnished by Sir John Thomi)son to Mr. Carling, who sat 
 with the Minister at the rehearing of the case. 
 
 This case is fully reported in vol. 2, Ex. Ct. R. (Can.), p. 
 570,'^^ seq. 
 
 This is a rehearing of the case, on the petition of the Royal 
 Fliectric Light Co. of Canatla, tried before Mr. Richard Pope, the 
 Deputy Commissioner of Patents, and on which he gave a deci- 
 sion, on the 2Gth February, 1889, annulling the Edis(jn patent, as 
 contravening sec. 37, c. Gl, Revised Statutes of Canada. 
 
 This decision of Mr. Pope annuUlny the Edison patent appears 
 to be reported in 12 L. N., p. !)() (1889), as f(.llows : 
 
 " The allegation of inability to manufacture in Canada is not a good defence 
 t" an action to annul a patent for not manufacturing in Canada; and where it 
 app^^ais that all the essential parts and elements of the invention continued to be 
 imported hy the patentee in a manufactured state for the purpose of putting them 
 togetlier in Canada, the patent was annulled." 
 
 N 
 
i 
 
 390 
 
 NON-MANUFAOTVRE-IMFOBTATION. [Sec. 37, 
 
 1 
 
 H 
 
 Note. — This judgment of Mr. Pope was nugatory, directly 
 opposed to this subsequent judgment, and should not have Ix-en 
 reported. 
 
 A doubt liavlng arisen as to the jurisdiction of Mr. Pope, the 
 Deput}' Commissioner of Patents, by reason of the provisions of the 
 section of the Act referred to, it was decided that the case should 
 be conunenced dr. novo. 
 
 A rehearing accordingly took place before the Minister of Atjri- 
 culture on the ^8rd July, 1889. 
 
 The evidence taken at the previous hearing, before the Deputy 
 Commissioner of Patents, was accepted by both the petitiom is 
 and the respondents, and some additional evidence was taken. 
 The counsel on both sides argued the question at issue, from their 
 respective standpoints, with great clearness and ability. 
 
 In addition to the arguments at the last hearing, Mr. Lourey, 
 on behalf of the respondents, with consent, put in a written state- 
 ment of argument, a copy of which was communicated to Mr. 
 Lash, and to which he subsequently furnished a reply. 
 
 The Hon. John Carling, Minister of Agriculture, (Noveinl)er 
 25th, 1889) rendered his deci ion. 
 
 
 M 
 
 Finding- 
 After a careful cansidoration of the evidence I decide as follows : — 
 
 (1) "I tind tliat Thomas Alva Edison, the patentee of the patent in the proi.'eeil- 
 ings mentioned, did, within two years from tlie date of snch patent, coniniL-iifi.', 
 and, after such commencement, did continuously carry on in Canada the construc- 
 tion and manufacture of the invention j)atented, in such manner tliat any ijitsom 
 ilesiring to use it might oljtain it, or cause it to lie made for him, at a reasonable 
 price, at some manufactory or establishment for making or constructing it in 
 Canada. 
 
 (2) " I further find that, after the expiration of twelve months from the grant- 
 ing of the said patent, neither the said patentee nor any person claiming or hoiil- 
 ing under him did import or cause to l>e imported into Canada the invention fur 
 which the said patent was granted. 
 
 " I do, therefore, in pursuance of the statute in that behalf, declare that the 
 said patent has not become null or void, and I dismiss the application of the peti- 
 tioners, the Royal Electric Co. of Canada." 
 
 Sir John Thompson, on the 30th October, 1889, made his re. 
 port, on which the Minister's decision was founded, in which he 
 .states that a decision was rendered by Mr. Richard Pope, the 
 
Sec. 37.] 
 
 CASE No. X. 
 
 S91 
 
 iter of Aixri- 
 
 Dt'imty Coinmissioner of Patents, on the 2Gth February, I.S89, l»y 
 wliich the patent was declared null and void ; and that, on petition 
 to the Governor-General in Council it was prayed that ett'eot 
 should not be oiven to that decision, and it appearing; at least 
 iluul>tful that Mr. Pope, as Deputy Commissioner of Patents, 
 possessed the necossaiy jm-isdiction, it was deemed best that 
 the wliole matter should be reheard before the Minister of Agri- 
 culture, who desired his (Sir John Thompson's) assistance at the 
 hearing. 
 
 Sir John Thompson, having reheard the matter, arrived at con- 
 clusions directly opposite to those of the Deputy Conunissioner 
 of Patents. 
 
 Importation of Samples or Models not Prohibited. 
 
 As to the unlawful importation of four lamps and lamp fittings, 
 hi," states (2 Ex. Ct. R. (Can.), p. ocSG) :— 
 
 •' I think wu may also put out of the case the points taken in the particulars 
 IS til the importation of completed lamp.s. Tliese points were probably based on 
 1 iiiisappreliension of fact. It appears that four completed lamps were actually 
 iiniMiiled. 
 
 " It is said that they were returned, or destroyed, and that tiie importation 
 iiiiil liueu made by mistake. 
 
 " The excuse, liowever, is not material. They were never sold in Canada, 
 nor oHered for sale, nor intended to be sold, Ijut were merely intended to be 
 hsimI ax samples or models of tlie article whicii it was intended should be 
 iiiiimifactured within the Dominifm. 
 
 " Another item of this charge was the importation of lamps for the Lachine 
 t'lual ; l)ut it seems from the evidence that what were called lamps were only 
 liimi) tittings." So that he holds that the importation of samples or 
 iiioilels, after the authorized period, did not void the patent. 
 
 As to Articles Imported Into Canada. 
 
 The application of the petitioners, therefore, rests on the set 
 of fjicts following (see 2 Ex. Ct. R. (Can.), p. 587) :— 
 
 ■■ Tiie pi\,tentee has made lii.s lamps out of glass lnill)s and glass tubes made 
 111 the United States, and imported from tiiere into Canada ; with platinum wires 
 pidihiccil from platinum, mineil in Russia, manufactured into wire in the United 
 stall's, and imported into Canada from there ; with tilaments of bamboo, grown in 
 •lapaii, imported thence to the United States, carljonized partially in furnaces 
 tlieiu, and imported thence into Canada, witii brass bottoms made in the United 
 ><tatts, to fit into lamp sockets, and imported into Canada ; also with copper wire 
 wliicli lias come from the United States. 
 
fi! '"''i 'a 
 
 892 
 
 NON-MANUFAOTURE-IMPORTATION. [Sec. 37. 
 
 5 < 
 
 ijl itii 
 
 Ij 
 
 
 1 
 
 i 
 
 if 
 
 i'i 
 
 ' 1 
 
 :f 
 
 
 "The gla«8 buH)8 and tubes are the first iirtiules to he considercil. It Ih ml- 
 tnitted that they arc articles of cominfrcc in the United States, in Canada, uiiil in 
 almost every otiier country, and were »u for many years l)efore the patent. 
 
 " That they were used for other purposes than for electric lamps, the Imlli 
 being tiic 8imi)lest form the glass takes in the process of Idowing, and the tiiliinj,' 
 being made and used for a great variety of purposes and that (p. ')S7) a descrip- 
 tion of the patented lamp does not mention the glass bulb as being an essential 
 part of the lamp. A tianspurent cliamber of any sliape, or of sevcial parts jdiiu'd, 
 capable of afl'ording a vacuum, would suffice. Therefore, Ihe bulljs and tubcw arc 
 not used exclusively for this purpose and are not even essential to the invention, 
 strictly speaking." 
 
 And he finds as follow.s, as to the bulbs and tubes, see pp. 
 
 588, 589, Ex. Ct. R. C. (Can.), vol. 2 :— 
 
 " These bulbs and tubes, as I have said, are not apart of the claim in tht 
 patent. In fact, it is (juite possil)le to conceive of the patented article being niadt 
 without them — made, for instance, in some other shape. However this may he, 
 they are articles of commerce, which any one may import, manufacture, soil (n 
 use without infringing the patent. They were in use long before electric lamps 
 were invented, are used for other kinds of electric lamps, and I cannot come to 
 the conclusion that the imi)ortation of these into Canada incurred the forfeitun 
 of the patent. 
 
 "What I say on thi.s point may be taken as said of many other articles 
 which fro into the comi)ositi(m of the lamp, and which will be referred to here 
 after. I do nut see how it can be reasonably contended that these articles may 
 be imported freely into tiie country, may be sold in all our shops and warchmises, 
 may be used for any other purpose which a purchaser pleases (even for the man 
 ufacture of electric lamps), and the purchaser lie liable to no ])enalty ; while, if 
 the patentee buys them, and uses them in making his lamps, lie is to incur tlie 
 enormous penalty of forfeiture of all his patent rights. If he may Iniy them here 
 and use them for his lamps, he may certainly injport them and use them. 
 
 " It tloes not seem reasonable tiiat a person who has been placed expressly 
 under the protection of the patent law, as a reward for inventive genius, and for 
 expenditure of labour and capital in devising a patented article should bo suh- 
 jected to enormous penalties for doing witat everybody else may do, and I do not 
 think that such would be a correct construction of the law. " 
 
 Platinum Wire, etc. 
 
 As to the platinum wire and brass botfoui ' s Ih- findss 
 "inter alia''; pp. .589, .",90, 591, Ex. T; R ^Can.), vol. 2 : 
 
 " The platinum wire is imported from th cd States wont tn spools. It 
 
 is not denied that this is an article of commer seful for many ]•• . [lOses. It is 
 
 not pretenuod tiuit its production is covered In aiy f^ iiin in the patent wliich 
 makes its manufacture the sole property of the patentc 
 
 " It is a common commercial article, used for many purposes, ami not an 
 essential part of the lamp which was patented by the patent under consideration 
 
Sec. 37.] 
 
 CASE No. X. 
 
 393 
 
 " All tliftt the claitnH in the patent say in rcgnrd to the wires is that the (ila- 
 menl BJiall 1)0 'secured to nietallii; wires,' and that 'metal wires' shall [ias« 
 thniiigli ' a receiver made entirely of glass,' and the ' securing of platina contact 
 wires' to a carbon filament. The copper wire used is the copper wire imported and 
 iisoil for nil electrical purposes. 
 
 "As to the lirass bottom pieces, it is stated in the testimony that these are 
 two lirass pieces, separated, or held together, l>y means of plaster, and that the 
 two Iirass pieces are imported into ("ai\ada from the United Stales and are put 
 together and set in plaster in Canada and attached to the lamp. It does not 
 appear that these brass pieces are an essential part of the lamp, or in any way 
 covitimI by the patent claim, or by the patent itself. The pieces may be of any 
 other material which will serve the purpose, and may be of any sliape, si/.e or 
 ((iiiility which fancy can design. They are, in one form or another, common to 
 all ('lectric lam])s. The expert called by the petitioners says concerning the brass 
 shells : ' There is absolutely nothing said about it in the jjatent, so I should regard 
 it as a subse(juent improvement or attachment." 
 
 " It is clear, to my mind, that in respect of all these articles (and only one 
 remains to be considered), every one of them is of the public domain, free to every 
 [jerson in Canada to manufacture, import, sell and use without thereby infringing 
 the patent under consideration, and that, in respect of their use, the respondents 
 incur no greater liability or penalty than they incur by impoi'ting, and not manu- 
 f;icturing, the plaster with which they seal the lamps, or any of the common appli- 
 ances of the workshop which may be used in the manufacture." 
 
 Carbon Filament. 
 
 The carbon filament alone remains to bo considered, — a.s to 
 which, on p. .501 (inter alia) he state-s : — 
 
 "This is described in the patent claim as 'a filament of carbon of high 
 resistance, made as ilescribed, and secured to metallic wires as set forth,' etc. 
 
 " Tlie strips of bamboo, out of which filaments are made, are ini|)orted from 
 ■liipiiii, as I have said, are split into threads in the United States, baked into a 
 partly e:irboni/.ed condition there, and sent from there into Canada." 
 
 And on pp. .592-5, 2 Ex. Ct. R., Can. {inter alia), he further 
 
 states : — 
 
 " After being brought into Canada it is attached to the loading wires and, 
 iluriiiL! the process of exhausting the air from the glass bulb, is subjected to an 
 tlectiic current for the greater portion of half a day. .'he carbonizing which it 
 rea'ives in the United States .and the treatment by electric current after it arrives 
 inC'aimdii., before the final completion of tlic lump, are wliat make the filament a 
 filament of high resistance and fully carbonized. It could hardly be said to be 
 fully carbonized until the treatment which is given in Canada has been applied. 
 Kefore tliat the filajuent is a partly carbonized filament, which would emit light 
 when I lie current w.as applied, but not efficiently ; because, not being completely 
 carbonized, it would be of short duration, comparatively, and would impair the 
 vaeuuiii. It would be a carbonized filament, but not ' a filament of carbon.' 
 
 ' Hut the carbon filament is not ' the invention for which the patent is 
 
 50 
 
 
 
 r 
 
 1 
 

 ' 
 
 N 
 
 \i 
 
 394 
 
 NON-MANUFACTURE -IMPORTATION. [Sec. 37. 
 
 granted " (to (juote tlie exact wniils of the eniictinent proliihiting iinportatidn, 
 wliicli ia invoked here). On tlio contrary, the pioductibn of the fihimeiit is not 
 covered by the patent at all. 'J'he 'invention for which the patent ia granted' is 
 a lamj\ in which the filament is to emit the light. The lamp waa old, the tiliiiiient 
 new. Tiie combination was patenteil. 
 
 "The patentee nuglit have ])atented the tilanient, it wonld .seen', but liu lias 
 chosen to patent only the lamp containing the filament — or, tlic combination, iuij 
 not the new part, merely. 
 
 "If the view exjiressed in tlie above ([Uotationa were sound, the jiatu-iitee 
 would iiave sati.sfied the conditions of the patent by simply making tiie tilani(.iit of 
 carbon in Canada, and doing no more ; but it is clear that if he liad done only that 
 tile petitioners woulil iiave had an unanswerable case for the forfeiture i>f the 
 patent. They would liave said : ' True, your great contribution — your only con- 
 tribution to the art of electric lighting, was your filament of carbon, but you have 
 patented a lam]>, in which that filament would give out light. How is it that you 
 have not made lamps in (^anada, but <udy carbons 'C 
 
 " A carbon filament, even of iiigii resistance, or even such a filanu-nt, stib- 
 je^'^ed to treatment by electric current, is not a tiling which the patentee lias the 
 exclusive right to product. It can Ijc made in Canada by any person who wishes 
 to do so. It can even be used in Canada, for any [)ur|)o9e, by any person, with- 
 out tile cliarge of infringement, unless he uses it in an 'electric lamp." It iniiy lie 
 said tliat no jier.son wants to use such an article for any other jjurjiose, biu 1 lio 
 not see that this in any way affects tlic argument. If the making of a tiianieiil of 
 carbon is not patented, but only the construction of a lamp witli such a liiaiiieiit, 
 the jiatentee is bound to manufacture his lamp, with the filament in it, in ('aiiiuia; 
 but he is not, I tiiink, bound to manufacture his filament here. The one tiling 
 which is covered by this patent, and of which the patentee has a monopoly uii<ler 
 the i)atent, is to make 'an electric lam}) for giving light by incandescence, consist- 
 ing of a filament 'so made ' and secured,' etc. ; or, stating it another way, as \m 
 claim does : ' Tlu' combination of carbon filament within a receiver made entirely 
 of glass, through which leading wires pass, and from which receiver the air is 
 exhausted," etc ; or, stating it still in another way, his claim covers 'a coiled cur- 
 bcm filament or strip arranged in ' 'h a manner that only a portion of the surface 
 of such carl)on conductor shall r uitc light, as set forth ' ; or, stating it in still 
 another May, his claim covers this — 'securing the platina contact wires to the 
 carbon filament •■\nn carlionizing of the whole in a closed chamber,' " etc. 
 
 And on p|). ofXi, ')!)?, S. C.\ "As I have already intimated, however, 
 inasmuch us the making of the filament is not {latented by this patent, I think 
 that the filaments stand in the same position as all the other articles which j,'o to 
 form the lamp. As to the other articles, 1 have already given you my views. " 
 
 The arginncnt as to thu importation of the dittbreiit t'lctiieiits 
 has been here put forward, as ti type or suggestion of what may 
 be made avaihilile l»3' counsel in future ea.ses, when it is doircti 
 to sustain a patent UTider this .section. ".'liere is oreat ci»i,'i'iicy 
 in the reasoning, for tiiat which the statute provides for and 
 
Sec. 37.] 
 
 CASE No. Z. 
 
 395 
 
 guards Rfijainst is the unlawful importation into Canada of "the 
 inveiititm for which the patent is granted." See paragraoll (/>), section -M. 
 
 No Penalty for Importing Parts. 
 
 Sir John TllOUipson thus puts it: " I .lo not timl iuiywheretimt the 
 
 statute expressly imposes tlic penalty of forfeiture for importing into Canada tiie 
 
 vaiious parts of the invention for wliicii the patent was granted, niucli less for 
 
 importing one of tiie parts. The words f)f the statute aiV, ' the invention lor 
 
 wliicli the ])atent is granted,' ai>il it does not seem that the Minister, or his dej)uty, 
 
 ill adniinisteriiig that law, can enlarge the statute oi' add any woi-ds to it, even in 
 
 trying to pi'event an eva.sion of Mie statute. In considering and atlministering 
 
 sucik a statute the Minister or his deputy ean only apply the penalty to the otlence 
 
 ttiiicli the statute forhids. He cannot apply it to an attempt to evade the statute. 
 
 Ill imposing jienalties Parliament mn.st take its own measures to levent evasion, 
 
 iind it would he most unsafe to imiiose. against an evasion, ti. ' heavy penalty 
 
 wliicii the law has levelled at the principal otlenee, on the theory, which may or 
 
 i.;ay not he correct, that Parliament inten<1ed, hy an e(|ual penalty, to forhid the 
 
 . iloiiig of that which would he nhnnst or i|uitc an ecjuivalent of the principal otlenee. 
 
 "To apply this idea to the case in hand, it would he unsafe to apply the 
 
 lieii;ilty of forfeiture to till' im]iortation of the various articlcii out of which the 
 
 patented article is jiroduced, on the theory that Parliament, having prohiliited 
 
 under this penalty the importation of ' the invention for which this patent was 
 
 -i.inted,' it may likewise have intended to prohihit, under the saiiu! penalty, 
 
 the importation of the various ai'ticles out of which ' the invention for which the 
 
 liateiit was granted ' is nnide. Kven if we thcught the law had heen violated hy 
 
 importing these parts, it would he hettcr to snflfer the risk of the law heing in- 
 
 fringeil, for the time being, and tfi invite the attention of Parliament to the sub- 
 
 jiot. in order to have an explicit declaration of its will.'' »See vol. 2, J1.X. C.'t. 
 
 R. (Can.), pp. 597. 598. 
 
 Note. — The foilowino- English cases stipport this view of Sir 
 ■loliii Thotnj^son ; che mere making, using or vending of the ele- 
 ments which afterwards enter into a i)atent consisting of a combi- 
 nation, is not prohiltited hy, and is not an infringement of the 
 Letters Patent: Tovvsnul \. Haworth (LSTo), 12 Ch. J)., <S.S1 ; 
 Siiki'H V. Baworth (1S7.S), 12 Ch. D. 
 
 Sir John Thompson then (piotes largely from the fvi- 
 'li'iK't; to show what was doni' in Canada to |ir(<duee the patented 
 invnition, and states, on p. 004, Kx. Ct. R. (Can.), vol. 2. 
 
 Finding as to Manufacture and Importation. 
 
 " Tliis seems to show conclusively to my mind ( I ) that the invention for 
 wliic'h the patent was granted was not imported, lint was manufactured in 
 ( aiiail.i, and (2) ti:at the invention for which the {xitent was granted waa not 
 imported in parts." 
 
WW : 
 
 ! 
 
 i 
 
 u 
 
 J f 
 
 
 hi 
 
 ll 
 
 
 39G 
 
 NON-MANUFAOTURE-IMPORTATION. [Sec. 37. 
 
 As to Refusal to Sell at a Reasonable Price- 
 As to this rernaiiiinj^f branch of the case, he states : See pp. 
 604, 60.5, Ex. Ct. R. (Can.), vol. 2 : 
 
 " TlitTC remains to he considered the charge tiiat tne patented article was 
 not nianufiictured in snch a manner that any person wiio desired to use it could 
 ohtain it at a reasonable price. There is much evidence on this point. There is 
 evidence that the respondents, at one time, refused to sell the lamps to persfms 
 who dill not intend to use tliem witii the Kdison plant. 
 
 " It seems that the Kdison plant is simply a description of dynamo which Mr. 
 Kdison uses. It is not a machine of whicli he h.as the patent or any monopoly. 
 The dynamos which are called the Kdison plant can be purchased in t'anada iiiul 
 in the United States. The explanation made in the evidence, is that the electric 
 lighting ))usine88 wjw then in its initiatory stages, and that it was deemed by the 
 Kdison Company most important, tiiat the success of the lamp should not l)e 
 prejudiced in the puiilic estimation by its being used in comiection witii plant 
 which they l)elieved it could not be used with ouccessfuUy. 
 
 " Under the iharge of refusing to sell at a rciisonabk- price, and as to the 
 evidence of a refusal to sell, except for use on the Edison plant, the (luestion.s to 
 be determined are : — 
 
 " Is the evidence to be relied on which declares that this was the only limita- 
 tion to the sale '! and 
 
 " Was the limitation made in gooil faith, in order to prevent the muccis.s (if 
 the lamp being desti.-yedand to prevent public opinion being prejudiced againit it 
 at a critical stage of the electric light business ? 
 
 " Was it reasonable '1 
 
 "Or, was the whole bu.siness cairied on merelj" as a sham to avoid the for- 
 feiture of the patent, while the company had no intention of really doing business 
 in Canada? " 
 
 And on pp. 007-8, Ex. Ct. K. (Can.), ViA. 2, he further states 
 
 {intev (ilia): 
 
 "The petitioners endeavour to support their charge of bad faitli by eviih^nce 
 that the expenditure in putting up tiic plant was very heavy, as compared willi 
 what was spent in putting up tiie lamps to l)e worked by the plant, and that there 
 was more profit oi\ t\\v sale uf the plant than on the sale of the lamps. TIh: peti- 
 tinncrs have faiU'il, however, to show that any stipulation wan made, or atteiniitfil 
 to lie nuide, by tiie agents of tiu; respomlents, that persons who were negotiating 
 for lamps should be supplied hi/ lh< in with the Kdison plant. On the contrary, the 
 single limitation sought to be imposed was that the lamps siiould be used on Ivlison 
 |)laiit, and this was witlidrawn, subsequently, as the petitioners allege, because the 
 respondents became alarmed, l)y learning from the Hell Telephone decision the 
 etl'ect of a refusal to sell a patented invention ; or, as the respondents allege, lie- 
 cause the merits of the invention hail become better known and there was not 
 ■o much reason to fear a prejudice in the public mini!." 
 
i i^ 
 
 >-'■. 
 
 Sec. 37.] 
 
 CASE No. X. 
 
 397 
 
 ler states 
 
 As to Charge of Refusing to Sell. 
 
 Pages GOO, GIO, S. C. : 
 
 "To suppoit the chaise of refusing to sell, there was eviilence tliat the 
 responilents asked, in s »nie cases, as high as three dollars or four dollars per lamp, 
 to persons wiio would not use the Pldison plant, hut the more settled rule was to 
 ask .?1.25 in such instances, wliile tiie price to persons who used the Kdison plant 
 was SI, with a guarantee of the duration of tlie lamp. It is said that these higlier 
 l)riees were unreasonahle. They were not unreasonahle if the condition which 
 thty were intended to enforce wiis not unreasonahle. On that point I have already 
 stated my view ; hut, in justice to the respondents, I must add that none of these 
 prices n .uul the actr.al cost of producing the lamps in Canada. All tiiis was 
 voiy dit' - t from the Bell Tele])hone case, where there was a distinct refusal to 
 sell on ai.^ terms, the answer Iteing : ' We do not sell telephones ; we lease them. " " 
 
 Not Bound to " Sell Unconditionally." 
 
 Pages (308 and G09, «S'. C. : 
 
 " It was urged by counsel for the petitioners that in view of tlie provisions of 
 thu Patent Act as to the invention being produced ' in such a way tliat it can he 
 sold to any person desiring to purchase the same,' the patentee can impose no 
 limitations, liut must sell at a reasonable price to all comers. 
 
 •' I think that to lay down the rule thus broadly would be going too far. 
 Ailniitting, what was urged by counsel for the petitioners, that a purciiaser has 
 the right to buy the patented invention and then destroy it if he please, 1 do not 
 tiiink it unreasonable that the patentee of an article of delicate ami skilful manu- 
 facture, from which he can only reap the reward of his labour and expenditure by 
 its being esteemed successful l)y the pnl)lic, is not bound to sell his invention to 
 tlicisu who, by unsuitable uses, would fail to derive benefit from it themselves, and 
 wiiuld create tlie impression, in the public nnnd, tiuit the invention was a failure, 
 at a time when ])ublic oi>inion was in suspense. SVlien any sucii case arises, and 
 Wf find the patentee attaching a limitation, hoi-jstly, witit tiiat view, I do lujt 
 tiiink it wo\ild be right to punish him by forfeiting his patent. W'c should in 
 t'Vrry case ascertain, as carefully as possible, whetlier g.,od faith exists, and we 
 siioidil not punish, bv forfeiture of patent, the limitation so imposed, unless we 
 tlnmght the limitation was impos- . l)y tlie patentee really for tlie purpose of evad- 
 ing compliance with the statute wliich reipiires him to sell the patented invention 
 at ii reasonable price. Probably llie evil wiiich that part of tlic statute was prin- 
 1 ipally intended to jirevent was tiic exaction of eM)ri)itaiit prices uiuh'r the 
 iiiDiicipoly secured by the patent. 'Vhv respondents iiad much to fear from the 
 iani|)s appearing to be a failiirc. 'I'Ih' plan on which they relied was to set a 
 iiiiiipany on foot to work the patent in Canada. The business was in its infancy ; 
 tiR' public had not yet ac<|nircd contideiice in the light, and competitors were in 
 till' field —interestt.'d in depreciating tiic Ivlison lani|> -competitors wiio were not 
 !utni|i(i'cd by any condition as to mahiifacturing in Canada, but who relied for 
 llitir supplies on the factories in the Uu'ted States." 
 
 After referring to the case of liartev v. Smith (No. I.), and the 
 
 

 w 
 
 ^liii 
 
 
 
 398 
 
 FORFEITURE OF PATENTS. 
 
 [Sec. 37. 
 
 observation whicli calls attention to the unreasonablont'ss of 
 insisting that the patentee should be called on to produce his 
 invention at all times and places in Canada, without any regard 
 to the demand for the invention in the market, Sir John Th(jiu()- 
 son refers to the Jii'l/ Telephone Case (No. II.), and states that the 
 process ol' manufaeturin;,' electric lamps in Canada was wiik-ly 
 ditl'erent from the assembling of the parts in eonstiiicting tliu 
 Bell Telephone here. 
 
 He also refers to the Hancock In^^pirator Case, and states that 
 he would have great ditKculty in advising that the Hdneod 
 In-spirato)' (Jasc was correctly deci<le<l or that it should be fol- 
 lowed. A full extract of this reference may be found in L'asu 
 IV., ante. 
 
 And Sir John Thompson winds uj) his report (p. Gil, Ex. Ct. 
 R. (Can.), vol. 2), as follows:— 
 
 It results from nil that I have saiil that in my oj)inioii tiie jietitioii siioiild lit 
 lUsmi.sacil ami a decision pronounced that tiio patent in (juestion is not void. 
 
 I have the honour to be, 
 
 Faithfully yours, 
 
 JOHN S. D. THOMPSON, 
 
 Minister of Jiidice. 
 
 To the Honourable 
 
 John Caumncj, 
 
 Minister of Agriculture. 
 
 This case is reported in 12 L. N. p. 90 (1889), a.s follows:— 
 
 •' The Minister of Agriculture or his Deputy has exclusive jurisdiction n« to 
 the ((uestion of validity of a patent un<ler sec. 37 of the Act, and cannot divest 
 himself of it liy relegating it to any other tribunal whatever." 
 
 Since the Act of 1890, as we have pointed out, the jurisdic- 
 tion of the Minister and his Deputy liave been taken away and 
 the Exchequer Court of Canada has now concurrent jurisdiction 
 with the Provincial Courts as to questions under section 37. 
 
 General Conolusions. 
 
 It seems to be definitely settled under this section that 
 although a patentee may not have commenced the mauufaiture 
 of the patented article within the period linuted, yet so longa.s 
 he is in a position cither to famish it or to license its use ut a 
 reasonable price to any person desiring to use it, his patent ought 
 
Sec. 37.] NON-MANUFACTURE IMPORTATION. 
 
 399 
 
 not to be declared forfeited. And that the desire must be one 
 expressed, the offer of a fair bargain and otter of ]mynient. 
 
 Tliat it is not incumbent on the patentee to mahe active efforts 
 to create a market, but it rests upon those who seek to defeat the 
 patent to show tliat lie neglected or refused to sell the invention 
 for a reasonable price when pi'oper jipplicatioii was made to him 
 tlicrefor. (See No. 1., Barter v. Smith). This lule appears also 
 to prevail in Germany. 
 
 It is also settled (see Case I.), that an inconsiderable importa- 
 tion after the authorizeil time does not void a patent, nor the 
 importation of models and samples : See also Case No. X. 
 
 There is .some little confusion with reference to the " refusal 
 to sdl." In Case II., where the respondents I'efused to sell, but 
 stated that they would rent them, this was held to be a ground 
 for forfeiture of the i)atent. Case No. III. apparently upholds Case 
 No. II. in this respect. It is impossible to see why payment could 
 not be made by annual instalments instead of one lump sum ; and 
 Case No. VIII. di.stinctl}' states that an annual rental, instead of 
 an out and out .sale, sufficiently complies with the statute. 
 
 And in Case No. X. it is distinctly held that there are cases 
 when a patentee may decline to sell his invention uncon- 
 ditionally. 
 
 There is also .some clashing in these decisions as to wliether 
 the importation of parts in a manufactured state, to be put to- 
 gether in Canada, voids a patent; in Cases No. II, and IV. such 
 inijiortation was distinctly held sufficieot to void the patent. 
 
 Sir John Thompson in Case No. X. refers to this point, raised in 
 Case No. II., and although he considers there was an evasion of the 
 statute, expresses doubts, and he distinctly states that Case No. 
 IV. should not be followed ; and in (/Bse No. X. he distinctly holds 
 tliiit parts not .specifically claimed in the patents, and being 
 iU'tieles oi public domain or of commerce, could be imported and 
 put together in Canada. He argues that that which may not be 
 iliipDVted i.S "tho invontiou for wLioli tlie patont was giaiitLMl " ; and he also 
 intimates that if Parlianient intended to prohibit the importation 
 of the separate parts it should have been .so stated. 
 
400 
 
 FOBFETTUBE OF PATENTS. 
 
 [Sec. 37. 
 
 Difficulty as to "Reasonable Price." 
 
 The greatest difficulty in this section is one we have discussed 
 under nute to punKjraph (a) ante on the ([uestion of " reasonabh 
 price" and it does not appear to have been touched on in any of 
 the reported eases. This " reasonable price " is not to be deter- 
 mined by the tribunal, which may declare the patent void for 
 breach of conditions. It is a condition precedent, which cannot 
 possibly be determined by the patentee alone, for it always takes 
 at least two to make a bargain. So this seetion,as it now stands, 
 drives us to this absurdity, viz., that a patentee may have his 
 patent declared null and void, because he did not detenuine on 
 " a reasonable price" which may have been impossible for him to 
 do, owing, among other things, to the fact that no market had 
 been created, and that it was impossible to foresee the extent of 
 the demand, or whether it might not be displaced, or was in 
 actual process of displacement, by some other article, whether 
 patented or unpatented, of a similar character. If the extent of 
 the demand could be foreseen, then there might be a way for 
 arriving at " a reasonable price " ; or, again, it n)ight be inipuasi- 
 ble to get the customer to act leasonably so as to conclude a 
 bargain. 
 
 Exception When the Commissioner Fixes " the Rea- 
 sonable Compensation." 
 
 In section 44 of this Act, as an exception to the general rule 
 which fastens on the public the duty of determining on " the rea- 
 sonable price" the Government has appointed the Commissioner 
 as the sole arbiter to determine on the price to be paid, the 
 Government ludng entitled to take and use any patented inven- 
 tion, without the leave or license of the inventor, at anv time, 
 even during the first two years of the life of the patent. 
 
 French Authorities. 
 
 In Barter v. Smith Mr. Tache, the Deputy Minister, (inotes iu 
 his judgment, see pp. 4cS8, 489, 490, vol. 2, Ex. Ct. R. (Can.j, 
 the following French authorities as throwing light on his inter- 
 pretation and adjudication on this section 37 (formerly section 28 
 of the Patent Act of 1872) :— 
 
Sec. 37.] NON-MANUPAOTURE-IMPORTATION. 
 
 401 
 
 " The French Legislation, as does the legislation of most countries, contains 
 conditions similar tu t'^ose of the '28th section of our 'Patent Act of 1872.' 
 
 " The doctrine anil jurisprudence adopted on the subject is amply summed 
 up iu the quotations of two eminent writers on patents and patent laws, which 
 will follow, after citing the text of the law. 
 
 " The French law reads thu : : — Article 32, ' Shall be deprived of all his rights ; 
 
 2. The patentee who shall not have worked his invention in France, 
 
 within a delay of two years from the date of the signature, or win shall suspend 
 his operations for two consecutive years unless he show cause for such inac- 
 tivity. 3. The patentee who will have introduced in France articles manufactured 
 in foreign countries similar to those guaranteed by his patent. ' 
 
 " It must be remarked that the last proviso, at the end of paragrapii 2 of the 
 Frencii law, is similar in effect to the means adopted by our statute, for making 
 tiif lum-manufacturing a condition of nullity to take eflfcct only when rendered 
 applicable by an administrative decision. The nullity enacted by tlie Frerj jh law 
 ciui be pleaded in Courts ; the nullity enacted by our Act is conditional upon a 
 decision of the Minister of Agriculture, who alone is to say whether the condition 
 is 1(1 be enforced or not. 
 
 " Henouard, after quoting Arago's speech, in the C/iamhre des Deputy's (1844), 
 against the stringency of the then proposed legislation, goes on to explain how it 
 is to 1)0 understood : — 
 
 " The tribunals will appreciate, he says, according to circumstances, whether 
 it has lieen worked or not ; whether or not the working has been interrupted ; if 
 the reasons of not working are sufficiently justified." Traits des Brevets d'Inven- 
 tion, I'aris (1844), p. 243. 
 
 '" This was said by a magistrate of the highest order and a specialist, in anti- 
 cipation of the judicial decisions which afterwards confirmed his views of the 
 matter ; many years after, Btidarride, reviewing the jurisprudence established on 
 tiie !iubject, recapitulates it, and exposes the doctrine in the following sentences : 
 
 " The spirit of the law is therefore indubitable. It intends to punish only 
 voUuitary, premeditated, and calculated inactivity : B<5darride Commentaires 
 des lois sur les Brevets d'Invention, etc., I'aris (18(j9), vol. 1, p. 448. 
 
 " It is to be remarked that B^darride is not a loose but rather a strict inter- 
 preter of laws ; he holds that the laws of France do not admit of prjctorian inter- 
 piitation, and are not to be mitigated by the Courts no matter how severe and 
 hard they may be. Bddarriile again says : 
 
 "The voidance of paragraph 2 of Article 32, touches only voluntary inactivity. 
 Tile law wishes to punish for inaction, the only one who has willingly remained 
 idle. It would have been reallti too utijiixt to extend the penalty to the one who has 
 ahstaiuud on account of circumstances independent of his will : Bedarride, vol. 
 1, p. 460. 
 
 "As regards the importation, Bedarride says : 
 
 "The prohibition having for its unique object the protection of national 
 labour, it would have been unreasonable to extend it to cases in which such pro- 
 tection could not be injured." 
 
 " The judicial authority, exclusively inspired by this spirit, refused to apply 
 
 01 
 
 !;'l 
 
|; ,.. 
 
 
 
 V 1 
 
 1: 
 
 
 i 
 
 402 
 
 FOBTEinntE OF PATENTS. 
 
 [Sec. 37. 
 
 the penalty of ff»rfeiture, what the importation, althonnh non-authorized, was not 
 in its nature BUBce]>til>le of daanaging national labour." 
 
 "It is proper to decid* UmIajt, ajs it waa decided by the Courts of iJouai and 
 Paris in 1S46 and in 1K.V». ^ktoaVi not be considered as violation of tlie pniliilii- 
 tion of the law, tlie \m\xjrtitXMm oi a fewspecimens of the a.i tides or the importa- 
 tion of niacliines, having no tAlnvt object in view than to tind either associates or 
 licensees for the in veutioii": Bt^iarride, vol. 1, pp. 456, 457, 463. 
 
 In Germany, if the inventor is prepared to supply tlie de- 
 mand, tlie invention nee«l not be luanutaetured till a demand 
 springs up. 
 
 In view of the £a>et that the Provincial and the Exeheriuer 
 (^)urt of Canada have now to determine in cases of " non-inanii- 
 j'itctare" and • iuriKtii'<ttifjnni^ and that unless a liberal interpreta- 
 tion of the section l«e had, few if any patentees will be able to 
 comply with the provision* of this section, it is to be hoped 
 that these French authorities, the practice in Gerniany, in Belgiinii, 
 in Ital}' and elsewhere, as well as the spirit of the cases hitherto 
 decided b}' the Minister of Agriculture or his Deputy, will prevail 
 in the Courts. 
 
 Provisions in Canada as to "Manufacture" and 
 " Importation of Questionable Utility. 
 
 It is dithcult to see the value of these provisions for manu- 
 facture and importaticn as ^>earing on inventions patented in 
 Canada. Thej' are cumbrous and ill-defined, and to a certain 
 extent are a clog ami hindrance to invention, without eliecting 
 any good, nor promoting home manufactures. 
 
 It is to be hope<J our Legislature will do away with all restric- 
 tions, and put us, in these respects, on the same footing as the 
 TJ. S. Patent Laws have planed citizens of the United States. 
 The following section lOfi, Walker, indicates clearly the policy of 
 the U. S. Goveininent, and the history of legislation bearing on 
 the subject : 
 
 Walker, section IOC: " Xo abandonment of an invention after the issue 
 of Letters Patent XhnTtKm, h.*» *rer been judicially doci led to exist in tlie I'nited 
 States. The Pat«ut Act td |!*32, provided that a civ\ ain class of aliens uiiglit 
 obtain United States P«.t<eut». wlio hail theretofore l)eea .excluded from that privi 
 lege ; but it coupled witi* tlwU prr.viaion an enactment, that every patent graiittil 
 by virtue of that Act, sl»«nl<l oeaae an<i determine in case of failure on the p:irt of 
 the patentee tu iutrodooe the inrention into public use in the United States 
 
 ,., 
 
 i 
 
 \ 
 
 
 
 '^ 
 
 ^ 
 
 ™™l:i 
 
Sec. 37.] NON-MANUPAOTURE-IMPORTATION. 
 
 403 
 
 witbin one year from the iHSuing of the patent, or in case of a discontinuancu of 
 such (mbliu use for any period of six months, or in case of failure on the part of 
 the patentee to become a citizen of the United States. In providing such a rule of 
 lonstructive abandonment for a certain class of aliens, Congress showed that it 
 <lid not overlook tlie subject of non-user of patented inventions ; and in omitting to 
 l)roride any such rule for citizens of the United States, Congress showed that it 
 (lid not intend constructive abandonment to result from non-user in their cases. 
 Kven as to aliens, the policy of the law upon the point was soon given up. The 
 Act of 18S6 repealed all former patent statutes, and did not re-enact the provision 
 just cited from the Act of 1832, nor put any corresponding restrictions upon any 
 < L-iss of patentees. Nor has any later statute contained any provision of the kind. 
 The fair inference from this course of legislation seems to be, that Congress does 
 not intend any patent right to be lost on any ground of non-user of that right. 
 Kven )>efore Congress had thus indicated its intention on the subject, Justice 
 Washington instructed a jury, that no dis-user of an invention, after it is 
 patented, can amount to an abandonment, so as to deprive the patentee or his 
 iissiguees of their exclusive right to it for the term of the patent : See Gray v. 
 Jnimx, 1 Peters C. C, 403 (1817). So also, the Supreme Court has held, that no 
 presumption arises against a patent from any use of the invention by the public 
 ittter the patent is granted : See Sliav v. Cooper, 7 Peters, 320 (1S33). Since no 
 a'*>audonment of an invention after it is patented, can arise out of any existing 
 •tatute, or be based on any non-user by tiie patentee, or on any user by the 
 public, we seem shut up to the conclusion, that no such abandcmmcnt is known to 
 "ur laws. 
 
 Forfeiture of Patents in Foreign Countries. 
 
 In the followiug, among other countries, there are statutory 
 I'lovisions relative to "non-manufacture" or "working" and 
 importation," viz. : In France and Colonies ; in The Argentine 
 K> public ; in Austria-Hungary ; in Belgium ; in Brazil ; in 
 l>''nmark; in Germany; in Italy; in Jaj)an ; in Norway; in 
 Portugal and Colonies ; in Russia ; in Spain and Colonies ; in 
 Sweden ; in Switzerland ; in Uruguay. 
 
 N.B. — In Austria and Hungary, there is no law prohibiting the 
 importation of the patented article ; patents for warlike inven- 
 iii>ns are either not granted at all, or are appropriated by the 
 'invernment and the patentee rewarded. 
 
 In Belgium, the importation of a part or granti.ig of a license 
 i> deemed sufficient as " working." The law is liberally con- 
 >trued in the interest of the patentee. 
 
 In Italy, the importation of one or two machines and setting 
 them up to work, suffices as " working." 
 
I ' I' 
 
 ^h'l 
 
 404 
 
 
 n 
 
 I 
 
 k ■ -tl 
 
 FORFEITURE OF PATENTS- A VEAT8. [See. 37-38. 
 
 In Germany, the law is liberallj'' construed on the (juestion of 
 "manufacture"; very much ou tlie Hnes hitherto inilicatetl in 
 Canada; being prepared to supply the demand is sutticient, anil 
 if there is no demand, and the inventor tries to create that 
 demand and fails, the patent need not be worked till the deinand 
 springs up. 
 
 In foreign countries, generall}', the provisions as to " manu- 
 facture " and " importation " are not rigidly enforced. 
 
 In Russia, very few patents are taken out by foreigners — 
 there being only about 300 annually, all told. 
 
 Countries in which there are no Restrictions. 
 
 Neither in Great Britain nor any of her Colonies except 
 Canada nor in India, are there any restrictions as to " maiui- 
 facture " or " importation." In Great Britain, since the Act ut 
 1888, there is a .system of "compulsory licensing." 
 
 h\ the United States, also, there is no restrictive legislation 
 bearing on " manufacture " and " importation." 
 
 n 
 
 PART XII. 
 
 Caveats. 
 
 38. Any intending applicant for u i)atent who has not yet perfected hi? 
 invention and is in fear of lieing despoiled of his idea, may file, in the I'litiut 
 Office, a description of his invention so far, with or without plans, at liia own 
 will ; and the conunissioner, on payment of the fee in this Act preserilied, sliiiU 
 cause the said document, whicli shall be called a caveat, to be preserved in secrtiy, 
 with the exception of delivering copies of tlie same whenever recjuired by the .saiii 
 applicant or by any judicial tribunal, — but the secrecy of tlie document shall cease 
 when tiie applicant obtains a patent for his invention : 
 
 2. If application is nwiile by any other person for a patent for any invention 
 with wiiicii such caveat may, in any respect, interfere, the commissioner shall 
 forthwith give notice, by mail, of such application, to the person who has rikd 
 such caveat, and such person shall, within tiiree months after the date of mailing' 
 the notice, if ho wishes to avail himself of the caveat, tile his petition and take 
 the other steps necessary on an application for a patent, and if, in the opinion of 
 the commissioner, the applications are conflicting, like proceedings may be had iu 
 all respects as are by this Act provided iu the case of conflicting applications : 
 
Sec. 38.] 
 
 OAVEATS. 
 
 405 
 
 3. Unless the pciHon filing a cnrt-nt iiiiikcH iipplication within one year from 
 the filing tlicreof for a patent, the coninii.ssioner shall he relieved from the i>))liga- 
 tion of giving noliee, and the caveat siiall tlien remain as a simple matter of proof 
 <is to novelty or priority of inveniiou, if recjuired. .'}.> V., c. 26, s. 39. 
 
 A cavedt is intendetl to answer a double purpose : 1st. To 
 ifivo notice of the caveators claim as inventor. 2nd. To prevent 
 a patent issuing to another for tht^ same thing. It was introduced 
 tor the benefit of the inventor, but is not necessary to the pre- 
 servation of his right. It enables him to have notice of any 
 interfering application, as well as attbiding proof of priority of 
 invention in certain cases. 
 
 The purpose of the caveat, according to U. S. decisions is to 
 save the discoverer from the effect of the rule of law which gives 
 the inventor, who first adapts his invention to practical use, the 
 1 ight to the grant of the patent : Phelps v. Brown, 4 rUatch., 
 'M'i'l. But quer}' in Canada as to " race of diligence " : See Queen 
 V. La Force, p. 62. 
 
 It is only when one desires to perfect or improve his invention 
 tliat there is any object in filing a caveat. 
 
 Caveat to be Piled Only by Inventor. 
 
 l>y Rule 12 of the Canadian Patent Office, a caveat can only 
 111' tiled by an inventor, and shall be composed of a specification, 
 with or without drawings, following Form 23. 
 
 The applicant, while it is pending, may lodge additional 
 pa])crs, provided they relate exclusively to the same invention. 
 
 Caveator Not Entitled to Notice of a Pending Appli- 
 cation. 
 
 The person filing a caveat will not he entitled to notice of any 
 a|iplication pending at the time of filing his caveat, and a caveat 
 iimst be limited to a s'ngle invention. 
 
 The specification of a caveat should be sufficiently precise to 
 t'ii!il)le the Office to judge whether there is a probable interfer- 
 i.nci; when a subsequent application is filed. 
 
 By section 39 the fee payable is 85, and the total costs, includ- 
 iiij,' the preparation of papers and drawings, is from SlO to $15. 
 
'' ? 
 
 ! 
 
 40G 
 
 CAVEATS. 
 
 [Sec. 38. 
 
 A sketch will suffice in place of a finished drawing, or a drawing,' 
 may be dispensed with under certain circumstances. 
 
 How a judicial tribunal is to become officially acquainted with 
 the existence of this secret document, and in what manuLr, 
 whether by Judge's order or otherwise, it is to require the i»ru- 
 duction of a copy from the Patent Office, does not appear; ii i> 
 presumed that the party opposing the caveator is the moviii<f 
 party, for the former could obtain a copy himself of his own 
 caveat without judicial authority. 
 
 Notice. 
 
 As to the notice mentioned in sab-section J, it would be better 
 to have the date endorsed on the back of the notice, as is the case 
 in the United States, from which the three months is to be 
 counted within which the caveator must Hie his petition and 
 take the other steps necessary on an ajjplication tor a patent. In 
 the States the date endoi'sed on the notice is the day on wliicli 
 such notice is deposited in the Post-office at Washington with 
 the regular time for the transmission of the same added tliurotu. 
 
 One year after tiling the caveat, the Commissioner in Canu'la 
 is under no obligation to give notice. 
 
 If a new application sliouUl have come in, which the Commis- 
 sioner thinks in any respect contlicts witli the invention .•set uuL 
 in the caveat, having notitieil the caveator by mail and receiveil 
 the formal application of the caveator, and if then the Conimis- 
 sioner considers the two applications contiicting, the matter is t.i 
 be settled as set out under Coiijlictlnij Apidications in Part \ ., >tc. 
 19; or in the Exchecpier G(nn-t, which, by sub-sec. (tt), sec. 4 of 
 " The Exchequer Court Aniendment Act of ItSfU," has jurisilictioii 
 *' in all cusua of uoiiflicting appliuations for any patent of invention," eti,'. 
 
 But query ? whether there is any appeal to the Supriinc 
 Court (Can.) at present, as i>y .34-, 5') Vic, c. 20, sub-sec. (b^, see. 
 8, there is an appeal " on any (luestiou ajl'ectiiujthe inittnt of inrention, c>i\<\- 
 light, trade mark, or imhistrial dusign." This relates Otdy to a patent 
 
 "in ease," and not to any application for a patent. The Coiunii--- 
 sioner first considers the new application with respect to thi' 
 caveat, and again with the application subsequently filed by tlu' 
 caveator. 
 
Sec. 38.] 
 
 OAVEATS. 
 
 4o; 
 
 Overlooking a " Caveat." 
 
 Should tlie coiniiiissioncr acc'ulentnlly overlook a caveat PiKmI 
 iM-fore an application for tlio same inventor l)y another party, 
 mill isHue the patent to the latter, it is not stateil how the matter 
 is to he remedied in C^anada. The matter mi^dit he hrouLjht up hy 
 tlic caveator, in proeeetlini,' hy " .scl. fa. " under section .S4, to 
 rt'pcal the patent, which may l)e done if the caveator can show 
 tliat he was the first invi.'ntor when, after repeal, the C'onuius- 
 sioner might issue the patent to the successful caveator. 
 
 The proper practice (in U. S. A.) where vi, caveat is accidentally 
 overlooked and a patent granted to another during its pendency, 
 is to grant a i)atent to the caveator : See Phelp v. lirown, 1 Fisl»., 
 47!), 4 Blntch., 5JG2, in which case the Courts must determine 
 which of the two patentees was the first inventor and entitled to 
 the patent. If the caveator, who lias thus uhtained a patent, 
 liiis in the U. S. A. exercised due diligence in reduciiiy his itivcn- 
 tiou to practice, he is entitled to carry hack his invention ti) the 
 (late of filing the caveat: See American Patieraod (.'o. v. Kllza- 
 hdh, G Fish., 424 ; Hoe v. Kahler, 12 Fe.l. Rep., III. 
 
 The granting of a patent while a caveat is pending and in 
 force does not render the patent voi<i: Cochrane \. IValrriiuiit, 
 ('ranch Pat. Dec, 121. 
 
 In the United States Revised Statutes, section 4002, there is 
 a similar provision with respect to caveats ; it first appearetl as 
 •section 12 of the Patent Act of 1.S3G, and was then practically 
 the same as now. Our section was doubtless taken from the 
 U. S. enactment. 
 
 Who May Apply in Canada 
 
 In Canada "any inteiuling iipplicaut," whether an alien or not, 
 M■^ well as all the parties referred to under note (a) to section 
 7, may file a caveat, whereas in the United States, since 183G, 
 iicsides a citizen, nn alien may file a caveat if he has resitle<l in 
 till' United States one year next preceding the filing of his caveat, 
 iuil has made oath of his intention to become a citizen. 
 
408 
 
 CAVEATS. 
 
 [Sec. 38. 
 
 , 
 
 Caveat Not Conclusive Evidence of Imperfection. 
 
 A caveat is not conclusive evidence that the invention was 
 not perfected, for it may happen that a person may choose to file 
 a caveat, while he is goinjr on and making impi'ovements on an 
 invention which he has already comjdeted to be of practical 
 vitility: See Johnson v. Root, 1 Fish., 479, and 2 Fish., 2!»l. 
 As to the effect of a caveat on a subsequent patent, see the ruiiiiif 
 of Spragge, J., in Johnson v. Root, Curtis, 4ti; yd., sec. 270. 
 
 " If ail invention is fullj' described in a caveat then the caveat will constitute 
 evidence showing that invention to liave been made at least as early as the i?av(;;it 
 Mas tiled. This, iiowcver, is an incidental and not a statntory function of siuli a 
 document, and it cannot be performed by any caveat which is not complete enougli 
 in its description to enable a skilful mechanic, without inventing anything hiinsilf, 
 
 to construct a specimen of tlio invention to wliicli the caveat refers" : VV alko;', 
 
 sec. 14.S. 
 
 Although an inventor takes out a, caveat in his own naiin^ 
 
 alone, yet if the invention is in facL joint it may be carried ba'k 
 
 to the filing of the caveat : Hoe v. Kahler, 12 Fed. Rep., 111. 
 
 Provisional Protection in United Kingdom. 
 
 In the TTnitod Kingdom under section 14 of the Act of ISN'}, 
 provisional protection may be obtained, whereby the invfiition 
 may, during the period between the date of the application and 
 the <late of sealing such i)atent, be used Mid publisluMl without 
 prejudice to the patent to be granted for the same. Its only 
 analogy to a "caveat" is a means of preserving rights till tin- 
 j)atent l)e granted. 
 
 Provisional protection, however, is no security against infring.- 
 nient, l)ecause by section 13 no proceedings shall be taken in iv- 
 sjjpot of ihfriugement before publication of the comj)Ieto specifi- 
 cation. 
 
 Within nine months from the date of application die coniplitc 
 specification must be filed, unless an extension is granted. So 
 ]»rovisional protection u.sually only last.s for that period. 
 
 Abandoned Applications Not Publications in England 
 
 By section 4 ( >' the Patent Amendment Act of lcS85, Kng, 
 (ihandoned npplicationx are at no time open to pul)lic inspfctidii, 
 or to be pubhshed by the Comptroller, ho that those who arc not 
 
Sec 38-39.] 
 
 OAVrATS-PATENT PEES. 
 
 409 
 
 in position to proceed with their original applications, within the 
 time allowed, may now renew their application from time to tiinu 
 without risk of losing their rights, as would formerly have been 
 the ease. 
 
 Caveats, U. S. 
 
 In V. S. A. the cnvcaf fee is !?1(), and the caveat is in force for one 
 vi!ir, hutmnv he renewed indefinitely fiom year to rear on yearly 
 ]iayinent of the SIO fee ; the caveat must h(! restricted to a single 
 lii\''nti<»n. 
 
 N. B. — In Canada a caveat only exists for one year, within 
 which time, under su1i-st'cti<jn J), see. oS, the caveator must apply 
 fill his patent: in Canada, we have no provision as to renewals, 
 as i> tluf cast' in U. S. A. 
 
 Oeveat" in the United Kingdom. 
 
 The term careaf is npjtiicd in England to a notice filed hy 
 any one in the Privy Council Oftice in opposition to a petitioti 
 tor prolongation of a patent heyond fourtci'n years, under the 
 Acts of IS.S.^ and ISs.S. An extension of a ))atent in the Cnitcd 
 Kingdom may be ohtaini^d irom the Judicial Conunittee of tho 
 Piivy Council for a further period not exceeding fourteen 3'enrs. 
 
 A provisional application in Kngland takes the |>lace of our 
 • iijrat to a certain extent, it admits of use, imj«ortatlon and puh- 
 lication duringtht> nine months of provisional protection, withotit 
 ii trinient to the j)atent thereafter granteil. 
 
 PAm' XTIL 
 
 Patf.nt Fkkh. 
 
 •*•'. Tlio followinjj fccH Hlinll l)i> imyiihle before lui applK'atinn for any of tho 
 imriMwuH lu'rcln iiu-ntioiieil alinll bo received by the comiiiiHHiitncr, tliiit in to wiy :— 
 
 Kii.l f.c for 18 yearn ' S«!0 (K) 
 
 I'uiiiil foi« for 12 yeiirs 4(t <>() 
 
 I'ni'ial fee for « yearn 2() 00 
 
 ^"'•|• (»T fiirtlior term of i'2 yenn. 40 (JO 
 
 o'2 
 
1 ■ ' ♦ 
 
 i ■ I 
 
 ' '' 
 
 
 I: I 
 
 
 (I 
 
 ;- 
 
 
 
 
 1 
 
 1 
 
 ' j 
 
 410 PATENT FEES. [See. 39. 
 
 Fee for further term of 6 yeara S'JQ 00 
 
 On lodging iv careal 5 ()() 
 
 On asking to register a judgment pro tanto 4 oo 
 
 On asking to register m assignment or uny other ilocunient iiffecting or 
 roliitiiig to u patenir, and for each and every patent mei:*i<jned in the 
 
 notice given under sti tion 8 of this Act •_> tMi 
 
 On asking t<> attuuli a diuchiimer to a patent 2 0(J 
 
 On asking for a copy of patent with spccitication 4 00 
 
 On petition to reissue a patent after surrender, and on petition to extend a 
 forinei- patent to the wliolo of ( 'anaihi for every unexpired year of the 
 duration of the provincial or sub-patent, the fee siiall be at the rate of \ uo 
 
 On oHice copies of documents, not above mentioned, the following cliargM 
 shall be made : — 
 
 For every single or Hrst folio of certified copy cO i*i 
 
 For every subhe(|Uent hundred words (fractions from ami under fiftj' not 
 
 being co\intcd, and over fifty Ijciiig coiiniol for one iiuiulred) |ii 
 
 3.) v., c. '2(), s. 34, Tlie Patent Act (188(5) ; 53 V., c. 13, s. '.\ \ .M-3fi V., 
 
 e. '24, H. 7 ; ')(! V., «•. 34. s. 4. 
 
 ii 
 
 Any Document May be Registered. 
 
 r.y r,:i Vic, c. l.S, .s.;c. '.i 1M»(>), the ;i!)th soction of the I'lUeiit 
 Act, 411 Vic, c. Gl, was aiiiendetl by adiliii;^ after "assignment" 
 in the eleventh line the Wor«l.»<, "or any other document arfectin;.' nr re 
 lating to a patent," tnl' which the fee was also to he 82; tlii'^ 
 ainendnient will cover a^^reenients, licenses. niortLfa^'e.s, etc. N<» 
 reason t.'xists why a patent shoiiM not he pletl>^ed lil'.e any ntiicr 
 property. 
 
 By ').')-r)0 Vic, c 24. sec 7 (l.H})2j, the :}!)th section of tlu- 
 Patent Act as uniendeil in IHIM), was rej)ea'tiil and a new oin 
 stihstituted, which was a re enactment, except -.s to tin- t'ol- 
 lowini;- ii 'n»s, viz.: The full fee Joi eij^hteen y»"irs being 8<!(i 
 partial fee for twelve years, 840; partial tee for six years, 
 #20; tlu' fe«' for a further term of twelve years, 840, and 
 fee foi- further teiin of six years, .820. The fee for every 
 sinLilr or first folio of certitii-d copy was rediieed from .'-c. to 
 23o., and for every subse(pient hundred words (iVnctions froiii 
 and under fifty not bein^' coiuited, ai:' over fifty bein^,' couiit<il 
 for one hundred), was reduced from 25c. to lOc. 
 
 'Illl 
 
Sec. 39.] 
 
 PATENT FEES. 
 
 411 
 
 New Tariff Relates to Patents Issued After 9th 
 July, 1892. 
 
 Thi'se clian<,'c's in i. cs only applv to patents issued after tlic 
 i)th July, 1S!)2, when the Act ciune into etieet, and eighteen 
 years' patents first hegan to l)e issued. As to certified copies of 
 patents issued prior to 0th July, I.S!>2, it is presumed that the 
 old rates of 50c. for the first folio, antl 2.')o. for each subsetjuent 
 Inlio, nmy bo demi.nded, although probably not so intended. The 
 latf now charired throughout, as a matter of office practice, is on 
 iln' lower .scale. 
 
 Inconsistency. 
 
 As the previous Act uuih iwmdle.d, and as tJie 9th soction 
 cxiiressly provides tliat this Act of 1802 shall only apply to 
 dents issued after the passing thereof, the provision of the 
 Act of 1800, whereby • any ilocmiu'iit (busidfa ,vii a.s«igiii)ieiit) aflfuctiug or 
 iilating to a patent," might be registered for 82, might Ite .said to 
 aii|)ly only t<> patents issued after the 0th tluly, IS02, leaving 
 out all patents issued befoi'e that date, which evidently was 
 iiut the intention, for it woidd be absurd that theri; should be 
 Iln provision fur the registration of an assignment or mortgage 
 (ir other document ndatitig to a patiMit issued before the 0th 
 ■liiiy, 1S!>2; but reading the Act strictly, such would apparently 
 l>e the effect. 
 
 Fees on Filing Notice Under Section 8. 
 
 By 56 Vic, c. 34, sec. 4 (I80.S), the .section substituted for 
 s.ction .SO of the Patent Act by tin amending Act of 1802, was 
 aiiunded iiy adding afti'r the word " putent," in the thirteenth 
 lillf, the following words: " .Vml for euch and uvuiy patent niiiitionttl in 
 tlir iiiiii.v ^ivin under Hi-otion h of tliis Act. " So that according to this, if 
 iiKir," than one patent is includcil in the notice, $2 on cdch patent 
 nu'iitioiH.-d therein must iie paid on tiling the notice. 
 
 As a Canadian. Patent is limited to expire at the earliest dnte 
 oil which any foreign patent for tin* sumo inveiition expires (sco 
 sottion 8), if, for instunce, a Ignited Statu.-* patent be ir.st issued. 
 
: :5 
 
 .m 
 
 412 
 
 PATENT FEES. 
 
 [Sec. 39. 
 
 j ; 
 
 1 ! 
 
 mm 
 
 the Caiiatliaii patent (as to which notice has heen given nnilcr 
 section 8), niij,'ht then extend to a little less than seventeen yours 
 at the niaxiinuni, and for a shorter period, \vht;rt) the lil'e of tlic 
 prior foroi^fn patent is shorter than in the United States: (sm; 
 Form ')t), Appendix i). 
 
 Pees on Reissue may be $72. 
 
 As patents an- iu>\v issued lor 18 years, and as !i?4 a y«'ar Ims 
 to be pai<l on " reissues," .slioidd a patent bo reissued during; the 
 first year of its life, the reissue fee may be 17 X 4, or 808, and in 
 a«hlition another 84 n-.ay possibly bo demanded, in all .872 ; \'o\- it 
 is not stated that a fraeticjiuil part only of thu 84 is payable iov 
 the unexpired portion of a year. 
 
 As to " proviiiciiil " oi" ".siilijtatciiis," m:!ntioned in this clause, for 
 cvei-y luii'Xpircd year, 84 is payable, winch would iippear i,o make 
 84, payable for the I'ruelional jtart of a year. 
 
 Not Necessary to Qive Notice when Prior Patent 
 is British. 
 
 If tho pateiit previously taken out Ix; a llritisli patent, linn 
 as sectii>n 8 relates oidy to previously existinj,' j'oreujn patcirts, 
 it woidd appear not necessiny to ;4ive tin; notice, nor would tin- 
 Canjidian patent i-xpire in less than ciijlitcen years, the previuiisly 
 granted Ihitish patent not being a foreign patent. 
 
 Th(! amount payable witli notice under section 8 varies as tl 
 ))eiiod of life of the previous foreign patents, as to which 
 note ((/) to section 8. 
 
 When the Life of the Canadian Patent is Shortened. 
 
 When notice is given under section 8, tin; life of a ("an.iilian 
 liatent mav be niateiiallv siiorteiied. 'llu\ maximum duratlun nf 
 most Kuidpean patents is lifteen years, and as the ap|)lieatiitn in 
 (,'anada must be made within a year of the date of a for<ii,Mi 
 patent, and as there may be delay in the Patent OlUco at Ottnwii 
 of from four to six months after application, the lite of tin; 
 ('anailian patent may be short(*ned to a period within tliiitiiii 
 and fourteen ve!i»'s in this case. 
 
 M' 
 M.'l' 
 
Sec. 39. 
 
 in utnlcr 
 ■en yours 
 'o of tlio 
 tes : (sou 
 
 Sec. 39, 40, 41, 42.] TEES FOR DRAWINGS, ETC. 
 
 413 
 
 year lins 
 in'iM'j; the 
 is, ami in 
 72 ; for it 
 lyablc for 
 
 clause, I'nr 
 
 ' Patent 
 
 itent, lliiii 
 
 ) |)at('iHs, 
 
 wduM tin- 
 
 iL'viously 
 
 •ics as til' 
 which >''>• 
 
 Lortenecl. 
 
 ('an.iiliuii 
 mat it'll 'if 
 lioatioii in 
 a forri^" 
 at Ottawa 
 iff of the 
 III thiitt'L" 
 
 Cost of Reissues Increased. 
 
 The eHuct of a payment of i?-!' a year, in the event of reissue, 
 now tliat the lite of a patent has been extench-d to ei<,'hteen years, 
 is to increase the cost of " reissues." When patents were for 
 tifteen years the actual rate for " reissues " was .*i<4 per year, now 
 it should be only 8^{.:i.'U, instuail of !?4 as proviih.'d. Still up to 
 this date the Patent Otlice, Canada, has not deniandetl any in- 
 creased rate for reissues. 
 
 40. For evtsry copy of tlr.i\viiig8, the piTMoii iiiiplyiii^ .>4|i.'lII |i;iy sucli sum iih 
 the coniiDibHioiiur coiiMidera a fair rt^nnmurution f -r the time uiul lalxmr cxiaptled 
 th^TiMHi liy any uiKour of thu I'utuiit Ortiue or of liu' iluiuirtinLMit or person 
 cnHiloyi'il to ptTfonn jjuch service. .S.'i '•"., c. *J0, h. '.i'). 
 
 NoTK. — This section is the .same as in the Act uf 1.S72 with 
 .)f the Patent Oftic! " added. By this the drawing's may be nuide 
 by Patent OMico oHicials, or by persons not connected with the 
 utiicu. Tlie department referred to is the Department of A;^*r:cu!- 
 tUH'. As a nuitter of facts " hlue prints" print('(l by the Sun 
 ain made and supplied at the rute of Joe. pur sheut. Tracings ur 
 regular drawiiig.s are never made. 
 
 4 I. The Haiti fees shall ho in full of nil HcrviccH performeil under thia Act, 
 m iiiiy HUt h caae, hy thr oo'iimiMsioner or any person einployeil iii the Patent 
 (illicu. .Sj ', ., c. VJt), 8, 'M. 
 
 Noi'E. — The fees referred to are those fees .set out in section 
 ;il), us well as thu fees jtaid for drawiiiL^s ; or, as a matter of fact, 
 6/-'c; /»»'iH<is," payable under section 40. Patent Office oUicials 
 in Canada get nothing personally f(jr making tlu; drawings. 
 
 4!«. AH foes rcceiveil umUir thin Act hIkiII ho puiil over to the MiiiixtLr of 
 Fiimncc and Keceivcr-Oonornl, and xliall form part, of the C'onoolidnted Keveniit- 
 Fund lit Canada, nxi-ept hucIi HiiniH i\h are paiil for copirx of drawin^^H when made 
 ly iiersous n<)t receiving salarieH in the Patent uHiiu. 'A't V'., c. 'i<>, », 37. 
 
 NoTK. — The exception at the end of this section allows of pay- 
 iiK'iits personally to persons, note* the statf of tiie I'atcjit Ottiee, 
 tor copies of drawings made by them if employ<;d so to do, 
 referred to in section 40. 
 
I ■■: ! 
 
 W 
 
 • ) 
 
 .'I t 
 
 I'; 
 
 414 
 
 FEE8~B0TALTT PAYABLE B7 GOVT. [Sec 43-44. 
 
 43. No person aiiall ))e exempt from the payment of any fee ur charge, 
 payable in respect of any services jierforined for such perpon under this Act ; and 
 iio fee, u'lieu paid, Hhall )>u returned to the person who paid it, except :— 
 
 (a) When tlie i>etition is not susceptible of liein^; patented ; or 
 
 (/') When the petition for a patent is withdrawn. 
 
 And in every such case the commissioner may return the fee paid less the 
 sum of ten dollars. .H.> V'., c. '26, s. .3S. 
 
 Note. — When an application for a patent is sent in, tlic 
 small'jst fee payable is ;?20, and this fee must be paid before any 
 julion is taken. If, under section IG, the Commissioner objects to 
 grant a patent for any of the rt-asons therein set out (see Purt 4), 
 or if the applicant himself witlnlraws his application, with or 
 without any stated reasons, then $10 of this $20 is returnable 
 to the part}' who has paid in the 820. 
 
 PART XIV. 
 
 44. The (Jovernnient of Canada may, at any time, use any pateiitfil in 
 vention, paying to the {wtentee such huui as the commissioner reports to l)e a 
 reasonable compensation for the use thereof. 35 V., c. 26, s. 21. 
 
 Note. — This is the same as section 21 in tlic Patent Act of 
 1H72, except that " at any time " has iK'on substituted for "ulways,' 
 anl "reports" for "may reiwirf' 
 
 Referring t(> this section 21, in Barter v. Smith, vol. 2, Ex. Ct. 
 R, App.x. 2, p. 4H:{, Mi Taclu', with reference to a deinan<l to be 
 made on the puientee, states u^ follows in his judgn-ient : 
 
 "If it were neei!ssHr\ t<> furnish a collateral priMf of this intention of the 
 Legi^ilature, within li;-. i.iw itself, of requiring; on the ]mrt of the oustoiiu'rii au 
 a<;tual substantial denmnd o>° reijuest acconiimnnMl with a settlement of inyiiltY, 
 it would l>e found in section '2} , in which an exception to that obligation <>f ile- 
 inand'ing is made in favour ••( the Governmoni , which is by way of derogatiiiii to 
 the gciuT.il rule, •alloweil to iuak<- uae of all inveiitiouH with'<iit going t<< tlio 
 patentee, even during the two )<9*ra' delay, free of any blame for infringeincnt, hy 
 resorting to a ■peci*l and an vxceptioiial iihmIh of it«:tling upon tlie price ti' b« 
 paid to the pAtcutee. 
 
Sec. 44.] 
 
 B07ALT7 PAYABLE BT GOVT. 
 
 415 
 
 NoTK. — Section 21 — The Government of Ciinailii may iilways use any patented 
 invL'nti;)n, paying to th<' patentee sucli sum uh the commissioner may report to be 
 a rt'a> nmble compensation for the use thereof. — " Tht Patent Art of 1812" 
 
 In tliis case, where the Government adopts the invention, the 
 ]iatentee has not the usual two years' monopoly of use. And the 
 ("ommissidner of Patents, is alone authorized to report on 
 •til.' rea8ona))le mmijcnsation " which is to he paid hy the Government 
 for the use of the invention ; there ap|)ears to he no appeal from 
 ills report ; it seems more sensihle to appoint an independent 
 trilmnal to settle the " reasonable price" to he paid, thaji to cxpj'ct 
 ilif )»arties to do so themselves. This is an exception to the 
 ,'('noral rule. 
 
 Tnder suh-section 2, of section 5, of this Patent Act, can 
 \].i Depiiti/ Comtnissioner of Pntentu be authorized l>y the 
 (i(ivernor-in-Council to report on 'Jie " reasonable compensation " 
 to lie paid ? As he is not mentioned in this section, it would 
 ;ipii»'ar at least doubtful. 
 
 In the case of a royaltj- of SI 00 per »loor for a patented 
 
 ilri'iJiji: shovel door," covered by Canadian Patent No. 9440, 
 
 wlure the Department of Public Work.s had previously 
 
 voluntarily paid, and the jmtentee accepted royalty at ?100 per 
 
 door on shovels used in some of their dredges; by letter No. 
 
 1'2.')16, of the 10th November, 18So, the Commi.ssioner of 
 
 Patents remarks ■ ' that tlierc seems no necessity to interfere, inasnnich as the 
 jpHiiit tniiched by section 21 of 'The Patent Act of 1872' lias seemingly been 
 
 ilnady siatU'd between the Department of I'nblic Works ami Mr. Canan, viz., 
 that tlie«iim of §l(M»for the use of each machine covered hy patent No. 0440 is 
 
 I proper royalty vherefor." 
 
 How Royalty May Be Recovered. 
 
 In the event of the amount of the royalty being tixed by the 
 'oiiiuii.ssioner, and if the Government, for any reason, refuses to 
 pay the amount of the compensation, proceedings may be hail in 
 the KNcheijuer Court by way of Petition of Right under c. 130, 
 R' \ stats. (Can.). 
 
 This section does not state that the Government of Canada 
 may have the <^xclnsive use, as is the case in many countries as 
 to munitions of war. 
 
 < 'I 
 
 'i 1 
 
 ,i 
 
41 G 
 
 EOTALTT PAYABLE BY GOVT. 
 
 [Sec. 44. 
 
 V. 
 
 
 Government Employee May Be Patentee in U. S 
 
 III the States it U heJ«l that one in the employ of tlie (Jovtrn- 
 mentis entitled to a {jatcnt in the ahseiiee of iin afjreeinent on 
 hi.s part that his invention shall be the pioptnty <jf the G(nerii- 
 ment : See Riley v. BtraaM, C. D., 59 O. G., p. 1919. Thi.s same 
 rule would ajjply also to Can.ida. 
 
 And in llnjul v. Pumie^, Deceniher Srd, IS91, U. S. Circuit Ct, 
 Mass., CO O. G., p. lO'ti, it was declared that the rights secinvil 
 to a patentee under hi"* itant from the Government are a form ot 
 property in the enjoyment of which he is entitled to protection 
 agaii^st all trespai-.T.cr.T. rnclndinj,' the Government. 
 
 In the Unit**<l Stat<es a patent is private pioperty, and the 
 Government cannot, after it i.s issued, make use of the improve- 
 ment any more than a private individual without license of the 
 inventor or makin<; hirn compensation : See Caramcycv v. Sw- 
 ton, 11 Brodix, p. 131. f>4 U. S., 22.5 (January 29th. 1S77) ; see 
 also United States v. B>i.rm, H Bro<!ix, 458, 12 Wall., 24<i, and 
 Walker, sec. 157; Jmiui v. Campbell, 104 U. S., 850 ; IlolUster 
 v. Benedict Mnnuf(neiurm(j Co., 113 U. S., 59 (January .5th. 
 18S5) ; Unltcil SUtVn \. MeKeever, 14 Brodix, 4.'J7 (NovemlHr 
 20th, 1882). 
 
 There is no expre*f enactment in the United States such a~ 
 we have, with reference to use hy the Government ; but the Sec- 
 retary of the Interior I'. S.j and the (Jommissioner of Patents 
 (U. S.) are authorize*! to grant any otticor of the Govermiiunt, 
 except officers and employees of the Patent Office, a patent for 
 any invention of the cla.s.ses mentioned in sic. 4.SSG (U. S.), 
 Revised Statutes, when such invention is u.sed or to be used in 
 the pulilic service, without the payment of any fee ; provided, tbat 
 the apjilicant in hi* application shall state that the invention 
 described tlierein. if patente*!, may be used by the GovernnKiit, 
 or any of its officers or employees, in prosecution of work for the 
 Government without the |>ayn)ent to him of any royalty there< u. 
 which .stipulation *hall Ijt included in the patent. Act of Mar'cli 
 3rd, 1883, c. 143, U. S. Stat. 22, p. G25. 
 
•T. [Sec. 44. 
 
 itee in U. S 
 
 loy of tin: (Jovcni- 
 t' an afjreeineut nn 
 •ty of tho Guvoni- 
 I. 1019. This saiue 
 
 I, r. S. Circuit Ct., 
 thu rigVits secuivtl 
 ment ave a form nt 
 titled to in-otfCtion 
 lont. 
 
 ) property, aivl tlu- 
 use of the iinprove- 
 thont license of tlif 
 CararatDcv v. iWv- 
 iry 20th, 1S77) ; se.- 
 , 12 Wall., 2-tO, nn.l 
 LF. S., 85G ; IIolii><h:r 
 50 (January oth. 
 )'(lix. 4:i7 (Noveiuhor 
 
 nited States such as 
 lunent ; but the Sec- 
 nissioner of Patents 
 of the Cloveriunent, 
 t Otfico, a patent for 
 n sec. 488G (U. S.). 
 ised or to be used in 
 y fee ; provided, that 
 that the invention 
 
 by the Governnieni. 
 iition of work for tk- 
 
 any royalty there.'.n. 
 latent. Act of Maro. 
 
 Sec. 44-45.] USE OF INVENTION IN FOREIGN SHIP. 
 
 417 
 
 As to War Munitions, etc., in Great Britain. 
 
 In Great Britain by section 4+ of the Patent Act of l.SS.S, the 
 inventor of any improvement in instruments or munitions of war 
 niiiy a.ssign to the .Secretary of State for War all the beneMts of 
 his invention and any patent obtained or to be obtained ; the 
 Secretary may direct that the invention bu kept secret and all 
 •locinnents be kept sealed up. 
 
 Under ordinary circumstances, under section 22 of tlie Patent 
 Act of 188.3, tlio British Government could compel a patentee to 
 grant a license on such terms as the l>oard of Traile may deem 
 just. 
 
 The Board of Trade is defined by 17 and 18 Vic, e. 104, soc. 2, 
 to mean : " Thu Lords of the Committee of the I'rivy (.'oiincil iiii[K>iiitf<l for the 
 cousitltratioii of matters relating to triitle ami foreign plantivtionH." Compul- 
 sory licenses only relate to patents granted since Jamuiry 1st, 
 1SS4. 
 
 4»l. No patent sliall extend to prevent tiic itcie of any invention in any 
 foreign .ship or vessel, if siieli invention is not so used for the niiinufiicture of 
 g()o<l8 to be vended within or exported from (,'anada. ,')5 V., c, 26, sec. 47. 
 
 Note. — There does not appear to bo any I'rovi.'sion similar to 
 thi>, either in the U. S. Act or that of Great Jiritain. According; 
 to this, a foreign .ship might make use of, for instance, an anchor 
 patented in Canada, but tliis anchor may not be matin facturt-d 
 on lK)ard to be sold in Canada or for export. 
 
 Section 45 Does Not Relate to Canadian or British 
 Ships, etc. 
 
 This section relates only to "any foreign ship or vessel," and docs 
 nut relate to Canadian or British vessels, or those belonging to 
 British colonies or possessions, so that all vessels other than 
 forfign ships or vessels would not bo entitled to make an un- 
 iict'iixtd use of the anchor referred to in Canailian waters. 
 
 In Walker, .section IGl : "No United ilates patent rigiit extends to 
 thf mere use of the patented inventicm on any foreign siiip, while tenrtorarily in 
 »hai!"irof the llnitetl States for the purposes of coinmene, tlimigh sneh a right 
 VduM lit; infringed liy making or selling the patented article on lioa'd any foreign 
 veistl while iu either of our ports ; See Broini v. Duchtsw, I'J How., 1% (18j0).' 
 
 53 
 
 I 
 
 ■ 
 

 ri. 
 
 
 J 
 
 f ■ 
 
 
 
 4 ■" 
 
 i 
 
 » 
 
 , 
 
 ■ , J 
 
 I 
 
 i 
 
 
 418 
 
 PURCHASERS, ETC., BEFORE ISSUE. [Sec. 45-46. 
 
 The provisions of the U. S. patent laws in this respect are very 
 similar to ours. 
 
 (JnitiMl States patent rij^lits extend to the decks of IJnitoil 
 States slups, even when these ships are on the liigh seas, as fully 
 as tliey extend to the solid eartli of the United States: Sec 
 Gardiner v. IIouy, 2 Cliff. 4(J4 (IHG")). 
 
 4o. " Kvi-ry person ulio, liefdrc the isMiiing i)f a patent, liaH purthnsed, odii 
 .stiucti'd (»r iio(iiuru(l iiny invention for which a patent Mafterwurtlsohtuineil umlur 
 tliis Act, hIuiII liave the right of UHing and vemling to othuiH thu specilic article, 
 niiii'hinc, nianufactiiie or ronipimition of matter patented and ho purehaHcd, I'mi- 
 .Hlrnctcd or anjuired lieforo tliu i^Hue of tlie patent tiierefor, witliont hoin^' liiibic 
 til tlie patentee or liis legal repicHentativeH for so doing ; hut the patent .shall not, 
 as regards other persons, he held invalid, hy reason of such purchase, const nu'tinn 
 or acc|uiHition or use of the invention, l»y the person tirst aforesaiil or iiy Wum 
 to >vhoni he has sold the same, unless thu same was purchased, constnutiil, 
 acipiired or used, with the consent or allowance of the inventor thereof, fur n 
 longer perioil than one year before the api)lication for a patent therefor luiikiii^' 
 the invention one which had become puhliu and in public use. '.irt V., c. 'JO, a. iH. 
 
 This is the same enactment as in the Patent Act of 1872, with 
 some alterations; "has J)een obtained" near the bef^inninj,' is now 
 
 " is afterwards obtained," and •' with the consent or allowance of the invtntor 
 
 thereof," is now added after " acquireil or used " towards the end of 
 the section. The other alteratlujis are iunuaterial. 
 
 Provision of Act of 1849. 
 
 A provision somewhat sinnlar to this section 4G, beiuL,' the 
 orii^inal provision in Canada, appeared in 1849, in 12 Vic, c 24, 
 sec. 22 : See Form oo, Appx. 2. 
 
 The words in the bej^inning of thi.s section 22 of 12 Vic. o. 24 
 <1841)), "invented or discovered," sound strangely, for it would aji]icar 
 the true inventor might be displaced by a person only claiming,' to 
 be the inventor ; also that a corporation might be an inventor or 
 discoverer ; and further on, near the middle of the section, it WDuld 
 appear that the words " invented or discovered " are displaced by the 
 worl "introduced," as if an introduction of the invention into the 
 Province of Canada was tantamount, at that time, to an invention 
 or discovery, thus .savouring of the English Act. The provision 
 a.s to introducers into Canada, being entitled to obtain patents 
 
 It 
 
 .';t 
 
Sec. 46.] PUROHABERS. ETC.. BEFORE ISSUE. 
 
 419 
 
 • lid not apjiear till subsequently in section 11 of 14 and 15 Vic. 
 ^•. 7S) (1851). 
 
 Thi.s .section 22 of 12 Vic. c. 24, appears at,'ain in Con. Stat. 
 (Can.),c. 34, .sec. 22 (185{)), and also in a niodiHed form in this sec. 
 40 R. S. (Can.), e. 01, our i)re.sent Act, Imt in tlio latter the word 
 • iiciuiieil " is suVlstitutod for " iiivcnte<l or (li8covfre<l " at the lieLfinning 
 nl the section, and in order to make out abandonment to the pub- 
 lic, tlie purcliase, construction, use, etc., must now bo with the 
 consent or allowance of the inventor for a lonj^er period than one 
 year before tlie application. In the old Act, 12 Vic, c. 24, 
 ii'ferred to, there wns a similar ])rovision as to abandonment, but 
 iinthinj; was said about the "consent or allowance of the in- 
 iititor." 
 
 Section 22, of cliapter 24, 12 Vic. (Fonn 55, Appx 9). was 
 evidently taken from section 7, of the U. S. Patent Act of 18.39, 
 and has been spoilt by the addition of the words "invintefloi 
 iiisooveicd ' aheady referred to, which do not api>ear in the U. S. 
 Mctions. 
 
 The first half of this section 4G, of our Act, down te the 
 words " for 80 doing," bears an anah)<;fy to section 4899 of the U.S. 
 Kivised Statutes (wliicli was taken from the U. S. Act of 1870, 
 xc. 37) now in force, which is as follows : 
 
 Section 4899. •' Every pciHon wlio purchaacR of the inventor or dis- 
 iiivorv-'r, or witli his knowledge and consent, constructs any newly invented or 
 .lisKivcred niacliine, or otlier patentable article, prior to the application l»y tl»o 
 iiiv.iitor or discoverer for a patent, or who sells or uses one so coimtnicled, shall 
 h.ivc the I'i^ht to use and vnnd to others to he used, the specific thing so made or 
 inuiliased without liability therefor." 
 
 Is the Purchase with the Consent or in Fraud of 
 Inventor ? 
 
 Do the words "purchased, constructed or acquired," at the beginning* 
 nt this section 40, of our Act, mean from any person in fraud of 
 tlic inventor, who afterwards obtains a patent, or do they mean 
 from tlio inventor with his consent or allowance I This is a 
 material consideration, and we liave no tlecisions in our Canadian 
 (.'ourts to guide us. In our section al.so, the reference is before 
 " the issue " of the patent ; in the U. S. section, it is prior to 
 
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 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 873-4S03 
 

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 420 
 
 PURCHASERS. ETC., BEFORE ISSUR [See 40. 
 
 I' i 
 
 1 ^n 
 
 i , 
 
 1^ 
 
 " the ai)plieatlon " for a patent by the inventor. In oor section 
 46, the purchase, construction or acquisition, refeiTed to in ibv 
 beginning of the section, is not said to 1:>e from the inventor or 
 with his consent or allowance. 
 
 The U. S. Act of 1839, from which our original >ection in 
 12 Vic, c. 24, was taken, is silent, as to the purchase, sale or us^'. 
 beinsf with the knowledge or consent of the inventor, which mak'-i 
 this section in the Act of 1839, like our present section in this 
 respect ; in the other IT. S. Acts, including section 4S99, Revise,] 
 Statutes, at present in force, the fact that the purehase should re 
 made of the inventor, and that the construciion should l»e with 
 his knowledge or consent, is especially mentioned. 
 
 In Walker on Pek-jits, sec. 1-58, referring to this U. S. stctiot 
 4899, and as to ])ur. .^iin c construction in fraud of the inventor, 
 it is stated; " No patent >i";ic covei-s any nse or sale of any specimen <:•:: be 
 patented thing which was \>'- w xl of the inventor or made by another. ■witL Lis 
 knowledge or consent bfcfor.' i s ;» .plication for a jMtent therefor : See Wt'- - 
 Meti:al/, 16 Fed. R., 1.30 (IS j,«;. 'A'here another than the inventor sarreptiti-cilj 
 obtains knowledge of an invention', and n-ithout the consul of the inventor. E^i— 
 a specimen of the invented tiling before any p;itent thereon is applie^l f-.T. ::-«: 
 specimen is covered by a patent for that invention as truly and as fully as it wc-iL : 
 l>e if it had been made by an infringer after the date of that patent. Such a t-ii* 
 is clearly outside the rule just stated, antl the statute upc>n which that rult » 
 based. 
 
 Indeed, Justice Story, in Pierson v. Scretc Co., 3 Story, 40*2 (1*44\ and afiir- 
 wards the full Supreme Court in Kendall v. Wiu'^r, 21 Howanl, ^2, held snci i 
 case to lie outside the corresponding pro^^sion of the Patent Act of 1S39. ih- xi^d 
 that provision did not literally exclude such a case. " 
 
 As the provisions of the U. S. Act of 1839 do not refer to any 
 •» knowledge or consent " on the part of the inventor as to the privr 
 purchase, sale or use, in the same manner as this Canadian sec- 
 tion 46 commences, these two last named cases would apf-ear 
 to be direct references, applicable to our present section- 
 so as to exclude, if they be followed in Canada, all surreptitious 
 purchase, construction, or acquisition ; and making the purvhase 
 or acquisition referred to in our section to be from the inventor 
 or those authorized by him, and the construction to be with Lis 
 knowledge or consent. This would appear to be the meaning of 
 our section, and would make it conform with the meaning and 
 
\ 
 
 Sec. 46.] PURCHASERS, ETC.. BEFORE ISSX7E. 
 
 421 
 
 •scent of the U. S. sections (of which ours is an adaptation), and 
 :■ th»we decisions in the U. S. Courts iastlj' referred to. 
 
 "Consent or Allowance," etc, Added in Revised 
 Act, 1886. 
 
 Since the Patent Act of 1872, and by the Revised Patent Act 
 
 r I^S*3. the words "with the consent or allowance of the invet or,' have 
 
 ■--rn added with reference to the words "purchas*:d, constnicte.1, ac- 
 
 r-elorusetl," in the latter half of the present section, and this 
 
 li'i seem to imply that thej' should also be taken to refer 
 
 ln' the same words, "purchased, constructed or acquired,"' at the Ijegin- 
 
 tting of the section. 
 
 To save all doubt, it would be better, if the words added in 
 1»*5, in the latter half of the section, viz., "with the consent orallow- 
 ia-e flf the inventor," Were also added in the beginning of the section 
 ifter the word "acquired." 
 
 Our Description Like that in IT. S. Act of 1839. 
 
 It will be also noticed that in the U. S. Act of 1S39 if. reads 
 zr.T specitic niiichine, manufacture or composition of matter ; "' in the L . S., 
 !>70. Act, and U. S., section 4899, Revised Statutes, it reads 
 -ijeeific thing." In our Patent Act, section 46 reads " specific article, 
 Eibihine, m:»nufacture or composition of matter" which, barring the word 
 -iTtioIe," which has been added, is the same as in the U. S. Act of 
 l>:Jd. 
 
 In Part I. and sub-sec. (c) of sec. 2, an invention means 
 - kiLj aevr and useful art, machine, manufacture or composition of matter, or any 
 it"^ ui' I tLaeful improvement in any art, machine, manufacture or composition of 
 
 ^•^e note to sub-section (c), section 2, where the term " art " 
 - .;wn to mean '• a 2^i'Oce8s.^' 
 
 Our Section 46 may not Include a "Process." 
 
 And it will also be noticed, that in the detinition of the thing 
 iv^nted, the word " art " has been expressly dropped out of 
 ial-> -section 40, and the word "article" substituted .so as to make 
 h correspond with the term " thing " in the U. S. sections referred 
 to, thus showing that our draftsman had these U. S. sections 
 ■»ier his eye. So that this section 46 may not be held to include 
 
5 
 
 422 
 
 PX7BCHASEBS, ETC., BEFORE ISSUE. [See. 46. 
 
 Hi 
 
 A Process not Included in the U- S- Section. 
 
 In •section 1-59, Walker, the author, say.s : "The rule stateil at the 
 head <^f tie Liit sect ioa (1.58 before referred to) does not apply to any ' prortss 
 
 ** Ti»e proTJaioa of 1870, and .Section 4899 of the Revised .Statutes, treat only 
 of maciiilje* o*- >>tiier patentable articles, and confer exemption from tlie operatic ■ii 
 of patent* npi.ja nothing but specific things. Now a process is neither an article nr 
 thing. 1$ IS a series of acts. It is, therefore, outside the language of the law mi 
 this Eiib.>t*t. It is also outside the reason of that law. That reason is as follnws : 
 
 Wbtit 4i!L(i>tfa.er than the first inventor of a particular tangible thing, buys finin 
 the inve3iit>o<- a> :S|)«cimen of that thing, or makes such a specimen with his consent, 
 or reinTients and makes such a specimen independently of the first inventor, tli.it 
 speeim*ai oo^t to be exempt from any patent afterwards applied for by the first 
 inventor; because, if it is not so exempt, it will Ijecome worthless in the hands of 
 one who hoatskly expemleil of his substance to procure it, and who procured it 
 without riolatziig any patent or any law. Processes are not subjects of these cnn- 
 siderath-ffljs, A process cannot be purchased. The right to practice a patentt.il 
 process cmi indeed be purchased ; but the right to practice an unpatented pro- 
 cess, while JT remaina unpatented, cannot l)e the subject of a sale, because that 
 right l»tl::__i "■> every one without any purchase. So also, if an inventor of a 
 process L-.L.i<iatt: that another person may practice that process, before the 
 inventr.: i.- : ..-.r^ for a patent, that fact furnishes no reason why that person should 
 be aU';i'« . - :■ vCiotice that process against the will of that inventor after the date 
 of his j-fitieait. To deprive such a person of such a privilege, is not to deprive him 
 of the nse orf ? ""^iiig. It is only to deprive him of the privilege of repeating a 
 series <*f Jucia^ "aese considerations apply also to cases where a rein venter [irn- 
 daces aai pnacticies a process, after its production by the first inventor, and before 
 any appliissai'ini is made for a patent thereon, and without any knowledge of the 
 first inTfcmi.O'ir or hia doings. Such a reinventor has no more natural right to 
 p>ractice tikat pfK<:e9S after a patent is granted to the first inventor, than any other 
 person has. He has no such right growing out of the fact that he was a rein- 
 ventor. liecauEse the patent laws ilo not reward reinventors, and because patents 
 to first inT«ma«Hra axe exclusive of reinventors, as well as of other persons. He has 
 no mch ri^ts growing out of rights of property-, l)ecause to deprive him of tlie 
 privilegr- <fl rejKating the process is not to deprive him of the use of any tani;ible 
 property, and because he has no intangible property in the process itself. '" 
 
 The foregoing long extract from Walker, section 15!i. is 
 
 equally applicable to our section 4G, and atibrtls cogent reasons 
 
 why it should not cover a " process'' ■, it merely covers a 
 
 " nuidiintP " nianu/acture " or " composition of matter.'' As 
 
 to the definition of these terms see note (c) to section 2 of this 
 
 Act. This extract also affords reasons why a reinventor of ;i 
 
 prc*cess may be included therein. The question arises whetlior ;i 
 
 reinventor, who mi^y have constructed the machine or manufac- 
 
Sec. 46.] PURCHASERS, ETC.. BEFORE ISSUR 
 
 423 
 
 ture, or made the composition of matter, in ignorance of the pricn- 
 invention for which a patent is afterwards obtained, may be held 
 to have the right to use and vend to others, the specific article, 
 machine, manufacture or composition of matter so reinvented and 
 made. This case is apparently not specifically provided for in 
 our Act, and the fact that the words " with the consent or allow- 
 ance of the inventor" ai*e absent from the beginning part of 
 our section, would make it more applicable, so as to cover a case 
 of reinvention, and exclude the use of the reinvented thino- or 
 process after a patent has been obtained. In Canada we have no 
 decided cases bearing on this point. 
 
 On the other hand, as bearing on the question whether a 
 process is included, the section in the Act of 1839 (U. S.)., which 
 relates to the purchase or construction of any newly invented 
 "machine, manufacture or composition of matter," , IS worded nearly the 
 same as our present Act, which refers in addition to the "speciiio 
 article," etc., and this U. S. .section was held by the Supreme Court 
 in McClurg v. Kingslavxl, 1 How., 202 (1843), 4 Brodix, 3S2. to 
 cover patents for processes as well a.s patents for things. As to this 
 decision of the Supreme Court, Walker, in section lo9, remarks: 
 " The reasoning of Justice BaMwin in the case was never convincing to the present 
 writer. It was spoken of by Justice Story as ' certainly general,' and Judge Wlieeler 
 has well said that ' it is not probable that McCh'rij v. KbKjdand, would be followed 
 
 beyond cases of its class, upon the same statuie : See Brickill V. NeiV Yoi'k, 
 
 5 Ban. \: Ard. 547 (1S80). Generally speaking, a i^atent for a 
 new composition of matter covers the process, for if the compo- 
 sition itself be new, the process by which it is made must also be 
 new, so that indirectly a new composition of matter may covei- a 
 
 process. 
 
 Illustrations. 
 
 If parties construct a machine before the application of a 
 patentee for Letters Patent, and the patentee consents and allows 
 them .so to do, then they may lawfully continue to use the same 
 after the date of the Letters Patent : Kendall v. Winsor, 21 How., 
 322; Black v. Huhhard, 3 Ban. k Ard., 39. 
 
 The purchase spoken of is not from a mere wrong-doer, but 
 from the first and true inventor before he obtained his patent : 
 
[t * 
 
 i : 
 
 424 
 
 CLASSES mCLUDED IN SEO. 46. 
 
 [Sec. 46. 
 
 Pierson v. Eagle Scitw Co., 3 Stoiy, 402; Troy Factory v. 
 Odtome, 17 How., 72. 
 
 A use by fraud and piracy is not contemplated oi* protected 
 under section 4899, U. S. : See Hovey v. Stevens, 2 Robb., 479. 
 
 In U. S. A., he who permits the use of a machine which he 
 afterwards patents, cannot stop the use after his patent issues : 
 Dufy V. Reynolds, 24 Fe«i. Rep., 855. 
 
 If a member of a firm, prior to his appplication for a patent, 
 makes a machine at the expense of the firm, and permits its use 
 by the firui, the finu may ontinue to use it after the grant of a 
 patent, and this right does not cease on the dissolution of the 
 firm : Wade v. Metc<df\ 16 Fe^l. Rep., 130. 
 
 The right of a party who has purchased or constructed a 
 machine prior to the application for a patent by the inventor is 
 confined to the specinc machine : BricJcill v. Ifeiv York, 18 
 Blatch., 273. 
 
 In the Can., section 40, the term "every person" is i com- 
 prehensive as 'an<^ pei'son"; as to which see note (uj to sec- 
 tion 7 of this Act; and by the Interpretation Act includes any 
 "body corporate, ami politic, or party, and the heirs, executors, administrators 
 or other legal representatives oi saeh persons tt^ whom the context can apjily, " 
 
 Three Classes of Persons Included in Sec. 46. 
 
 Our section apparently contemplates three classes of persons 
 who shall have the right of using and vending to others the 
 specific article purchased, constructed or acquired before the issue 
 of a patent : 
 
 1st. Every person who purchases any invention of the in- 
 ventor or from those authorized by him before the issue of a 
 patent therefor. 
 
 2nd. Every person who, with the inventor's knowledge or 
 consent, constructs any invention before the issue of a patent 
 therefoie. 
 
 3rd. Everj- ])erson who acquires, otherwise than by purchase 
 from the inventor or thotse authorized by him, any invention 
 before the issue of a patent therefor. 
 
Sec. 46.] 
 
 CLASSES INCLUDED IN U. S. SEC. 
 
 425 
 
 owledffe or 
 
 Our Section 46 is not Specific 
 
 Our Act is not as specific as the U. S. section 4899, and does 
 riM expressly state that the purchase is to be from the inventor, 
 a> already discussed ; nor <• .t the construction is to be with his 
 knowle«.lge or consent ; nor what may be the nature of the 
 j:- |uisition. 
 
 The nature of the invention is defined in this section 46 to 
 '•^ ■■ the specific article, machine, manufacture or composition of matter patented " 
 :r:.:eh may be understood possiblj^ to exclude " a process," as has 
 • -^n |K>inted out. 
 
 In the U S. Section Pour Classes are Included. 
 
 In WoAle V. Metcalf, 129 U. S., 202, 19 Brodix, 258 (January 
 ill>t. 1889), the American section is said to define clearly four 
 :-k>>es of persons who shall have the right to use and vend 
 vj Others to be used a specific patentable machine. 
 
 1st. Every person " v:ho inirchases of the inventor," etc., the 
 ijjfichine before his application for a patent. 
 
 2nd, Ever}- person " ivho with his hnoxvledge and consent con- 
 <^i-wts" the machine before the application. 
 
 3rd. Every person " ivho sells " a machine " so constructed" 
 :":.rii is to say, which has been constructed, with the knowledge 
 an-l consent of the inventor, by another person. 
 
 4th. Eveiy person " ivho uses one so constructed" that is to say, 
 • r.-tracted, with the inventor's knowledge and consent, by another 
 jvr^n. 
 
 ■ In order to entitle a person of any of these four classes to use and vend the 
 sneJJne. under this U. S. section, the machine must originally have lieen either pur- 
 lii-ri from the inventor, or else constructed with his knowledge and consent, 
 r:' :■: his application for a patent ; and it may well be that a fraudulent or surrep- 
 ".:: -parchase or construction is insufficient : Keudallw Winaor, 7 Brodix, 1 ; An- 
 ir..-. V. ffovey, 124 U. S., 694, 17 Brodix, 477 (February 20th, 1888)." And 
 t-very other person who uses or sells that specific thing is within 
 t}jr protection of the statute, the clause which includes every 
 
 ]«cr-.)n •' who sella or uses one so constructed " does not leave this in 
 i>abt 
 
 Inasmuch then, as from the foregoing, the U. S. analogous 
 I r vision b more definite, and does not leave so much to conjec- 
 M 
 
 * 
 
nn 
 
 ;i:.:| 
 
 1 f 
 
 
 
 . iiii 
 
 WP^ 
 
 412S 
 
 IMPLIED LICENSE, ETC. 
 
 [Sec. 46. 
 
 tiawt as our pi'o vision, the U. S. enactment, although shorter, is 
 tBiift- I'oetter of the two. 
 
 TS:e Bight cf Vending Implies the Bight to Use. 
 
 *>ur section provides that every person who has " piudiased, 
 iftUHtnicteii or ac(iuired," etc., before the issue of the patent, etc., shall 
 BiHBVe the right of " using and vending to others " the " specific article, ma- 
 dlnut,' etc. The right of " vending to others " also implies that 
 ttikfiHe to whom the specific article is sold have the right to use, 
 mhrvwine the sale would be abortive ; and it is here as if the pev- 
 »Mni 50 whom the specific article is sold were the lawful assignee 
 ei Cine holding the machine, etc., under a purchase or under an 
 «3tfi'es.s and unrestricted license from the inventor. 
 
 l"he Canadian form of patent grants " tlie exclusive right, privilege 
 atiuil liilSerty of making, constructing, and using, and vending to others to be used 
 ill tliWr Dominion of Canada, the said invention," etC, hei'e the words "to 
 ix ruu^A " after " vending" omitted in this section 46, are expressly 
 SB^fei in, the patent. 
 
 Instance of an Implied License. 
 
 This .section 4G furnishes an instance where an implied license 
 ti5i construct, use, and vend, may arise without any written license 
 fooBuu the inventor or patentee with respect to any article, machine, 
 MMJianrfacture or composition of matter constructed, etc., with the 
 ©omrtent or allowance of the inventor prior to the issue of his 
 jisattftac therefor — in which ca.se one would continue to have the 
 i%BLifi to use and vend to others to be used the " specific avtide'' 
 WDiiBwDut further license even after the issue of the patent. Under 
 M«tmr\ 29 of this Act we have seen that it is er.pressly provided 
 tfiuaic licenses must be in writing in every case where a patent has 
 ftjifeimi obtained, and this provision as to licenses being in writing has 
 fjitttmi in force since our earliest Patent Act, in 1 826 : See note to 
 m«M')n 2!). 
 
 As to the Period Covered by this Section. 
 
 TLe latter half of this .section indicates (if the purchase, con- 
 ft4irw(!tion or acquisition is taken to be a purchase from or constnic- 
 taoitti or acquisition with the consent or allowance of the inventor;. 
 
Sec. 46.] 
 
 NEW CAUSE OF FORFEITURE. 
 
 427 
 
 that the period covered may be a year prior to the application for 
 the patent plus the time between the date of application for and 
 the date of issue of the patent. 
 
 In consenting to the construction of his invention by another, 
 or making sale of a specimen, the inventor must be careful not to 
 let more than a year slip by before making application for a pa- 
 tent, for, if his invention be so purchased, constructed, acquired or 
 used for a longer period than one year prior to application, his in- 
 vention becomes public property and unpatentable. 
 
 New Cause of Forfeiture. 
 
 The fact, that a year from the date of construction, with the 
 consent or allowance of the inventor, is one of the times limited 
 in this section 46; adds another cause of forfeiture of a patent to 
 those provided in section 7, which relates to an invention being 
 " in public use or on sale with the consent or allowance of the inventor thereof, 
 for more than one year previously to his application for patent therefor in Canada," 
 this latter does not relate to the construction which evidently 
 must precede the being " in imhlic use or on sale" indeed, an 
 article might be constructed for years without the time commenc- 
 inrf to run, under section 7. 
 
 As to that which constitutes a dedication to the public : See 
 note {e), sec. 7 ; also note (6) to sec. 10. 
 
 In this section 46 it is stated that every person purchasing, 
 constructing or acquiring the invention before the issue of the 
 patent, etc, — shall have the right of using, etc., " without being liable 
 to the patentee or his legal representatives for so doing." 
 
 In the liody of the Canadian patent the grant is to the 
 patentee, "his executors, administrators, legal representatives and assigns," 
 thus distinguishing between "assigns" and "lefjal representatives'' 
 while " legal representatives" may be said to include "heirs, ex- 
 ecutors and administrators " : See (22), sec. 7, of the Interpre- 
 tation Act, R. S. C. Do legal representatives include " assigns " 1 
 for " assigns " are not mentioned in this section 4G ; such, no 
 doubt, is the intent, for it is absurd to suppose that liability to 
 loss incurs to the assignor when none incurs to the assignee. 
 
 In the U. S. A. " legal representatives " includes in its terms 
 assignees as well as executors and administrators : See Hamilton 
 V. Kingsbury, 15 Blatch., 64, 3 Ban. & Ard., 346. 
 
'mm 
 
 428 
 
 DOCUMENTS, ETC., OPEN TO PUBLIC. [See. 46-47. 
 
 I 
 
 / i;4 ; 
 
 ' i 
 
 ■ 1 
 
 ■ f 
 
 i< EC 
 
 1 i' 
 
 Do the terms " public " and " in jnihlic use " at the end of this 
 .section lefer to the Canadian public and to " public use " in Can- 
 ada, only ; it is difficult to say what they may mean ; a Canailian 
 invention to be patentable should be novel the world over: See 
 notes to sec. 7, pp. 55, 50, 59, 65, et seq. 
 
 "il . All specifications, drawings, models, disclaimers, judgments and other 
 papers, except caveats, shall ))e open to the inspection of the pul)lic at the Patent 
 Office, under such regulations as are adopted in tliat belialf. 35 V., c. 26, s. 44. 
 
 Pending Applications Not Open to Inspection. 
 
 This section is the same, word for word, as in the Act of LS72. 
 As it is at present worded, it might be concluded that pendinf; 
 applications were open to public inspection, this, however, is not 
 the case either in Canada or the United States ; in Great Britain 
 abandoned applications under the Amending Afct of 1885, are not 
 open to public inspection, so as to become publications, which might 
 defeat a subsequently granted patent for the same invention. 
 
 In the U. S. Patent Office, under Rule 177, forfeited and aban- 
 doned applications will not be cited as references ; and, under 
 Rule 179, U. S. Patent Office, copies of the files of rejected and 
 abandoned applications may be furnished when ordered by the 
 Conuiiissioner. The request for such copies must be presented 
 in the form of a petition, properly verified as to all matters not 
 appearing of record in the Patent Office. Except by attending to 
 these formalities abandoned or forfeited applications, in U. S. A., 
 are not open to the inspection of the public. 
 
 In the Canadian Patent Office Rules there is no provision for 
 getting copies of abandoned or forfeited applications, as in the 
 U. S. Patent Office, and RuL 15, Canadian Patent Office provides 
 that information, in relation to pending cases, will be furnished 
 only so far as it becomes necessary in conducting the business of 
 the office, which shows by implication that information as to 
 pending cases is not open to the public. 
 
 Mr. Justice Burbidge, in his judgment in the "sci. fa." case of 
 The Queen v. La Force, 4 Ex. Ct. R. (Can.), p. 15 (1894), assumes 
 that, by section 47, the filing of La Force's application was a pub- 
 
Sec. 47-48.] 
 
 CLERICAL ERRORS. 
 
 429 
 
 lication and made it open to the world ; this, it is conceived, is 
 not the case nor the practice in Canada. 
 
 The foregoing section 47 should expressly state in its body 
 that it does not apply to 'pending apj^lications. 
 
 In the U. S. Patent Otfice, Rule IG, after a patent has issued, 
 the model, specification, drawings and all documents relating to 
 the case are subject to general inspection, and copies, except of 
 the model, will be furnished at the rate specified in Rule 218. 
 
 As to judgments : See note to section 35 ; and as to caveats, 
 note to section 38. 
 
 4H. Clerical errors which occur in the framing or copying of any instrument 
 in tlie Patent Oflice, shall not be construed as invalidating tlie same, l)Ut when dis- 
 covered they may be corrected under the authority of the commissioner. 35 V. , 
 c. 2(), s. 45. 
 
 This is the same as sec. 45 in the Act of 1872, onl}' that "in" 
 is now substituted for "of" before "the Patent Office," and "which 
 
 occur" is also now substituted for "happening." 
 
 This section relates to clerical errors made in the Patent Office, 
 and does not relate to clerical errors made elsewhere. 
 
 In Ontario in Riech v. Hoerr (1889), where letters had been 
 misplaced in a claim, which claim was the subject of a suit, and 
 the case in consequence had been dismissed by Ferguson, J. (the 
 trial Judge), the case was restored, on appeal to the Chancery 
 Divisional Court, the error being apparent on the face of the 
 document. Although it may be contended that this was a 
 " clerical error " on the part of the Patent Office in not correcting 
 the erroneous lettering of the claim, it appears that this was not 
 such a case as the Office felt bound to correct. Any error in the 
 certificate or of a certified copy of a document, or error in the 
 name of a patentee, etc., would come within this section, and be 
 corrected under authority of the Commissioner. 
 
 In Marsh v. Nichols c5 Co., Sup. Ct., U. S. (December 10th, 
 1888), 19 Brodix, p. 112, "rt clerical enw" is defined to be an 
 error of a clerk or a subordinate officer in transacting or entering 
 an official proceeding ordered by another. 
 
m iii!iip...f ! 
 
 ' u 
 
 430 
 
 CLERICAL ERRORS. 
 
 [Sec. 48. 
 
 In this case the signature of the Secretary of the Interior had 
 been omitted from a patent wliich had been issued, the section 
 4883 of the Revised Statutes providing that patents should be 
 under the seal of the Patent Ofiice, signed by the Secretary of the 
 Interior and countersigned by the Commissioner of Patents; 
 although this was not a mere "clerical error" the existing Secre- 
 tary of the Interior had power to rectify the patent, and the De- 
 partment had power to prevent the consequences of inadvertence 
 and mistakes in its officers. 
 
 As to Clerical Errors in U. S. 
 
 By Rule 170 of the U. S. Patent Office, whenever a mistake 
 has occurred in the Letters Patent through the fault of the Office 
 and is clearly disclosed by the records or files of the office, a 
 certificate, stating the fact and nature of such mistake, signed by 
 the Secretary of the Interior', countersigned by the Commissioner 
 of Patents, and sealed with the seal of the Patent Office, will, at 
 the request of the patentee or his assignee, be endorsed without 
 charge upon the Letters Patent, and recorded in the records of 
 Patents, and a printed copy attached to each printed copy of the 
 specifica Jon and drawings. 
 
 Whenever a mistake, incurred through the fault of the Office, 
 constitutes a sufficient legal ground for a reissue, such reissue will 
 be made, for the correction of such mistake only, without charge 
 of Office tees, at the request of the patentee. 
 
 Mistakes, not incurred through the faults of the Office, and not 
 affording legal grounds for reissue, will not be corrected after the 
 delivery of the Letters Patent to the patentee or his agent. 
 
 Correction of Clerical Errors. 
 
 At Gominon Laiv, in England, the Master of the Rolls had 
 power to direct the amendment of a clerical error in a specifica- 
 tion, but the Lord Chancellor, as Keeper of the Great Seal, alone 
 had power to amend the Letters Patent themselves : In re 
 Nickel's Patent, 1 Web., P. C, 650 ; Ex parte Beck, 1 British 
 Crown Cases, 578. 
 
 Where there has been a clerical error made in the name of a 
 British patentee, the register may be corrected at an expense of 
 
 
\ tl 
 
 Sec. 48.] 
 
 OLEBIOAL ERRORS. 
 
 431 
 
 al)Oufe £2, 10s, sterling. In order to correct the Letters Patent it 
 would be necessary to make a" plication to the Lord Chancellor, 
 which would involve a much more considerable expense. 
 
 Illustrations. 
 
 Where, in the specification, the word " wire " was by mistake 
 substituted for the word ''five," the mistake was ordered to be 
 corrected : See In re Whitehouses Patent, 1 Web., P. C, G49. 
 
 Where the grant was in " October " instead of " November," 
 In re Rubery's Patent, 1 Web., P. C, 649 ; also, where the speci- 
 tication had the name " Charles " instead of the name " Georye " : 
 ?>ee In re Dinsmores Patent, 18 Beav., 538. 
 
 Where there was an error in spelling the name of the paten- 
 tee, an application to amend, four years after the patent wa.s 
 granted, was refused on account of lapse of time : In re Bla- 
 mond's Patent, 3 L. T. R., N. S., 800. 
 
 Where clerical errors had been corrected by order : See in re 
 Redmiincl's Patent, 5 I^u;^^., 44; In re Shai^y's Patent,! Web., 
 P. C, 645 ; In re Adams' Patent, £1 L. T. R., 38, and 1 Web., P. 
 C. 647, note (I). 
 
 The Court had the right by Common Law to amend in fore- 
 going cases, irrespective of statutory enactment. 
 
 Where a disclaimer had been filed without the consent of the 
 patentee, the Master of the Rolls had jurisdiction ivithout bill 
 nled, to order it to be taken off the file : In re Berdan's Patent, 
 L. R., 20 Eq., 346. The Master of the Rolls had this power by 
 Judicature Act of 1873, sec. 17, sub.-sec. 6. 
 
 Clerical Errors in Applications for British Patents. 
 
 By the British Act of 1883, sec. 91, the comptroller may, on 
 request in writing accompanied by the fee of five shillings up to 
 sealing, and one pound after .sealing, correct any clerical error in 
 or in connection with the application for a patent, or in the name, 
 ^tyle or address of the registered proprietor of the patent. 
 
 Common Law Right to Correct Clerical Errors. 
 
 Our Courts would appear to have a common law right to 
 order the correction of clerical errors in specifications, etc., and 
 
 ii- 
 
 it 
 
m 
 
 432 
 
 PATENT DESTROYED OR LOST. [See. 48-49. 
 
 m 
 
 have so corrected them (see Riech v. Hoerr, ante), and our sec- 
 tion 48 should be so worded as to empower the Commissioner of 
 Patents to correct clericf^^ errors, apparent on the face of the 
 patent or specification, on payment of a fee, in the same manner 
 as in Great Britain. 
 
 49. If any patent is destroyed or lost, a certified copy thereof may be 
 issued ill lieu thereof, upon the person who applied therefor paying the fees here- 
 inbefore prescribed for office copies of documents. 35 V., c. 26, s. 49; the 
 Patent Act (1886) ; 53 V., c. 13, s. 4 (1890). 
 
 In the Acts 1872 and 1886 instead of " a certified copy thereof, " it 
 was " another patent of the like tenor, date and effect " ; the present read- 
 ing was introduced by the Act of 1890. In the Act of 1872 it 
 was ''upon the party paying the fees"; the '- resent reading dates from 
 the Kevised Act of 1886. 
 
 By section 50, certified copies, under the seal of the Patent 
 Office, are receivable in evidence without production of the 
 originals. 
 
 For a copy of a patent with specification the charge is S4, and 
 25c. for each sheet of drawings; there is no tariflf charge for cer- 
 tifying to this copy of patent, and attaching the seal of Patent 
 Officfi (Can.) : See sec. 39. 
 
 Fees in U. S. for Copy of Patent. 
 
 In the United States for certified copies of patents, whether 
 in manuscript or print : — 
 For the specification for every 100 words or fraction 
 
 thereof SO 10 
 
 For the drawings, if in print 25 
 
 For the drawings, if not in print, the reasonable cost of 
 
 making them. 
 
 For the certificate 25 
 
 For the grant , 50 
 
 Proof of an Official Public Document. 
 
 For proof of an official public document, which comprises a 
 patent of invention, sec. 12 of the Canada Evidence Act, 56 Vic, 
 
Sec. 49-50.] 
 
 SEAL OF PATENT OFFICE. 
 
 433 
 
 c. 31, provides that a copy of any official or public doenraent of 
 Canavla purporting to be certified under the hand of the officer 
 or person in whose custody such official or public document is 
 placed, shall be receivable in evidence without proof of the seal 
 or of the signature, or of the official character of the person 
 appearing to have signed the same ; if under the Patent Office 
 seal, this will, of course, suffice : See sec. 50. 
 
 In Great Britain, by section 37 of the Act of 1883, if a patent 
 is lost or destroyed, or its non-production is accounted for to the 
 satisfaction of the Comptroller, the Comptroller may, at an\- time, 
 cause a duplicate thereof to be sealed. 
 
 This may be done by an application in letter form to the 
 Comptroller, Patent Office, 2.5 Southampton Building*, Chancery 
 Lane, London, W. C, setting out the date, number, name and full 
 address of the patentee, the title of the invention, and state 
 whether it has been destroyed or lost, and the interest of tlie 
 applicant in the Letters Patent. 
 
 The fee for duplicate of Letters Patent of the L'nited King- 
 dom is £2. 
 
 «>0. Every court, judge anil person whomsoever shall take uotioe of the 
 seal of the Patent OtRce and shall receive the impression thereof in eTidence, in 
 like manner as the impressions of the Great Seal are received iu evidence, and 
 shall also take notice of and receive in evidence, without further proof and with- 
 out production of the originals, all copies or extracts certified under the seal of 
 the Patent Office to be copies of or extracts from documents depositeil in such 
 office. 35 v., c, 26, s. 2, part. 
 
 J J, 
 
 If 
 
 The beginning part of section 2 of the Act of 1872, has now 
 become the 6th section of this Act, while the rest of this .section 
 2 with some verbal alterations is the foregoing section oi). 
 
 The " person whomsoever " referred to must be some one author- 
 ized to take evidence judicially, and refers to one such as an arbi- 
 trator, mentioned in .section 19 relating to " covjUdimj ap^dica- 
 i'ioas',' Part V. ; in sub.-sec. 5, of sec. 19, such an one, when sworn, 
 may summon any applicant or other person to give evidence ou 
 oath and to produce documents, in which case the arbitrator or 
 65 
 
" 
 
 
 
 434 
 
 EMPLOYEE'S AS PATENTEES. [Sec. 50-5L 
 
 arbitrators might have to take cognizance of the Patent OiScr 
 seal. 
 
 By the Canada Evidence Act (1893), official or public J.xu- 
 ments may, bj- section 12, be proved without proof of the >^ai of 
 the corporation, or of the signature, or of the official character of 
 the person or persons appearing to have signed the same. 
 
 Should a Canadian patent issue under the seal of the Patent 
 Office, but without the signature of the Commissioner or De] Jtv 
 Commissioner, would the Patent be void ? 
 
 In U. S. A., a patent issued without the signature of the St<- 
 retary of the Interior, is void, and a subsequent signing will not 
 make it valid from its issue, and it cannot l»e sijined bv a -<trcr^ 
 tary whose term of office has expired : See J/ars/t v. Xu-Jfji^, 15 
 Fed. Rep., 914, 24 O. G., 901. 
 
 •> I . No officer or employee of the Pcitent Office shall buy, sell or aojoire (r 
 traffic in any invention or patent, or in any right to r patent ; and every sadi par- 
 cliase and sale, and every assignment or transfer there<if by or toanyoffi<cr«r 
 employee, as aforesaid, shall be imll and void, but this pro\"ision shall not *i<ptj Vt 
 any original inventor, or to any acquisition by Ijequest. 35 V., c 26, a. 4, i*a"u 
 
 As to a Gift Inter Vivos. 
 
 lu Canada this section also covers apparently a (fift or any 
 mode of acquiring, other than purchase ; if this be so, it shouW 
 read " and every siiclo purehise, sale or gift ' inter vivos,' etc., ♦.?<:_ 
 shall be null and void, etc." 
 
 But then an employee may by this section expressly I'ecoiiir 
 possessed of an invention in Canada by bequest, which might l>^ 
 open to some of the same objections as in the case of a gift " inter 
 vivos." 
 
 If the officer or employee in the Canadian Patent Office l-.- an 
 original inventor, he can obtain a patent for his invention in 
 Canada, and deal c traffic in the Letters Patent when obtaiuei 
 as much as he chooses ; whereas in the U. S. A. a Patent Oiii« 
 employee cannot take out a patent. 
 
 Employees in XJ. S. A. Patent Office, etc 
 
 In U. S. A. Patent Offi.ce employees cannot take out patent* 
 while in that employment, and cannot acquire or take directly '.r 
 
Sec 51-52.] 
 
 PATENT OFFICE FORMS. 
 
 435 
 
 iri'lirectly, except by inheritance or bequest, anj- right or inteiest 
 in any patenc (Rev. Stat., sec. 480). He who invents while in 
 -he Patent Office may properly patent it after he leaves it : Foote 
 v. Fro^t, 3 Ban. & Ard., 607 ; Page v. Telephone Co., 17 Blatch., 448. 
 In the LTnited State.s one in the Government employ, other than 
 rhe emploj' of the Patent office, is entitled to a patent in the 
 ab^senee of an agreement on his part that his invention .shall be 
 the propertj^of the Government: See RUey v. Bernard, Commis- 
 'i:>ners' Decisions, 59 O. G., p. 191.9. 
 
 esslv V>e<T>inc 
 
 •>•*. The commissioner may, from time to time, subject to the approval of 
 - e Governor-in-Council, make such rules and regulations, and prescribe such 
 -nis. as appear to him necessary and expedient for the purposes of this Act, — and 
 _cice thereof shall be given in The Canada Gazette ; and all documents, executed 
 -2. 01 oformity with the same and aceepted by the commissioner, shall be held valid, 
 i.) far as relates to proceedings in the Patent Office. 35 V., c. 26, ». 3. 
 
 Patent Office Forms (Can.)— Appendix 1. 
 
 There are a number of alterations and additions which might 
 e advantageously made in the forms issued b}'' the Patent Office 
 . Can.). The petition should follow the wording of the Patent Act, 
 1SS6, instead of the Act of 1872 — it .should be up to date ; ''others" 
 jhoald be " any oilier person" " and not being in pvMic use, etc." 
 should be " and. ivhich has not been " in public use, etc.; " with 
 ^'i? consent or allowance as such inventor " should be "vnth the 
 .yi'.sent or allowance of the inventor thereof" ; '' prerlous " should 
 E.5W be ''previously" ; thus altering Forms 1 to 5 inclusive 
 ■H> as to make them correspond with the present Revised Patent 
 Act 
 
 The serial number of the original patent .should be set out in 
 Porms 6 and 7 relating to rei.ssue. 
 
 When the petition is made by the executor or administrator, 
 a.> in Form 5, it is stated, that a certified copj- of letters of ad- 
 ministration or of the will should be attached to the petition. 
 
 Form 13— Speoifioations. 
 
 The beginning and end of the specifications are merely given ; 
 there are four figures referred to, relating to a planing machine. 
 
h k' 
 
 
 4SC 
 
 PATENT OFFICE FORMS. 
 
 [Sec. 52. 
 
 ii I 
 
 f 
 
 r 
 
 J 
 
 while the drawings, illustrating the specifications, show only two, 
 which relate to a different class of machine altogether, while the 
 lettering of coarse does not correspond to the specifications — the 
 drawings given are of no use as they do not relate to this specifica- 
 tion, so they are not inserted ; the proper drawings should be 
 substitute*! for these given for Form 13. 
 
 The title of the invention, thoufjh shown in the drawiucis in 
 the Form, i^ now never called for : — At the bottom of the sheet of 
 drawings i* printed ''certified to be the draicings referred to in^. 
 tht ^-ptii ^jicatioii hereunto annexed" The place and date — wit- 
 n^esft-g, under which two witnesses sign in the lower left-hand 
 comer, aii-i in the lower right-hand comer the inventor or his 
 attorney signs. 
 
 Forms 1? to 22, Inclusive- 
 
 The form of oath might be improved by making it " that 1 
 verilifhdkve that I am the original, first and sole (or joint) inven- 
 tor." A man micrht be an inventor, but unless he is an original or 
 first inventor he is not entitled to a patent in Canada. Again, it 
 should also (je stated " that the same has not been patented to Itlm- 
 &elj {theiniMhes) or to others, with his or their knowledge or con- 
 sent, except in the foUoicing countries. (Here insert, if previously 
 patented, the country or countries in which it has been so patent- 
 ed, giving the date and number of each patent.) If not pre- 
 viously patented, erase the words " except in the following coun- 
 tries " and insert the words " in any country." This would be 
 after the U. S. Form, and the suggested alterations are material for 
 the Canadian patent is limited to expire at the earliest date on 
 •which any foreign patent for the same invention expires, by 
 section S. 
 
 Forms 17 to 20, inclusive, should be altered as above 
 indicated. 
 
 Form 21 should state that " he is the original, first and sole 
 intrntor," etc. The consent of the assignees on reissue, referred 
 to in the note to this Form 21, should be signed by them and 
 filer!, otherwise it is meie a.<sertion. 
 
 Form 22 should read " that Thomas Tardy was, as I veriln 
 beiievt. the original, first and .sole inventor " ; the inventor only 
 swears on belief, why then should an assignee be required to make 
 
Sec. 52.] 
 
 PATENT OFFICE FORMS. 
 
 437 
 
 a positive statement as to a matter of which he can have no ab- 
 solutely certain knowledge. 
 
 The oaths should not be stated to be taken before a J. P. only ; 
 now they may be taken before a Notary Public, Commissioner 
 iiiul others : See sub-sec. 2, see. 10, Patent Act. A note to this 
 effect should be made after each oath. 
 
 There is no form of oath for reissue by legal representatives, 
 nor for an oath on application for a patent by legal representa- 
 tives or by an assignee, if the inventor be dead in the case re- 
 ferred to in sub-sec. 2, of sec. 10. Nor is there any form provided 
 for a license, a shop license, or for a territorial interest, forms 
 wliich are constantly in demand, and liable to be registered in the 
 Patent Office at Ottawa. 
 
 In Forms 24 and 25, the assignment should not be per- 
 sonal to the assignee, S. L., but to S. L., " his legal representatives 
 or assigns " unless it is intended that S. L. should alone deal with 
 the invention as now set out in these Forms : See cases noted 
 on page 23.S. A receipt clause might also be added as well as 
 -■signed, sealed and delivered in the presence of" in the lower 
 left-hand corner. 
 
 As to Disclaimer, Form 26, this should be revised and 
 altered. It is only under exceptional circumstances that you can 
 disclaim a part of a claim; that is when two or more inventions 
 are included in one claim, when, if distinguishable, one may be 
 expunged ; in a case where a claim is worded " with or tvithout " 
 a certain element, either of the words " with " or " without " might 
 Vie disclaimed, but you cannot disclaim a single element of a claim, 
 for a claim is an entirety ; by dropping a part out of a claim you 
 may make a new combination which might be a subject for 
 reissue: See note (?>), section 24, Part VIII., where a new form 
 is set out on pp. 199. 200. 
 
 As to the Patent Office Record, which is published 
 monthly bj' the Goverument, there does not appear to be much 
 use in merely giving the number of the trade mark, the date, and 
 to whom granted, without giving the subject matter and an illus- 
 tration, so one might know what the trade mark consisted of. 
 Designs are not referred to at all, it would be a great improve- 
 
 < 
 
f; 
 
 1 "~r 
 
 - '4 
 
 1 t 
 
 
 1 
 
 
 1 
 
 
 438 
 
 PATENT OFFICE RULES. 
 
 [Sec. 52. 
 
 nient if these were described and illustrated. The serial number 
 of the application and the date of filing should also be given 
 on the Lettei's Patent, this being very often required as bearing 
 on the question of "public use" or being " on sale " (see section 
 7)/' ahandownient" (see section 40), 'priority of inveiition, etc. 
 And reissues should have a serial number of their own so as to Ije 
 distinguished, as in the (U. S.) O. G. 
 
 As the Patent Office Record, Canada, is not published for about 
 six weeks after the date of issue of the Canadian patent, there is 
 time for application for British and foreign patents before ]iultli- 
 cation of the Record in Cana<la, or elsewhere, takes place. Tlit- 
 Record is sent to public libraries in European countries, a few 
 days after it is sent to regular subscribers ; so prior publication 
 should be guarded against when making foreign applications. 
 
 In the U. S. Official CJazette designs and trade marks are de- 
 scribed and illustrated, and the inforination conveyed is veiy 
 useful. Since January 16th, 1894, there has been added a list of 
 expired patents, described and illustrated. 
 
 
 
 s v'-l - 
 
 i ;^ .1 
 
 Rules and Regulations. 
 
 As to the rules and regulations, made by the Commissioner, 
 he has held that he has no power to alter or suspend their opera- 
 tion, especiallj' with relation to Rule 9, this is taken to be the 
 subject for an api)eal to the Governor-General-in-Council, so tliat 
 the power to create has n»> power to either end or mend. 
 
 Under sub-sec. 44, sec 7. of the Interpretation Act, R. S. C, it 
 
 IS provided "Whenever forms are prescribed, slight ileviatioii therefrom nut 
 affecting the su1>stanc-«s or caJenlateil to mislead, shall not vitiate them." 
 
 By Patent Office Rule (Can.), it is only where a form is nit 
 specially provided for any proceedings, that one is permitted to 
 adopt a fonu conformable to the letter and spirit of the law, I 'in 
 slight deviations Axun the forms given, not affecting the substance 
 or calculated to mislead, would be accepted. 
 
 Rule 9 of the Cana«lian Patent Office to the effect that an 
 application for a patent in Canada must be perfected within twn 
 years after the lodging of the petition, in default of which it will 
 be regarded as abandoneil, and any fees paid will be forfeited. 
 
 
[Sec. 52. 
 
 lal number 
 5 be given 
 as beariim 
 see section 
 37ition, etc. 
 so as to be 
 
 (1 for about 
 nt, there is 
 itbre ])ubli- 
 ilace. Tl It- 
 tries, a tV'w 
 publication 
 3ations. 
 ,rks are do- 
 ed is very 
 led a list of 
 
 Sec. 52.] 
 
 PATENT OPPIOE RULES. 
 
 4.SJ> 
 
 nniissioner. 
 
 heir opera - 
 
 n to be the 
 
 icil, so that 
 
 id. 
 
 t, R.S.Cit 
 
 therefrom imt 
 lieni." 
 
 form is HMt 
 )ermitted to 
 he law, I'Ut 
 le substance 
 
 ict that an 
 
 within twn 
 
 ^hich it will 
 
 )e forfeited. 
 
 
 has hitherto been very rigidly construed by the Coniniissioner of 
 Patents in Canada. 
 
 With respect to application 57709 (filed August 24tl), 1801), 
 where the papers had been filed, but no fees paid, and the case 
 had been neglected and allowed to stand for over two years with- 
 oi.t anything being done owing to the oversight, or neo-lect, oi- ill- 
 b-^alth, of the Solicitor of Patents, who had meanwhile died, it 
 was dtsired to pay the Government fee and have the case treated 
 a> a continuing application, owing to the fact that a little aver a 
 V'^ar previously an United States patent for the same device had 
 Wen allowed to issue; it was also shown that the Canadian api>li- 
 eant had never any intention of abandoning the application, and 
 it was only the death of her solicitor, who had failed to ])ay the 
 i<^-. that caused enquiries to be made. The ^Deputy Commissioner 
 held that there was no discretionar}- power to remove tlie case 
 fr-'tn the operation of this Rule 9. 
 
 It was urged in this case that in the States there was discre- 
 ti--nary power under similar circumstances: See Smith v. Dental 
 Vulcnnite Co., 93 U. S., 491 (1876) when extreme poverty was 
 held sutficient excuse ; incapacity to transact business through ill- 
 health and mental disorder was sufficient excuse to nejxative 
 l"Aes: See Ballard v. Pittsburgh, 12 Fed. Rep., 784 (1882) ; and 
 other reasons set out in section 91 of Walker on Patents. 
 
 An abandoned application in U. S. A., however, of a foreign 
 applicant will not be revived upon a showing that the two years 
 limit was allowed to expire without action, .solely through the 
 inadvertence of the associate attorney's clerk : Ex parte Rae//- 
 ..rw:ku.% CO O. G., p. 1749 ^892). 
 
 And in Ex parte Heine, 64 0. G., p. 1006 (1898), failure 
 
 to prosecute in U. S. Patent Office for more than two years after 
 
 ih"? hvst official action works abandonment bj- the statute, and in 
 
 •^ 'er to revive., unavoidable delay must be shown covering the 
 
 cfiiire period. 
 
 In the case of application No. 57729 (filed August 22nd, 
 1S!U). the papers had been returned from the Patent Office for 
 amendment, but had been lost in the mail, and tlie two years had 
 elapse*! before any steps could be taken ; the delay was further 
 
 K 
 
Iff i 
 
 ; -'I 
 
 j:^' [ 
 
 U 
 
 i 
 
 i ; 
 
 ■ i ;. ■ 
 f ' 
 
 1 
 
 - p:'^:|11 
 
 1 
 
 
 1 
 
 MlmM '■' 
 
 440 
 
 RULES- AMENDMENTS. 
 
 [Sec. 52. 
 
 ffi^nJereil unavoidable, as the applicant lived in Australia. No 
 Jbtt'^-lect vvas shown bj' the applicant or his attorney, and the loss 
 <']i the pa])ers may have been due to neglect or carelessness in the 
 Patent Otfice. It was also held here that there was no discretionary 
 p&wer under this Rule 9, and that the case had been almndoned. 
 
 As the Commissioner has power under this section 52 to make 
 «w?ft) rules and regulations and prescribe such forms as appear to 
 Ibiboi necessary and expedient for the purposes of the Act, sul>jcct 
 to' the approval of the Governor-in-Council, one would suppose 
 tliuat he would also have power to modify, enlarge, or have discre- 
 twjfiary power over his own rules to meet the exigencies of such 
 liases as we have just cited ; but here there appears to be a rule 
 which admits of no possible modification by him. 
 
 In this last case, however, if no foreign patent had been 
 i»wed, or, if issued, a fresh application were filed in Canada 
 within a year of the date of the first foreign patent, there is no 
 rH;a.-*on why a fresh application should not be made, accompanied 
 hy the ^20 fee — the fee previously paid being forfeited under rule 
 9< — there being no abandonment to the public. 
 
 In the matter of this last-named application. No. 57729, there 
 i* aji appeal to the Governor-Genei'al-in-Council pending. 
 
 Amendments to Pending; Applications. 
 
 In Canada we have not, as is the case in the States, anj' form 
 • )f ■iapphmentcd oath to accompany a new or an enlarged claim 
 in addition to that which was embraced in the claims originally 
 rnaiie. 
 
 In Canada all sorts of amendments are allowed without any 
 tfi-e^h oath ; the new claims or amendments are usually initialled, 
 although there is nothing to prevent you taking out whole pages 
 and inserting others, so long as the page on which the name of 
 the inventor is, be not destroyed. 
 
 It is suggested that the Patent Office Reports .should contain 
 reports of the judgments in patent trade mark, design and copy- 
 rii^ht cases, decided in the Provincial and Dominion Courts, the 
 ^ame as the U. S. Official Gazette ; as matters now stand patent 
 <^3k.<»es are rarely reported, there have been none reported in the 
 
Sec. 52-53.] 
 
 PATENT OFFICE RECORD. 
 
 441 
 
 Ontario Reports since March, 1887, except one for a note given 
 for a patent right: Girvin v. Burke, 19 Ont. Rep., 204 (1890), 
 and Johnson v. Martin, of a similar nature, 19 App. Rep. (Ont.), 
 ]). .592, and Xoxon v. Patterson, 16 Prac. Rep. (Ont.), and Xoxon 
 V. Koxon, 24 Ont. Rep. 
 
 In Quebec, since 1889^ there ha's heon onlj* a headnote of a 
 Supreme Court case from Ontario : Wisner v. Coulthard, 'eported 
 in 1893, L. N., vol. 16, and none in the other Provinces ; Wisner 
 V. Coulthard, in the Supreme Court is fully reported in the Sup. 
 Ct. Rep. (Can.), vol. 22, p. 178, et seq., for comments on which .see 
 pages 38 and 39, ante. 
 
 •>o. The commissioner shall cause a report to be prepared annually and 
 laid before Parliament of the proceedings under this Act, and shall, from time to 
 time, and at least ohce in each j'ear, publish a list of all patents granted, and may 
 witli the approval of the Governor-in-Conncd, cause such specifications and draw- 
 ings as are deemed of ijiterest, or essential parts thereof, to be printed, from time 
 to time, for distribution or sale. 35 V., c. 26, s. 5 ; 36 V., c. 44, s. 1. 
 
 There is a list of patents published, monthly, in the " Canadian 
 Patent Office Record," giving the serial numbers, dates, the 
 claims and one or more of the principal figures of the drawings ; 
 this Record is now published by the Government, a coupl3 of 
 years ago it was a private enterprise, subsidized by the Govern- 
 ment. 
 
 In 1889, there appear to have been 2,724 patents granted ; 
 in 1890, 2,428; in 1891, 2,342; while in 1892, the number of 
 patents granted rose to 3,415; and in 1893, to 3,547; these nuni- 
 bei's are serial numbers, and on December 31st, 1893, the number 
 ;,'ranted reached 44,989. 
 
 The first number of the " Canadian Patent Office Record" com- 
 iiienced in March, 1873 ; commencing with serial number 1,645, a 
 patent for a sewing machine, dated 17th October, 1872, since 
 which date up to the end of 1893, 43,344 patents have issued 
 from the Canadian Patent Office. The number 1,645 mentioned, 
 represents the number of patents issued since the Patent Act of 
 1872 came into force, befoi'e the " Record " was commenced. 
 
 In the U. S. at the close of the year 1891, the U. S. Patent 
 56 
 
442 
 
 U. S. OFFICIAL aAZETTE, ETO. 
 
 [Sec. 53 
 
 Office, at Wiishington, had issued 476,271 mechanical patents; at 
 the close of 1892, 498,982 patents had been issued ; and on De- 
 cember 5th, 1893, the number reached 510,394. 
 
 Volume l,of the U. S. Ofticiaj Gazette, commences with patent 
 122,304 for a car coupler, on the l.st Januar}', 1872. The number 
 of patents granted prior to the commencement of this series of 
 numliering on July 28th, 183G, was 9,957. 
 
 Registi-ation o;': labels in U. S. Patent Office practically ceasod 
 May 27th, 1891, under decision of the U. S. Supreme Court in 
 Higglns et al. v. Keuffel et al., 55 O. G., 1139. The last label was 
 registered June 14th. 1892, as No. 0,545. 
 
 In the report of the Commissioner of Patents, U. S., see 
 62 0. G., p. 899 (1893), it appears in the U. S. Patent Office at 
 Washington there are 005 employees, including 1 Commissioner, an 
 Assistant Commissioner, 1 Chief Clerk, 2 Law Clerks, 3 Examiners- 
 in-chief, an Examiner of Interferences, 32 Primary Examiner.s, 34 
 First Assistant Examiners, 38 Second Assistant Examiners, 48 
 Third Assistant Examiners, 52 Fourth Assistant Examiners and 
 136 Copyists. 
 
 There are in all 199 examiners, who have before them -ir^jOOO 
 applications for patents per year, involving 145,000 separate 
 actions. 
 
 For the year ending December 31st, 1893, there were 37, 
 applications for patents, 1,060 applications for designs, 120 appli- 
 cations for reissues, 2,247 caveats, 1,899 ap[)lications for trade- 
 marks, and 401 for labels. There were 23,670 patents granted, 
 including designs ; 99 patents were reissued and 1,677 trade- 
 marks were registered. The number of patents which expired 
 was 14,172, the number of patents forfeited by operation of law 
 for non-payment of final fees was 4,102. 
 
 At the beuinnino- of 1894 the arrears of work amounted to 
 9,127 applications awaiting action, and one divi.sion was between 
 seven and eight months behind. 
 
 At the date of the U.S. Commissioner's report for 1893, 521,700 
 American patents had been issued, and to the .same period 817,302 
 foreign patents, so that in an exatnination as to novelty in the 
 
J \ 
 
 ii 
 
 Sec. 53.] 
 
 PATENT BAR FOR U. S. A. 
 
 443 
 
 U. S. Patent Office it had to be determined that the invention 
 (lues not appear in any of these patents or in any book, pamphlet, 
 peiiodieal, or paper, in any language, either of U. S. A. or any 
 other country : See report of Commissioner of January 81st, 1894, 
 (iO 0. G., p. 2051. 
 
 No Search as to Novelty, etc., and No Claims Before 
 U. S. Act of 1836. 
 
 Prior to the U. S. Patent Act of 183G, during the era of im- 
 perfccted patent law, patents were granted without examination 
 by any Governmental agency for ascertainment of either the 
 novelty or the utility of tiie asserted invention. Ic •■•as sufficient 
 that the petitioner " alleged " and " made oath " that he " be- 
 heved " it to be new and useful. U|)un this alone the patent 
 issued, and the applicant was not required to, and did not, pre- 
 sent any formal claim whatever. 
 
 Deficiency of Examiners in Canadian Patent Office. 
 
 As the United States Patent Office issues nearly ten times 
 as many patents as we do in Canada, and has more than ten times 
 the number of applications that we have here, and as 199 exam- 
 iners are considered necessary to attend to this volume of business 
 in the States, it follows that here in Canada, to efficiently attend 
 to our examination of patents, we should have about twenty 
 exii Miners, whereas the number is only three, or about one- 
 seventh of what is considered indispensable in the United States. 
 This does not arise from our examiners being in anywise more 
 efficient. 
 
 i\.s the U. S. Patent Office and American public sufi'er greatly 
 from having unqualified persons practising therein as solicitors of 
 patents; in the same report, G6 O. G., 31st January, 1S94, the 
 Commissioner reports as follows : 
 
 " PATENT BAR. 
 
 "The vast public and private interests involved in the just adniinistr.itioii of 
 the patent system demand that the practitioners l)efore the Olttce, lilie those before 
 the Federal Courts, shall be only those of ascertained moral and intellectual fitness. 
 To this end it is respectfully recommended that legislation be had establishing a 
 patent bar, which shall consist, in the lirst instance, of those counsellors-at-law 
 
444 
 
 ; ^ 
 
 INSTITUTE or PATENT AGENTS, ENO. [Sec. 53. 
 
 
 IV- 
 
 I 
 
 M-lio nre oititled tr> practice in the Federal Courts, mid tlmt the ConiinisHiontr of 
 Ptitents, witli tlie iipproval of the Secretary of tlio Interior, may estaljlisli rules 
 and ri'gnliitioiiM for the admission, from time to time, of thoHC found <|ualiticd, and 
 wlio may Lu rcconnnended for admission to tlie Federal liar of the State in wliicli 
 tliey reside, or in the manner and liy those on whoso reconunendation admissions 
 to tlie State bar are ma<le liy the State Courts wliere the applicants may rcsidi-. It 
 is hclievcd that under the guidance of a patent bar of recognized standing and 
 repute the soliciting of p- *'nt.s would attain a regularity and dignity in the prac- 
 tice of the profession of ^ae law which is otherwise unattainable, and that the 
 first to gain under such a jiractice would be the meritorious inventors, and second 
 only to them the industrial woild and the public.'' 
 
 This reconiniendation is all a|)i>lic<'ible to Canada, where the 
 status of" Solicitors of Patents should be improved ; as matters 
 now staild in Canada, an}* person, without the slightest qualirica- 
 tion, can hang out his sign as Solicitor of Patents, and call liiin- 
 HcU " Counsellor and Expert in Patent causes." 
 
 As a matter of public policy Canadian inventors should have 
 some protection, in this the most ditiicult and interesting branch 
 of the law ; a thorough legal training is absolutely necessary in 
 order to ensure the best class of work, and the drawing of claims 
 which may stand the test of a law suit ; and fully as necessary is 
 a technical training, such as is necessary for a mechanical or civil 
 engineer ; a patent solicitor should be well grounded in applied 
 mathematics (mechanics, etc.), fts well as in physical sciences (li[,'ht, 
 heat, clectricit}', cheniistr\-, etc.), so as to be able to quickly and 
 intelligently grasp all inventions pertaining to machines, as well 
 as the physical sciences. 
 
 There should, undoubtedly, be some recognized standard of 
 efficiency in Canada, embracing both the law and the subjects 
 indicated, before one is permitted to practice in the Canadian 
 Patent Office. 
 
 The Chartered Institute of Patent Agents. 
 
 In the United Kingdom by the Patent Act of 1888, section 1, 
 "After the 1st July, 1889, a person shall not be entitled to describe himself as a 
 patent agent, whether by advertisement, by description on his place of business, 
 by any document issued by him, or otherwise, unless he is registered as a patent 
 agent, in pursuance of this Act." ' 
 
 It was further provided, among other things, that " If any person 
 
 knowingly describes himself as a patent agent in contravention of this section, he 
 shall be liable, on summary conviction, to a fine not exceeding twenty pounds." 
 
 liiti 
 
Sec. 53-54.] OFFENCES AND PENALTIES. 
 
 445- 
 
 Those who had been " bond Jide " practising as patent agents 
 at the date of the passing of the Act wore entitled to registra- 
 tion without examination. 
 
 Since the passing of this Act it is necessary to (qualify in order 
 to become a member of " The Chartered Institute of Patent 
 Agents," and the Board of Trade is empowered to pass rules, rela- 
 tive to qualification and admission. 
 
 On the loth February, 1S93, there were 232 firms of Patent 
 Agents on the roll as practising in the United Kingdom ; prior to 
 this Act there were no means of excluding unqualified persons 
 from practising as Patent Agents. 
 
 Qualification for Associate Members. 
 
 Foreign or colonial Patent Agents may become Associate Mem- 
 bers without examination, provided they are, individually, upwards 
 of twenty-five years of age, and in an established practice, and 
 have no othce and do not practice in the United Kingdom, but 
 tht-y must be proposed in writing by a Fellow and reconnnended 
 by four Fellows of the Institute, all of whom must certify to a 
 ptrsuual knowledge of the candidate and a full conviction of his 
 qualifications. 
 
 Each foreign or colonial member must pay an entrance fee of 
 two guineas and an annual subscription of one guinea. 
 
 
 PART XV. 
 
 Offences and Penalties. 
 
 54. Every patentee under this Act shall stamp or engrave on each patented 
 article sold or offered for sale by him the year of the date of the patent applying 
 to such article, thus : " Patented, 1880," or as the case may be ; or when, from 
 the nature of the article, this cannot be done, then by afhxing to it, or to every 
 package wherein one or more of such articles is or are enclosed, a label marked 
 with a like notice ; and any such patentee selling or offering for sale any such 
 patented article not so marked, or not enclosed in a package so marked, shall be 
 liable to a penalty not exceeding one hundred dollars, and in default of the pay- 
 ment of such penalty, to imprisonment for a term not exceeding two months. 
 38 v., c. 14, 8. 3. 
 
J ■ 
 
 If' 
 
 4'^ 
 
 f 
 
 
 
 1 
 
 1 
 
 1 
 
 ■ V 
 
 ilk 
 
 j; 
 
 446 
 
 OFFENCES AND PENALTIES. 
 
 [Sec. 54. 
 
 Id the Act of 1872, sec. 49, there was a similar provision 
 except that the case of affixing u marked label to a package con- 
 taining the patented article was not provided for. The foregoing 
 is a copy of section 3 of the Patent Act Amendment of 1875 
 (Can.). 
 
 Article Must be Sold or Offered for Sale. 
 
 This section relates to a patented article " sold or ofifered for sale. " 
 So that if a patentee does not " sell or ofler for sale " the patented 
 article he is not liable to the penalty of one hundred dollars, even 
 though he has manufactured the same and has neglected to mark 
 the article as patented and witli the year the patent issued. If 
 the article itself is capable of being stamped or engraved, it must 
 be so stamped or engraved under our Act ; it is only when from 
 the nature of the article itself that this cannot be done that it is 
 permissible to mark a labfel and attach it to the article or to the 
 package containing it. 
 
 In Smith v. Walton (decided May 31st, 1898), 64 0. G., p, 
 1789, because the article itself wus not stamped " patented, etc.," 
 when it was capable of being so stamped, but the mark was only 
 on the crate, it was held that the defendants could not be liable. 
 The provisions of the U. S. section are similar to ours in respect 
 of marking. 
 
 Bj^ sec. 4900, U. S. Revised Statutes, it is declared to be the 
 duty of the patentee, etc., to mark the patented article with the 
 day and year the patent was granted, together with the word 
 ■" patented " (in Canada the year alone suffices), so as to notify the 
 public ; the label for packages in the U. S. section is also provided 
 for, our amendment in 1875 was no doubt adopted from this U.S. 
 section ; and in the States in any suit for infringement by the 
 party so failing to mark, no damages .shall be recovered by the plain- 
 tiff, except on proof that the defendant was duly notified of the 
 infringement and continued after said notice, to make, use or vend 
 the article so patented. The U. S. section relates to a person 
 " making or vending " a patented article ; ours to " selling 
 or offering for sale." The United States section, unlike the 
 Canadian section 54, has no penalty in the nature of fine or ira- 
 
 II :: 
 
na 
 
 [Sec. 54. 
 
 ailar provision, 
 
 a package con- 
 
 The f oregoinir 
 
 dment of 1875 
 
 9- 
 
 or oflfered for sale." 
 e " the patented 
 red dollars, even 
 glected to mark 
 tent issued. If 
 ififraved, it must 
 Dnly when from 
 3 clone that it is 
 article or to the 
 
 3), 64 0. a, p, 
 
 " patented, etc.," 
 
 mark was only 
 
 Id not be liaWe. 
 
 ) ours in respect 
 
 elared to be the 
 article with the 
 with the word 
 as to notify the 
 is also provided 
 1 from this U.S. 
 igement by the 
 •ed by the plain- 
 notified of the 
 ike, use or vend 
 tes to a person 
 ,rs to "selling 
 ,ion, unlike the 
 of fine orini- 
 
 iSSCa 04«J 
 
 OFFENCES AND PENALTIES. 
 
 447 
 
 prisoinnent, but merely states that no damages may be recovered 
 in an infringement suit : DiLiilap v. Schojield, Sup. Ct., U. S. 
 March 7th, 1894), G7 0. G., p. 139. 
 
 Penalty in Canada for Failure to Mark. 
 
 In Canada we have no such provision with respect to damages 
 ill an infringeme:.: suit, and damages may be recovei'ed whether 
 the article was or was not marked patented, as required, — tlie 
 p-^nalty atl iched to not marking in Canada is fine not exceeding 
 •"^lOO or imprisonment not exceeding two months. 
 
 Illustrations in U. S. 
 
 In the United States the section has no application to a case 
 where the infringer makes and uses the device : Herring v. Gage, 
 15 Blatch., 124. 
 
 The failure to mark in the States does not atfect the right to 
 an injunction, but only goes to the question of damages : Goixlyear 
 V. Allen, 3 Fish., 374. 
 
 It is for the defendant in U. S. A. to show the failure to mark 
 the article ''patented" ana for complainant to show that the 
 defendant was duly notified before suit brought : Goodyaar v. 
 All' I), supra. 
 
 The notice of infringement in the States may be either verbal 
 or written: Neiv York Pharmicai Association v. TUden, 14 
 Fed. Rep., 721. 
 
 A patentee in the States may enjoin another from issuing a 
 circular stating that he manufaciui'es articles under the patent, 
 and the party issuing such circular ca" not in such a suit question 
 the validity of the patent : Washburn <£■• Muen ManxifactiLriag 
 Coinpanfj V. Haish, 4 Ban. and Ard., 571. N. B. — In the same 
 way and under similar circumstances there may be an estoppel in 
 Canada, as to raising the invalidity of the patent. 
 
 The expression "stamp uv engrave" in this .section 54 is the same 
 as in the U. S. Act of 1842. This has been changed in the pre- 
 sent U. S. .section of the Act of 1870 to " fixing thereon," and 
 is the same as it now reads in TJ. S. Revised Statutes. A " painted 
 ajtice" may not be said to be "stamped or engrav^A'' and as 
 the notices usually are painted, the term " fixing thereon " is 
 
!'■] 
 
 fi 
 
 448 
 
 OFFENCES AND PENALTIES. 
 
 [Sec. 54. 
 
 V ?• 
 
 ! 1* 
 
 more comprehensive and applicable than the expression in tbe 
 Canadian section. 
 
 As to Marking in Prance, Tunis, Turkey and Switzer- 
 land. 
 
 In France whoever in his advertisements, prospectuses, labels, 
 stamps, etc., uses the word " brevete" or "brevet" (patente-l or 
 patent), in connection with the patented article, without adding 
 thereto, " Sans r/(irantie dii Goiuernment" (without guarantee -:•£ 
 the Government), is liable to a fine of not less than SlO, or uior? 
 than 8200. In the event of the offence being repeated the fine 
 may be doubled. The initials S. G. D. G., though almost univer- 
 sally used, have been held on one occa,sion not sufficient. The 
 patentee is liable to the fine if he uses the mark after the patent 
 has expired. 
 
 The law in Tunis and Turkey is the same as in France. 
 
 In Switzerland all patented articles must be marked with the 
 Federal cross and the number of the patent. 
 
 No Provision in Canada for Marking the Packa^ 
 Itself. 
 
 In this section 54 no provision is made for marking the package 
 itself containing the articles, but merely marking a lahiel alfist-i 
 
 to such package. 
 
 As to Marking as Patented in England and (Germany 
 
 In England, as in many other countries, there is no obligati'j« 
 to mark patented articles as such, but in most countries it is an 
 offence to mark articles as patented which have not been prc*- 
 tected. 
 
 In Germany, also, there is no obligation to mark the w-pis 
 " Deutches Reichs Patent " or the letters B. B. P., which, however, 
 it is recommended to put on the patented articles : See EdmuDdV. 
 page 422. 
 
 The penalty for marking as patented that which was not f«- 
 tented, in England, is £5 : See Regina v. Crompton, R P. C.^ 
 vol. 3, p. 367. 
 
S€C. 54-55.] I'ALSELT MABKINQ AS PATENTED. 
 
 449 
 
 sion in in^ 
 
 As to Marking " Patented ' 
 of Patent. 
 
 in XT. S. A. After Expiry 
 
 The manufacturer, in the U. S. A., of a patented article can 
 c iQtinue to affix to it the word " patented " and the date, even 
 after the patent has expired, without liability under sec. 4901, 
 R. S., which prohibits the marking of ai)y unpatented article 
 patented " : Wilson v. kiiu(jer Manufacturing Co., 9 Biss., 173, 
 12 Fed. Rep., 4 Ban. & Ard. 
 
 A manufacturer of a patented article, after the expiration of 
 z'l.^ patent has a right to represent that it is made according to 
 ih'i patent, and to use the name of the patentee for that puipose : 
 Wilcox <i' Gibhs S. M. Co. v. Gibben's Frame Co., 17 Fed. Rep., 
 rj2:?, 21 Blatch., 431. 
 
 •>•>. Every person who writes, paints, prints, moulds, easts, car\-es, engraves, 
 ftamps or otherwise marks upon anything made or sold by hiui, and for the sole 
 luiking or selling of wliich he is not the patentee, tlie name or any imitation of 
 ".he name of any patentee for the sole making or selling of such thing, without 
 me oonsent of such patentee, — or who, without the consent of the patentee, writes, 
 Ciiincs, prints, moulds, casts, carves, engraves, stamps, or otherwise marks upon 
 iuyrhing not purchased from the patentee, the words "patent," '"letters 
 pa:eat,' "Queens Patent," " patented," or any word or words of like imi>ort, 
 »-.:h the intent of counterfeiting or imitating the stamp, mark, or device of the 
 jaceatee, or of deceiving the public c :id inducing them to l>elieve that the thing 
 in juestion was made or sold by or with the consent of the patentee or his legal 
 reoreseutatives ; or who oilers for sale as patented any article not patented in 
 '. inala, for the purpose of deceiving the public, is guilty of a misdemeanour, and 
 iu. ic to a tine not exceeding two hundred dollars, or to imprisonment for a term 
 aoc exceeding three months, or to both. 35 V., c. 26, s. 50. 
 
 The foregoing is practically the same as in the Act of 1872, 
 with verbal alterations and rearrangement. 
 
 In the U. S. section 4901, which is to much the same effect 
 as the foregoing, instead of "writes, paints, prints, etc.," it is "in any 
 maimer marks." The prolix Wording which we retain, was taken 
 tn:>m sec. 5 of the U. S. Patent Act of 1842. The U. !S. section 
 
 4:><)l reads, " made, uted or sold by him." 
 
 L 
 
fl; 
 
 1 i 
 
 > 51 M 
 
 i^i 
 
 
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 ittl 
 
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 450 
 
 FALSELY MABRma AS PATENTED. [Sec. 55. 
 
 The Word " Used " Omitted from the Canadian Sec- 
 tion 
 
 Tiie word '• used " is omitted from the Canadian section, so 
 that pn>vide«l one does not make or sell in Canada a patented 
 article faLsel}' marked he is not within this section. The first 
 part of the Canadian section refers to obtaining the consent of 
 the patentee, the words "legal representatives or assigns" are in the 
 U. S. -"ection in this connection, but have been eliminatetl fioni 
 ours, so no provision is made by us for the case of an assignee. 
 
 Although " the name or any imitation of the name of any patentee " is 
 .speoitically referred to in the beginning of this section, it is 
 not necessary or required either here or in the States to put the 
 nanie of the patentee on the patente<-i article, all that is neces- 
 sary here is the word "jyatented and the year" when the article 
 is patentee! (see section 54). In the U. S. it is in addition 
 require*! that the day of the month should be added. 
 
 The Three Classes Covered by the Canadian Section 
 55l 
 
 Our section refers to three classes of events : (1) When a 
 pers<r»ii makes or sells an article, for which another has obtained 
 a patent, and who, without the authority of the patentee, marks 
 the name or any imitation of the name of such patentee on the 
 article made or sold by the unauthorized person. 
 
 f When a person makes an article, for which another ha;; 
 ol>taine«j a patent, and which was not purchased from the patentee, 
 and without his consent, with the words "'patent" "Letters 
 P\dtntr " Queen's Patent," " patented," etc., with the intent of 
 deceiving the public and inducing them to believe that such 
 article was made or sold with the consent of the patentee or liis 
 legal representatives. 
 
 (3 1 When a person offers for sale as patented an article not 
 patente«i in Canada, for the purpose of deceiving the public. 
 
 Our section should be more properly divided up into three 
 distinct pitragraphs. 
 
 A person is not complying with the law by merely putting a 
 name on the article, or by merely putting the w^ord 'patent or 
 
Sec. 55.] FALESLT MARKING AS PATENTED. 
 
 451 
 
 a,u Section 
 
 ■patented on the article, as referred to in classes 1 and 2 supra ; 
 it should be "patented" together vjith the year, otherwise by sec- 
 tion 54 he is liable to a penalty not exceeding SlOO, or in default 
 of payment to imprisonment for not more than two months. 
 
 Under classes 2 and 3 supra, it will be necessary to show an 
 Intent to deceive the public, and under class 2 an intent to 
 (ounterfeit or imitate the mark, etc., of the patentee. 
 
 Under class 2 the consent of the patentee or his legal repre- 
 lepitatives is, in one place, specifically referred to, whereas, in class 
 1 it is only the consent of the patentee, in both classes 1 and 2 it 
 only refers to a "making or selling " in Canada, and not "using," 
 and in class 2 it relates to an article not purchased from the pa- 
 tentee, it does not provide, as it should, for a purchase from a 
 legal representative or an assignee. 
 
 Under class 3, a person might offer for sale, in Canada, an 
 article which had been patented in the U. S., and there properly 
 marked as "patented" with the day ai.- year, and which had not 
 been patented in Canada, in which case, provided it were shown 
 that this was done for the purpose of deceiving the public, the 
 party might be liable to the penalties of the section which are 
 line and imprisonment or both ; it might, however, be difficult to 
 prove an intent to deceive, for, in the instance just given, the 
 whole transaction might have been bond fide, but done ignorantly. 
 
 In Canada there Must be an Offering for Sale. 
 
 Under class 3 there must, in Canada, be an " ofering for sale," 
 for the similar offence in the U. S. section the mere falsely mark- 
 ing- constitutes the offence. 
 
 Under this 3rd class, at the end of our section 55, nothing is 
 said about affixing to any unpatented ^ticle the word " patent " 
 ur anything importing that the same is patented, as is the case in 
 the U. S. section 4901, paragraph 3 ; the wording of our section 
 might cover a verbal offering for sale, as patented, an unpatented 
 article, with intent to deceive. If the marking as patented, con- 
 stitutes the offence, which is, probably, what is intended, it should 
 be so stated. 
 
 This section 55 is distinctly a criminal one, and the commit- 
 
 i .t 
 
 i' . 
 
452 
 
 FALESLY MABKING AS PATENTED. [Sec. 55. 
 
 ting of the offence set out therein is declared to be a " misde- 
 meanour." By section 535 of the Criminal Code of 1892, which 
 came into force 1st July, 1893, it is provided : "After the commence- 
 ment of this Act the distinction between felony and misdemeanoixr shall l>e 
 abolished, and proceedings in respect of all indictable oflTences (e xcept so far as 
 they are herein varied >, shall be conducted in the same manner." 
 
 In Smith V. Walton, 61 0. G. (U. S.), p. 289, the action was to 
 recover 8220,000 for affixing to 2,200 crates the words " patented 
 and " oval wooden dish," to imitate the mark of the i>laintiti', the 
 claim being under sec. 4901 R. S. (U. S.), being SlOO for each 
 separate offence. 
 
 It w'as held that the marks being on the crates and not on the 
 "articles sold, were outside the law and outside this section, and no 
 penalty attached. 
 
 The Article Itself must be Falsely Marked. 
 
 In the same way, our section 55 does not relate to falsely 
 marking a lal<el attached to a package or the package itself, con- 
 taining one or more of the articles (see section 54) ; this case is not 
 pi'ovided for. 
 
 In our section 55, then, to constitute an offence, it will be 
 necessary to falsely mark the article itself ; a false mark ou 
 a package containing the articles, or on a label attached to sucb 
 package, will no more suffice here to constitute an offence than i> 
 the case in the States. 
 
 Does Not Relate to a " Process." 
 
 It is also to be notetl that neither this section 55 nor section 
 54 can relate to a " process " patent, as to which no penalty can 
 attach under either of thtse sections. " 
 
 In the U. S. sec. 4901, which corresponds to our section 55, 
 there is a penalty attached of not less than $100 with costs, half 
 of which go to the person who shall sue for the same and the other 
 half to the use of the United States, to be recovered in any Dis- 
 iiict Court of the United States within whose jurisdiction .such 
 V 'uce Uift}' have been committed. 
 
Sec. 55.] FALSELY MABEINO AS PATENTED. 
 
 453 
 
 As to Penalty in Canada. 
 
 In Canada it is not stated what disposition shall be made of 
 the money penalties under sections 54 and 55, nor is it stated that 
 the person informing shall receive the half or any portion of the 
 penalty. 
 
 Illustrations. 
 
 A corporation is responsible for the conduct of its superin- 
 tendent in affixinfTj the word patented to unpatented articles : 
 Tijiiipklns V. Butterjield, 25 Fed. Rep., 556. 
 
 Although a person affixes the word "patent" to an article with 
 intent to imitate the mark or device of a patentee yet he is not 
 ".iable unless the article is covered by the patent: French v. Foley, 
 11 Fed. Rep., 804. 
 
 With relation to the third class of cases, where the provision 
 i- nearly the same as in paragraph 3 of the U. S., sec. 4901, except 
 that in Canada there must be an "offering for sale" and the 
 
 rhiiKj is not specifically referred to, the following cases have 
 en decided in the U. S. courts, which have a bearing also on 
 our class 3. The penalty is incurred by marking an unpatented 
 article with the word " patent," whether patentable or not : 
 
 Cliphant v. Salem Flouring Mills, 3 Ban. & .A.rd., 256 ; contra, 
 r. S. v. Morris, 3 Fish., 72. 
 
 If the article is patented, a person is not liable under this 
 lause for affixing the word "patent," although he also puts on 
 tlie article the date of another patent : French v. Foley, 11 Fed. 
 Rep., 804. 
 
 The plaintiff must prove beyond a reasonable doubt in the 
 States : — 1. That the defendant affixed the word " patented " upon 
 trie article. 2. That the defendant has no patent. 3, That the 
 Icfendant affixed the word with intent to deceive the public: 
 X'dolls v. Newell, 1 Fish., 647. 
 
 ::>li 
 
 tj- 
 
 What it is Necessary to Show in Canada. 
 
 In Canada it would be necessary to show beyond doubt : — 
 1. That the defendant offered for sale as patented any article 
 not patented (nothing is said about affixing the word " patent " or 
 
t'' td 
 
 4»* 
 
 FALSELY MARKING AS PATENTED. [See. 55. 
 
 ,1 
 
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 M 
 
 ** patented," nor is there anything to show that it may be more 
 than a verbal representation). 2. That the defendant has no 
 patent. 3. That the defendant offered for sale, as patented, an 
 nnpatented article, with intent to deceive the public. 
 
 There Must be Intent to Deceive. 
 
 In the States, the " marking " must be done " malo animo " 
 with an intent to deceive; and this ingredient of the offence, 
 which is es.sential to make it complete, mast be left to and found 
 by the jury : Walker v. Haivxhurst, o Blatch., 494. In the same 
 way in Canada the Act must be done "malo anijtio " with intent 
 to deceive. 
 
 Whether the alleged false marking was done with intent to 
 deceive the public is, in ordinary cases, a question of fact, and 
 the presumption is, until the contrary appears, that it was done 
 with intent to deceive : Oliphant v, Salera Flourliuj Mills, 3 Ban. 
 k Ard., 2.56. 
 
 A man is to be held to intend that which is the necessary con- 
 sequence of his acts, or what he infers will be the consequence of 
 Mt acts, and the burden of proof is upon the plaintiff: Fichoh 
 V. Neicell, supra. 
 
 In the States the action cannot be prosecuted in the name of 
 the United States ; it should be prosecuted by an infoimer, who 
 .%haU be responsible in case the action be not sustained for costs 
 or other consequences resulting from its failure : United States v. 
 Morris, 3 Fish., 72. 
 
 The penalty may be recovered in an action of debt, in the 
 States, and the action may be brought at any time within rive 
 years after the commission of the offence : Stimpson v. Pond, 2 
 Curtis, .502. 
 
 MaTimum Fine in Canada, $200. 
 
 There is nothing said as to the manner of recoveringr the .S200 
 fine in Canada, or as to the iifliction of the imprisonment, or 
 what Courts have jurisdiction. In Canada the maximum money 
 fine which may be inflicted is $200, no matter how many articles 
 may have been falsely marked. 
 
 '\i 
 
 ;.'! 
 
Sec. 55-66.] MAKING FALSE ENTRIES IN BOOKS, ETC. 
 
 455 
 
 In the U. S. $100 for Each Offence. 
 
 In the U. S. not less than $100 is payal>]o for each offence, the 
 falsely marking each article constitutes each a separate offence, 
 and we have shown in Smith v. Walton, 61 0. G., p. 280, the 
 amount claimed may in this way be enormous. 
 
 There is nothing to show that the penalty, in Canada, is re- 
 coverable in an action for debt as is the case in the States. 
 
 False Trade Marks. 
 
 Sections 448-50, of the Criminal Code of 1892 (Can.), relate 
 to selling goods, falsely marked with a forged trade mark or false 
 trade descriptions. 
 
 iff: JS'icJwU 
 
 t»W. Every person who wilfully makes or causes to be made any false entry 
 in any register or book, or any false or altered copy of any document relating to 
 the purposes of this Act, or who produces or tenders any such false or altered 
 document in evidence, knowing the same to be such, is guilty of a misdemeanour, 
 and shall be liable to be punished by fine and imprisonment accordingly. 35 V., 
 c. 2(5, s. 51. 
 
 Note. — This is the same as in the Act of 1S70, with a few 
 verbal alterations and with the words "in evidence" inserted, 
 referring the subject matter of the sections now to some judicial 
 proceeding. 
 
 The section relates more particular!}' to employees of the 
 Patent Office, but may include any one who falsifies a document 
 issued from the Patent Office, or falsifies an award of arbitrators, 
 01' any other document referred to by this Act, as well as to those 
 tondei-ing the falsified document in evidence. 
 
 It is not stated what the extent of the penalty may be, but 
 merely thdt it may consist of fine and imprisonment. 
 
 
 :^ \ 
 
In 
 
 iJ 
 
 if 
 
 456 
 
 PATENTS ISSUED UNDER FORMER ACTS. [See. 57. 
 
 PART XVI. 
 
 Patknts Issued Under Former Acts. 
 
 5Y. Every patent issued uniler any Act of the Parliament of Canada, or of 
 the legislature of tlie late Province of Canada, or of the legislature of any Province 
 now forinii\g part of Canada, shall remain in force for the same term p d for the 
 same extent of territory as if the Acta under which they were issued had not heen 
 repealed, but subject to the provisions of this Act in so far as the same are 
 applicable to them : 
 
 2. The commissioner may, upon the application of tlie patentee named in any 
 Biich patent, who is the inventor of the subject matter of the patent, if the sub- 
 ject matter of the patent has not 1)een known or used, and has not, with the con- 
 sent of the patentee, been on sale in any of the other Provinces of Canada, issue, 
 on payment of the proper fees in that behalf, a patent under th'a Act, extending 
 such Provincial patent over the whole of Canada, for the remainder of the term 
 mentioned in the Provincial patent. 35 V., c. 26, s. 32 ; — 38 V., c. 14, s. G. 
 
 Note. — Sub-section 1 can hardlj^ have any force now, as any 
 patents issued, therein referred to, must now have expired. 
 
 The Patent Act of 18G9 was the first Patent Act passed since 
 the Confederation of the Provinces of Upper and Lower Canada, 
 Nova Scotia and New Brunswick by the British North America 
 Act of 29th March, 1867, and it was thereb}' provided that all 
 patents issued by the Province of Canada (which embraced 
 Upper and Lower Canada), and of Nova Scotia and New Bruns- 
 wick, and all patents issued for the Provinces of Ontario and 
 Quebec by the Legislature of Canada, were to remain in force as 
 provided in this sub-section 1. As the life of a patent was, prior 
 to the Act of 1869, fourteen j'ears, and since that time up to 
 1892 (when it became eighteen years), fifteen 3'ears, the patents 
 here referred to have long ago expired. 
 
 By the Act of 1872, Consolidated Statutes of Canada, c. 34, 
 1859 ; c. 117, of the Revised Statutes of Nova Scotia (3rd sei'ies); 
 c. 118, of the Revi.sed Statutes of New Brunswick, and the 
 Patents Ordinance (1867) of British Columbia, and the Patent 
 Act of 1869 (Can.), and any Acts amending them, or any other 
 
Sec. 57-58.] PATENTS ISSUED UNDER FORMER ACTS. 
 
 457 
 
 Act relating to patents, are repealed, so far as inconsistent with 
 the Patent Act of 1872 (Can.). 
 
 By sec. 6, of the Act of 1875, 38 Vic, c. 14, s. G, existing 
 patents in Prince Edward Island were to remain in force, and 
 might be extended to the Dominion on payment of proper fees. 
 The Provincial Acts were repealed, and the provisions of the 
 Patent Act of 1872 were extended to Prince Edward Island ; and 
 the records of the the Patent Office were directed to be handed 
 over to the Patent Office, Ottawa, (Can.). 
 
 Sub-section 2 relates onlj' to a patentee who is an inventor ; 
 it does not cover the case of a patentee who is assignee of the 
 inventor and who obtains the patent as vsuch assignee. 
 
 If the invention has not been " known or used " in any of 
 the other Provinces, and has not been on sale in any of these 
 other Provinces, with the consent of the i)atentce, the Provincial 
 patent may be extended over the whole of Canada. 
 
 The term "known or used" have been discussed under note (d) 
 and (e), sec. 7. " Public use " in the Provinces is not referred to. 
 
 The whole of this section is antiquated. 
 
 OO. Every patent heretofore issued by the Patent Office in respect of whicli 
 tlie fee required for the whole or for any unexpired portion of the term of fifteen 
 years, has been duly paid according to the provisions of the law under which such 
 patent was issued in tliat behalf, has been and shall be deemed to have been issued 
 for the terms of fifteen years, subject, in case a partial fee only has been paid, to its 
 teasing on the same conditions in which patents hereafter issued are to cease under 
 the operation of this Act. 4G V., c. 19, s. 1, part. 
 
 Note.— Section 17 of the Patent Act of 1872, which provided 
 that patents should be valid for five, ten or fifteen years at the 
 option of the applicant, but at or before the expiration of five or 
 ton years the holder might obtain an extension, was repealed. 
 And by 46 Vic, c 19, sec. 1, patents were deemed to have been 
 issued for fifteen years, but partial fees might be paid ; but in 
 such case the patent was to lapse at the end of five or ten years 
 imless the remainder of the fee for the term of fifteen j'ears was 
 paid. The foregoing section 58, with two or three verbal alter- 
 ations, forms the latter part of this sec. I, c. 19, 46 Vic (1875). 
 58 
 
If 
 
 i'' 
 
 ; U 
 
 
 f 
 
 1 
 
 1 ) 
 
 ( 
 
 458 
 
 PATENTS ISSUED UNDER FORMER ACTS. [See. u8. 
 
 This legislation became necessary and was made retrospective 
 owing to the fact that several Canadian patents, issued under tht- 
 Act of 1872, had been held in U. S. A. to have been patents only 
 for five years, and that the United States patents, granted for 
 inventions previously patented in Canada, were hel<l to have 
 expired at the expiration of the first five years for wiiich the 
 Canadian patents had been granted. 
 
 In the case of James Canan v. The Pound Manufacturinf/ 
 Co., tried in January. 1885, in the Circuit Court of the Northern 
 District of New York, U. S. patent 218427, dated 12th August. 
 1879, was held to have expired on the 5th December, 1883, after 
 the first five year term of Canada patent No. 9440. This case is 
 reported in 2-3 Blatch., 171^, also in 31 0. G., p. 11 j. 
 
 In Beissner v. Sharp, 16 Blatch., 383, tried in the Circuit Court 
 of the Southern District of New York, in June, 1879, the U. S. 
 patent granted 20th October, 1874, for seventeen years, was held 
 to have expii-ed on the 15th May, 1878 — because a patent was 
 granted in Canada for the same invention on the 15th May, lS7o. 
 for five years from that date, although in March, 1878, the Canada 
 patent was extended for five years from the 15th May, 1878, and 
 also five vears from the 15th May, 1883. 
 
 In Bate Befrigerating Comjxmy v. Gillett, 13 Fed. Re))., 533. 
 in the Circuit Court for District of New Jersey, August, 1882, 
 and in the same Court in August, 1887, Bate Befrigerating Com- 
 pany v. Hammond, 31 Fed. Rep, 809, on the same facts, it was 
 held that the United States patent expired when the original five 
 year term of the Canadian patent expired. 
 
 This latter case. Bate Befrigerating Company v. Hammoud 
 was appealed to the Supreme Court of U. S., which gave judi:- 
 ment on January 21st, 1889, reversing the Circuit Court decision 
 and holding that " Where the Canadian statute under which the extension of 
 the Canadian patent were granted, was in force when the U. S. patent issued, 
 and also when that patent was applied for, and where, by the Canadian statute. 
 the extension of the patent for Canada was a matter entirely of right, at the optiou 
 of the patentee, on his payment of a required fee, and where the fifteen years' 
 term of the Canadian patent had i)een continuous and without interruption, the 
 United States patent docs not expire before the end of the fifteen years' duration 
 of the Canadian patent. 
 
 JlM' 
 
 I U. 
 
Sec. 58-59.] PATENTS ISSUED UNDER FORMER ACTS. 
 
 459 
 
 
 "» 
 
 This case in the Supreme Court is reported in 19 Brodix, j>. 
 281, 129 U. S., 151 ; see also Consolidated Roller Mill Company v. 
 Walker, 54 0. G. 136 (September, 1890), where the expiry of a 
 previous Austrian patent after five years, which might at the 
 option of the patentee have been renewed for fifteen years, did 
 not affect the life of the U. S. patent until the full fifteen year 
 Austrian period had expired. 
 
 When the Expiry of a Foreign Patent Limits the 
 Life of U. S. Patent. 
 
 In Bate Refrigerating Covij^any v. Sulzberger (doc'ided January 
 7th, 1893), U. S. Giro, c't., S. Dist., N. Y., 65 0. G., p. 135, it was 
 held that under R. S. sec. 4887, a U. S. patent expires with the date 
 of a foreign patent granted prior to the date of the U. S. patent 
 but subsequent to the application therefor, following Bate Refri- 
 (ji'ramg Company v. Gillett, supra; so that whether the foreign 
 patent issues before or after the date of the U. S. applications 
 appears to be immaterial. The U. S. section refers to an invention 
 " wliich has been previously patented in a foreign country. " 
 
 •>«F. Every patent issued prior to the eighth day of April, one thousand 
 eight hundred aiul seventy-Hve, under the Acts respecting patents then in force in 
 Canada, shall extend over the Province of Prince Edward Island for the re- 
 mainder of the term mentioned therein : 38 V., c. 14, s. 4, part. 
 
 The date mentioned in this section is the date on which 
 38 Vic, c. 14, was assented to when the Patent Act of 1872, and 
 its amending Acts were extended to Prince Edward Island, and 
 all patents for the Dominion of Canada issued prior to that date 
 were extended to Prince Edward Island for the remainder of their 
 respective terms. 
 
 The Patent Act of 1869 embraced the Provinces of Ontario, 
 Quebec, Nova Scotia and New Brunswick. The Act of 1872 took 
 in besides, British Columbia, Manitoba and the North-West Terri- 
 tories and Keewatin, while this Act of 1875, 38 Vic, c 14, embraces 
 Prince Edward Island, which completes the Dominion of Canada 
 as now constituted. 
 
 N. B. — The foregoing may be said to complete the Revised 
 Patent Act of 1886, and its amending Acts up to date. There 
 
 (1 . 
 
if 
 
 ii 
 
 i 
 
 ■mi 
 
 ;• .1 
 
 460 
 
 PROVISIONS OF ACT OF 1892. 
 
 [Sec. 8-9. 
 
 are, iiowever, two small sections which have not been noted, ami 
 owing to the manner in which they are placed in the Amend- 
 ing Act of 1892, 55-56 Vic, c. 24, have not been embodied in the 
 sections of the Patent Act of 1886. They, however, form part of 
 the Act, and are as follows : — 
 
 Sections 8 and 9 of 55-56 Vic, c. 24 (1892). 
 
 Sec. 8. (Amending Act of 1892.) On each application for a patent, 
 .a thorougli anil reliable examination shall be made by competent examiners to \)c 
 employed in the Patent Office for that purpose. 55-56 V., c. 24, s. 8. 
 
 In the note to section 5J, it has been pointed out that, taking 
 the IJ. S. Patent Office as a standard, where 199 examiners are 
 emploj-ed, that in Canada we should have twenty examiners, 
 whereas, we have only three, it could hardly be expected that 
 these three could do as effectual work as twenty. To carry out 
 the intention of this section (sec. 8, 55-56 Vic. [1892]), there does 
 not a}>pear at present to be enough examiners in the Canadian 
 Patent Offices. This .section 8 came into force 9th July, 1S92 : 
 See section 9, infra. 
 
 Sec. t). (Amending Act of 1 892.) This Act shall only apply to patents 
 issued after the passing hereof : 55-56 V., c. 24, s. 9. 
 
 Note. — The Act referred to is the Patent Act Amendment, 
 supra, which was assented to July 9th, 1892, and by it sec. 8, 
 sub-sec. 3 of .sec. 10, sec. 14, sec. 15, .sec. 22, .sub-.sec, 1 pf .sec. 37, 
 and sec. 39 of the said Patent Act of 1886, R. S. C. c. 61, were 
 repealed and amended as hereinbefore set out : For amendments 
 vide foregoing sections. 
 
 Note. — In Appendix III. appears the full text of the 
 Patent Act of Canada as it stands amended subsequent to the 
 Session of the House of Commons of Canada in 1894 ; it was 
 propv - xl to amend the Patent Act in the recent ses.sion of 1894 
 in view of the decision in The Queen v. La Force, referred to in 
 this work, but no amendment has been made. 
 
 The Act is c. 61, Revised Statutes of Canada (1880), as 
 amended by the Amending Acts of 1888, 1890, 1891, 1892 and 
 1893, referred to on page 21 of this work. 
 
NOTES, ETC., GIVEN FOR PATENT EIGHTS. 
 
 461 
 
 CHAPTER III. 
 
 " On Bills or Notes Given for Patent Rights." 
 
 apply to patents 
 
 By sub-sections 4, 5 and 6 of section 30, of the Bills of Ex- 
 change Act (D), c. 33, 53 Vict, (1890), it is provided as follows : — 
 
 Sec. 30, s. s. 4. Every bill or note the coiisideration of which consists, in whole 
 or in part, of the purchase money of a patent right, or of a partial interest, limitetl 
 gengrapliically or otherwise, in a patent right, shall have written or priuteil promi- 
 nently antl legibly across the face thereof, before the same is issued, the words 
 "given for a patent right " : and, 'ithoiit such words thereon such instnunent and 
 any renewal thereof shall be void, except in the hands of a holder in due course 
 without notice of such consideration : 
 
 8.S. 5. The indorsee or other transferee of any such instrument having the words 
 aforesaid so printed or 'vrittun thereon, shall take the same subject to any def^'nce 
 or set ort" in respect of the whole or any part thereof which would have existed 
 between the original parties : 
 
 S. s. 0. Every one wlio issues, sells or transfers, by indorsement or delivery, any 
 su'jh instrument not having the words "given for a patent right "' printctl or written 
 in manner aforesaid across tlie face thereof, knowing the consideration of such in- 
 strument to have consisted, in whole or in part, of the purchase money of a patent 
 right, or of a partial interest, limited geographically or otherwise, in a patent right, 
 is guilty of a misdemeanour, and liable to imprisonment for any t€mi not exceeding 
 one year, or to such tine, not exceeding two hundred dollars, .is the court thinks 
 tit." 
 
 The foregoing sub-sections 4, 5 and G are a re-enactment, with 
 alterations and additions, of 47 Vic, c, 38 (1884), being "An Act 
 for the be'^^er prevention of Fraud in connection with the Sale of I'atent Rights " 
 (a.ssented to 19th April, 1884), This Act of 1884 appeal's in the 
 Revised Statutes of Canada (188G), as .sees. 12, 13 and 14 of c, 123,, 
 
 "An Act respecting Bills of Exchange and I'romissory Notes." 
 
 Addition to Revised Statutes of Gv^nada (1886), c 
 123, s. 12. 
 
 In sub-sec 4 of sec. 30, 53 Vic, c 33, Bills of Exchange Act 
 (1890), where "every bill or note" occurs, the original Act of 1884 
 had "a bill of exchuige o- promissory note," but there is au important 
 
1 ? 
 
 I 
 
 I 
 i 
 
 V'i 
 
 i 
 
 I I-, 
 
 ( » 
 
 5 ■* 
 
 
 
 462 
 
 NOTES, ETC., GIVEN FOE PATENT RIGHTS. 
 
 J ' 
 
 -i 
 
 addition at the end of this sub-section 4 of section SO. whidi 
 there appears for the first time, \ iz. : " And without sach words ihenxm 
 auch instrument and an}' renewal thereof shall be void, except in the haods <i a 
 holder in due course without notice of such consideration." 
 
 Decision in Qirvin v. Burke, 19 Ont. Rep. 
 
 This addition was made in consequence of a decision of tb« 
 C. P. Divisional Court (Ont.) in Ginin v. Burke, 19 Ont. Rep. fv 
 204 (1890), in which it was held, that the omission of the pre- 
 scribed words did not make the note void as betwi?en the mako- 
 und the payee, and that it was the intention of the Act to jnit 
 the transferee into the position of the payee a.s to any defenoe 
 the maker might have against the payee, and even if the woris 
 were necessary, the maker had a right to and could waive having 
 the same thei-eon. 
 
 So that mnv, since the Bill of Exchange Act (1890). unless the 
 words "given for a patent right" are written or prim^si 
 prominently and legibly across the face of such bill or note, or 
 any renewal thereof, it is void between the original parties; 
 but if such words are not written or printed thereon, even though 
 given foi" a patent right, such note may Ije good in the hands cf a 
 holder in due course without notice of such consideration. 
 
 A Holder in Due Course Defined. 
 
 " A holder in due courfie " by sec. 29 of the said Bills of Exchange 
 Act (1890), " is a holder who has taken a bill, complete and regular in tlw- ihot 
 of it, under the following conditions, naniel}* : — 
 
 "(a) That he became the holder of it Ijefore it was overdue and witi>c<n 
 notice that it had been previously dishonouretl, if such was the fact ; 
 
 " (h) That he took the bill in gootl faith and for \TJue, and that at tketOM 
 the bill was negotiated to him he had no notice of any defect in the title of ike 
 •'"rem who negotiated it." 
 
 When Title is Defective. 
 
 By sub-section 2 of section 29, Bills of Exchange Ac:; 
 
 ' In pari'cular, the title of a person who negotiates a bill is defective within a>* 
 meaning of this Act when he obtiiined the bill, or the acceptance thereof, by fraad. 
 duress, or force and fear, or other unlawful means, or for an illegal cousid«ntMa, 
 or when he negotiates it in breach of faith, or under such circumstances as aaMBt 
 to a fraud " ; 53 V. c. 33, s. 29, s. s. 2. 
 
NOTES, ETH., GIVEN FOR PATENT EIGHTS. 
 
 463 
 
 le and witi>:'n 
 
 Right of Subsequent Holder. 
 
 Bv sub-section 3 of section 29, Bills of Exchanjio xVct : 
 
 • A holder, whether for vahie or not, who derives his title to a bill through a 
 
 hi)Ider in due course, and who is not himself a party to any fraud or illegality 
 
 jitfecting it, has all the rights of that holder in due course as regards the acceptor 
 
 md all parties to the bill prior to that holder. " 53 V. , c. 3.3, s. 29, s. s. 3. 
 
 By sab-sec. 5, see. 30, Bills of Exchange Act (1890), the alteration 
 matie in the original Act of 1884, is immaterial, the wonl " indorsee ' 
 Keing merely substituted for "endorsee"; the former is also the 
 ivatling in K S. C, c. 123, s. 13. 
 
 By sub-sec. 6, sec. 30, Bills of Exchange Act, the alterations made 
 in the original Act (1884), are also immaterial, " Every one " Iteing sub- 
 stituted for "Anyone," " is guilty " is substituted for "shall l>e guilty," 
 and "liable to imprisonment" is substituted for "lie imprisoned in any 
 i'lal or other place of confinement," and it now reads, "as the court thinks 
 dr." instead of as formerly in the Act of 1884 "a« the judge may 
 :hiak tit."' These changes first appear in the Revised Act (1886), 
 . 123, s. 14. 
 
 Sub-section 6, sec. 30 of the Bills of Exchange Act (1890), is 
 ::.c only part of the said Act in which a criminal otfence is 
 imputed, and provided for, the Act otherwise relating to civil 
 rij:hts and remedies, to notes and bills of exchange. 
 
 The meaning of the term " issues " in this sub-section 6, section 
 :>•». of the Bills of Exchange Act of 1890, means " the first delivei'y 
 of a hill or note complete in form to a j^erson who takes It as o 
 hJtJer" : See Chalmers on Bills, 3rd ed., p. G ; .see also Attornei/- 
 '^r-neral v. Birkbeck, 12 L. R.. Q. B. D., GOo, at p. 610. 
 
 As the C. P. Divisional Couit (Ont.) in Girvin v. Burke, 19 
 •»nt. R. 210, held that the prescribed words "given for a pa- 
 tent right " were designed for the makers protection as 
 a..'ainst transferees for value from the payee, and that the pre- 
 -oril>ed words might be omitted at the pleasure of the maker 
 without making him amenable to the penal clause contained in 
 tht; 141' I section of the Revised Act (1886), c. 123. This 14th 
 iectioh, :eording to this view of the state of the law, appears 
 fiu,'atory : but see Johnston v. Martin, 19 App. R .592, infra. 
 
 I. 
 
ij ! « 
 
 \tn'i 
 
 4«4 
 
 NOTES, ETC.. GIVEN FOE PATENT RIGHTS. 
 
 IH:-^^' 
 
 
 ! J", 
 
 ■I 
 
 i I 
 
 i I 
 
 The Object of Words " Given for a Patent Right." 
 
 In Gii'iiii V. Burke, MacMahon, J., in his judgment in the 
 Divisional Ct. C. P. of March 8th, 1890, states, on p. 209, 
 '•in the Juilgment of my brother Hose at the trial, he, I thiuk, clearly interprets 
 what was the object of the Legislature in requiring the words ' given for a patent 
 rig^t' to be written or printed prominently and legibly across the face of such 
 Botes: viz., to give the indorsee or transferee notice, and to put him 'in the 
 poaitk>n »f payee as to any defence which the maker may have against a claim by 
 the pave*." " 
 
 Mr. Justice Rose states that the cases are collected, and the 
 law sumuiarized in the 2nd ed.. Maxwell on Statutes, p. 487, 
 et »fq. 
 
 In G'trrin v. Burke, p. 211, supra, it is laid down "that nothing 
 
 is Witter 9ettle<l than that between the original parties to a note for a patent 
 rii^t ii is a gotxl defence to show that the alleged patent right is void ; in other 
 wocds that it is no patent right at all, and that the consideration has tlierofore 
 aitircly faileil. 
 
 Johnsiyn v. Martin, 19 App. R. Ont, p. 592, was the case of a 
 promissory note made before the coming into force of the Bills of 
 Exchange Act, 1890, in which judgment was given in the Court of 
 Api>eal ^:Ont.), Oct. 3rd, 1892. 
 
 The consideration for the note was the purchase money cf a 
 patent right without having the words "given for a patent 
 right " written or printed across its face when taken by the 
 pavee, or when transferred by him as required by R. S. (Can.), 
 c. 123, s«ecs. 12-14 ; it was held void in the hands of an indorsee 
 for value, with notice of the consideiation. The judgment of the 
 County Court Judge of Lennox and Addington was reversed. 
 
 The new clau.se added at the end of sub-section 4, sec. 30, of 
 the Bills of Exchange Act (1890j, if it had been in force, would 
 most certainly have barred the elaiui, but even without this 
 clause the claim was barred by the Court of Appeal (Ont.). 
 
 As to the statement of the C. P. Divisional Court in Girvin v. 
 Burke, p. 210, 19 Ont. Rep., that the words " fjiven for a patent 
 right "^ might be omitted at the pleasure of the maker without 
 making him amenable to the penal clause, Hagarty, C. J., in his 
 judgment in Johnson v. Martin, supra, takes the'opposite view 
 and refers to Pollock on Contracts, 5th ed., p. 279. It is there 
 stated as fully established by Bensley v. Bignold, 5 B. & Aid., 335; 
 
 tt: 
 
NOTES, ETC.. OIVEN FOB PATENT BIGHTS. 
 
 465 
 
 •' The inipositiou of a penalty by tlie Legislature on any specific act or omission is 
 /, lima facie equivalent to an express prohibition." 
 
 And again at p. 280 (Pollock) : "What the law forbiils to be (lone 
 (iiiectly cannot be made lawful by being done indirectly." Citing Booth V. 
 
 B'tnk of Emjhmd, 7 CI. & F., o09, at p. 540. 
 
 As to the law as it now stands. Osier, J. A., in his judgment 
 ill Johnson v. Martin, states, 19 App. R. (Ont.), p. 599, as follows : 
 
 "An amendment of the Act, now section .30, sub-sees. 4, 5 and 6 of the Bills 
 <if Exchange Act, made since this action was commenced, which declares that 
 imtes not stamped with the words ' given for a patent right' shall be void, except 
 ill the hands of a holder in due course without notice of such consideration, does 
 not appear to me to atfect the case. I cannot regard it as in effect declaratory of 
 the former law, by implication affirming that until it was passed tliere was no 
 lit'fence to the holder of such a note not stamped who took it with notice of the 
 roiisideration. The law is now made more stringent, and places the holder, 
 w hether payee or transferee with notice in a worse position than he formerly was." 
 
 Johnson v. Martin, reported in Can. L. J., vol. 28, p. 540 
 ils92). //eW, that the original holder, having committed a mis- 
 liineanour in accepting the notes without the words "given for 
 'I jiateM right " and a further niisdemeanour, in which plaintiff 
 jinrticipated, in transferring them to the plaintiffwithoutthe.se 
 words, the plaintiff could not in any event recover. 
 
 Penalties Prescribed. 
 
 Giving a bill or note now or transferring such bj' endorsement 
 ur ileliver}', the consideration being the purchase money or partial 
 iiurchase money of a patent right, or for a license, without the 
 words " given for a patent right " printed or written across the 
 face of such bill or note is a misdemeanour, and renders a person so 
 )tfending liable to imprisonment for any term not exceeding one 
 year or to such fine not exceeding two hundred dollars as the 
 ' 'ourt thinks fit. 
 
 The penaltj' for not using the prescribed words is fine or im- 
 lirisoriment and not both, this penalty is a very important consid- 
 Hiati^n.and is liable to be overlooked when buying or selling 
 letters Patent of Invention or an interest therein. 
 
 When a Note is Good Without the Prescribed Words. 
 
 If, however, the note or bill or any renewal thereof without 
 the prescribed words was taken without notice of the considera- 
 59 
 
 ^ 
 
466 
 
 NOTES. ETC.. GIVEN FOR PATENT RIGHTS. 
 
 
 tion, before it was overdue, or without notice that it had ynx- 
 viously been tlishonoured, and that it was taken for vahic and in 
 good faitlj, and that at the time the note or bill was negotiate'! 
 the holiler had no notice of any defect in the title of the peis.ii 
 who negotiate*.! it, then it is a valid note, even though the wurd- 
 " given for n jmtent rlffht " are not written or printed proinineiiily 
 and legibly across its face. (vSe? definition of holder in <\\v- 
 course on p. C4ii 
 
 The Prescribed Words to be on the Pace of the Note 
 It is to be note<J that these words may be written or printei 
 legibly, and must be on . the face of the note and not endor>eii 
 on it. 
 
 Provisions 'Et: j r.o Licenses, etc. 
 
 The expresSEC. ^ -^ient right, or of a partial interest, limited sjc. 
 graphically or otherwi,'*. in a patent right," which OCCUrs in sub-sectiuli> 
 
 4 and 6 of section 30 ' the ' '""s of Exchange Act, 181)0, indicate- 
 that this portion of the Act j'Wates also to bills or notes given J-sr 
 licenses to make or u.se the patented invention in Canada or aii} 
 part thereof, and covers an act or process, a machine, a nianut;ic- 
 tui'e or conifKJsition of matter as defined in note to sub-section u ,. 
 section 2, on pages 22, 2.3, 24 and 25 of this work. 
 
 In Sartiuel v. Faityyiece, 24 0. R., p. 486, et seq., the hea'l- 
 note is : — 
 
 Where part of the condiileration for the transfer of a patent right from our 
 partner to another was the giving, at the plaiutif}''s suggestion, of the notes of tbt 
 tinn for the indiviilnal debt of the transferor to the plaintiffs : — 
 
 //(/(/, that ander subsection 4 of seotion 30 of the Hills of Exchange .Act. '>'■• 
 Vic, eh. 3.1 <D. ), the worvfs '* given for a patent right" should have been writtei. 
 across the notes so given : and in the absence thereof, the plaintiffs could nv: 
 recover. (Reportetl also in :}»> Can. L. J., p. '278.) 
 
 The action was on three jironiissoiy notes made by the defen- 
 dants, paj-able to the order of the plaintift's. The defence was that 
 part of the considei-ation for the notes was the assignment ol a 
 patent right, and that the notes .should have had the words "given 
 for a patent right" endorsed thereon. 
 
 At the Autumn Chancer}- Sittings, Robertson, J., found fur 
 the plaiiititfs. On appeal to the C. P. Divisional Court, by ju'lg- 
 
 ■' a 
 
NOTES, ETC., GIVEN FOR PATENT RIGHTS. 
 
 4G7 
 
 ment of December 30th, 1893, the original judgment was unani- 
 mously reversed. 
 
 In thivS case Fairgrieve was individually indebted to plaintiffs, 
 subsequently he entered into partnership with Craig as "Fairgrieve 
 A: Craig." In oi-der to get this iirm's notes to cover Fairgrieve's 
 individual indebtedness, it was suggested by one of the plaintiff 
 tirm that Craig should purchase one-half interest in Fairgrieve's 
 patent, which was accordingly done, 8500 of the consideration 
 Keing represented in the three notes, amounting in all to 81,000, 
 jiven by Fairgrieve and Craig to plaintitis. 
 
 The original judgment against the defendant Fairgrieve was 
 iiut moved against, but the appeal of Craig was allowed, as the 
 words required by the section were not written or printed aci'oss 
 the notes sued on. 
 
 McMahon, J., states: "If the argument of counsel for the plaintifl's 
 were to prevail, the Act might be contravened, anil such bills or notes rendered 
 vilid, if ii creditor could show a legal liability on the part of the debtor in pay- 
 ment of which the debtor had given the joint and several note of himself, and a 
 person to whom he had assigned a part interest in a patent. * * 
 
 " The Act is aimed at bills and notes where the consideration therefor is 
 wholly or partially for an interest in a patent right." 
 
 On May loth, 1894, the foregoing judgment in Samuel v. 
 Fiij.rgrieve, 24 Ont. Rep., p. 486, was appealed against in the 
 Court of Appeal (Ont.), on the part of the plaintiffs, and judgment 
 was reserved. 
 
 Marking Notes Given for Patent Rights in U. S. A. 
 
 State statutes compelling under penalty a distinguishing mark 
 h< be placed on notes given for patent rights, ^ave been declared 
 invalid, being in conflict with the Constitution of the United 
 states : See Ohio State v. Feck, 25 Ohio St., 26 ; Helm. v. First 
 Xotional Bank, 43 Ind., 167 ; Cranson v. Smith, 37 Mich., 80i) ; 
 Holliday v. Hunt, 70 111., 109 ; Wisconsin State v. Lockwood, 48 
 Wis., 403 ; Bo^uen v. Kemmun, 2 Pearson (Pa.), 250 ; Haskcall 
 V. Whitmore, 19 Me., 102; Patterson v. Commomvealih, 11 Bush. 
 (Ky.), 311 ; Welch v. Phelps, 25 O. G. 981. 
 
 In Pennsylvania, how^^ver, such .statutes have been upiield : 
 ^-.L- Haskell V. Jones, 86 Pa. St., 170. 
 
 it'. 
 
 If 
 
w 
 
 ■f« 
 
RULES AND FORMS 
 
 OF THE 
 
 CANADIAN PATENT OFFICE 
 
 1892. 
 
 f- 
 

APPENDIX I. 
 
 PATENTS 0? INVENTION. 
 
 RULES, REGULATIONS AND FORMS 
 
 OK THE 
 
 CANADIAN PATENT OFFICE. 
 
 ■ft 
 
 I. A personal appearance of the applicant or his representa- 
 tive at the Patent Office is not required unless specially called for 
 !iy the Commissioner or Deputy Coiruiissioner. 
 
 *i. In all cases the applicant or depositor of any paper is re- 
 sponsible foi- the merits of his allegations and the validity of the 
 instruments furnished by him or his agent. 
 
 li. Correspondence may be carried on either with the appli- 
 cant, or his agent, but only with one person, and will be eon- 
 vi yed through the Canadian mails free of charge. 
 
 4. All documents must be legibly and neatl}' written or 
 printed on foolscap paper (13 inches long and 8 wide), with an 
 iniit-r margin of one inch and a-half wide. 
 
 5. All communications are to be addressed — " The Commw- 
 fiioner of Patents, Ottawa, Canada!' Papers forwarded to the 
 ( )tfice should be accompanied by a lettei", and a .separate letter 
 slumld be written on every subject. 
 
 0. As regards proceedings not specially provided for in the 
 accompanying forms, any other form being conformable to the 
 letter and spirit of the law may be accepted, and if not conform- 
 able therewith will be returned for correction. 
 
, I'! 
 
 ■I : 
 
 |rt.j 
 
 l'.'*if 
 
 rh::S 
 
 ii i • it 
 
 ■i;lHii. 
 
 ' I: 
 
 ;i f 
 
 6 I 
 
 472 
 
 PATENT OFFIOE RULES. 
 
 [Appendix I. 
 
 I. Models must be neat and substantial working ones, nut 
 exceeding 12 inches on the longest side, unless otherwise allow, il 
 by special permission ; models must be so constriicted as to show 
 exactly every part of the invention claimed and its mode >>( 
 working. In cases where samples of ingredients are reijuired liy 
 law, they must be contained in glass bottles properly arranged; 
 but dangerous or explosive substances must not be sent. Both 
 models and bottles must bear the name of the inventor, the titlf ..f 
 the invention and date of the application ; they must be furnislu .1 
 to the Patent Office free of charge and in good order. 
 
 8. All fees required by law should be transmitted with tlio 
 application for any action by the office, in current bankable fun<is, 
 inclosed in registered letters. Bank drafts, money orders, uiul 
 cheques which must becertilied, should be made payable to • Tlie 
 Commissioner of Patents, Ottawa." fn no cufte should moneij hn 
 inclosed with models. 
 
 9. An applicatii)u for a patent must be pr(x;eeded with ainl 
 perfected witliiu two years after the lodging of the jietition. in 
 default of which it will be regarded as abandoned, as well as all 
 proceedings had in relation thereto, and any fees paid will beheld 
 at the expiiation of that i)eriod to be forfeited. 
 
 10. Two or more separate inventions cannot bt- claimed in 
 one application, nor included in one patent. But if separate 
 matters are represented to be so dependent on, and connectfl 
 with each other as to be necessarily taken together, to obtain the 
 end .sought for by the inventor, the Commissioner of Pateiit< 
 shall be the judge whether or not the pretentions of the applicant 
 in such respect can be entertained. 
 
 II. The tiling of a protest against the issuing of a patent 
 .shall not be taken in itself as sufBcient reason to withhold tlie 
 granting of such patent to an applicant. 
 
 1 3. A Caveat can only be tiled by an inventor and shall be 
 composed of a specification (and drawings), certified on oath 
 [Form No. 23] and the applicant may, while it is pending, loli^'e 
 additional papers, provided thf^y relate exclusively to the same 
 
Appendix I. ] 
 
 PATENT OFFICE RULES. 
 
 47.t 
 
 invention. The person filing a Caveat will not be entitled to 
 notice of any application pending at the time of filing h\>* Caveat. 
 A Caveat must bo limited to a single invention. 
 
 The specification of a Caveat should be sufficiently precise to 
 enable the Office to judge whether there is a |>robable interfer- 
 ence when a subsequent application is filed. 
 
 Hi. Drawings in duplicate to be attached to the duplicate 
 specification must be made in India or ca-rbon ink, on sheets of 
 tracing linen (eight by thii^teen inches), neatly executed ami 
 without colours. [Form No. 14]. 
 
 All drawings unisc be clear, sharp, \. ell-defined, not too tine 
 (ind perfectly black. 
 
 Lines that are pale, ashy, very fine, ragged or rotten, give bad 
 rt'sults when photo-lithographed. 
 
 Brush-shading, tinting and imitation surface graining should 
 nover be used ; and in fine shading the result should be attained 
 with as few lines as possible. 
 
 Section lines also sliould be as open in their spacing as the 
 
 ase v;ill admit of, and these, as well as all riglit lines, in (ji'der to 
 
 .nsure cleai-ness, should be made with a ruling pen. Tlie shading 
 
 of convex and concave surfaces may be dispense. 1 with when the 
 
 invention is otherwise well-illusti-ated. 
 
 Shade lines may sometimes be used with good efieet, but 
 heavy shadows where they would obscure lines or letters of refer- 
 ence, should be avoided. 
 
 AVith each application an extra di-awing must be supplied for 
 the Patent Office Record, on a sheet of Bristol Board 8 ijy l:^ 
 inches, without writing on its face, merely the usual lettering : no 
 title, certificate, nor signatures ; on the back of the sheet the 
 name of the inventor and the title of the invention must be 
 written in pencil. 
 
 Where several figures are furnished, any one figure which will 
 best give a general idea of the invention will be sufficient. 
 
 The cardboard to be used must have a smooth or calendered 
 surface ; a sheet of " double thick Bristol Board," or " Whatman's 
 'Irawing paper," is recommended. 
 60 
 
 
 
474 
 
 PATENT OFFICE RULES. 
 
 [Appendix I. 
 
 11' 
 
 m 
 
 I' ^ 
 i' i 
 
 U 
 
 I 
 
 i 
 
 i 
 
 
 The cardboard drawinj; should be rolled on a roller for trans- 
 mission to the Office, as folding will prevent its usefulness lor 
 photo-lithographing. 
 
 A sample cardboard drawing will be furnished on appli- 
 cation. 
 
 14. In the matter of a reissue, under section 23 of the Act, 
 whatever is reallj- embraced in the original application and so 
 described or shown in the same, that it might have been embractd 
 in tlie original patent, may be ground for a reissue. No new mat- 
 ter can be introduced into the specifications, nor shall the modtls 
 ()!• drawings be amended except each by the other. In the 
 aV)sence of model or drawing, the reissue may contain ameiui- 
 nients, upoii satisfactory proof to the Commissioner that such 
 amendments were jjart of the invention, although omitted in 
 the original application. Separate patents may be i.ssued for 
 each separate and distinct part of the invention, comprehended in 
 the original patent. 
 
 15. Information in relation to pending cases will be furnished 
 onl}' so far as it becomes necessary in conducting the business of 
 the Office. 
 
 16. The Office can not respond to inquiries as to the prolia- 
 bility of an alleged invention being patented in advance of an 
 application for a patent ; nor to inquiries founded on brief or im- 
 perfect descriptions, propounded with a view of ascertaining 
 whether alleged improvements have been patented, nor unless 
 the name of the patentee, and, as nearly as possible, the date of 
 the patent be given ; nor can it act as an expounder of the Patent 
 Law, nor as counsellor for individuals, except as to questions 
 -within the Office. 
 
 Jn Older to avoid unnecessary explanations and useless loss of 
 time and labour, it is particularly recommended that reference le 
 niade to the law before writing on any subject to the Patent 
 ( )ffice. 
 
 A co|)y of the Rules with a particular section marked, sent to 
 any person making an enquiry, will be deemed a respectful 
 answer by the Office. 
 
 'd 
 
 ■.*:', 
 
Appendix I.] 
 
 PATENT OFFICE RULES. 
 
 475 
 
 1 7. It is desirable, in the interest both of the applicant and 
 of the public service, that the papers and drawings should be pre- 
 pared by competent persons, as despatch and regularity in the 
 ] proceedings will be thereb}' promoted. 
 
 18. All business with this Office should be tnuisacted in writ- 
 ini:. The action of the Office will be based exclusively on the 
 written i-ecord. No attention will be paid to any alleged verbal 
 promise or understanding in relation to which there is any dis- 
 ai,'rfement or doubt. 
 
 19. Assignments of patents are to be accompanied by a copy 
 tliereof; the original will be kept in the Patent Office, and the 
 Copy will be returned to the person sending it, with ceititicate of 
 itgistration thereon. 
 
 *iO. All cases connected with the intricate and multifarious 
 proceedings arising from the working of the Patent Office, which 
 aiv nut specially defined and provided for in these Rules, will be 
 lifcided in accordance with the merits of each c;ise under the 
 aiitlioritv of the Commissioner; and such decision will be com- 
 muuicated to the interested parties in writing. 
 
476 
 
 PATENT OFFICE FOSHS. 
 
 [Appendix! 
 
 111!. P 
 
 PATENT OFFICE FORMS. 
 
 PETITIONS. 
 
 
 n 
 
 t : ■ 
 
 i 
 
 M 
 
 If : 
 
 lit 
 
 n 
 
 1 1 
 
 i; 
 
 'w 
 
 t ii 
 
 Hi 
 
 *'' i 
 
 'in 
 
 t 
 
 t 
 
 ■-) J 
 
 k . 
 
 FOBM 1. 
 
 BY A SOLE IXVESTOR. 
 
 To the Commissioner of Patents, Otiaica : 
 
 The petition of Joliii Sinitli, of tiie City of Toronto, in the Proviioe- 
 of Ontario, carpenter, showeth : 
 
 That he hatli invented new and useful iuiprovenieuts in niachii.-^ 
 for breaking stones, not known or used l\v others Wfire his invecii-c 
 theieof", and not being in public use or on s;ile. witn his cons-eiii < 
 allowance as such inventor, for more than one _ -^r previous to fci« 
 application, for a Patent therefor in Canada. 
 
 Your petitioner therefore prays that a Patent n)<»y'je ijnuittw to h"-. 
 for the said invention, as set forth in the sj>ecilio:»tion in daplicaie !-lt- 
 ting thereto, iind, for the purposes of the Patent Act. your iietiik- .-rf 
 elects his domicile in the City of Ottawa, Province of Ontario. 
 
 John Smith 
 
 ToBONTo, 1st September. 1887. 
 ISee noti: to sec. -7;?, p. Jfoo. 
 
 FOKM 2. 
 
 BY .lOlST INVENTORS. 
 
 1 ) the Commissioner o/ Patents, Ottatcn : 
 
 The petition of James Thoma-s. blacksmith, and G^HTje Rol^rr: 
 Major, tinsmith, both of the City of Ottawa, in the County of C*ri«:oo. ia 
 the Province of Ontario, showeth : 
 
 Tliat tiiey have jointly invented a new and useful improvtMuett iz. 
 the art or process of sepai-ating smut f:x>m wheat, not known or usr^j '^ 
 others before their invention thereof, and not Ijeing in public use -^ c 
 sale, with their consent or allowance as such inventors for more ihiz. 
 one year previous to their appli<?ation for a Patent therefor, in CaiHkia. 
 
 Your petitioners, therefore, pniy that a Patent may be gnmtei » 
 
Appendix I.] PATENT OFFICE FORMS. 
 
 477 
 
 n the Proviior 
 
 foHX Smith 
 
 them jointly for the said invention as set forth in the specification in 
 duplicate relating thereto, and, for the j)urpo8es of the Patent Act, your 
 petitioners elect their domicile in the City of Ottawa, Province of 
 t)ntario. 
 
 James Thomas. 
 
 George Robert Major. 
 t (TTAWA, 1st September, 1887. 
 
 See note to sec. 52, p. ^85. 
 
 Form 3. 
 
 BY AN assignee, OR LEGATEE, " MUTATIS MUTANDIS." 
 
 f.. thf Commissicmer of Patents, Ottava : 
 
 The petition of Solomon Lang, of the City of Boston, State of 
 Massachusetts, one of the United States of America, laborer, showeth : 
 
 That Thomas Tardy, of the City of Ottawa, Province of Ontario, 
 siloon keejier, hath invented new and useful improvements in planing 
 [u ichiues not known or used by otheis before his invention thereof, and 
 n<>t lieing in public use or on .sale, with the consent or allowance of tiie 
 ^.liil Thomas Tardy as such inventor, for more than one year previous to 
 this application, for a Patent therefor in Canada. 
 
 That your petitioner, by assignment bearing date 1st k^eptember, 
 I>S7, acquired the right of obtaining a Patent from Thomas Tardy, 
 toresaid, for the said invention. 
 
 Your petitioner therefore prays that a Patent may I* granted to 
 :i:a, as the assiarnee of the said Thomas Tardv, for the sjiid invention as 
 »-t forth in the specification in duplicate relating thereto, and for the 
 • I ir poses of the Patent Act, your petitioner elects his domicile in the 
 ' ity of Ottawa, Province of Ontario. 
 
 Solomon Lan«;. 
 New York, 1st September, 1887. 
 
 See note to sec. 5,i, p. JfSB. 
 
 Form 4. 
 
 BY AN INVENTOR AND AN ASSIGNEE. 
 
 f' '/(^ Commissioner of Patents, Ottawa: 
 
 The petition of John Smith, of the City of Toronto, in the Province 
 I Ontario, carpenter, and David Brown, of the City of N«w York, in 
 the State of New York, one of the United States of America, painter, 
 ihoweth : 
 
 That the said Jolin Smith hath invented new^ and useful improve- 
 ^eut;i in machines for breaking stones, not known or used by others 
 
f 
 
 ¥ 
 
 .t 
 
 f t 
 
 '■ 
 
 I 
 
 478 
 
 PATENT OFFICE FOBMS. 
 
 [Appendix I. 
 
 before his invention thereof, and not being in public use or on sale, 
 with his consent or allowance as such iuventoi', for more than one year 
 j»inevioas to this application, for a Patent therefor in Canada. 
 
 That by assignment, dated on the 1st September, 1887, the said Joliu 
 Tfuiith transferred to the said David Brown, an undivided one half inter- 
 <e*t in the said invention 
 
 Year i)etitioners therefore jiray that the Patent may be granted to 
 them jointly for the said invention as set forth in the speciticatioii in 
 (iopUciite relating thereto, and, for the purposes of the Patent Act, your 
 [•etitioners elect their domicile in the City of Toronto, Province oi 
 I Intario. 
 
 JoHX Smith, 
 David Brown. 
 TuBOMO, 1st September, 1887. 
 
 iSye note to sec. 52, p. 4'3o. 
 
 Form 5. 
 
 BY AN ADMINISTRATOR OR EXECUTOR. 
 
 i. a 
 
 1 -M 
 
 To the Commissioner of Patents, Ottarva: 
 
 The petition of James Clayton, of the City of Kingston, in the 
 Province of Ontario, stone-cutter, administrator ot the estate (or execu- 
 tor of the last will and testament) of Tuonms Claytun, in his lifetime, of 
 the said City of Kingston, decea.setl, millwright (as reference to the duly 
 certitietl copy of letters of administration (or letters testamentary) 
 hereto annexed will more fully appear), showeth : 
 
 That the sjiid Thomas Clayton did invent a new and useful composi- 
 lioii of matter for making artificial stone, not known or used l)y otliers 
 Ijefore his invention thereof, and not lieing in jmblic use or on sale, witli 
 the cuasent or allowance of the !?aid Thomas Clayton as such inventor. 
 fur more than one year previous to this application for a Patent therefor. 
 in Canada. 
 
 Your jietitioner therefore prays that a Patent may be granted to liiin 
 3k& administrator (or executor) of the estate of the p>aid Thomas Clayton 
 for the said invention, as set forth in the s|)ecitication in duplicate relat- 
 ing thereto, and for the purposes of the Patent Act, your petitioner 
 elect:> his domicile in the City of Ottawa, Province of Ontario. 
 
 James Clayton. 
 
 KiSGSTOX, ] st Septend>er, 1887. 
 See note to sec. o-2y p. 435. 
 
Appendix I.] PATENT OFFICE FORMS. 479 
 
 Form 6. 
 
 FOR A REISSUE (BY THE INVENTOR). 
 
 To t/ie Commissioner oj" PaiKtUs, Ollawa . 
 
 The petition of Tliomas Brown, in the City of Ottawa, in the Pro- 
 vince of Ontario, lumber niannt'acturer, showeth : 
 
 That your petitioner o!)taine(l a Patent bearing date the twelfth ilav 
 of August, A.D. 1886, for i new and useful improvement in churns. 
 
 Tiiat the j»etitioner is advised that the said Patent is deemed de- 
 ftHtive or ino|)erative by reason of insutticient description or speciticatinn, 
 and that the errors arose from inadvertence, accident or mistake, with- 
 out any fraudulent or dece|>tive intention. 
 
 Your petitioner l>eing desirous of obtaining a new Patent in accord- 
 ance with the amended description and specification in duplicate, ihert- 
 fore prays that lie mav be allowed to surrender the aforesaid Patent, 
 and a new Patent be granted to him, in accordance with the amendeti 
 description and s|)ecitication of the said invention, for the unexpired 
 period for which the original Patent was granted. 
 
 Thomas Browx. 
 Ottawa, 1st September, 1887. 
 
 .*?«e nots to sec. o2, p. 4^6. 
 
 Form 
 
 Es Clayton. 
 
 FOR A REISSUE (BY THE ASSIGNEE). 
 
 To lite Commissioner of Patents, Ottaua : 
 
 Tlie |>etition of David Lane, of the Town of Cobonrg. in the County 
 of Northumberland, Province of Ontario, tanner, showeth : 
 
 That your petitioner, V.y assignment, l)earing date the "^4111 day of 
 June, 1887, obtained the exclusive right to ii Patent granted to Thomas 
 Tardy, of the City of Ottawa, Province of Ontario, broom maker, on the 
 Ist of July, 188.T, for new and useful improvements in planing machines. 
 
 That your j>etitioner is advised that the said Patent is deemed dt - 
 teitive or inoperative by reason of insntKcient description or specification. 
 ami that the error arose from inadvertence, accident or mistake, without 
 any fraudulent or deceptive intention. 
 
 Your petitioner being desirous of obtaining a new Patent in accord- 
 ance with an amended description and specification in duplicate. iIhmv- 
 tbie prays that he may be allowed to surrentler the atbresjiid Patent. 
 anil that a new Patent be gninted to him, as assignee of the said Thoma.s 
 Titrdy, in accordance with the amended description and specification of 
 
480 
 
 PATENT OFFICE FORMS. 
 
 [Appendix I. 
 
 '•f-M 
 
 ? f^ 
 
 P 
 
 m 
 
 the said invention, for the unexpired period for which the original Patent 
 w.is granted- David Lane. 
 
 CoBOL'RG, 1st September, 1887. 
 
 (The aljove form is to be altered to suit the case, when the reissue 
 is to the administrator or executor of a deceased inventor.) 
 
 See note to tee. J~, p. 4^6. 
 
 Form 8. 
 scrrexder to be written on the original patent. 
 
 To all to ichom //«**« presents shall come, Thomas Brown, of the. City <•{ 
 Otttura, in tha Province of Ontario, lumber manufacturer, within 
 nttmetf, ^nds greet iuy : — 
 
 Whereas the within written Patent, for an improveraeut in churns. 
 is deemed defective or inoperative by reason of insufficient description 
 or specification, sind the error arose from inadvertence, accident or mis- 
 rake, without any fraudulent or deceptive intention, and the Commis- 
 sioner of Patents accordingly, in pursuance of the statute in such 
 resjtects. hath ;i5T««d to accept the surrender of the same ; 
 
 Now, know ye that the said Thomas Brown, within named, dotli by 
 these jtreseuts, surrender and yield np the within written Patent, 
 granted to him for improvements in churns, and bearing date the f^th 
 day of June, 18S6. 
 
 In witness whereof the said Thomas Brown hath set his hand and 
 alfixeil his seal this first day of September, A.D. 1887. 
 
 Thomas Brown. [L.S.J 
 
 Signed, sealed and delivered at the City of Ottawa, in the County of 
 < 'arleton, in the Province of Ontario, in the presence of 
 
 Henry Cockbur.v 
 
 ■■.....5 
 
 Form 9. 
 for the certificate of payment of fee for further term (inve.ntok). 
 
 7\) the Commisfioner of Patents, Ottawa : 
 
 The petition of M.irtin Scott, of the City of Montreal, in the Proviuce 
 oi Quel>ec, cooper, showeth : 
 
 That on the 23iil June, 1883, your petitioner obtained a Patent for 
 new and useful improvements in churns on which the partial fee for live 
 {ov ten) years was paid. 
 
 That he ii tlie holder of the said Patent, and therefore prays that th«' 
 usual certificate of jiayment of fee for a second (or third) term may >* 
 attached thereto. 
 
 Signed tiiis first day of September, 1887. 
 
 Martin Scott. 
 
Appendix I.] 
 
 PATENT OFFICE FORMS. 
 
 481 
 
 sinal Patent 
 
 n the reissue 
 
 Form 10. 
 for the certificate of payment of fee for further term (assignee). 
 
 To the Commissio7ier of Patents, Ottniva : 
 
 The petition of Simon Smith, of the City of Halifax, in the Province 
 ui Xova Scotia, mariner, showeth : 
 
 That by assignment, dated 1st July, 1887, he obtained from John 
 ilrown, of the ViUage of Bridgetown, in the County of Annapolis, in the 
 Province of Xova Scotia, stonemason, the exclusive right to a Patent 
 granted on the 27th June, 1886, to the said John Brown, for new and 
 useful improvement in ploughs, on which the partial fee for five (or ten) 
 years was paid. 
 
 That your petitioner being the holder of the said Patent therefore 
 juays that the usual certificate of payment of fee for a second (or third) 
 tt-rm may be attached thereto. 
 
 Signed this first day of September, 1887. 
 
 Simon Smith. 
 
 Form 11. 
 
 his hand and 
 
 Cock burn. 
 
 RM (iNVEXTOBl 
 
 n the Province 
 
 POWER OP ATTORNEY. 
 
 Tu the Commissioner of Patents, Ottatva : 
 
 The undersigned, John IBrown, of the Town of Cornwall, in the 
 county of Stormont, in the Province of Ontario, storekeeper, hereby 
 jippoints John Smith, of the City of Ottawa, Province of Ontario, his 
 attomey, with full power of substitution and revocation, to prosecute an 
 application for new and useful improvements in sewing machines ; to 
 >ii,'n the drawings, to receive the Patent and to transact all business in 
 tlie Patent OtHce connected therewith. 
 
 Signed at Cornwall, this first day of September, 1887. 
 
 In the presence of John Buowx. 
 
 John Smith. 
 
 Form 12. 
 
 iRTiN Scott. 
 
 REVOCATION OF POWER OF ATTORNEY. 
 
 To the Commissioner of Patents, Ottawa: 
 
 The undersigned, John Brown, of tiie Town of Cornwall, in the 
 bounty of Stormont, in the Province of Ontario, storekeeper, having on 
 or about the 1st September, 1887, appointed John Smith of the City of 
 
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 482 
 
 PATENT OFFICE FORMS. 
 
 [Appendix I. 
 
 Ottawa, Province of Ontario, his attorney, to prosecute an application 
 for a Patent for new and useful improvements on sewing machines, 
 hereby revokes the power of attorney then given. 
 
 Signed at Cornwall, this thirteenth day of September, 1887. 
 
 In the presence of John Brown. 
 
 John Smith. 
 
 SPECIFICATIONS. 
 
 {To he in duplicate.) 
 
 Form 13. 
 
 fob a machine. 
 
 To all whom it may concern : 
 
 Be it known that I, William Woodworth, of the Town of Pough- 
 kefpsie, in the County of Duchess, in the State of New York, geiitle- 
 niau, having invented certain new and useful improvements in planing 
 machines, do hereby declare that the following is a full, clear, and 
 exact description of the same, reference being made to the accompanying 
 drawing in which : 
 
 F'igure 1 is a side elevation of a machine embodying my invention. 
 
 Figure 2 is a plan of the same. 
 
 Figure 3 is an elevation showing the end of the machine which is at 
 the right hand in tigure 1. 
 
 Figuie 4 is a vertical traverse, section showing those parts of tlie 
 machine which are at the right hand of tiie line x x drawn across figures 
 1 and 2. 
 
 The first part of my invention relates to the combination of rotary 
 cutters and feeding rollers, etc. 
 
 The second jtart of my invention relates to the combination, with 
 feeiling rollers and rotary cutters, etc. 
 
 (Here follows a full description of the machine and dratcing.) 
 
 I make no claim to the mode in which the cutters are secured upon 
 their shaft, nor to the adjustable bearings, which permit of the elevation 
 or depression of the shaft, for I am aware that these are not new ; but 
 what I claim as my invention, and desire to secure by Patent, is : 
 
 1st. The combination of the cutters E, E, and the feeding rollers I, 
 I, J, J, substantially as and for the purpose hereinbefore set forth. 
 
 2t»d. The combination, with the cutters E, E, and the feeding rollers 
 
Appendix I.] 
 
 PATENT OFFICE FORMS. 
 
 488 
 
 1, I, J, J, of the cutters L, M, substantially us and for the purpose here- 
 inbefore set forth. 
 
 William Woodworth. 
 PouGHKEEPSiE, 4th September, 1887. 
 
 Signed in the presence of \ 
 
 Jethro Wood, > 
 Oliver Evans. j 
 
 xV. B. — In this case the draivings shown in the Patent Office Forms as 
 fiDinected with this specification, do not relate thereto at all, heiny for a 
 (liferent device altogether, they have been inserted by mistake, and are not 
 inserted in this tvork. 
 
 See note to sec. 52, pp. ^35-G. 
 
 Form 14. 
 
 DRAWINGS. 
 
 {To be in duplicate.) 
 
 Each sheet on tracing linen shall contain the following : The title 
 -it the invention on the top of the sheet ; the following certificate at the 
 Idittom : " Certified to be the drawings referred to in the specification 
 liereunto annexed," and signed by the inventor or his attorney ; place, 
 (late, and signature of two witnesses. 
 
 Note by Editor. — The title of the invention is never required now 
 tu he on the top of the sheet. 
 
 See note to sec. 52, p. 436. 
 
 m 
 
 Form 15. 
 for an art or process. 
 
 To all whom it may concern : 
 
 Be is known that we, Marion Ellsworth, of Chicago, County of Cook, 
 ;uiil State of Illinois, gentleman, and Josejih Richard Shaw, of Indian- 
 aiiolis, County of Marion, and State of Indiana, gentleman, have jointly 
 invented a new and useful improvement in the art or process of sepa- 
 liiting smut and other impurities from wheat, and we do hereby declare 
 tliitt the following is a full, clear and exact description of the same : 
 
 Take of lime, newly slaked and while yet warm, one -and a half 
 lioiuids to each one hundred pounds of wheat. Mix the lime well with 
 the wheat, let it stand one hour, then pass it through a smut mill in 
 the usual way and it will be found that all the lime, smut, dirt and 
 othor impurities of every kind attached to the tvheat, and which no 
 smut mill without our liming process will fully separate, will be entirely 
 
 1 h 
 
h > 
 
 »: 
 
 1,'') 
 
 484 
 
 PATENT OFFICE FORMS. 
 
 [Appendix I. 
 
 removed, and the flour will be as white and as sweet as thougii inndc 
 from the best of wheat. 
 
 We are aware that lime has l)efore been used for the purpose of 
 cleaning wheat, being first mixed with the grain, as al)0ve pro[)oso(i, and 
 the whole being then jtassed through a smut mill ; but in all previous 
 processes, so far as we are aware, the lime has been used in a cold state, 
 and for this i-eason such processes prove ineflectual. We propose to 
 take lime iicifli/ sldked, (ind icJiih; ije.l icann. 
 
 What we claim as our invention, and desire to secure by Patent, is : 
 the process of cleaning wheat bv mixing with it lime newly slaked ai i 
 warm before passing it through a smut mill, so as to cleanse the wlieat 
 from all impurities, substantially as described. 
 
 Marion Ellswoktii. 
 JosKi'ii II. Shaw. 
 
 Ohicaoo, 1st September, 1887. 
 
 Signed in the presence of \ 
 
 Maurick Jones, |- 
 Henry Elias. ) 
 
 Form 1G. 
 
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 FOR A COMPOSITION OF MATTER, 
 
 To all inhovi it imn/ concern : 
 
 Be it known that I, Ebenezer Whitney, of the City of Charleston. 
 in the District of Charleston and State of South Carolina, gentleman. 
 am tlie administrator of the estate of Benjamin Browning, in his lifetin:i- 
 of the said city, gentleman, and that the said Benjamin Browning diil 
 invent a certain new and useful composition of matter to be used in the 
 manufjicture of wool, and T do hereby declare that the following is a t'ull. 
 clear and exact description of the same : 
 
 The nature of the invention of the said Benjamin Browning consists 
 of mixing olive, lard or rape-.seed oil, with a solution of soap dissoivcil 
 in hot water. 
 
 To prepare the wool oil, take a quantity of oil soap of any kind, yv- 
 vided the quality is good, and dissolve the same in hot water, say ahotit 
 thirty pounds of oil soa]) in thirty gallons of water, or a sutlicient (|Uiiii 
 tity of soap to saturate the water. Then take equal parts, by measuiv. 
 of olive, lard, rape-seed, or any other kind of oil which can be used cm 
 wool in the proce.ss of its manufacture, and mix it with the prepanxtiim 
 aforesaid, to wit, the soap solution ; which, after such mixture, is re.uly 
 to be used on wool with as beneficial an effect as if pure oil only liati 
 been used. This wool oil will not decompose by age, because the oil of 
 soap neutralizes the stearine in the oil, hence there is nothing to decoiu- 
 
Appendix I.] 
 
 PATENT OFFICE FORMS. 
 
 485 
 
 f Charleston. 
 
 pose. Ami for the Hiiine reiiHOU spontanoous combustion cannot he 
 producech 
 
 What I chiim as the invention of tlie said Benjamin Browning, and 
 desire to .secure by Piitent is : a compound composed of any of tlie oils 
 ordinarily used on wool in its manufacture, and a solution of oil soap, 
 substiintially in the proportions and for the pusposes set forth. 
 
 Ehenezer Whitney, 
 
 Ailniinistrator. 
 <Jhakleston, 1st September, 1887. 
 
 Signed in the jiresence of | 
 
 John James, > 
 Henuy Smith. ) 
 
 OATHS. 
 
 Note. — Where oaths are made out of Canada, and before a Judge, 
 the seal of the court, presided over by such judge, should be affixed, and 
 if before a notary public, his seal should be affixed to such oaths. 
 
 When the invention has been assigned before the issue of Patent the 
 affidavit must be made by the "inventor," not by the " assignee." 
 
 If the inventor is dead, the administrator or executor will make the 
 affidavit that the person named as inventor was the inventor. 
 
 See note to sec. h2, pp. ^36-7. 
 
 Form 17. 
 
 BY SOLE inventor FOR HIMSELF. 
 
 CANADA, ) 
 
 Province of Ontario, > 
 County of York. ) 
 
 I, John Smith, of the City of Toronto, in the County of York, in'the 
 I'riivince of Ontario, carpenter, make oath and say, that I verily believe 
 tliut I am the inventor of the new and useful improvements in machines 
 toi- breaking stone, described and claimed in the specification in dui>licate 
 relating thereto, and for which 1 solicit a Patent by njy petition, dated 
 1st of September, 1887. And I further say that the several allegations 
 contained in the said petition are respectively true and correct. 
 
 John Smith. 
 
 Sworn before me, at the City of Toronto, the first day of September, 
 
 1 S87. 
 
 Thomas Brown, 
 
 J. P. for the County of York. 
 
 See note to sec. 52, pp. j^36-7. 
 
 i 
 
I 
 
 486 
 
 i 1 
 
 I 
 
 III 
 
 PATENT OFFICE FORMS. [Appendix I, 
 
 Form 18. 
 
 *io, [ 
 
 JOINT INVENTORS. 
 
 CANADA, 
 
 Pkovince of Ontario. 
 County of Carleton. 
 
 We, James Thonia.s, of the City of Ottawa, in the County of Carleton, 
 in the Province of Ontario, in the Dominion of Canada, blacksmith, and 
 George Rol)ert Major, of the same place, tinsmith, do hereby severally 
 make oath and say, 
 
 Ist. I, this dejKjnent, James Thomas, for myself do hereljy make oaili 
 and say that 1 verily Ijelieve that T and the said Oeorge Robert Major 
 are the inventors of the new and useful improvement in the art or pro 
 cess of separating smut from wheat, described and claimeil in the si^ci- 
 fication in duplicate relating thereto, for which we solicit a Patent l.y 
 our petition to the Commissioner of Patents, dated 1st September, 18^7. 
 And I further say that the several allegations contained in the said 
 petition are respectively true and correct. 
 
 2nd. I, this deponent, George Robert Major, for myselt do hereby 
 make oath and say that 1 verily believe that I and the above named 
 James Thomas are the inventors of iht^ new and useful improvement in 
 the art or process of separating smut from wheat, described and claimed 
 in the specification in duplicate, relating thereto, for which we solicit a 
 Patent by our petition to the Commissioner of Patents, dated first 
 September, 1887. And I further .say that the several allegations con- 
 tained in the said petition are respectively true and correct. 
 
 James Thomas, 
 George Robert Ma.ior. 
 
 Sworn before me, by the said .James Thomas and George Robert 
 Major, the tirst day of September, 1887, at the City of Ottawa. 
 
 John Smith, 
 
 J. P. for the County of Carleton. 
 
 See note to sec. 52, pp. 4.36-7. 
 
 Form 19. 
 
 by sole inventor for himself and assignee. 
 
 CANADA, ) 
 
 Province of Ontario. > 
 County of York. ) 
 
 I, John Smith, of the City of Toronto, in the County of York, in 
 the Province of Ontario, carpenter, make oath and say, that I verily 
 believe that I am the inventor of the new and useful improvements in 
 
Appendix I.] 
 
 PATENT OFFICE FORMS. 
 
 48: 
 
 machines for breaking stone, described and claimed in the Hpecification 
 in duplicate relating thereto, and tor which I (and Edwin Morrison) 
 solicit a Patent by our iietition, dated 1st of September, 1887. And 1 
 further say tijat the several allegations contained in the said petition are 
 respectively true and correct. 
 
 John Smith. 
 
 Sworn before nie, at the City of Toronto, the first day of September, 
 
 1S87. 
 
 Thomas Brown, 
 
 J. P., for the County of York. 
 
 iSee note to sec. 5?^ pp. 4^^6-7. 
 
 Form 20. 
 uy sole inventor for assignee only. 
 
 CANADA, I 
 
 Province of Ontario, :> 
 
 Count// of York. ) 
 
 I, John Smith, of the City of Toronto, in the County of York, in 
 tlif Province of Qntario, carpenter, ninke oath and say, that I verily 
 Relieve that I am the inventor of the new and useful iniprovemeiits in 
 machines for breaking stone, described and claimed in the specification 
 ill liuplicate relating thereto, ana for which James Goodwin solicits a 
 Patent by his petition, dated 1st of September, 1887. And I further 
 say tiiat the several allegations contained in the said petition are re- 
 spectively true and correct. 
 
 John Smith. 
 
 Sworn before me, at the City of Toronto, the first day of September, 
 
 1SS7 
 
 Thomas Brown, 
 
 J. P. for the County of York. 
 
 See note to see. 52, pp. .^30- 7. 
 
 Form 21. 
 for a reissue ( inventor). 
 
 10, t 
 
 CANADA, 
 
 EVINCE OF OnTABK 
 
 County of Carleton. 
 
 I, Thomas Brown, of the City of Ottawa, in the Province of Ontario, 
 hiiiibpr manufacturer, make oath and say that the several allegations 
 contained in ;iy petition to the Commissioner of Patents, dated 1st of 
 
488 
 
 PATENT OFFICE FORMS. 
 
 [Appendix I. 
 
 September, 1887, for a reissue of the Patent granted to ine on the 4th 
 of September, 1886, for a new and useful inipro:'ement in churns ;ii-e 
 respectively true and correct ; 
 
 Tliat I am the sole owner of the said Patent ; 
 
 And that I am the inventor of the improvement set forth luul 
 claimed in the amended specification in duplicate relating thereto. 
 
 Thomas 13;:o\vx. 
 
 Sworn before me, at the City of Ottawa, in the Ccumty of Carleioi;, 
 in the Province of Ontario, this first day of September, 1887. 
 
 William Mills, 
 
 J. P. for the County of Carleton. 
 
 Note. — If the Patent has not been exclusively assigned, the attiduv it 
 must state that the application for reissue is made with the consent of 
 the assignees. 
 
 See note :o sec. o2, pp. 43G~7. 
 
 m 
 
 Form 22. 
 
 for a reissue (assignee of the entire interest). 
 
 CANADA, I 
 
 Province of Ontario, > 
 
 County of Carleton. ) 
 
 I, David Lane, of the Town of Cobourg, in the County of Northuni- 
 berlaiid, Province of Ontario, tanner, make oath and say that the several 
 allegations contained in my petition to the Commissioner of I'atents, 
 dated 1st September, 1887, for a reissue of the Patent granted to 
 Thomas Tardy, of the City of Ottawa, Province of Ontario, broom 
 maker, for new and useful improvements in planing machines, ai-e re- 
 spectively true and correct ; 
 
 That I am the sole owner of the said ' ;. .ent ; 
 
 And tliat Thomas Tardy was the inventor of the itnprovements set 
 forth and claimed in the amended speciHcation in duplicate relating 
 thereto. 
 
 David Lane. 
 
 Sworn before n»e, at the Town of Col>ourg, in the County of North- 
 umberlantl, Province of Ontario, this first day of September, 1887, 
 
 Thomas Parsons, 
 
 J. P. for the County of Northuniljerland. 
 
 See note to sec. .'7^^, pp. Jf36-7. 
 
 hY-^ 
 
 
M 
 
 Appendix I.] 
 
 PATENT OFFICE FORMS. 
 
 Form 23. 
 
 489 
 
 CAVEAT. 
 
 To the Commissioner of Patents, Ottawa : 
 
 TIjo umltMvsigneil, .James Tliompsoii, of New Bliiiburgli, i:i the 
 ''ouiity of Kussell, in the Province of Ontario, school tesicher. an intend- 
 :ngaj)i>licant for a Patent, who lias made certain new and useful improve- 
 iiifnts in locomotive engines, and has not perfectetl his invention, prays 
 fhat his specitication may be tiled as a Careat in the Patent Ortice. 
 Here describe the invention as far as possible, an«l refer to letters in 
 • iniwing, as in specitication given before. Form No. 13.) 
 
 James Thompson. 
 
 CANADA, ] 
 
 Province of Ontario, '^ 
 
 f'liunti/ of Russell. ) 
 
 I, James Thompson, of New Edinburgh, in the County of Russell, 
 Province of Ontario, school teacher, make oath and say that I am tae 
 inventor of the invention described in the foregoing sjiecification, and 
 tliat the allegations contained therein are re.s|>ectively true and correct. 
 
 James Thompson. 
 
 Sworn before me, at New Edinburgh, the first day of September, 1887. 
 
 Ale.vander Bush, 
 
 J. P. for the County of Russell. 
 
 chines, are re- 
 
 >avid Lank. 
 
 ASSI(;NMENTS. 
 Form '1\. 
 
 "V AN ENTIRE INTEREST (OK AN UNDIVIDED ONK-HALK I.NTERKST) IN AN 
 INVENTION HEFORE THE ISSUE OK P.\TENT. 
 
 In consideration of the sum of ten dollars, to me |«id by Solomon 
 l/mg, of the City of Montreal, I do hereby sell aiid assign to the .saitl 
 S >loiuon Lang all (oi an undivided half of all) my right, title, and interest 
 iu and to my invention for new and useful improvements in planing 
 iiKtihines, as fully set forth and descril)ed in the .specification which I 
 iiiive signed pre|)aratory to obtaining a Patent. And I do hereby 
 tuthorize and request the Coiumissioners of Patents, to issue the stid 
 
490 
 
 PATENT OFFICE FORMS. 
 
 [Appendix I. 
 
 Patent to tlie said Solomon Lang (or jointly to mvself and tlie &>..^ 
 Solomon Lang) in accordance with this assignment. 
 
 Witness my hand and seal this tirst day of September, 1S87. at xht 
 City of Montreal. Thomas Lobd. [LSl" 
 
 See note to sec. o2, p. 4-^7. 
 
 Form 25. 
 
 OF AN ENTIRE INTEREST IX A PATENT. 
 
 In consideration of five huudreil dollars, to me paid by Xat^jm 
 Wilcox, of Koekuk, Iowa, I do hereby sell and assign to the said Xadtan 
 Wilcox, all my right, title iind interest in and to the Patent of Cauda. 
 No. 23,460, for an improvement in locomotive head lights, granted to 
 me July 30, 1878, the same to lie held hy and enjoyed by the s»id 
 Nathan Wilcox to the full end of the term for which said Patect i> 
 granted, as fully and entirely sis the s;»me could have been held as-i 
 enjoyed by me if this assiginnent and sale had not been made. 
 
 Witness my hatnl and seal this first day of September. 18S7. -.i 
 Keokuk, Iowa. Horace Kimbalu 'L?^." 
 
 See note to sec. o2, p. 4'^7. 
 
 Form 2ti. 
 
 DISCLAIMER. 
 
 (To he in dnplicatf.) 
 
 I, Willir.m Lookup, of the City of Hull, iu the County of (iHtava. vi 
 the Province of Q\iel)ec, having on the 1st September. 1SS7. obtained * 
 Patent for tlie Dominion of Canada, for new and useful improvemect» r: 
 waggon brakes : 
 
 And tlirougli mistake, accident or inadvertence, without any wi.:u. 
 intent to defraud or mislead the public, I have niide the claim in ii. 
 specitication too broad (t»r as lieing the inventor of a material or »:; • 
 stantial part of the invention {lateiited of which I was not the inven:.--. 
 and to which I had no legal right) : 
 
 I, therefore, hereby disclaim the [«rt of the claim in the sj>eoificatkv_ 
 which is in the following words : 
 
 " T al.so claim the use of the lever A, in combination with crank !• 
 as described." Wiluaji Looki > 
 
 Hull, 30th September, 1887. 
 
 Signed in duplicate in the \ 
 
 presence of ' 
 
 David Brows. «' 
 
 Francis Lemieux. i 
 
 See .lote to sec. '»2, p. ^37, alto note to tec. 2^^ pp. 199^ 200^ 
 
 wfii'' fonn is set out. 
 
Appendix II.] 
 
 GENERAL FCSMS. 
 
 491 
 
 APPENDIX II. 
 
 c-laini in csy 
 
 GENERAL FORMS AND FORMS IN THE EXCHEQUER 
 
 COURT (CAN.). 
 
 Form 27. 
 
 SUMMONS. 
 
 In the Exchequer Court of Catuula. 
 See Form following Form 41. 
 
 Form 28. 
 
 warrant for particulars. 
 
 fn tfic Exchequer Court of Cav^da. 
 
 See Form after Form 27 (following Form 41.) 
 
 Form 29. 
 
 a«slr,xmenr by agent in england who has taken out patent for 
 the united kingdom as a communication from abroad to an 
 assignee, at request ok inventor. 
 
 This Indenture made the <lay of ,18. 
 
 lift ween of in the City of , Fellow 
 
 ')t'th»' Institute of Patent Agents, of the first i«irt : of 
 
 , France, Engineer, of the acond part : and , 
 
 jurying on business at , hereinafter lied the assignee, of the 
 
 thirti I Wilt. 
 
 Whereas the said is the grantee <>f letters Patent for 
 
 title) dated the day of , IS , No. 
 
 And whereas the invention, the sultject of the said Letters Patent, 
 TiiH communicated to the said by the said 
 
 and the said Letters Patent were H|i]>lied for ami obtaine<l, and 
 ^'» !iow hold by the said on Itehalf of and as trustee 
 
 fnr the said 
 
 .\nd whereas the said has ref|ueste<l th*» said 
 
 to assign the- whole interest in the said Letters V&- 
 >rd to the said assignee. 
 
492 
 
 OENEBAL FORMS. 
 
 [Appendix II. 
 
 Now this Indenture witnessetli, that in pursuance of such reiiuest, 
 :%nd in consideration of tlie sum of by the said assignee to the 
 
 -said well and truly paid, the receipt whereof is hereby 
 
 acknowiedired, the said hereby assigns unto tin; said 
 
 assignee, hi> heirs, executors, adniinistmtors and assigns, and which hs- 
 si::niut-nt the said conHnns by his signatiuo to, and ex- 
 
 ecution of tht'af I ireseiit-s. all tliose the Letters I'ateiit respectively 
 hereinbefore mentioned, and the full and exclusive benefit and ml- 
 vantaire. and all the right, title, interest, benefit, j)roperty, claim and 
 demand what.>oevei- of him tiie sjiid into, upon, 
 
 or in respect of the said Letters Patent, to have, hold, use, exercise 
 and enjoy the said Letters Patent unto and by the said assignee, liis 
 heirs, executors, administrators and assigns, for their sole use and 
 benefit. And the said doth herehy 
 
 for himself, his heirs, executors, and administrators, covenant with the 
 said assignee, liis lieirs, executors, administrators and assigns that he 
 hath not at any time heretofore made, done, committed, or suffered any 
 act, deed, matter, or thing whatsoever, whereby or by reason whereof, the 
 said Letters Patent and premises, or any of the privileges thereby 
 grantetl. have l)een atlecteti, encund>ered, or iujpeached in title, estate, 
 or otherwise whatsoever. 
 
 In witne.ss whereof, the parties hereto have hereunto set their hands 
 and seals, the day and year fiist alx)ve written, at the City of 
 >?igned, sealed and delivered, (^ 
 in presence of | 
 
 Form 30. 
 
 KOBM OF ASSUJKMEXT OF PATENT FOR THE fNITED KIN(}D01I TO INVENTOH 
 
 BY COMMUNICANT. 
 
 P\ 
 
 This Indenture, made the day of , 18 , 
 
 Between , hereinafter called the Assignor, of the 
 
 tirst part ; and . hereinafter called the Assignee, of 
 
 the second part. 
 
 Whereas, by Letters l*aient, dated the day of , If* i 
 
 and numJiered . Her present ^lajesty Queen Victoria did give und 
 
 icnnt to the Assignor her esj>eciai license, full power, sole privilege and 
 autliority that the Assignor, liis executors, administrators, assigns, liy 
 himself, his agent.s, or licensees, and no others, might at all times tliei-e- 
 after during the term «)f fourteen years from the date of the sjiid 
 L#»tlers Patent, make, use, exercise, .'.nd vend within the Uinted King- 
 •iom of Great Britain and Ireland ami Lsle of Man, in .such maimer lus 
 to him or them might .seem meet an invention of , being a com- 
 
 nmnic-ation to him from abroad l)y the Assignee. 
 
 And whereas, the said Letters Patent were so obtained as aforesaid 
 bjr the Assignor, as agent for and on Ijehalf of the Assignee. And tlie 
 
Appendix II.] 
 
 GENERAL FORMS. 
 
 493 
 
 Assignor is possessed of the said invention and Letters Patent as a 
 trustee for the Assignee. And whereas tlie Assignee recjuested tlie 
 Assignor to execute such an assignment of tiie said invention and Lettoi's 
 Patent ns is hereafter contained. 
 
 Now, this Indenture witness .hthat in pursuance of the said re(|uest, 
 and in consideration of the pn iiises, the Assignor doth lieroliy. as trustee. 
 tts.sign and convey unto the Assignee , executors. ;idiiiinistrator.s, 
 
 and assigns, all that th<' said invention herciiihefore mentioned, and the 
 h<'reinhetore recited Letters Patent, and the full and exclu.sive henetit 
 and advantage thereof respectively, and of any extension of the tt'ini 
 ot" the said Letters Patent, and all rights, lienetits, and advantagt-s 
 wiiatsoever to the same invention, Letters Patent, and premist^s heloiiLj- 
 ing, to iiold the same unto the Assignee , executors, admii'is- 
 
 trators and as.signs, during all the residue now unexpired of the said 
 term of fourteen years l>y the said Letters Patent granted, and duriiii; 
 any extension of the .said term. 
 
 Tn witness whereof the Assignor has hereunto set his hand and seal 
 the day and year Hrat above written, at the City of 
 
 Sit^ned, sealed and delivered hv the 
 above named , in 
 
 the presence of 
 
 ! 
 
 F0R.M M. 
 
 iM TO INVENTOK 
 
 Assignor, of the 
 liie Assignee, of 
 
 LICENSE — SIIOI' UKillT. 
 
 In consideration of the sum of dollars, paid by ,. 
 
 of , in the County of , I'rovince of 
 
 Canada, the receipt whereof is hereby acknowledged, I do hereliy license 
 ami en. power the said to mamifaotiite in said (place 
 
 aijieed upon), and not el-sewliere the (title of invention) for which 
 Liters Patent of the Dominion of Canada, Xo. were granted to 
 
 nic on the day of , IS , and to sell the niacliiiies .so 
 
 manufactured tliroughout the Dominion of Canada, to the full end of 
 tlic term for which saiil Lettere Patent or any reissue thereof are or may 
 he granted. 
 
 Signetl at the of , in the County of , 
 
 ami Province of , Canada, this day of , 
 
 A.l). 18 . 
 
 Witne 
 
 vSH. 
 
 A. li. 
 
 N'.B. — This may 1m' an instrument under seal, when it will concluile 
 as signed and sealed, etc., and signed, sealed and delivered, in the 
 inesence of (witness or witnesses). 
 
 # 
 
494 
 
 GENERAL FOBMS. 
 
 [Appendix II. 
 
 f; 
 
 Form 32. 
 
 LICEKSE (yOT exclusive) WITH ROYALTY. 
 
 This Agreement made this day of > 18 , 
 
 Between of in the County of and 
 
 Proviuce of , Canada, of the first part, and 
 
 of the County of and Province of , Canada, of 
 
 the .second jiart. 
 
 Witnesseth, that whereas Letters Patent of the Dominion of 
 (.""iinada, Na . tor (title of invention J, were granted to the jmrty of 
 the first jiart under date of , 18 . 
 
 And, whereas, the jiarty of the second part is desirous of manufac- 
 turing containing said patented improvement (or manufactur- 
 ing tlie article or deWce disclosed in said Letters Patent, or of putting in 
 practice the process disclosed in said Letters Patent, aa the case may htf. 
 
 Now, tlierefore. the said parties liave agreed as follnv/s : — 
 
 1 . The |»arty of the first part hereby licenses and empowers the party 
 of the second p*rt to manufacture, subject to the conditions hereinafter 
 named, at their Factory in , and in no other place or places, to 
 the end of the term for which said Letters Patent or any reissue thereof 
 are or may be granted, containing the patented improvement* 
 «lescril>e<l in said letters Patent, and to sell the same within \\\t Do- 
 minion of Canada. 
 
 2. The j;»jirty of the second part agrees to make full and true returns 
 to the party of the first part (under oath, or as the case may be) upon 
 the days of and in each year, of all 
 containing the patented improvements manufactured (or manufactured 
 and sold) by the said party of the second part. 
 
 3. The party of the second part agrees to pay to the party of the 
 fii-st part dollars as a license fee upon eveiy manu- 
 facturt'd (or manufactured ami sold) by the said party rf the second 
 part containing the |«tented improvements, provided tfiat if the said 
 fee be paid u|)on the days provided herein for (monthly, «juarterly or 
 semi-annual returns, as thf case may be), or within ten days thereafter, 
 a rliscount of per cent, shall be made from said fee for proinjit 
 payment (or without this proviso). 
 
 4. U|ion a failure of the party of the second part to make returns or 
 to make {laymeut of license fees, as herein provided, for thirty days after 
 the days herein numetl, tlic party of the first i»art may terminate thi« 
 license by serving a written notice upon the party of the second part : 
 but the I tarty of the second j)art shall not thereby be discharged from 
 any liability to the |«rty of the first part for any license fees due at the 
 time of the ser\nce of said notice. 
 
 In witness whereof the parties above named have hereunto set their 
 hands antl seals the day and year first above written at in the 
 
 County , Province of , Canada. 
 
 .iSigueil sealed and delivered in the ( A. B. 
 
 presence of . ^ CD. 
 
Appendix II.] 
 
 GENERAL FORMS. 
 
 Form 3'2a. 
 
 495 
 
 EXCLUSIVE LICENSE — WITH ROYALTY AND COVENANTS. 
 
 of 
 
 This Agreement made this 
 
 Between 
 aiul Province of 
 
 part ; and , of 
 
 and Pro\ince of , Canada, 
 
 lay of 
 
 , Canada, 
 the 
 
 A. D. 189 . 
 
 in the County of , 
 
 of the tirst 
 , County of , 
 
 , of the second part. 
 
 Witnessetl that whereas Letters Patent of the Dominion of Canada, 
 No. , \v (title of invention), were granted to tiie |»aity of the 
 
 first part under te of day of ,181) . 
 
 And wherea.s he i)arty of the second jiart i.s desirous of obtaining 
 
 the exclusive right '^ ^acture and sell in the Dominion of Canada, 
 
 , containing said ]>atented impn)vement (or manufacturing 
 tlie article or device disclosed in said Letters Patent, or ))utting in 
 {uactice the process disclosed in said Lettei's Patent, as the case may be). 
 
 Now, therefore, the said parties have agreed as follows ; — 
 
 1. The said party of the first part hereby grants unto the said party 
 <«t' the second part (his legal representatives and assigns, as the case may 
 i'-i ), an exclusive license to manufacture and .sell in the Dominion of 
 ) anada, , being the invention described in said Letters 
 
 Patent, to the full end of the term for which Letters Patent have been 
 ^'ranted. 
 
 -. The party of the second part agrees to make full and true returns 
 to the party of the first part (under oath or as the case may he), upon 
 the days of and in each year of all , 
 
 jiitaining the patented improvements, manufactured (or manufactured 
 ;iiul sold), by the said party of the second part, and that the party of 
 thf first ]»art may have access, during othce hours, to the books of the 
 >.\\\ party of the first part, containing entries relating to such manufac- 
 ture or sale. 
 
 3. The said party of the second part agrees to pay to the party of 
 tilt' rtrst part dollars as a license fee or royalty upon each and 
 
 .vi'iy manufactured (or manufactured and sold), by the said 
 
 jarty of the second part, containing tlie patented improvement, j-rorided 
 fl'-if if the .said fee be paid upon the days provided herein for (monthly, 
 •|iiarterly or semi-annual returns, as the case may be), or within ten days 
 tli'ieafter, a discount of pei- cent, shall be nnule from said fee for 
 
 ['I'unpt payment (or wit/nmt this proviso.) 
 
 i. Upon a failure of the party of the second part to make returns, or 
 t" make {tayment for license of license fees, as hereiix provided, for 
 'lays after the days herein named, the party of the fii-st part may termi- 
 Oiite this license by serving a written notice upon the party of the second 
 part ; but the party of the second part shall not thereby l)e discharged 
 from any liability to the party of the tii-st part for any license fees due 
 at the time of the service of said notice. 
 
490 
 
 GENERAL FORMS. 
 
 [Appendix II. 
 
 ' >M 
 
 i- 
 
 hi ~ 
 
 f). And tlie said party of the second part liereby agrees to kec|p 
 proiw;r books of account to contain entries of each and e"ery article or 
 thing manufactured or sold by virtue of this exclusive license, and tn 
 nianufactu" ti the same in a good and workmanlike manner out of good 
 m iterial, and to mark each and every article so manufactured, as |i;i- 
 teiited and when so patented. 
 
 0. And the said party of the (irst part (for himself and legal n'luc- 
 Mt-ntatives) hereby covenants with the party of the second part (his legal 
 re{)resentatives or assigns) that he will pay all Government fees as tlic 
 sam»; shall become duo, and that he will not import or cause to \w im 
 portfd in an unauthorized manner, the said patented improvement, or 
 any article or thing containing the same, and that la; will keep smIiI 
 fjetters I'atent alive to the full end of th<' term for which they an- 
 granted, in order that an exclusive right may enure to the party of the 
 second part, and that in the event of the said party of the first part 
 causing the said Letters Patent to lapse by reason of non-paynnMit of 
 fees, importation or otherwise, that he the said party of the first part will 
 pay and forfeit to the said i)arty of the second part the sum of 
 dollars, and the licensee will be relieved of the payment of all (or as 
 the case may be) payment of royalty. 
 
 {Or it uintj be provided that the exclusive licensee shall pay all (!<»■■ 
 ertnnent fees, which in the event of an exclusive license ivoidd probably /<«■ 
 the course adopted.) 
 
 7. And the said party of tiie first i>art (for himself and legal repre- 
 sentatives) hereby f\irther covenants with the party of the second pan 
 (his legal representatives or assigns) that he will at his own cost (or as 
 the case nuiy be), prosecute infringers of said Letters Patent, in order 
 that the said part}' of the second part may be secured in the exclusive 
 right hereby granted. 
 
 8. And the said party of the second part (for himself and legal re 
 preseiitatives) hereby covenants with tlu; party of the second pait (his 
 legal representatives or assigns) that he will manufacture or cause to be 
 manufactured each and every year during the existence of this exclusive 
 license, not less than (here state the number agreed on for manufacture.) 
 
 0. It is hereby mutually agreed that failure to observe any of the 
 conditions or provisions contained in this agreement on the part ot 
 eitiier of the jtarties hereto shall work a forfeiture of this exclusive 
 license, and that the said conditions and provisions and covenants shall 
 be a|>plicable to and binding on the legal representatives or assigns of 
 the parties hereto. 
 
 In witness whereof the parties above named have hereunto set tiieir 
 hands and seals tlie day and year above written at the 
 in the County of Province of , Canada. 
 
 Signed, sealed and delivered in the presence of 3. 
 
 N. B. — In the event of an exclusive license and covenant to pay an 
 annual sum or royalty, if the licensee does not arrange to pay the (Jov- 
 ernnient fees, he should obtain a covenant from the licensee to do so, as 
 
Appendix II.] 
 
 GENERAL FORMS. 
 
 497 
 
 well ii8 not to import in an unauthorized manner, or do ain'thlDg 
 which the title to the Letters Patent may be prpjudiciiilly afl't'cted, 
 otherwise the licensee may bo held liable to make payments, notwith- 
 standing the lapse of the Patent for non-payment of fees : following 
 Mills V. Carson, 9 li. P. C, p. 338 (cited on p. 230 of this book), wliicli 
 related to an exclusive license, which was held tantamount to an assign- 
 ment, and where no implieil covenant to pay fees on the part of the 
 licensor was implied : See also In re Jiailway and Electric Ajjjjliance Co., 
 .{8 Ch. D. 597. 
 
 Form 33. 
 
 ASSIfJNMKNT OF TKRUITOKIAL INTERKST AFTER (IRANT OF P.\TKNT. 
 
 •eunto set their 
 
 WliereaL' 1, , of the of , County 
 
 of , and Province of Ontario, Canada, did obtain Letters 
 
 Patent of the Dominion ot Canada for (title), whicli Letters Patt'Ut are 
 immbered , and bear date the day of , in the year IS ; 
 
 And, whereas, I am now the sole owner of tiie said Patent and of all 
 rights luider the same in the below cited territory ; 
 
 And, whereas, , of County of , and 
 
 Province of , Canada, is desirous of accjuiring an interest in 
 
 tilt! same ; 
 
 Now, tiierefore, to all whom it may concern, l»«' it known that for 
 iiiid in consideration of the sum of dollars to me in hand paid 
 
 (tlie receipt of which is hereiiy acknowledged), I, the said , have 
 
 sold, assigned and transferred, and l)y these jire.sents do sell, assign and 
 transfer unto the said all tiie right, title and interest in 
 
 and to the said invention, as secured to me by said Letters Patent, for, 
 to, and in the County of , and for, to, or in no other place 
 
 or places ; the same to be held and enjoyed by tlie said 
 within and throughout the abovtj specitied territory, but not »'lsewlien', 
 tor his own use and behoof, and for the ii.se and liehoof of his legal repre- 
 si'iitatives or assigns, to the full end of the term for which said Letters 
 Patent or any reissue iher(>of are or may bt; granted, as fully and entirely 
 as the .same would have l)een hcltl and enjoyed by me had this Assign- 
 ment and Sale not been made. 
 
 In witness whereof I have hereunto set my hand and aliixcd ray 
 M\\\ at , in the County of , Province of , 
 
 Canada, this day of , A. D. 18 
 
 signed, sealed and delivered 
 in presence of : — 
 H. T. 
 U. D. 
 
 } 
 
 A. B. 
 
 [seal.] 
 
 63 
 
498 GENERAL FORMS. 
 
 Form 34. 
 kndorskmeyt on information or statement of claim 
 See Excheciuer Court Forms following Form 41. 
 
 [Appendix II. 
 
 Form 35. 
 
 < YM 
 
 ASSIGNMENT OP I'ATENT, INOLUDINC FUTURE IMPKOVEMKNTS. 
 
 Wlieieas I, A. B. , of the of , in tin* 
 
 County of and Province of , Canada, did obtain 
 
 Letters Patent of the Dominion of Canada, for certain iniprovenieuts in 
 
 , which Letters Patent bear date the day of , 
 
 <tne thousand eight hundred and , and numbered 
 
 And, whereas, 1, the said A. 13. 
 said Patent. 
 
 A lid, wliereas, C. D. , of the 
 
 County of and Province of 
 
 , am now sole owner of 
 
 of , in the 
 
 , is desirous of accjuii- 
 
 iiig an niterost tlicroin. 
 
 Now, therefore, to all whom it may concern, be it known that for 
 and in consideration of the sum of dollars, to me in hand |iaid 
 
 (the receipt of which is herel)y acknowledged) I have assigned, sold iiiul 
 .set over, and liy these presents do assign, sell and set ovor, mito the siiid 
 C 1). (Iin'i; iiiserf fhe hiteresl tissiyiied) the right, title, and inteiest 
 
 which 1 have in said invention and the Letters Patent (and any an. I all 
 iniprovoments now made, or which heieafter may be made Ijy me, in or 
 on said patented machine, or any machines of the same class or for the 
 same purpose, and any and all Letters Patents which may hereafter be 
 ol)taint'd in respect of such improvements, as the case may be). 
 
 The same to 1)6 held and enjoyed by the said C. D. , for 
 
 his own list' and behoof, and for the use and behoof of his legal rcpii'- 
 .sentatives and assigns to the full end of the term for which said Letters 
 Patent are granted, as fully and entirely as the .same would have been 
 held and enjoyed by me if thi.s Assignment and Sale had not been made. 
 
 Ill testimony whereof 1 hereunto set my hand and affixed my seal tiiis 
 day of , one thousand eight hundred and 
 
 Signed, sealed and delivered 
 in presence of 
 
 [seal.] 
 
Appendix II.] 
 
 GENERAL FORMS. 
 
 4UD 
 
 FoHM 36. 
 
 ASSIGNMENT OF PATENT INCI.UDING CLAIMS FOR DAMAGES AND 
 
 INFUINOKMENTS. 
 
 ole owner of 
 
 Wli(iieas, Letters Patent of the Dominion of Caniicla were jiiantod 
 
 to nie, A. I!., of the of , in th" County of , 
 
 -md Province of , Canada, wliich Letters I'atent were dated 
 
 ,18 , and numbered , for improvements in ; 
 
 And, whereas, C D., of , the of , in the 
 
 (Inunty of and ]*rovince of , is desirous of obtaining all 
 
 tlie rijLflit, title and interest of me the said A. J{., in and to said Letters 
 I'atent, a!ul the improvements therein contained, and all cliiims and 
 demands, both in law and e(iuity, for damages and protits acirued or to 
 .icciue on account of the infringement of «aid Letters Patent, that I, 
 I lie said A. B., have or may have : 
 
 Now, to all whom it may concern, be it known that for and in con- 
 sideration of the sum of dollar , lawful money to me in hand 
 )iaid by the said C. D. (the receipt of which is hereby acknowledged), 1, 
 TJie said A. 13., have sold, assigned, transferred and set over, and do 
 hi-roby sell, assign, transfer, and set over unto the said C, I)., all tlu; 
 light, title and interest which I luive, or may have, in and to the said im- 
 provements and the aforesaid Letters Patent No. , and any 
 it'issue of the same, throughout the Dominion of Canada, thereof; the 
 Mime to be held and enjoyed by tlie said C. D., for his own use and 
 itehoof, and for the u.se and l)ehoof of iiis heir.s, execntor.s, adnnnistrators 
 and assigns, to the full end of the tern» f(jr which said Letters Patent 
 ire granted, and all reissues thereof. 
 
 And I have, for the before named consideration assigned, sold and set 
 uvcr and do by these presents sell, assign and set over, unto the said C. 
 1)., his heir.s, executors, administrators and assigns, all claims and de- 
 iiiiinds, both in law and in ecpiity, for damages or protits accrued or to 
 accrue on account of the infringement of said Letters Patent, that I 
 have or may liave. 
 
 In witness whereof, I have liereunto set my hand and seal this 
 I lay of , A. D., one thousand eight hundred and , 
 
 Signed, sealed and delivered 
 in tlie presence of 
 
 [seal.] 
 
500 
 
 OENEBAL FORMS. 
 
 [Appendix II. 
 
 FoHM 37. 
 
 l:!!' 
 
 A8S10NMKNT OF PATENT WITH I'UOVISION FOR DIVISION OF PROFITS AM» 
 
 TO I)KAI> JOINTLY. 
 
 Whereas, , of • of , in the County 
 
 ot" , mid Pi'ovinee of , CHUiuhi, did ohtaiii Lettf-rs 
 
 Patent of the Doniinion of Ciintidi), for certain improvements in 
 which Letters Patent hear (hite the day of , one 
 
 thouKand ei;{ht iunuhed and , and are numhered 
 
 And, whereas, I, A. 15., am now sole owner of said Pat«*nt : 
 
 And, whereas, C 1>., of of , in the Countv 
 
 of , and Province of , is desirous of aciinirin;,' 
 
 an interest tlierein : 
 
 Now, therefore, to all whom it may concern, he it known tliat. for 
 and in consideration of tlie sum of «loUars, to me in liiind 
 
 paid (the receipt of which is herehy acknowledged), I, the saiil A. I'... 
 have assii,'ned, sold ami set over, unto the said ('. I), (hfn; inmrt tif 
 laterent aniveyrd) the right, titles, and interest which I have in said 
 invention and Letters Patent. 
 
 The same to be held and enjoyed by the said C. I), for his own ust- 
 and Ijehoof, and for the use and behoof of his legal representatives iind 
 a.ssigns, to the full end of the term for which said Letters I'att-nt ,iic 
 granted. 
 
 This assignment is made upon the following express rfin<lition, forinin;.' 
 an inseparable part hereof, to which comlition I, myself, heiis and as>iun>. 
 as.sent l)y the act of signing this instrinnent, and to which conditimi 
 said assignee for himself, heirs, and assigns, also assents by his signing' 
 of this instrummt, or by doing oi- attempting to do any act inider its 
 authority ; to wit, neither said A.ssignee nor myself shall have any right 
 or power to make any license or other privilege under or relating to sail! 
 Patent without that all the owners of tlie Letters Patent join in iliesaiiK 
 in writing ; and neither of the owners shall have separately th<; right h> 
 make or sell or use any material pait of the invention forming the sul>j»'(t 
 matter of said Letters Patent without that the party thus makin*.' <ii 
 selling or using shall secure and pay to the other party, part owners ot' 
 said I'atent, such share of the profits arising from such manufacture, saji 
 or u.se as the part of sjiid J^etters Patent owned by said other party bears 
 proportion to the whole Letters Patent. And neither party hereto is to l)e 
 accountable for or share in any losses made by the other on account nt 
 any independent manufacture. 
 
 And I, the said (.". D., hereby as.sent and agree to conform to tin 
 foregoing conditions. 
 
 In witness whereof, we liave hereunto set our hands and atiixed (nn 
 seals this day of , one thousand eight hundri'«i 
 
 aud 
 
 Signed, sealed and delivered \ [.seal. | 
 
 in presence of > 
 
 ) [seal.] 
 
Appendix II.] 
 
 OFITS AM> 
 
 GENERAL FORMS. 
 
 Form 38. 
 
 .-)()! 
 
 UCRNSR (PEnSOXAI-), WITH QUAUTEKI.Y PAYMKNTS. 
 
 'I'liis Agrot'UU'iit and license, niiule this day of 18 . 
 
 Metween of the Hixt part, and , of 
 
 the second part, witnewsotli. 
 
 That, whereas, Letters Patent wore issued hy the Dominion of 
 Ciinadn to on tlie day of , A. I). 18 , nuiii- 
 
 liered for 
 
 And, whereas, the naid part of the second part, acknowledging 
 (lie novelty and utility of said invention, and the validity of said Patent 
 desirous of acquiring the right to under and according 
 
 to said Letters Patent. 
 
 Now these presents witness that the said part of the first \uiYt, 
 for and in tonsideration of the sum of dollar , to , paid l»y 
 
 tlie said part of the second part, the receipt whereof is hereby ac- 
 
 knowledged, and of the faithful performance of the covenants and agree- 
 luents heicin coiitaine<l, nuule hy the part of th»( second part, ha 
 sold and granted, and do hereby sell and grant unto the said 
 the right, license and privilege, to with any and all mt)diticationH of 
 which the invention is susceptible, to the full extent of the grant con- 
 tiiined in said Letters Patent or any reissue thereof, and to use, and to 
 sell and deliver the for us?, in any and all places. 
 
 And the said part of the second part, covenant and agree 
 
 that will employ good materials and workmanship, and will con- 
 
 duct the bu>iness skilfully, so as to endeavour to make and maintain a 
 good reputation for the invention, and will kef p exact and full accounts 
 of , and will allow the part of the first part or agents to 
 
 examine books at all reasonable times. And that will make 
 
 .1 full an<l sworn return to the part of the Hrst part, or legal 
 
 icprt'sontatives, on the Hrst day of January, April, July and October, of 
 lach year, showing the exact delivered during the three n)onths 
 
 I prior to the Hrst day of the month preceding, and that will then jwiy 
 tlif license fee thereon as set forth below, by forwarding it to the place 
 of business of the part of the Hrst part, or wil' deposit the same to 
 
 of the Hrst part, or legal representatives 
 
 oi- such other place as shall hereafter be mutu- 
 
 tlie credit of the part 
 in the Bank at 
 
 ;tily agreed upon. 
 
 A licen.se fee of 
 i>;irt of the second part, on all 
 
 is to Ije well and truly paid by the 
 , under and according to this 
 invention, f.'r whicli payment to be well and truly made to the party of 
 the Hrst part or his legal representatives, the said party of the second 
 jiart binds himself and his legal representatives. 
 
 In case of a refusal or neglect of the i)art of the second part to 
 tulHl the conditions of this agreement for thirty days, after having been 
 solicited in writing so to do, tlien, on the serving of a notice in writing 
 
 IN 
 
 II 
 
)02 
 
 GENERAL FORMS. 
 
 [Appendix II. 
 
 >■ ''I- 
 
 ! '; '!! 
 
 I t 
 
 on tlie part of the socoiul part, or ut his place of btisineHb, tlie part of 
 the tirst part may declare this license void in thirty days from and afu-r 
 such service of notice, but otherwise it shall l)e and remain in full force 
 and etlect to tljc end of the term for which said Letters Patent ar<- 
 j^ranteil, and under all reissues thereof. 
 
 And it is understood and agreed that, in case of tho termination ef 
 this license by reason of notice served <is aliove, nothinj^ herein con- 
 tained shall release the part of tlio s(!Coijd part from the oM!<jation to 
 pay til' royalty then already accnu :l at the date of such termination, 
 nor relitive tho part of the second part in uny way froi i the |H»si- 
 
 tion of an itdrinyer, if 
 
 continm' thereafter to use the invention 
 
 without a new license, which new license it shall be at the option of the 
 part of tlie Hi-st part to <.;rant or refuse. 
 
 The right, privilege and license hereby granted is not, nor is any 
 py.t't of it to be, transteral)le or assignalile liy the part of the second 
 part ; ami it is not the intention to give to said part of the se«.'ond 
 part any right or privilege except what shall personally exercise , 
 
 and not to have the power or right to in any way transfer or 
 
 impart to another or others the right or j)rivilege hereby granted ; and 
 the part ot the second part henjby covenant and agree as a con 
 dition of the enjoyment of the right and privilege hereby giaiiteil : 
 to stamp, print, or otherwise mark in a conspicuous manner, on eadi 
 and every nnmufactured by under said Letters Patent, the 
 
 words and figures as follows, to wit : (" Patented 18 .") 
 
 In witness whereof, the said parties have hereto set their hands and 
 affixed their seals, the day and year tirst above written. 
 
 Signed, sealed and delivered \ 
 
 [SKAL.l 
 
 In the pre.Henco of 
 
 FoKM .39. 
 
 MOKT(iA(JK OK I'ATK.VT. 
 
 Tu nil to whom thesp preitentA shnll coinf, i/rtetiu;/ ■ 
 
 Mo it known, that for, ami in ''onsideration of the sum of 
 dollar , received of (J D., of the ot' in the Coimtv 
 
 of and Proviiu-eof , v'anada, I. A. B., of 
 
 County of and Province of tio hereby assign and nmrt 
 
 gage t<t the said (J. !>., the whole, right, title and intert^st in and to Iiet- 
 ters Patent of the l)om.nion o* (Janada, No , dated for «n 
 
 improvement 'n gr:;:t«d. to 
 
 And 1 hereby, for myself and legal reprecentatives, covenant with <.ii«l 
 assignee and mortgagee, his legal represen*vAtiveH and a.ssigns, that i lii ^' 
 
Appendix II.] 
 
 OEN£:<lAL FORMS. 
 
 503 
 
 full liglit to iissign aiul mortgage saul Tetters PKlcnt in inannt'r and form 
 .IS above written, and that the intei*est hereby conveyed and mortgaged 
 is free from alt prior assignment, grant, mortgage, or other incumhranoe 
 whattfver. 
 
 The condition of this assignment and mortgage is such that whereas 
 I am justly ind(d)ted to the said C. I), in the sum of dollar . 
 
 (as evidenced l)y my promissory note of even date herewith, payabh> to 
 said mortgagiic, or order from date with interest, or «» t/n: cane 
 
 iiiiiif In) : now if the said in(U;l)tediiess (or note) l>e well and truly paid 
 according to its tenor, then this assignment shall In? null and void, liut 
 otherwise to he of full t'.)rce and etlect. 
 
 In witness whereof, I have iiereunto set mv hand and allixed my 
 M-al thin day of one thousand eight hundred and 
 
 ><igned, sealed and delivcreil \ 
 in the presence of | 
 
 [.SEAL.] 
 
 FOKM 4U. 
 
 MOUT(iA(iK OK I'ATKXT, WITH »*OWER TO SKM,. 
 
 To all ivhom it may coiicrn : 
 
 He it known, that in consideration of the sum ot dollar , 
 
 received of C. 1)., of , County of , and Province of 
 
 , Canada, 1, A. li., of . County of 
 
 and Province of , do her«>l)y assign and mortgage to the said 
 
 ( '. \)., the whole right, title and interest in and to Letters Patent for the 
 Djminioii if ( anada, No. , ilateil , for an iiuproveinent 
 
 III granted to And I, for n.'vse!f and legal repre- 
 
 sentatives, covenant to and with said assignee an^ .lorfgagee, his legal 
 leprcsunt itivrs and assigns, that I have full right to assign ai.d mort- 
 gage Slid iiiviMition and Letters Patent in manner and form as altove 
 \> ritteo, and that the interest hereby conveyeil anil mortgaged is free 
 hum all prior asHignment, grant, mortgage, or other incumluaiu-e vvlmt- 
 ••ver. 
 
 The condition of this assigmuent and nsortgage is such that whereas 
 I am justly indebted to the said C. D. in the sum of (as evi 
 
 ■ lenced by a promissory note of even date herewith, payable to sai«l 
 hioitgagee or order years from date, with intei-est, or <im tin- rann 
 
 ■>'ii( l>f) : now, if said indebtedness or note, or any rei»ewal thereof bo 
 A ell and truly paid aeconling to its Unior, then this .vssignment shall Ihj 
 null and void, but otherwise to be of fidl force and effect. 
 
)()4 
 
 GENERAL FORM& 
 
 [Appendix II 
 
 I ii. 
 
 i' 
 
 
 ; ! 
 
 \ 
 
 Ik 
 
 1. 
 
 And for tlu' Ijetter securing thf aforesaid [avmenU as well as to save 
 the (>xjH*iise ami delay of le<:p»l |n*ocee«lings. I do hereby appoint 
 
 . Iiis hoirs, executoi-s, siduiimstratoni, and aaugns, my attiOni-%-. 
 ill tact, vvitli power to sell, in case of default of |aym«it at antnntv. 
 the afiti-esaid L<*tters Patent and the iuvention ther^y srmren. at 
 pulilic iuietion. giving sucli nniee thereof as is required in jadfs on «-xe- 
 eution f or tis lu/reed oti ), and to execute a proper deed of a.sstguiuek.t to the 
 jiurchaxei- ; and out of the pi-o«.-et-<U of sale, to |>ay the said «W4, toeKh*-r 
 with interest, costs and chari;e>. and the balattce. if any. to tlie ander- 
 signed : licreliy covenanting with all concerned to ratify aod coafirvi all 
 acts lawfully done in pursuance of this jower. 
 
 In witnes.>< whereof. I have hereunto set my hand and affixed my ^^-m 
 this day of , A.D. IJS *. 
 
 [seal.] 
 
 Siu'tied, sealed and delivered 
 in the presence of 
 
 Form \\. 
 
 I'OW KK OF ATTOBNEV TO SELL RUiUTS. 
 
 To all to 
 
 irfioiii these preaentu nhaff rom^, grtetittg : 
 He it known, that 1. A. !>.. of of , io tlw 
 
 County of and ri\>vince of , Ouuuia. |nt«it^ 
 
 and sole owner of Letters Patent of the Dominion of Canada, Xa 
 
 , f(»r an inipro.enient in . dated the A*v 
 
 of . one thousand eight hundred and . lio 
 
 heieliv constitute an»i appoint C. I> . of the of . m 
 
 tlie (.bounty of antl Province of . my true %mm Uwfal 
 
 attorney, with full power to make assignments, grants or license* of any 
 kind uiMler said Lettt-is Patent, with fidl jiower to sispi ray nauae to \i. 
 siicli instniiiients, and in luv name to receiv? and give receipt for all 
 considerations in exchange for any of .such right« ; l>at witii no powkf 
 to l)ind nie in any nianner further than Ut make binding uh! <«gaJ ail 
 such assiiinnient.-. g. mts and license- 
 
 This power to i>e of full force ami efteot until a revocatino hervut' u. 
 writing slmil l>e duly rvcorded u|«oo the reconls of ibe Cajwdiaja Pat»'r;' 
 olHce at Ottawa, Canada. wh«Te this insitruraent will l»e found of rec«Nr»i 
 
 Witness my hand and seal this 
 tiiousand eight hundred md 
 
 da J of 
 
 •Ibt- 
 
 WitncHS 
 
 1 
 
 [««.] 
 
Appendix II.] EXOHEQXTER COURT FORMS. 
 
 FoKM 27. 
 
 .105 
 
 srvMoxs. 
 
 In the Excheqiitf Court of Cautuhi. 
 
 A. B. Plaiiititr. 
 
 V. 
 
 C. D. Deft'n.huit. 
 
 Lot tlic (lofemlant, his solicitor or agent att^'nd liefore the presiding 
 .liitlgj' in OliiiniberM, in the City of < >ttnwa. on , the 
 
 •I'ly of iiext, uc o'clock in the forenoon, or so soon 
 
 thereafter as Ohainbers may be held, to show cause why the ptaintitV 
 'lonld not obtain an order (here sft nut fh*' ortj^r lannjht ). 
 
 LTpon this application will be read t5iis summons, and the pleadings, 
 md the alHdavit of filed hejvin. 
 
 Dated at Chambers tiiis day of A. D. lf<93. 
 
 J. Ex. Ct. 
 
 YoMW 2k 
 
 WAKRANT FOU PARTICfLAR.S. 
 
 In the Exchcijuer Court of Cnnada. 
 
 Monday, the day of A.I>. IS'J.I 
 
 Between .v.B., PlaintitV, and CD., Defendant. 
 Before , in < 'hamlKTs. 
 
 Upon the application of the plaintit)' that the defendant do deliver 
 |i:irticulars in writing under the ."bd. 4th, •">th, •>th, 7tli and 8th paia- 
 .'litphs of his Statement of Defence \ipin hearing tead the Sunnnons, the 
 I ieiulings herein and the afhdavit of , and njion hearitig what 
 
 \v.is alleged, it is ordered tluit the defendant do deliver particulars in 
 Aiiting uiKh'r the ."bd paragraph of the .^^tatenienl of Defence, stating in 
 what respect they deny that the plaintitTs pafMHeti invention is new. 
 Old to show the dates and occasions when, an 1 the places w here, and 
 the persons by wh<Mii the invention herein wa> in public use. 
 
 Ami thitt nn(h'r the said 4tli paragraph, that the wiid defendunt d<» 
 
 udelixei particulars in writing and |K>int out in *hat resjiect the 
 
 I iiintitr had ii'»« complied with the c<)nditi<>n<i attache<i to the gratit of 
 
 w Letters Pntent, and tiie particulars in which the s.-iid I^ftters Patent 
 
 I" not propeiiv defwrilie and claim the invention s|>ecitied in said I^'t- 
 
 '■ r-s Patent. 
 
 And that under the said r>th luti-iigraph tin: defendant do give the 
 
 ^' rial niiri)l)er (Unl the date of issn? i«f the foreign Ijetters Patent, and 
 
 lie name and a(hb'eK-i of tin* person or fiersonit to whom foreign I^'tters 
 
 f'laeut had been isf^mnl for the same invention prior to the invention 
 
506 
 
 EXCHEQUER COXJKT FORMS. [Appendix II. 
 
 
 ^1; 
 
 ? .1 
 
 i . 
 
 by the piniiititf, and tlie countries in which saiii Letters Patent \v< re 
 grantetl. 
 
 And that iintler tlie 0th jwragraph that the detendant do yivt- tli- 
 name of th«> liook or publication, tim name of its uiithor or |>ul)lisht'i, its 
 date, and the i>.-ige in which an allege<l untici|»atiou of the plaiiuitl' s 
 inventioi! may l*e found, and where the said IkooIc or pulilicatiou iii;iv 
 Ije ol>taine«.i. 
 
 And tliat under the 7th |»aragraph, that the defemhmt do yive the 
 dateii when, and tlie pla<-<'s where, and the n;Mne and address of tlif 
 person by whom ihe plaintid's invention had been in use or on sal«' 
 more tlian one year prior to the application of the phiintitf for Letter- 
 Patent in Canada. 
 
 And that under the "^ih pai-a*ir'iph that the defendant ilo point uui 
 in what res|M?ct the defendant fa!ie<l to comply with the rondition as to 
 inauufacture or im|>ortation as allej^ed, and when and wliert; the allt „'t'il 
 im|iort:it ion more than one year after the date of the Flaintitf's s.iid 
 Letters I'aient f'(tr <w th'' aue inwj ''f, itccordiiuj to t/n; rlf/'Uio: set nii /, 
 took piace. 
 
 And lastly, it is onleretl that tlie foit-ijoini; particulars In- <j;ivpii liv 
 the saitl ch-fendant in writing to the plaintill' i>r his solicitor on or iict'ou- 
 the day of -\.D. 1S<J3. uiul that in default of the said dct'cii- 
 
 dant deliverii)}^ i writins^ such particulais by the time aforcsaiil, tliit 
 the said Defendant l>e prwlude*' from giving any eviilence at tlic trial 
 under the saiil paragraphs of the <j»id Statement of Defence m respect of 
 which default shall have • <H;n niaile. 
 
 And that the costs of r.jid incidental tothi.s order Ij6 costs in the caus<". 
 
 J. E. C. 
 
 Form 34. 
 
 
 ': ! 
 
 EXUOHSKMEXT ON ISKORMATIOX OH STATKMKST oF CLAIM. 
 
 Xoticf to the iif/fnd<iut V'ttftin ntiintd : 
 
 You are requireil to file with the Registrar of the Kxclic(|uer Court 
 of Canada, at his oiHce at the ( 'ity of Ottawa, your plea, answer, e.\n|i- 
 tion or demurrer, or otherwise make your deh nee to the within Infni 
 matiou or Statement i>f Claim (a^ t/n^ case may lie) within 
 from the service hereof. 
 
 If you fail to file your plea, answer, exception or demurrer, or otliir- 
 wise make your defence within the time above limited, you are to l»- 
 »ubje«"t to have such judgment, c!»H.'ree or order made against you as iln' 
 Court may think just, upon the informant's (or plaintiff's) own showiii;.', 
 and if this notice is serve<l n\Kni you jwrsonally you will not be entitlid 
 to any further notice of the further proceedings in the cause. 
 
 Note. — This intonnatiou (or statement of claim) is filed l)y A. b , 
 etc.. Her Majesty's Attorney Ueneral for the Ihmiinion of (Jiinada, on 
 liehalf of Her Majesty, (or by , of the City of i 
 
 Solicitor for the within tiamed plaiotiiT, lu tfm cnte may be). 
 
Appendix II.] EXCHEQUER COURT FORMS 
 
 507 
 
 Patent wtie 
 
 in th« ciiUM-. 
 
 FOHM V2. 
 riAT OFTIIK ATTOKNKV-CJKNKKAI. OK CANADA. 
 Departtnent o/'Justin: — (yd. j'a. ). 
 < )TTAWA, dny of 
 
 IN THE KXCIIKf^l'KR COlllT OK CANADA. 
 
 , 18U 
 
 Her Rlujfsty the (.^neon, at tlic relation of A. li., |ilaintiti', and C. 
 1) , (Icfendiint. 
 
 r|H)n tilt' within named A. J»., , giving a liond to tlic satis- 
 
 f.iftion of the Kef^i.strar of the K-XchcqiU'r Court, with two sureties in 
 
 ihe penal sum of one tliousaiul dollars each, eond.jonal that if the 
 
 Litters Pati-ni of I nveiitiim, granted to the said , he nut repealed 
 
 III tln' proceedings taken in the writ of r'iri' Jupuik, In the petition 
 
 prayed for, or hy the jtulgnient thereon, then the said , A. M., 
 
 , and the said sureties, their exeiutors, or administrators, or any, 
 
 "\- either of them .shall well and truly pay or eause to he paid to tiie said 
 
 , C I)., , his executors, administrators, or assiguH, all 
 
 costs, charges, dama'.n'S or expenses which he the said , ('. D., 
 
 , shall or may l>e suhject or put to, hy reason of the said writ 
 
 of scire j'nrinK or the judgnuMit thereon. 
 
 Let the writ i.s.sue. 
 
 (Signed) Attorney-fieni'.rul of Ctimidn. 
 
 Fou.M \'S. 
 
 BONO IN $1,000 MY INKOKJIANT AND TWO Sl'HKTIKS. 
 In thf Kj'c/iet/uer Court of' C'i>Knht. 
 
 h'noir nit men hi/ theHU jn'fuenfi : 
 
 That we, A. 15., of the ( resiihiu't^ ittt<l rit/Hin/J, and K. K.. of the 
 ' rsiilfiiri ttiiil ritllimj ), are jointly and sevi rally held, and firmly hound 
 iinto H<'r Majesty tin* <ju(vn in the peiw»l ^um of one thousand iloliars, 
 tor which payuu'iit well and truly to he made we hind ourselves, and 
 i-ach of us hy hiinself. our, .ind eac'a of our executors and admiinstratorw 
 respectively lirndy hy these presents. 
 
 Sealed with our seals anti <lated the day of , A I>. 
 
 IHK . 
 
 Whereas, Ij»'tters I'ateiit of Invention for (Janada, ln'ariiig datft 
 I lie day ef , A.D. 180 , and registered in the Patent 
 
 < Mlice at Ottawa ^\n No. , were granted to one , 
 
 iiid of which said l^'tters Patent the said ( '. I>. is now the sole ami 
 I' 'mistered owner, and enjtiying the full rights, Itenetit^i and privileges 
 ,'ntiittHl therehv. 
 
50S 
 
 EXCHEQUER COURT FORMS. [Appendix II. 
 
 
 
 m^ 
 
 ;s»c'i. 
 
 
 \ : 
 
 i 
 1 \ 
 
 i . 
 
 
 i 
 
 Hi 
 
 
 
 
 
 ',' 
 
 
 ' i 
 
 ■( 
 
 
 ' 
 
 
 
 
 I 
 
 
 •Sk 
 
 And. whereas, the above In ..mien A. B. i.s deKirous, for certiun 
 tt^soius to iDi|ieach the swid Letters Patent, and has piayetl for the 
 issue of «i writ of $eir<f Jncitts from the Kxche(|uer Court of Taiiada for 
 the impeachment uf the said writ, and wiiich said reasons are set out in 
 the proposed writ oi' »eire facias 
 
 And. whereas, the HonouraUU; . .Kttorney-lJenenil 
 
 for the L>oniinion of Canada, lias allowed the said writ to Ix* issnetl. m 
 the name of Her Majesty the Queen, upon the ahove hounden A. !{., 
 giving H lx*nd to the s.itisfacti<)n of the .IiuIjljo of the Kxcheiiuer Court of 
 • 'anada, with two sureties in the penaisum of one thousand dollars e.-icL 
 
 An<J. wherea>. the alnive l)Ounden K. F. and Ci. \\. have lje»Ti ap 
 j>ix>v,*d as sureties, and the above liond has been allowed and appnjvfd 
 of by the Registrar of the Exehe(|uei' Court of Canada, as apjtears hv 
 liis sit^iatun^ on the margin liereof. 
 
 2^ow the condition of this o))ligation is sueh that if the said patent 
 of invention in the proceedings, taken in the writ of scire /<ici<is, to Ije 
 idsueii a» aforesjiid, or by the judgnuMit thereon, be not rep^-aled, then 
 tlie said A. B., H F. and (J. H., their executors or administrators, or any 
 oi either of them, shall Well anrl truly pay or cause to U' paid to tlif 
 said C. D., his legiil representatives, or assigns, all costs, char^. 
 damages or expens»'s which may be awarded to the said C. D., or to 
 which he. they, <>r either of them shall be fouml entitled by reason of 
 tl«e said writ of *cirt j'ariitx or the judgment thereon, then this ohligs- 
 tion shall U- void, otherwise to remain in fidl force anil virtue. 
 
 In witness whereof the parties hereto have hereunto set their hands 
 and sealsi. 
 
 Signe«l. seafe*! and deliveretl, \ 
 in the pr«5ence of '_ 
 
 Not*. — The ccwts, according to English practice, are taxable ait 
 )»etween Kolicitor and client, and it may be so staU'<l in the lx)nd. 
 
 S Sea) KxcL. > 
 \ Court. I 
 
 FoHV 44. 
 
 VVKIT OK HCIUK »ACI\8. 
 
 In tfu Err/ie'/Ufi- Court of Can'tda. 
 Her .Majesty the (^ueen, at the relation of A.li. 
 
 ( SUnip. ^1. i 
 
 pUintiti', and C!>., defendant. 
 
 Vict«»ria l)y the grace of <Jod of the United Kiug 
 dom «)f (Jreat Britain and Ireland, Queen, DilMMkr 
 of the Faith 
 
 To the Sherifinfthr County of 
 
 Shrrijft im M* iMmtinum of Cnnmia, 'jrteting 
 
 WtiexHW, we. by our Letters Patent, dated day of 
 
 A.D. 189 ,«By«d' with the Seal of (uir Patent Office at the City ol 
 
 or any otlttr of «"■ 
 
Appendix II.] EXCHEQUER COURT FORMS. 
 
 ')0i) 
 
 i, for t-ertain 
 
 tion of A.li. 
 
 Ottawa, Dominion of Canadn, signed l)y tlie HonourHhIn , 
 
 our ContmisHioncr of Patents, iind , and numbered , 
 
 ilid grant unto of liis exocutors, adnunistnitors, legal 
 
 rtpresentativoH and assigns for tlie period of yours from tlu> date 
 
 tliei"eof, a Patent for a new and useful improvfment in 
 a description of wiiiclj invention is contained in the spe(ritir»tiuii, ot 
 which a duplieate is thereinito attached and made an essentia! |«ait 
 thereof, for the exclusive light, priviiegt; and iilierty of making, enii 
 structing and using, and vendifig to others to be used in our homiuiou 
 of (Canada, the said invention, subject to the provisions of the Tntent 
 Alt and amendments tln!reto, and adjudication l»efore any (.'ourt of 
 compettint jurisdiction. 
 
 And, whereas, the said , being ih^sirous for the reasnns 
 
 hereinafter mentioned to impeach the first recited I^etters I'atent. 
 U-iiring (hite the day of , 189 , gi-anted to the said 
 
 as afoi' said, has olitained a sealeil an<l eertitied copy thereof 
 itiid of tlie petition, atKdavit, specification and drawings relating thereto. 
 Hiid has, in accordance with the provisioMs in tlmt ' ehalf fontaimd in 
 the said Act and the amendments thereto, tiled the said sealed and crrti 
 ti»'il copies of said Letters I'atent, petition, athflavit, .>.petitie:ifi.iii and 
 (Iruwings in the otfict^ of the Uegisliar ot' our Kxcheipier t'oiiit ot'Can 
 H(ln, and the said Letters Patent and documents atoresaitl. are mow or 
 rt'<'(>rd in the .said Court. 
 
 < Here Sff aut flu' lit/e and ansif/nni'uts, i/lriii;/ niiiii/urs ninl </iit< s, if' 
 ni'r-'H'Ktri/, sluniniiij tin', lilh' in tin' (/>'/»■ mftt nt. j 
 
 And, whereas, we are given to iinvlerstand that our said Letter-. 
 I'iitent, bearing date the day of , A. 1). IM* 
 
 ami numl)ered , issued to tht; .said as aforesaid, were 
 
 &hil are contrary to law in this, that the said did in the 
 
 iuid petition attached to .said Letters I'atent, state that ho had invented 
 irrt.'iin new and useful improvements in not known or 
 
 used by otluus before his invention thereof. 
 
 And, whereas, the .said . in the said alliduvit attached to 
 
 -Mid lA'tters Patent, did swear that he veiiiy licjieved tli.it he was the 
 inventor of the alleyed new and useful impinvements in 
 ilescribe*! and claimed in the specifications attached to said Letters Patent, 
 cul did swear that th(^ scnenil allegatiiiiis contained in the ^aid petition 
 *ric ri'spectiveiy true and correct. 
 
 .\iul, whereas, we are given to understand that the 
 'ii'l >iot invent the said alleged invention in the said petition and Let- 
 ^^^ Patent No. , mentioned and claimed. 
 
 \n«l al.so that the 8aid was not the true anti first inveii- 
 
 t'lr (if the Haid alh'ged invention of an improvement in . in 
 
 «.itl Letters I'atent No. , mentioned and claimed, liut that 
 
 wa.9 tiie true aiwl firHt ihvenl»>r thereof 
 
ilO 
 
 EXOHEQUEB 00X7BT FOBMS. [Appendix II. 
 
 titti '3«' 
 
 i tjf/l ^1 
 
 •'h''J «j 
 
 ! I 
 
 |.|( 
 
 ^)i ■ 
 
 
 And iiImo that the si)CciHciitioii to 8aid Lettera Patent No. 
 yraiited to the said , as aforenaid, does not correctly hikI 
 
 fully describe the nature of the invention clainx^d to ho patented 
 thereby. 
 
 And also that the speciticution to said Lettera Patent No. , 
 
 granted to the said as aforesaid, dctes not correctly dcstrribf 
 
 tIic mode or modes of operating the said alleged invention in said Letterii 
 l';itent No. , mentioned and claimed. 
 
 And also that no person skdled in the art to which the invention 
 pertained, from the said sj)eeiHcations and drawings, would he alilo to 
 manufacture and construct the said alleged invention without directions 
 and information other than contained in said Letters Patent. 
 
 And also tlnit the said supposed invention was not at the lime of tlit- 
 said making of the said Letters Patent of any use, hetielit or advantage 
 to the public. 
 
 And also tiiat the specification does not claim that which is new and 
 fc»r the use of which the said claims are exclusive property 
 
 ;ind privilege (or such other /acts aa the clraiiimtances untnuiiit in. thf, 
 ^jtucial case) 
 
 Also that the Miid invention was in jiublic use and on sale for more 
 rhan one year prior to the ilefendant's application for Letters Patent in 
 •,'anada, with his i;onsent or allowance as .sucli invctntor. 
 
 Also (';at a prior foreign patent for the same invention was granted 
 to dt^fcndant more than one year prior to his application for Letters 
 Patent in Canada. 
 
 Also, that said alleged invention had Iteeii j)reviously patenteil tontlicis, 
 and had, i)revious to tli(i alleged invention \>y defendant, lieen descrilu'il 
 in books and printed publications in (,'anada, and had been previously 
 known or u.sed by others prioi- to his alleged invention thereof, 
 
 Ily reason and means of which .said several premi.ses the .said Luttei-s 
 Patent so granted as aforesaid to the said , were, are and 
 
 ought to be void and of no force and «'ffect in law. 
 
 And we ))eing willing that what is just in the premises should Iks 
 <lone 
 
 Command you, our SherifFof our said County of , or otlit'i' 
 
 .said Slierifl's, that by good ami lawful men of your bailiwick you give 
 notice to the said , that before us in our said KxcinHpier Court 
 
 of Canada, he be, and appci/ir, witiiin ten days from tin* service upon 
 liim of such notice and of a copy of this writ, inclusive of the day of 
 .sucii .service, to show, if he has or iiuows anything to say, why tli" mu\ 
 Letters Patent No. , as aforesjiid, so granted to him ought aot, 
 
 for tlie reason afoiesaid, b«' adjudged to be void, vaciated, cancelled and 
 ilisallowed, and further, to do and receive these things which our .said 
 (Jourt shall conHid>.:i right in that Udialf, and that you then return and 
 liave there the names of those persons by whom you sbull have caused 
 
[Appendix II. 
 
 Appendix II.] EXCHEQUER COURT FORMS. 
 
 511 
 
 it No. 
 
 lot corrt'ctly and 
 to l)« jtiiteiited 
 
 tNo. 
 
 .•orrectly dt'scrihe 
 
 on in said Lottci » 
 
 ch the invontiiiii 
 
 voiild be libit! to 
 
 Mtliniit diructioiis 
 
 iitoiit. 
 
 it tlie lime of tlit^ 
 
 loCit or iidviintaj^i; 
 
 which is new and 
 cclusive projjt'rty 
 n waiTUid ill tliK 
 
 on hiilu for inoie 
 LetliTs Patt'iil ill 
 )f. 
 
 iition wart grantod 
 iitioii for Lt'tters 
 
 •utcntod toothers, 
 it, bet'ii dcsciila'J 
 
 I Ijceii imnioiisiy 
 thf'irof 
 
 8 tho said bottci-s 
 , were, an* and 
 
 renUKeH shoidd In; 
 
 , or otia-r 
 laiiiwifk you j{ive 
 Kxoiici|iit'r Court 
 the Hervice ui>ou 
 iive of the day of 
 say, why tli^' siiid 
 to hint ought ;ii)t, 
 ted, canceUed and 
 gH which our said 
 
 II then retiirii aiul 
 hIiuII have caustd 
 
 such notice to be given to the said of tliis writ, together with 
 
 a copy of this writ innnediately after the execution thereof. 
 
 Witness the Honourable , .1 iidge of the Kxchequer 
 
 (,'ourt of Canada, at Ottawa, the day of , in the 
 
 year of our Loid, one thuusand eight hundred and ninety-four, and .')7th 
 year of onr reign. 
 
 (Signed) L. A., liiijlufrnr. 
 
 Kx. C't. Can. 
 
 FouM 4.'}. 
 
 WAl!lt.\NT liy TIIK SHKIMKK TO HIS M.MMKKS. 
 
 /// f/ie Exchmjiier Court of Camilla, 
 
 Her ^^ajesty the (.^ueen, at the relation of A. IJ., plaiiititl', and C. I ». 
 'fendant. 
 
 Ti 
 
 111 
 
 id 
 
 both of 
 
 nn 
 
 .ulilis. 
 
 r.v virtui' of the writ of Our Laily the, Queen, to me diiecte<l, a copy 
 lieifof is hereunto fumext'd, wheiehy 1 am conimaniled tiiat by good 
 
 iiid lawful men of mv bailiwick, 1 shall make known to 
 
 111 
 
 'he s 
 
 i;id writ named, that 
 
 Iti' and appear in the Kxehcipier Court 
 •t' Our said Lady tin- t^'uecii, within ten days of the service upon , 
 
 Kspeetively, of a copy of the said writ and a notice of the same, to show 
 \\' f hv, tlieij or I'ithir i>f' tli<iii) have or know anything to say for ( hinisilj' 
 ij- fIti'iiiselnHj why certain hetUMs Patent granted to the said for 
 
 sole use and benetit, for an invention tor alleged new and useful im- 
 jpiovfiiientH in (liiplicatiiigclieck-liooks as in the .said writ mentioned far 
 "^ till' cii»i' ni'iii //»'y. ami wli\ the eiiioliiKUit of saiti Letters I'atciit for 
 ■ iitain reasons, in the .saiil writ mentioned, ought not to lie eanctdled, 
 \.icated and disallowed, and further, to do and receive those things 
 
 wliu: 
 
 h the said ("ourt i.lOiir said Li'.dv the t^ueeii, should .'(msider rin 
 
 ht 
 
 -:tl( 
 
 that behalt'. 
 
 Now 1 command vou that you make known and give notice to the 
 I 
 
 that lie and appear in the said K\che(|uer I'ourt 
 
 it Canada of Our said Lady the (^)ueen, at the time in the sai<l writ 
 
 iii'i.tioned to show cause and to »lo and receive such things as by the 
 
 lid writ (tlifif (ii'i- ) rei|uired. and as by the .said writ I am commaii(h'd. 
 
 Civcn under niv hand and seal of otiice and dated this 
 A. 1). IS'J 
 
 ... H. I 
 
 SIIKUIKFS 
 
 ay 
 
 Sheriji: 
 
 OFFK'K. 
 
 ) 
 
 .■■■ i' 
 
512 
 
 EXCHEQUER COURT FORMS. [Appendix II. 
 
 
 • 'I 
 
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 h 
 
 I , 
 
 
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 J 
 
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 1 
 
 ' 
 
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 FOKM 46. 
 
 NOTU'K TO TIIK DKKKXDANT (I'ATKNTKK), SIfiNKU HY TWO BAILIFFS AM) 
 8KKVED Wrril TIIK WHIT OF ".SCI. FA." 
 
 /« tfii: Kir/teijiier Court dJ' C'nnadu. 
 
 IJotwfen Her .Majosty tlie (^uoeii at tlie r«>)ation of A. M., iilaiiitifi', 
 anil (J. D,, (It'fi'iitlaut. 
 
 To V. JJ., of tli(! City of 
 ( rii/fiiii/). 
 
 We (tininen of tWit liiiiliffn ) and 
 
 ill tlie Proviiu-e of 
 
 liotli of tlio 
 
 ImilitlK of tho Slierifl'of 
 
 in tlu' Count V of 
 
 duly autliiiii/cl 
 
 do lu'ioljy give you notice tliat tli 
 
 a writ of III 
 
 A. D. 1 
 
 S!); 
 
 iiHK lnH'ii |iiai»'d in tiif hands of the Sheriff of 
 f'liciag, issued in this cause on the (hiy of 
 
 a copy of which is hereto annexed. 
 
 And we further give you notice that you be and ajipear before I In 
 Maj(!st.y the C^ueen in her K.\che<|uer Court of Canmhi, witiiin ten dav^ 
 from the service uj)on you (f this notic«>and of the copy of tlie said writ ot 
 «rire fncm» hereto anne.xed, inclusive of the day of such service, tosliow. 
 if yow have or know anvthing t* s.iv for vouiself, why the I.etlii- 
 
 Patent, N< 
 
 lefericd to in said writ, oUL'ht not for the reason 
 
 in said writ set out to In- adjudged void, vacated, cancellod and diNiil 
 lowed ; iind further, to do and receive those things which Ifer .Majesty s 
 Kai<l Court shall consider right in that behalf. 
 
 And furtluM', take notice that in default of your appearing as hercli\ 
 iiotitieil, judgment will be obtained against you. 
 
 Dated the 
 
 lay ot 
 
 A. 1). 1893. 
 
 (Si'tjiuUures oj' two baiVi^»), 
 
 FoHM 47. 
 
 DECLAUATION. 
 
 In the Edxltenuer Court of Cunada. 
 
 Her Majesty tho Queen, at the relation of A. B., plaintiil', and C 
 I)., defendant. 
 
 DOMINION OF CANADA, \ 
 To wit : \ 
 
 Our ]ju\y the Queen sent to her SherifT of the City of 
 or Countif of , in the Dominion of Canada, lier writ clothed 
 
 in tliutto words : 
 
 1^ > : 
 
Appendix II.] EXCHEQUER COURT FORMS. 
 
 513 
 
 ILIFFS ASK 
 
 WKIT OK S«'IUK KACIA8. 
 
 Ill the Exche>iHf.r Court of CniKula. 
 
 Tho QiU'on viirauH . (//«?v; copi/ out Tin' Writ 
 
 of Scire Fat'ini* Xo. .'t\ "'"^ ui/tl.) 
 
 Whereupon, on this present ihiy, that is to say, on the day 
 
 of , A. D. ISU , the Haid SheriU'ot" the Citif <f or 
 
 Ctiitntij of , n'turnf<l to our said Ijiidy the (^lu'eii, in her Kx- 
 
 cluMjuer (.'ouit of Can.uhi, that liy and , ^ood 
 
 and lawful men of his hailiwiok, he had given nolieo to the said O. D., as 
 lie the said Sherill was by the said writ (.•ommanded, iind tiieieiipun the 
 Mud l)y solicitors, comes. * 
 
 Whereniion(Sir.John Sparrow David Tlitimpson, Kniglit, Comnuinder 
 of the Most llonoural)le Court of St. Miclriel and St. (Jeorj^e), Attorney- 
 (leiioral of the Dominion of (Jaiuuht, Solicitor of our said Laily the 
 (^ueen, who foi' our s.iid Ludy the (.^>ucfn, prosecutes in this luhaif, heini; 
 present in Court in his own proper person, prays that the said l^'tters 
 Patent Xo. , may lie adjud^jctl tr) ho void, vacated, cancelled and 
 
 disallowed, upon the ;,'rounds in saiil writ luciitioned, and also upon tin- 
 finther ground that the said invention as comprised in said Letters 
 I'alent No. , as patented, was not at the time ot' the allc;,'ed 
 
 iip.ention thereof and is not of any use, bent-lit or atlvant;iye to the 
 [lublie. 
 
 iv.-I.-ved this day of , A. I). IS'.C'., by 
 
 Solicitor for the plaititijf'. 
 
 FouM 18. 
 
 I'MlTirULAHS OF OIUKmONS KIl.KI) AND SKKVEI) WtTII THIC I>Kf;t.AUATloN. 
 
 Ill iho Kxcht'qner Court of Cannda, 
 
 Her .Majesty the QufH'ii, at the relation of A. M., plaintilV, and ('. I).. 
 li' tVndant. 
 
 ruticidars of olijections as to the validity of Letters Patent for ('ana«la 
 No. 
 
 1. That C. D. was iiftt the inventor of the invention claimed by .said 
 1,1 Iters Patent No. , but that , of , was the 
 
 lii>l and true inveut(n" thereof. 
 
 ■J. That .said invention was not and is not of any utility or benefit 
 1 1 ihe putilic. 
 
 .'{. That tin* spceitieations do not correctly and fully describe the 
 iiituro of snid alleged invention or tlie mode or modes or operating the 
 siiiic, inasmuch as (here de.scriiie in what respect they uro defective), and 
 'uc iu.sutlieient, uinbigiiuuH and nusleadiug, so that an ordinary skilled 
 
 65 
 
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 EXCHEQUER COURT FORMS. [Appendix II. 
 
 nrtisan uiiou reading the said specifications could not, with the sole aid 
 thereof and without directions and information other than that contained 
 in the said Patent, make or construct the said alleged invention. 
 
 4. Tliat the .said specifications do not claim that which is new. 
 
 0. That said alleged invention was in public use or on sale for more 
 tiian one year prior to the defendant's application for Letters Patent in 
 (Jaiiad!! with his consent or allowance as such inventor, to wit : bv K. 
 L., of , at the City of , etc. 
 
 0. That a prior foreign Patent for the same invention was granted to 
 the defendant more than one year prior to his application lor Letters 
 Patent in Canada, to wit: on the day of A. D. 189 , 
 
 in Fran(^e , to , of 
 
 7. Tliat said alleged invention had been previously patented to others 
 \irior to the date of the invention by the defendant in divers countries, 
 to wit : No. , to X. V., in Germany, on the day of 
 
 ,189 ; to X. v., in Great Britain on the day of 
 
 ,189 , under No. 
 
 8. That said allege 1 invention had been previously known or used 
 by others prior to de' . 'aut''; alleged invention thereof, by divers per- 
 
 , at the City of , duiing 
 
 of , at the City of , d ar- 
 
 sons, to wit : By G. H., of 
 the year ; by K ' ■. 
 
 ing the year , e»- 
 
 9. That said alleged 'r.v,' 
 EncycliipiVHlia." Edition ci 
 
 ;tion had been described in " Chambers' 
 
 under headinjj 
 
 irior 
 
 to defendant's alleged invention, as well as in a publication in Canada 
 calleil " The Engineer," edited in Toronto, under date of dav 
 
 of , 1889. 
 
 <^0r stick other facts or matters irhich may be set up to destroy the 
 Patent in qtiestion, referred to in iiote under section, 33, pp. 3^6-9, etc.). 
 
 Form 49. 
 
 In the Exchequer Court of Canada. 
 
 Between Her Majesty the Queen, at the relation of A, B., plaintitl", 
 and C. D., defendant. 
 
 The day of , 189 . 
 
 I- ' .r 
 
 PLEAS. 
 
 And the said C. D., by Solicitors, as to the 
 
 first suggestion iu the writ of scire facias issued herein, whereby it is 
 suggested that in the said writ named, did not invent 
 
 the suid invention iu the said writ mentioned, says that the said 
 
 
Appendix II.] EXCHEQUER COURT FORMS. 
 
 olo 
 
 did invent the said invention and that the several allegations 
 contained in the petition filed by the said referred 
 
 to in the said writ, were respectively true and correct. 
 
 2. And as to the second suggestion in the said writ contained, 
 whereby it is suggested ard alleged that the said was not 
 
 tlie true and tirst inventor of the said alleged invention, but that one 
 was the true and first inventor thereof, the defendant 
 says that the said was the true 
 
 and tirst inventor of the said invention and that the said 
 was not the true and tirst inventor thereof. 
 
 •J. And as to the thiid suggestion in tlie said writ contained, whereby 
 it is suggested and alleged tliat the specification to the said Letters 
 Patent granted to the said , does not correctly and 
 
 fully describe the nature of the invention claimed to be patented thereby, 
 the defendant says that the said specification does 
 
 ci'rrectlv and fuUv describe the nature of the said invention. 
 
 4. .\nd as to the fourth suggestion in the said writ ccfntained whereby 
 it is suggested and alleged that the specification does not correctly de- 
 scribe the mode or modes of operating said alleged invention in said 
 Letters Patent mentioned and chiinieil, the defendant says 
 tlie said s])ecification does correctly describe the mode or modes of oper- 
 ating the said invention. 
 
 5. .And as to the fifth suggestion in the said writ contained whereby 
 it is suggested and alleged, that no person skilled in the art to wliich 
 the invention pertains, from said specifications and drawings, would be 
 .ible to manufacture and construct the said alleged invention, witliout 
 directions and information, other than contained in .said Letters Patent., 
 the defendant says that said specifications and drawings contain all t)io 
 information requisite to enable a person skilled as aforesaid, to manu- 
 facture and construct the said invention. 
 
 .6. Anil as to the .sixth suggestion in the said writ contained, whereby 
 it is suggested and alleged that the said specification does not clearly and 
 <listinctlv state the contiivance and things which are therebv claimed a.s 
 new, and for the use of which the said claims an 
 
 exclusive ])rivilege and property, the said .says that the 
 
 said specification does clearly and distinctly state the contrivances and 
 things which are thereby claimed as new and for the use of which 
 ilaims .such exclusive privilege and property. (And so on for the othfr 
 .<u<jijnst'ions in the writ). 
 
 Delivered the 
 in the city of 
 
 day of 
 , Ontario. 
 
 , A. D. 189 
 
 Solicitors for the dejemlants. 
 N. B. — To be varied to suit the circumstances of tfie case. 
 
1: 
 
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 14 A 
 
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 516 EXCHEQUER COURT ORDER, ETC. [Appendix II. 
 
 Form 50. 
 
 In the Exclmpier Court of Canada. 
 
 Between Her Majesty the Queen, at the relation of A. B., plaintifl", 
 and C. D., defendant. 
 
 JOINDER OF ISSUE. 
 
 The day of A. D. 1893. 
 
 And the said (Sir John Sparrow David Thompson), wlio prosecutes 
 a-s aforesaid for our said Lady the Queen, joins issue upon the defen- 
 dant's plea and every of them. 
 
 Delivered the day of , A. D. 189 . 
 
 Solicitors for the j'laintif. 
 
 Form 51. 
 
 m 
 
 \\\ 
 
 ,')- 
 
 •'I 
 
 I- 
 
 In the Exchequer Court of Canada. 
 
 GENERAL ORDER. — PROCEDURE, ETC. 
 
 In pursuance of the provisions of the .5.5th section of The Exchequer 
 Court xict (.50-51 Victoria, chapter IG, and 52 Victoria, chapter 38), it 
 is ordered that the following rules shall he in force in respect of anv 
 action, «uir, matter or proceeding that may be had or taken in the 
 Exchequer Court of Canada under or by virtue of 'Tlie Excliequer Court 
 Amendment li ., 1891, (54-55 Victoria, chapter 20) : 
 
 1. The process, practice, pleadings, times for taking proceedings. 
 forms and modes of procedure prescribed by the General Kules and 
 Orders of the Exchequer Court of Canada of the fourth of March, 1870, 
 and by subsequent General Rules and Orders of the said Court shall 
 apply to any action, suit, matter or proceeding that may be had or taken 
 in the said Court under or by virtue of The Exchequer Court Amendment 
 xict, 1891, and such General Rules and Orders shall, notwithstandinir 
 any exception or limitation contained therein, apply as well to cases in 
 which the cause of action arises in the Province of Quebec as to other 
 cases. 
 
 2. Subject to such General Rules and Orders, the practice and pro- 
 cedure from time to time in force in Her Majesty's High Court nf 
 Justice in England in respect of like actions, suits, matters or proceed- 
 ings shall a[iply to any action, suit, matter or proceeding that may be 
 had or taken in the Exchequer Court of Canada under or by virtue of 
 The Excheqtier Court Amendment Act, 1891. 
 
 Dated at Ottawa, this 13th day of November, 1891. 
 
 Geo. W. Burbidge, 
 
 J. E. C. 
 
 ft : 
 
Appendix II.] EXCHEQUER COURT ORDERS. 
 
 517 
 
 Form 52«. 
 In the Exchequer Court of CanaJa. 
 
 OKNERAL ORDER. 
 
 In pursuance of the oSth section of "The Exchequer Court Act," 
 •")0-51 Victoria, chapter 16, and 52 Victoria, chapter 38, it is ordered 
 tliat the following rules shall be in force in respect to any j)roceeding that 
 )iiay be had or taken in the Exchequer Court of Canada to impeach any 
 patent issued under " The Patent Act " and the amendments thereto : — 
 
 1. In any proceeding for the impeachment of any patent under tl»e 
 ."Utli section of "The Patent Act." as amended by the Act 53 Victoria, 
 (;hapter 13, intituled •' An Act to amend The Patent Act," the practice 
 and procedure which in like proceedings were in force in Her Majesty's 
 High Couit of .Justice in England immediately prior to the passing of 
 the Act of the Parliament of the United Kingdom of Great Britain and 
 Ireland, 46 and 47 Victoria, chajiter 57, intituled "An Act to amend 
 and consolidate the Law i-elating to Patents for Invention, Registration 
 of Desiijns and Trade Marks."' shall be followed as near as mav be. 
 
 2. In any such proceeding the party seeking to impeach the patent 
 may, in addition to any ground or cause for impeachment that might be 
 relied on under the 34th section of the said Act, set up and rely upon 
 any ground or cause mentioned in the 37th section of "The Patent 
 Act," as amended by the Act 55-56 Victoria, chapter 24, intituled " An 
 Act to further amend tlie Patent Act." 
 
 3. If in any case it is sought to impeach a patent for one or more of 
 the grounds or causes mentioned in section 37 of " The Patent Act," 
 and for no other cause, a sealed and certitied copy of the Patent and of 
 the petition, atlidavit, specilicatii m and drawings thereunto relating may 
 be filed in the office of tiie Regisi ir of the Court, and j^roceedings to 
 liave the same declared null and void may thereupon be taken by infor- 
 mation in the name of the Attorney-General of Canada, or by a state- 
 ment of claim at the suit of any person interested in accordance with 
 the ordinary practice of the Court. 
 
 Dated at Ottawa, this 5th day of December, A.D. 1892. 
 
 Geo. W. Burbidge, 
 
 J. E. C. 
 
 mi 
 
 , Form 526. 
 
 general order. 
 In the Excheqiier Cour' of Canada. 
 
 In |)ursuance of the provisions contained in the 56th section of the 
 Exchequer Court Act (50-51 Vic, and 52 Vic, c 38), it is ordered 
 that the following rules in re.spect of the matters, hereinafter mentioned, 
 shall be in force in the Exchequer Court of Canada : — 
 
518 
 
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 EXCHEQUER COUBT OSDEilS, ETC. [Appendix II. 
 
 by the pai-tie.s, or their attorneys, 
 be filed, and shall thereujiiu 
 
 1 . Any consent in writing ! 
 may, by permission of the 
 become an order of Court. 
 
 2. Whenever a claim is neferTetl to the Court by the head of any 
 Department of the Government of Canada, a consent in writing, signed 
 by the parties or their attorneys. thAt ssnch claim shall be heard without 
 pleadings, may be filed with the Registrar,. and shall thereupon become 
 an order of Court. 
 
 3. The Court may, on the aj«pUeation of any party, order that any 
 such claim .shall be heard without pleadings. 
 
 4. Every such claim shall be ripe for hearing as soon as such order 
 is taken out. 
 
 5. Rule III. of the Exc-beq[ner Court of Canad.. is hereby repealed, 
 and the following substituted therefor : 
 
 BCXE III. 
 
 Special case nwiy b*: fiat>id for opinion of Court. 
 
 The parties to any cause or matter may concur in stating the ques- 
 tions of law arising therein in the form of a special case for the opinion 
 of the Court. Every such special case shall be divided intr )aragraphs. 
 numbered consecutively, and shall concisely state such fuv cs and docu- 
 ments as may be necessary to enable the Court to decide the questions 
 raised thereby. Ujwn the angniaeat of such case, the Court and the 
 parties shall be at liberty to refer to the whole contents of such docu- 
 ments, and the Court shall l<e at iiberty to draw from the facts and docu- 
 ments stated in any such sitH^ial case any inference, whether of fact nr 
 law, which might have l>een draw-R therefrom, if proved at trial. 
 
 Dated at Ottawa, this 8th day cf February, A. D. 1894. 
 
 Geo. W. Burbipge, J. E. C. 
 
 FoRX 52." 
 
 The Patent Act of lS72y 3-7 Vic, chap. :iG, sec. 6. 
 
 "Sec. 6. Any ))er.son haritjg invented any new and useful art, machine, 
 manufacture or com]>osition of matter, not known or ttsed by others be- 
 fore his invention thereof, and not being in public use or on sale for 
 more than one year previous to his application, in Canada, with the 
 consent or allowance of the inventor thereof, may, on a petition to that 
 eflect presented to the Commi^oner. and on compliance with the other 
 requirements of this Act, obtain a {)atent granting to such person an 
 exclusive property therein ; and the saitl jKitent shall be under the seal 
 
Appendix II.] SECTIONS OF ACTS OJ OffZl ABTD 1849. 
 
 519 
 
 of the Patent Office ami the signature of "tlrt-'ChramiHsioner or tlie signature 
 of another member of the Privv Council. iruE -fiiall be (jood and a\ ail to 
 avail to the grantee, his executoi-s, adnuiiiiCra.cor3 or assii^ns, for the 
 period mentioned in such patent, but nopiiwnn ihall issue for an inven- 
 tion having an illicit object in view or abairrmn cheorem. " 
 
 Form nS. 
 
 EEISBrE. 
 
 Under 12 Vic, ch. f^ mcTnSJfD^ 
 
 "7. That whenever any patent heretaJ<iw it'anted or hereafter to lie 
 'ranted j aforesaid shall be inoperative ojiiLwalid by reason of a defec- 
 tive or insufficient description or sp'icificictiira;. il: the error hav*; or shall 
 have arisen from inadvertency, accident *nr luistake, and without anv 
 fraudulent or deceptive intention, it shall '<\h- Iii.wful for the patentee to 
 surrender such patent and to obtain ti nt^w parent ti» he issued to iiim 
 for the same invention for the residue oi' cdiw- unexpired period of thtt 
 original patent, in accordance with the jfUffiHrcee >» corrected descri|itiiin 
 and specification ; and in case of his ueirolin! of any assignment l)y him 
 made of the original patent, a similar riii'in ■tJiail vest in his execiittir, 
 administrator or legal reju'esentHtive, and tiit^ patent so reissued, toijetlier 
 with the coirected descrij)tion anl B|tecitiL'iimini thereof, shall have the 
 same effect and o[)eration in law on the mmii of all sictions thereafter 
 commenced for causes subsequently accruing. . is if the same had been 
 originally filed in such corrected form bafoi«e alie issuing of the original 
 patent." 
 
 Form TA. 
 
 DISCLAIMER. 
 
 Under hi Vic, clu 24^ mr:. '"f^ (' M^D). 
 
 Sec. 8. " And be it enacted, that wheBevnr.. l»wuiistake, accident, or in- 
 advertence, and without any wilful defauh tiriiiDent to defraud or mislead 
 the public ; any patentee shall have made '\i» -tpe<;itication of claiin too 
 broad, claiming more than that of which lit- vu* tiie original or first in- 
 ventor, some material and substantial ])art m tihij thing patented, being 
 truly and justly his own, or shall have in \ivi- +oecitication claimed to be 
 the original and first inventor or discovai'ei:. jti any material or substan- 
 tial part of the thing patented, of wMiih Ib- was not the first and 
 original inventor, and shall have no legitl jp just right to claim the 
 same, in every such case the patentee, hit •taiiuuS[)r, administrator, legal 
 
520 
 
 SECTIONS OF ACT OF 1849. [Appendix II. 
 
 repfeseiit.ative or assign, whetlier of a whole or a fractional interest 
 thereof, mav make disclaimer of such parts as he shall not claim to 'lold 
 hy virtue of the patent or assignment thereof, stating in the said dis- 
 clainuM' the extent of his intei^est in such pi.tent, and siich disolainier 
 shall he in wiiting attested to by one witness, and recorded in the office 
 of tlie said Secretary and shall Ije thereafter taken and considered as 
 j>art of tlie original specification, to ihe extent of the interest possessed 
 in the patent or right secured tlierehy by the disclaimant or by those 
 <,'lainiing by or under him su'jsequent to the entry thereof, but such 
 disclaimer shall not affect any actions |)euding at the time of its entry 
 Hxcept so far as may relate to the question of unreasonable neglect or 
 delay in filing the same : an<l tii** jiatent shall be deemed good and valid 
 for so much of the invention or discovery as shall be trulj' and bona fide 
 his own or not disclaimed ]irovided it shall be a material and substantial 
 ]>ai't of the thing patented, and be ilefinitely distinguished from other 
 parts so claimed without right as aforesaid : and such patentee, his 
 t^xecutor or legal representative and assigns, whether of the whole or a 
 fractional interest therein as aforesaid, shall be entitled to maintain a 
 suit at law or in equity on such patent foi" any infringement of so niuch 
 of the invention or discovery an shall be bond fide his own, as aforesaid, 
 notwithstanding such disclaimer or larger sj)ecification, as aforesaid ; and 
 in case of judgment or verdict in his favour, he shall not be entitled to 
 recover costs against the defendant unless he shall have entered as afore- 
 said in the office of the Provincial Secretary, the said disclaimer of all 
 that part of the thing patented so claimed without right : Provided also, 
 that no j)erson bringing such suit shall be entitled to the benefits con- 
 tained in this section who shall have unreasonably neglected or delayed 
 to enter in the said office the disclaimer as aforesaid." 
 
 Form 55. 
 
 
 m\\ 
 
 Under 12 Vie., ch. 24, sec. 22 (1849). 
 
 Section 22. '' Every person or cor|K)ration established in this Pro- 
 vince having purchased, constructed, invented or discovered as aforesaid, 
 any new machine, manufacture or coni|)Osition of matter, prior to the 
 application of a ))atent therefor by a person claiming to be the inventor 
 or discoverer thereof, shall jxjssess the right to use and vend to others to 
 l)e used, the specific machine, manufacture or composition of matter so 
 made, jturchased or introtluced. without liability to the patentee or any 
 other person interested in such invention ; and no patent shall be held 
 to be invalid by reason of such purchjtse, sale or use, prior to the appli- 
 cation for such patent as aforesaid, except on ])roof of abandonment of 
 such invention to the ])ublic or that such sale or prior use existed for 
 more than one year prior to such application for a patent." 
 
Appendix II.] FEES, ETC.. IN SUNDRY COUNTRIES. 
 
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Appendix III.] THE PATENT ACT OF CANADA. 
 
 .523 
 
 APPENDIX III. 
 
 THE PATENT ACT OF CANADA. 
 
 Revised Statutes of Canada, c. 61 (A.D., 1880), "yln Act respecfimj 
 Patents of Invention," as it stands amended subsequent to the session of 
 1894 of the House of Commons of Canada. • 
 
 N.B. — The side notes of the various sections may be found collected 
 in the contents of Chapter 2, near the commencement of this book. 
 
 (Part I. of P>ook.) 
 
 Her Majesty, b}' and with the advice and consent of the Senate and 
 House of Commons of Canada, enacts as follows : — 
 
 SHORT TITLE. 
 
 1. This Act may be cited as " The Patent Act" 3.") Y,, c. 26, s. o3. 
 
 INTERPRETATION. 
 
 2. In this Act, unless the context otherwise requires, — 
 
 (a) The expression " the Minister " means the Minister of Agricul- 
 ture ; 
 
 (6) The expression " Commissioner " means the Commissioner of 
 Patents, and the expression " Deputy Commissioner " means the Deputy 
 Commissioner of Patents ; , 
 
 (c) The expression " invention " means any new and useful art, 
 machine, manufacture or composition of matter, or any new and useful 
 improvement in any art, machine, manufacture or comi)Osition of matter ; 
 
 (oJ) The expression " legal repi'esentatives " includes heirs, executors, 
 administrators and assigns or other legal representatives. For notes to 
 sees, 1 and 2 and sub-sections of sec. ,', see pp. :21-2'>. 
 
 (Part II. of Book). 
 
 PATENT OFFICE AND APPOINTMENT OF OFFICERS. 
 
 3. There shall be attached to the Department of Agricultuie, as a 
 branch thereof, an office which shall be called the " Patent Office '" ; and 
 the Minister of Agriculture for the time being shall be the Commis- 
 sioner of Patents. 35 V., c. 26, s. 1, part. For note see ]). 2o. 
 
r.n. 1 
 
 ' i 
 
 r 
 
 :i i 
 
 ]; 
 
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 1 ; 1 * 
 
 
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 i: ' ! ' 
 
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 3 : 
 
 i24 
 
 THE PATENT ACT OF CANADA. [Appendix III. 
 
 4. Tlie Jonimissioner slmll receive all ii])plic!itions, fees, paju is, dotu- 
 ineiits uiul iiiodels for patents, and sliall perform and do all acts and 
 thiirgs requisite for the granting and issuing of ]»atents of invention ; 
 and lie shall have the chai'ge and custody of the hooks, records, papers, 
 models, machines and other things belonging to the Patent Office. .'5.') 
 v., c. 2G, .s. ], part. 
 
 5. The Governor in Council may appoint a Deputy Commissioner of 
 Patents, whose salary shall be two thousand eight hundied dollars jier 
 annum, and may, from time to time, appoint such officers and clerks 
 under such De])uty Commissioner as are necessary for the purposes of 
 this Act, and such Deputy Commissioner, officers and clerks filiall hold 
 office during pleasure. 
 
 2. The Deputy Commissioner of Patents .shall, subject to the head of 
 the Department to which the Patent Office may be, at any time, 
 nttached, over.see and direct the officers, clerks and em))loyees in the 
 Patent Office and shall have iceneral control of the bu iiness thereof, 
 and shall perform such other duties as are assigned to him Ijy the Gover- 
 nor in Council. 35 V., c. 26, s. 4, part ; The Patent Act (1886), 51 V., 
 c. 18, s. 1. For note see p. 20. 
 
 6. The Commissioner shall cause a seal to be made for the purposes 
 of this Act, and may cause to be sealed therewith every patent and other 
 instrument and copy thereof issuing from the Patent Office. 35 V., c. 
 26, s. 2, 2>(i.rt. For note see j^p. 26, 27. 
 
 (Part III. of Book.) 
 
 APPLICATIONS FOR PATENTS. 
 
 7- Any person wlio has invented any new and useful ai't, machine, 
 manufacture or composition of matter, or any new and useful improve- 
 ment in any art, machine, manufacture or composition of matter, which 
 was not known or used by any other person before his invention thereof, 
 and which has not been in public use or on sale with the consent or 
 allowance of the inventor thereof, for more than one year previously to 
 his ajiplication for patent therefor in Canada, may, on a petition to that 
 effect, presented to the Commissioner, and on compliance with the other 
 requirements of this Act, obtain a patent granting to such person an 
 exclusive property in such invention : For notes see ^jp. 27-71. 
 
 2. No patent shall issue for an invention which has an illicit object 
 in view, or for any mere scientific principle or abstract theorem. 35 V., 
 c. 26, s. 6, part. For notes see pj), 71-73. 
 
 8. Any inventor who elects to obtain a patent for his invention in a 
 foreign country before obtaining a patent for the same invention in 
 Canada, may obtain a ])atent in Canada, if the same be applied for 
 within one year from the date of the issue of the first foreign patent for 
 
 ii^ 
 
Appendix III.] THE PATENT ACT OF CANADA. 
 
 525 
 
 such invention ; and, if within tliree months at'ter the date of the 
 issue of a foreign patent, the inventor gives notice to the Commissioner 
 of his intention to apply for a patent in Canada for such invention, then 
 no other person havin^; commenced to manufacture the same device in 
 Canada during such period of one year, sliall lie entitled to continue the 
 manufacture of the same after the inventor has obtained a patent there- 
 for in Canada, without the conseiit or allowance of the inventor ; 
 and under any circumstances, if a foreign patent exists, the Canadian 
 patent shall expire at the earliest date on which any foieign patent for 
 the same invention expires. 35 V., c. 20, s. 7. The Patent Act (1^6(5) ; 
 .55 and 50 V., c. 24, s. I (1><U2). For notes se:- j-j>. /"•;«>■-;. 
 
 9. Any person who has invented any improvement on any patented 
 invention, nuiy obtain a patent for such improvement ; Iiut he shall not 
 thereby obtain the right of vending or using the onginal invention, noi- 
 shall the patent for the original invention confer the right of vending or 
 using the patented improvement. 35 V., c. 2G, s. K. Fur nuten see 
 />p. 6'J-SU. 
 
 10. Every inventor shall, before a patent can be obtained, make 
 oath, or when entitled l)y law to make an atHrmation instead of an oath, 
 sliall make an atlirniation, that he verily believes that ' is the mven.Mr 
 of the invention for which the patent is a.sked and 'hat the .several alle- 
 gations in the [x 'i ion contained are re.spectivel v true and con 'Ot : 3;> 
 V.,c. 20, s. 11. 
 
 2. iu the event of the inventor being dead, such oath or aitirmation 
 shall be made by the applicant, and shall state that he verily believes 
 that the person whose assignee or legal representative he is, was the 
 inventor of the invention for which the patent is solicited, and that the 
 several allegations in the petition contained are respectively true and 
 correct: 35 V., c. 20, s. 11. 
 
 3. Such oath or affirmation may be made before a minister ph nipo- 
 tentiary, charyti d'affaires, consul, vice-consul, or consular agent, a 
 judge of any court, a notary public, a justice of the peace, or the mayor 
 of any city, borough or town, or a commissioner for taking attidavits, 
 having authority or juiisdiction within the place where the oath may 
 Ite administered. 35 V., c. 20, s. 1 1 ; 30 Y., c. 44, s. 3 ; The Patent 
 Act (1880), 55-50 V., c. 24, s. 2 (18<J2). For notes see pp. S6-91, 
 
 11. The applicant for a patent shall, for the purposes of this Act, 
 elect his domicile at some known and specified place iu Canada, and shall 
 mention the same in his petition for a patent. 35 V., c. 20, s. 12. For 
 note see p. 91. 
 
 12. The applicant shall, in his petition for a patent, insert the title 
 or name of the invention, and shall, with the petition, send in a sjjeci- 
 lieation in duplicate of the invention and an additional or third copy of 
 the claijn or claims. 35 V., c. 26, s. 13, The Patent Act (1886) ;" 56 
 v., c. 34, s. 1. For notes see pp. 91 -98. 
 
 1 
 
id 
 
 •M 
 
 o26 
 
 THE PATENT ACT OP CANADA. [Appendix III. 
 
 1^ :'i 
 r ■ « 
 
 
 
 ? uiik 
 
 
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 M}£dMi 
 
 13. The specification shall cipi-rectly and fully descriVje the mode 
 or modes of operating the inventinu, as contemplated by the inventor; 
 and shall state clearly and distinctly the contrivances and things which 
 he claims as new and fn* the use of which he claims an exclusive 
 j)roperty and privilege : 
 
 "2. Such speciticsition shall bear the name of the place where, and the 
 date when it is made, and shall be signed by the inventor, if he is alive, 
 and if not, by the applic:»nt, and Ijy two witnesses to such signature of 
 the inventor oi- applicant : 
 
 3. In the case of a machine, the specification shall fully explain the 
 principle and the several modes ir which it is intended to apply and 
 work out the same : 
 
 4. In the case of a machine, or in any other case in which the 
 invention admits of illustration by means of drawings, the applicant 
 sIihU also, witii his application, send in drawings in duplicate, showing 
 clearly all parts of the invention ; and each drawing shall bear the sig- 
 nature of the inventor, if he is alive, and if not, of the applicant, or of 
 the attorney of such inventor or ajtplica.^t, and shall have written refer- 
 ences corresponding with the specification ; but the Connnissioner may 
 I'equire further dn\wiug or dispense with any of them, as he sees fit : 
 
 5. One dui)licate of the specification and of the drawings, if there are 
 drawings, shall Ix? annexetl to the patent, of which it shall form an essen- 
 tial |)art, and the other duplicate shall remain dejjosited in the patent 
 office : 
 
 6. The Commissioner may, in his discretion, dispense with the dupli- 
 cate specification .and drawing, and in lieu thereof cause copies of the 
 .specification and drawing, in print or otherwise, to be attached to the 
 patent, of which they shall form an essential part. 35 V., c. 26, s. 14 
 — 3G v., c. 44, s. 4. For -notes see pp. 98-1 14- 
 
 14. In all cases in which the invention admits of representation by 
 model, the applicant, if i-equired by the Commissioner, shall furnish a 
 model of convenient size, exhibiting its several jjarts in due proportion ; 
 and when the invention is a composition of matter, the applicant, if 
 required by the Commissioner, shall furnish specimens of the ingredients, 
 and of the composition, sufficient in quantity for the purpose of exi<ei'i- 
 nient. If such ingredients or composition be of an explosive or danger- 
 ous character, they shall be furnished with such ))recautions as aie 
 prescribed in the requisition therefor. 35 V, c. 26, s. 15, The Patent 
 Act ; 55-56 V., c. 24. s. 3. For notes see jip. llJf-117. 
 
 15. No application for a patent shall be withdrawn without the 
 consent in writing of each and every registered assignee of such patent 
 or any part thereof. 35 V., c. 26, s. 38, part. The Patent Act, 55 aud 
 56 v., c. 24, .s. 4. For notes see pp. 117, 118. 
 
Appendix III.] THE PATENT ACT OF CANADA. 527 
 
 (Part IV. of Book.) 
 
 REFUSAL TO GRANT PATENTS. 
 
 16. The Comniissioner may object to gi-ant a i)atent in any of the 
 following cases : — 
 
 {a) When he is of opinion that the allegoel invention is not patent- 
 able in law ; 
 
 (/;) When it appears to him that the invention is already in the 
 jiossession of the pul)Iic, with the consent or allowance of the inventor ; 
 
 (c) When it appears to him that therein no novelty in the invention ; 
 
 (d) When it appears to him tliat the invention has been described in 
 a book or other printed publication before the date of the aj)plication, or 
 is otherwise in the possession of tiie public ; 
 
 («) When it appears to him that the invention has already been 
 patented in Canada or elsewhere, if the case is one within the eighth 
 section of tliis Act, unless the Commissioner has doubts as to whether 
 the patentee or the applicant is the first inventor. 35 V., c. 26, s. 40. 
 For notes nee pp. 110-150. 
 
 17- Wiienever the Commissioner objects to grant a patent as afore- 
 said, he shall notify the applicant to that effect and shall state the ground 
 or reason therefor, with sufficient detail to enable the applicant to 
 answer, if he can, the objection of the Comniissioner. 35 V., c. 26, s. 
 41. For notes see pp. loO-lol. 
 
 18. Every aj^plicant who has failed to obtain a j)atent by reason of 
 the objection of the Commissioner, as aforesaid, may, at any time within 
 six months after notice thereof has been addressed to him or his agent, 
 appeal from the decision of the Commissioner to the Govei'nor-iu-Coun- 
 oil, 35 v., c. 26, s. 42. For notes see ]). 152. 
 
 (Part V. of Book.) 
 
 CONFLICTING APPLICATIONS. 
 
 19. In case of conflicting applications for any patent, the same 
 shall be sul)mitted to the arbitration of three skilled persons, two of 
 whom shall be chosen by the applicants, one by each, and tin' thii'd of 
 whom shall be chosen by the Commissioner or by the Deputy Commis- 
 sioner, or by the person appointed to perform the duty of that officer ; 
 and the decision or award of such arbitrators, or of any two of them, 
 <lelivered to the Commissioner in writing, and subscribed by them or any 
 two of them, shall be final, as far as concerns the granting of the patent : 
 
 2. If either of the applicants refuses or fails to choose an arbi- 
 trator, when required so to do by the Commissioner ; and if there are 
 only two such applicants, the patent shall issue to the opposing applicant : 
 

 1i 
 
 i '' 
 
 1 ' if' 
 
 
 ill 
 
 ii 
 
 
 I 
 
 ■ 
 
 1 
 
 528 
 
 THE PATENT ACT OF CANADA. [Appendix III. 
 
 3. If there are more than two conflicting applications, and if the 
 persons applying do not all unite in appointing three arbiti-ators, the 
 Commissioner or the Deputy Commissioner or person appointed to per- 
 form the duty of that officer, may appoint the three arbitrators for the 
 purposes aforesaid : 
 
 •t. Tlie arbitrators so named shall subscribe and take, befoi-e a 
 judge of any court of record in Canada, an oath in the form following, 
 that is to say : — 
 
 *' I, the undersigned {A. B.), being duly appointed an arbitrator under 
 the authority of ' The Patent Act,' do iiereby solemnly swear {or afftrui, 
 as the case may be), that I will well and truly perform the duty of such 
 arbitrator on the conflicting applications of (C. D. and E. F.) submitted 
 to me : " 
 
 5. The arbitrators, or any one of them, when so sworn, may 
 summon before tliem any api)licant or other person, and may 'require 
 him to give evidence on oath, orally or in writing {or on solemn affinaa- 
 tioii, if such applicant or person Is entitled to afirm in civil cases), and 
 to produce such documents and things as such arbitrators deem requisite 
 to the full investigation of the matters into which they are appointed tu 
 examine, and they shall have the same power to enforce the attendance 
 of such applicants and other persons, and to comi)el them to give evi- 
 dence, as is vested in any court of justice in civil cases, in the I'rovince 
 in which the arbitration is held : but no such applicant or person shall 
 be compelled to answer any questioii, by his answer to which he might 
 reniler himself liable to a criminal prosecution : 
 
 G. The fees for the services of such arbitrators shall be a matter 
 of agreement between the arbitrators and the applicants, and shall lie 
 paid by the applicants who name them, respectively, except those of the 
 arbitrator or arbitrators named by the Commissioner, which shall be paid 
 by the applicants jointly. 35 V,, c. 26, s. 43, part. For notes see p/i. 
 
 (Part YI. of Book.) 
 
 guant and duration' of patents. 
 
 20. Every patent granted under this Act shall contain the title 
 or name of the invention, with a reference to the specification, and shall 
 grant to the patentee and his legal representatives, for the term therein 
 mentioned, from the granting of the same, the exclusive right, privilege 
 and liberty of making, constructing and using, and vending to others to 
 be used, the said invontion, subject to adjudication in respect thereof 
 before any court of competent jurisdiction : 
 
 2. In cases of joint applications, the patents shall be granted in the 
 names of all the applicants. 3i> V., c. 26, s. 10, part, and s. IG j — 3G V., 
 c. 44, s. 5. For notes see pp. lOS-165. 
 
 *■! 
 
 
Appendix III.] THE PATENT ACT OF CANADA. 
 
 529 
 
 21. Every patent shall be issued under the seal of the Patent 
 OflSce and the signature of the Commissioner or of the Deputy Con)rai3- 
 sioner, and when duly registered, shall be good, and shall avail the 
 grantee and his legal renresentatives for the term mentioned in the 
 patent : 35 V., c. 26, s. 6, part, and s. j8, Patent Act (1886) ; oQ V., 
 c. 34, s. 2. 
 
 2. The Commissioner may require that any patent, before it is signed 
 by the Commissioner or by any other member of the Queen's Privy 
 Council for Canada, acting for him, and befoi'e the seal hereinbefore 
 mentioned is affixed to it, shall be examined by the Minister of Justice ; 
 and if such examination is so required, the Minister of Juhtice shall, 
 accordingly, examine it, and if he finds it conformable to law, he shall 
 certify accordingly, and such patent may then be signed, and the seal 
 affixed thereto. 35 V., c. 26, s. (j, part, and s. 18. For notes see ])]). 
 166-168. 
 
 , 
 
 1; |K 
 
 \\ vSgj 
 
 ■'11 
 
 
 22. The term limited for the duration of every patent of invention 
 issued by the Patent Office shall be eighteen years ; but at the time of 
 the application therefor it shall be at the option of the aijjilicant to pay 
 the full fee required for the term of eighteen years, or the partial fee 
 required for the term of six years, or the partial fee required for the 
 term of twelve' years : 46 V., c. 19, s. 1, Patent Act (1886) ; .55, 5(3 
 v., c. 24, s. 5 (1892). 
 
 2. If a partial fee only is paid, the proportion of the fee paid shall 
 be stated in the patent, and the patent shall, notwithstanding anything 
 therein or in this Act contained, cease at the end of the term for which 
 the partial fee has been paid, unless before the expiration of the said 
 term the holder of the patent pays the fee required for the further term 
 of six or twelve years, and obtains from the Patent Office a certificate of 
 such payment in the form which is, from time to tiine, adopted, which 
 certificate shall be attached to and refer to the patent, and shall be 
 under the signature of the Commissioner or of the Deputy Commissioner : 
 46 v., c. 19, s. 1, Patent Act (1886) ; 55, 56 V., c. 24, s. 5 ; 56 V., c. 
 34, s. 3. 
 
 3. Tf such second payment, together with the iBret payment, makes 
 up only the fee re juired for twelve years, tiien the patent shall, not- 
 ^vitllstanding anything therein or in this Act contained, cease at the end 
 of the term of twelve years, unless at or before the expiration of such 
 tfim the holder thereof pays the further fee required for the remaining 
 six years, making up the full terni of eighteen years, and obtain a 
 like certificate in respect thereof. 46 V., c. 19, s. 1, The Patent Act 
 (1886) ; 55, 56 V., c. 24, s. 5. For notes see pp. 168-172. 
 
ftftjf-1 
 
 «" 
 
 •i\ 
 
 It • 
 
 :' . 
 
 •r; 
 
 • I: 
 
 1 '>! 
 
 it 
 
 • 111 
 
 
 530 THE PATENT ACT OF CANADA. [Appendix III. 
 
 (Part VII. of Book.) 
 
 REISSUE OF PATENTS. 
 
 23. Whenever any patent is deemed defective or inopei-ative by 
 reason of insufficient descrii)tion or specification or by reason of the 
 patentee claiming more than he had a right to claim as new, but at tlie 
 same time it appears that the error arose from inadvertence, accident or 
 mistake, without any fraudulent or deceptive intention, the Commis- 
 hioner may, upon the surrender of such patent and the payment of the 
 further fee hereinafter provided, cause a new patent, in accordance with 
 an amended description and specification made by such patentee, to be 
 issued to him for the same invention for any part or for the whole of 
 the then unexpired residue of the term for which the original patent 
 was, or might have been granted : 
 
 2. In the event of the death of the original patentee or of his hav- 
 ing assigned the patent, a like right shall vest in his assignee or his legal 
 repiesentatives : 
 
 3. Such new patent, and the amended description and specification, 
 shall have the same effect in law, on the trial of any action tliereafter 
 commenced for any cause subsequently accruing, sis if the same had been 
 originally filed in such corrected form before the issue of the original 
 {latent : 
 
 •t. The Commissioner may entertain separate applications, and cause 
 patents to be issued for distinct and separate parts of the invention pat- 
 ented, upon payment of the fee for a reissue for each of such reissued 
 patents. 35 V., c. 26, s. 19 ; — 38 V., c. 14, s. 1. For notes see pp. 
 17S-1H' 
 
 (Part VIII. of Book.) 
 
 DISCLAIMERS. 
 
 24. Whenever, by any mistake, accident or inadvertence, and 
 without any wilful intent to defraud or mislead the public, a patentee 
 has made his specification too broad, claiming more than that of which 
 he or the person through whom he claims was the first inventor, — or has, 
 in the specification, claimed that he or the person through whom he 
 claims was the first inventor of any material or substantial part of the 
 invention patented, of which he was not the first inventor, and to which 
 lie had no lawful right — the patentee may, on payment of the fee 
 hereinafter pi-ovided, make disclaimer of such parts as he does not claim 
 to hold by virtue of the patent or the assignment thereof : 
 
 2. Such disclaimer shall be in writing, and in duplicate, and shall 
 Ije attesv«d in the manner hereinbefore prescribed in respect of an 
 application for a prteut ; one copy thereof shall be filed and lecorded in 
 the otKce of the Commissioner, and the other copy thereof shall be 
 attached to the patent and made a part thereof by reference, and such 
 
Appendix III.] THE PATENT ACT OF CANADA. 
 
 >31 
 
 disclaimer shall thereafter be taken and considered as part of the orig- 
 inal specification : 
 
 3. 8ucli disclaimer shall not affect any action pending at the time of 
 its being made, except in so far as relates to the question of unreasonable 
 neglect or delav in making it : 
 
 4. In case of the death of the original patentee, or of his having 
 assigned the i>atent, a like right thall vest in his legal representatives, 
 any of whom may make disclaimer : 
 
 5. The patent shall thereafter be deemed good and valid for so 
 much of the invention as is truly the invention of the disclaimant, and 
 is not disclaimed, if it is a material and substantial part of the inven- 
 tion, and is definitely distinguished from other parts claimed without 
 right ; and the disclaimant shall be entitled to maintain an action or 
 suit in respect of such part accordingly. 35 V., c. 26, s. 20. For notes 
 nee J)}). 195-211. 
 
 (Part IX. of Book.) 
 
 ASSIGNMENTS. 
 
 25. Tlie patent may be granted to any i)erson to whom the inventor, 
 entitled under this Act to obtain a patent, lias assigned or bequeathed 
 the right of obtaining the same, or in default of such assignment or 
 bequest, to the legal representatives of the deceased inventor. 35 V., 
 c. 26, s. 8 ; 36 V., c. 44, s. 2. For notes see jtj). 212-21^. 
 
 26. Every patent issued for an invention shall be assignable in law, 
 either as to tiie whole interest or as to any part thereof, by any instru- 
 ment in writing ; but such assignment, and every grant and conveyance 
 of any exclusive right to make and use and to grant to others the right 
 to make and use the invention patented, within and throughout Canada 
 or any part thereof, shall be registered in the Patent Oftioe in the man- 
 ner, from time to time, prescribed by the Commissioner for such registra- 
 tion ; and every assignment affecting a patent for invention shall be null 
 and void against any subsequent assignee, unless such instrument is 
 registered as hereinbefore prescribed, before the registration of the 
 instrument under which such subsequent assignee claims. 35 V., c. 26, 
 
 s. 
 
 99 
 
 For notes see pp. 2 14-2 41- 
 
 27. In cases of joint applications or grants, every assignment from 
 one or more of the applicants or patentees to the other or others, or to 
 any other person, shall be registered in like manner as other assignments. 
 35 v., c. 26, s. 10, part. For notes see j)p. 241-242. 
 
 
532 
 
 THE PATENT ACT OF CANADA. [Appendix HI. 
 
 ■ \ 
 
 :\ 
 
 (Part X. of Book.) 
 
 IMPEACHMENT AND OTHEE LEGAL PROCEEDINGS IN RESPECT OF PATENTS. 
 
 28. A jtatent shall Ije void, ilt any material allegation in the petition 
 or declaration of the a|»)>]icaQt hereinbefore mentioned in re.spect of 
 such ))atent is untrue, or, if the specitications and dia wings contHin 
 more or less than is necessary tW obtaining the end for which they pw 
 port to be made, when au-ch omission or addition is wilfully made ft»r xhr 
 purpose of misleading ; Imt. if it apjtears to the Court that sudi 
 omission or addition w:is a» involuntary error, and if it is ]iro\ed tljiT 
 the patentee is entitled to tiie remainder of his patent ])ro tanfo. iJjt- 
 Court shall render a ju<l«niwiiit in accordance with the facts, :ind shjtll 
 determine as to costs, ant! the |)atent shall be held valid for such jiait iif 
 the invention de.scril>ed, as th^ j>atentee is so found entitled to : and tw<» 
 office copies of such jud^rment shall be furnished to the Patent Oliice by 
 the patentee, one of which shall be registered and lemain of record m 
 the office, and the other oi which shall be attached to the patt-nt, aiad 
 made a part of it by a ref<ereiice thereto. 35 V., c. 26, s. 27. For n<4i^^ 
 see pp. 2JfS-2Jf5. 
 
 29. Every persou whc». irrthont the consent in wilting of the ]«t- 
 entee, makes, construct* or puts in practice any invention for -which » 
 patent has been obtaiu^^ under this Act or any previous Act. ct 
 who procures such inv-entioD from any person not authorized by the at- 
 entee or his legal rej irenentatives to make or use it, and who uf * it 
 shall be liable to the jiattniiee' or his legal representatives in an action 
 of damages for so (kojig ; and the judgment shall be enforced, and the 
 damages and costs that are adjudged shall be recoverable in like mau- 
 ner as in other cases iu the Court in which the action is brought. 35 
 v., c. 26, s. 23. h\ir n<At* tan pp. 2J^o-269. 
 
 30. Any action for the infringement of a patent may be broiight 
 in any Court of recond having juri-sdiction, to the amount of damsiiges 
 claimed, in the Pi-ovinoe in which the infringement is alleged to ha\e 
 taken place, and m hich is all5«> that one of the said Courts which holds it> 
 sittings nearest to the place of residence or of business of the defendant ; 
 and such Court shall decide the case and determine as to costs. 35 V., 
 c. 26, s. 24, part. For H'^e$ i».>i pp. 270-2S6. 
 
 31. In any action for the infringement of a patent, the Court, if lif- 
 ting, or any J >idge thereof if the Court is not sitting, may, on the apf .fe 
 tion of the plaintift or defendant respectively, make such ordor fc-i . 
 injunction, restraining the opptw-ite party from further use, manufac*.'.* .•- 
 or sale of the subject matter of the patent, and for his punishmeiit in 
 the event ot disol>edieiice of snch order, or for inspection or accouiit, ain. 
 respecting the same and the proceedings in the action, as the Court or 
 Judge sees tit, but fix>m such onler, an appeal shall lie under the same 
 circumstances, and to the taniie Court, as from other judgments or orders 
 
Appendix III.] THE PATENT i :nr flip Canada. 
 
 )3S 
 
 of the Court in which the order i^• uiuCh. 
 notes see pj). 286-324^. 
 
 .)') v., c. 26, s. 24, part. For 
 
 32. Whenever tlie plaintiff, iu mv^ :«ich action, fails to sustain his 
 action, because his specitication anil tiuim embrace more than that of 
 which he was the tirst inventor, unii it appears that the defendant 
 used or infringed any part of the iiuwwuCion justly and truly specified 
 and claimed as new, the C'ourt mtiT <ii«n'iiuinate, — and the judgment may 
 be rendered accordingly. Sf) T., c. iii. +. i5. For notes see pp. 325-326. 
 
 33. The defendant, in any sndL action may plead specially as 
 matter of defence, any fact oi' defuiih which, by this Act, or by law, 
 renders the patent void ; itnd the (Cijurt shall take cognizance of that 
 special pleading and of the facte fmiuMitsed therewith, and shall decide 
 the case accordingly. 35 Y., c. iJ(i. s. ii. tor notes see pp. 320-331. 
 
 34. Any person who desirep %v impeach any patent issued under 
 this Act may obtain a sealed and {feimiiHfl: (lupy of the patent and of the 
 jjetition, affidavit, specitication unci druwiniis thereunto relating, and 
 may have the same liled in the office m die prothonotary or clerk of the 
 Superior Court for Lower Canada iu <i^Uei)ec, or of any of the divisions 
 of the High Court of Justice for '('tmiuin,. or of the Supreme Court in 
 Nova Scotia, or of the Supreme 'Coisin in New Brunswick, or of the 
 Supreme Court of Judicature in ff^iiiiuK Edward Island, or of the Su- 
 preme Court in British Columbia, oiirti tditf Court of Queen's Bench in 
 Manitoba, or of the Supieme Coum ih: die North- West Territories, ac- 
 cording to the domicile elected by -dIh- i^itcencee, as aforesaid, or in the 
 office of the Registrai of the Exchequer <Cimrt of Canada, — which Courts, 
 respectively, shall adjudicate on the nantt*r and decide as to costs ; and 
 if the domicile elected by the patentee i» in the District of Keewatin, 
 the Court of Queen's Bench of MaaiisiUiii *hall have jurisdiction until 
 there is a Superior Court in such I^iitCKict. after which such Superior 
 Court shall have jurisdiction. Sf) \... .l 2.6, s. 29 ; 37 V., c. 44, s. 1 ; 
 38 v., c. 14, s. 8 ■ 49 V., c. U^, k. l\i. Tlie Patent Act (1886). 53 
 v., c. 13, s. 1. 
 
 2. The patent and documents af oresiaiE ^+hall then be held as of record 
 in such Courts respectively, so that a wjiii of ycfn? facias under the seal of 
 the Court, grounded upon such record, may issue for the repeal of the 
 patent, for cause as aforesaid, if, ujion jjmmeedings had upon the writ in 
 accordance with the meaning of this J^n.. tike patent is adjudged to be 
 
 void , 
 c. 2o 
 
 35 v., c 26, s. 29 ; 37 
 25, s. 14. For notes see pp. 
 
 T., c. 48...*. 
 33^i-i^Il.. 
 
 1: 38 V.,c. 14, s. 8; 49 V., 
 
 35. A certificate of the judgment uvxaiiiing any patent shall, at the 
 request of any person tiling it to mak-eiii (if: record in the Patent Office, 
 be entered on the margin of the eurdlminC o£ the patent in the Patent 
 Office, and the patent shall thereuj»on Im. and be held to have been void 
 and of no effect, unless the judgment it OTw»»?sed on appeal as hereinafter 
 provided, 35 V., c. 26, s. 30. For nutmmtpp. 341-342. 
 
534 
 
 THE PATENT ACT OF CANADA. Appendix III.] 
 
 
 \n ■ 
 
 r« \ 
 
 86. The judgment declaring or refusing to declare any patent void 
 shall be subject to ap|>eal to any Court ha%'ing appellate jurisdiction in 
 other cases decided by the Court by which the judgmert declaring or re- 
 fusing to declare such patent void, was rendered. 35 V., c. 26, s. 31. 
 For notes see i)p. S4^-343. 
 
 (Part XI. of Book.) 
 
 i ' ft 
 
 FORFEITURE OF PATENTS. 
 
 37. Every patent granted under this Act shall be subject, and be 
 eioipressed to be subject, to the following conditions : — 
 
 (a) That such [mtent and all the rights and privileges thereby 
 granted shall cease and determine, and that the patent shall be null and 
 void at the end of two yesirs from the date thereof, unless the patentee 
 or his legal representatives, or his assignee, within that period or any 
 authorized extension thereof, commence, and after such commencement, 
 continuously carry on in Canada the construction or manufacture of the 
 invention patented, in such a manner that any person desiring to use it 
 may obtain it, or cause it to be made for him at a reasonable price, at 
 some manufactory or establishment for making or constructing it in 
 Canada ; 
 
 [b) That if, after the expiration of twelve months from the granting 
 of a patent, or any authorized extension of such period, the patentee 
 or patentees, or any of them, or his or their representatives, or his or 
 their assignee, for the whole or a part of his or their interest in the pat- 
 ent, imports, or causes to Ije imported into Canada, the invention for 
 which the patent is grantetl, such patent shall be void as to the interest 
 of the person or pei-sons lm|x)rting or causing to be imported as afore- 
 said : 
 
 2. Any question which arises as to whether a patent, or any interest 
 therein, has or has not become void, under the provisions of this section, 
 may be adjudicated ujKtn by the Exchequer Court of Canada, wliicli 
 Court shall have jurisdiction to decide any such question upon informa- 
 tion in the name of the Attorney-General of Canada, or at the suit of 
 any person interested : 
 
 3. This section shall not Ije held to take away or affect the jurisdic- 
 tion which any Court other than the Exchequer Couit of Canuila 
 possesses. 35 V., c. 26, s. 28 ; 38 V., c. 14, s. 2 ; 45 V., c. 22, s. 1. 
 The Patent Act (188G). 53 V., c. 13, s. 2 (1890) ; 54, 55 V., c. 33, s. 1 
 (1891) ; 55, 56 V., c. 24, s. 6 (1892). 
 
 2- Whenever a patentee has been iniable to carry on the construc- 
 tion or manufacture of his invention within the two years hereinbetbie 
 mentioned, the Commissioner may, at any time not more than three 
 
Appendix III.] THE PATENT ACT OP CANADA. 
 
 535 
 
 niODths before the expiration of tliat term, grant to the patentee an 
 extension of the term of two years on liis |)roviiig to the satisfaction of 
 the Commissioner that he was, for reasons beyond liis control, prev itecl 
 from complying with the above condition : 
 
 3. The Commissioner may grant to the patentee, or to his legal 
 representatives or assignee for the whole or any i)art of the patent, an 
 extension for a further term not exceeding one year, beyond the twelve 
 months limited by this section, during which he may import or cause to 
 be imported into Canada the invention for whici. the ])atent is grant'?d, 
 if tiie patentee or his legal representatives, or assignee for the whole o" 
 any part of the patent, show cause, satisfactory to the Commissioner, to 
 warrant the granting of such extension ; but no extension shall be 
 granted unless application is made to the Commissioner at some time 
 within three months before the expiry of the twelve months aforesaid, 
 or of any extension thereof. 35 V., c. 2G, s. 2S ; 38 V., c. 14, s. 2 ; 
 45 v., c. 22, s. 1. For notes see pp. 3U-404. 
 
 CPart XIT. of Book.) 
 
 CAVEATS. 
 
 38. Any intending applicant for a patent who has not yet per- 
 fected his invention and is in fear of being despoiled of his idea, may 
 file, in the Patent OtKce, a description of his invention so far, with or 
 without plans, at his own will ; and the Commissioner, on payment of 
 the fee in this Act prescribed, shall cause the said document, which shall 
 be called a caveat, to be ])reserved in secrecy, with the exception of 
 delivering co|>ies of the same whenever recpiired by the said applicant 
 or by any judicial tribunal, — but the secrecy of the document shall 
 cease when the applicant obtains a patent for his invention : 
 
 2. If application is made by any other person for a patent for any 
 invention with which such caveat may, in any respect, interfere, the 
 Commissioner shall forthwith give notice, by mail, of such application, to 
 the person who has filed such caveat, and such |)erson shall, within three 
 months after the date of mailing the notice, if he wishes to avail him- 
 self of the caveat, tile his petition and take the other steps necessary on 
 an application for a patent, and if, in the opinion of the Connnissioner, 
 the applications are conflicting, like proceedings may be had in all 
 respects as are by this Act provided in the case of conflicting applica- 
 tions : 
 
 3. Unless the person tiling a caveat makes application within one 
 year from the tiling thereof for a patent, the Commissioner shall be 
 relieved from the obligation of giving notice, and the caveat shall then 
 remain as a simple matter of proof as to novelty or priority of inven- 
 tion, if required. 35 V., c. 26, s. 39. For notes see pp. 40o-409. 
 
53G 
 
 THE PATENT AOT OF CANADA. [Appendix III. 
 
 I ( 
 
 ■'v5 ■!! 
 
 li-ii! ml 
 
 (Part XIII. of Book.) 
 
 PATENT FEES. 
 
 39. The following fees shall be payable before an application for 
 any of the ])urposes herein mentioned shall be received by the Commis- 
 sioner, that is to say : — 
 
 Full fee for 18 years $60 00 
 
 Partial fee for 12 years 40 00 
 
 Part'ii' foe for 6 years 20 00 
 
 Fee for further term of 12 years 40 00 
 
 Fee for further term of 6 years 20 00 
 
 On lodging a caveat 5 00 
 
 On askinw to register a judgment pro tanto 4 00 
 
 On asking to register an assignment or any other document 
 affecting or relating to a patent, and for each and every 
 patent mentioned in the notice given under section 8 of 
 
 this Act 2 00 
 
 On asking to attach a disclaimer to a patent 2 00 
 
 On asking for a copy of patent with specification 4 00 
 
 On jietition to reissue i patent after surrender, and on petition 
 to extend a former patent to the whole of Canada for 
 every unexpired year of the duration of the provincial or 
 
 sub-))atent, the fee shall be at the rate of 4 00 
 
 On office copies of documents, not al)ove mentic-'ed, the following 
 charges shall be made : — 
 
 For every single or first folio of certified copy 25 
 
 For every subsequent hundied words (fractions from and under 
 fifty not being counted, and over fifty being counted for 
 one hundred) 10 
 
 35 v., c. 26, s. 34, The Patent Act (1886) ; 53 V., c. 13, s. 3 ; 
 55-56 v., c. 24, s. 7 ; 56 V., c. 34, s. 4. For notes see pp. 410-413. 
 
 40. For every copy of di awings, the ])erson applying shall pay such 
 sum as the Commissioner considers a fair remuneration for the time and 
 labour expended thereon by any officer of the Patent Office or of the 
 department or ])erson employed to perform such service. 35 V., c, 26, 
 s. 35. For note see p. 413. 
 
 41. The said fees shall be in full of all services performed under this 
 Act, in an}'' such case, by the Commissioner or any person employed in 
 the Patent Office. 35 V., c. 26, s. 36. For note tee p. 413. 
 
 42. All fees received under this Act shall be paid over to the Min- 
 ister of Finance and Receiver-General, and shall form part of the Con- 
 solidated Revenue Fund of Canada, except such suras as are paid for 
 copies of drawings when made by persons not receiving salaries in the 
 Patent Office. 35 V., c. 26, s. 37. For note see p. 413. 
 
 i't 
 
Appendix III.] THE PATENT ACT OF CANADA 
 
 537 
 
 lation 
 
 Eor 
 
 > Com mis- 
 
 
 $60 
 
 00 
 
 , 
 
 40 
 
 00 
 
 . 
 
 20 
 
 00 
 
 
 40 
 
 00 
 
 
 20 
 
 00 
 
 
 5 
 
 00 
 
 . 
 
 4 
 
 00 
 
 it 
 
 
 
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 5f 
 
 
 
 
 2 
 
 00 
 
 
 2 
 
 00 
 
 , 
 
 4 
 
 00 
 
 n 
 
 
 
 Dr 
 
 
 
 iV 
 
 
 
 
 4 
 
 00 
 
 following 
 
 43. No person shall be exempt from the payment of any fee or 
 charge, payable in respect of any services performed for such person 
 under this Act ; and no fee, when paid, shall be returned to the peraon 
 who paid it except : — 
 
 (a) When the petition is not susceptible of being patented ; or 
 
 (b) When the petition for a patent is withdrawn. 
 
 And in every such case the (Commissioner may return the fee paid 
 less the sum often dollars. 35 V., c. 26, s. 38. For note see p. 414. 
 
 (Part XIV. of Book.) 
 
 44. The Government of Canada m.'xy. at any tinje, use any patented 
 invention, paying to the patentee sucli S'.im as the Commissioner reports 
 to be a reasonable compensation for the use thereof 35 V., c. 26, s. 21. 
 For notes see pp. ^IJ^-^l?. 
 
 45. No patent shall extend to pie vent the use of any invention in 
 any foreign ship or vessel, if such invention is not so used for the man- 
 ufacture of goods to be vended within or expoited from Canada. 35 V., 
 c. 26, s. 47. For note see pp. Jf.l7-Jfl8. 
 
 46. Every person who, before the issuing of a patent, has pur- 
 chased, constructed or acquired any invention for which a |)atent is 
 afterwards obtained under this Act, shall have the right of using and 
 vending to otheis the specific article, machine, manufacture or composi- 
 tion of matter ])atented and so purchased, constructed or acquired be- 
 fore the issue of the [)atent therefor, without being lialtle to the 
 patentee or his legal rejn'esentatives for so doing ; but the patent shall 
 not, as regards other persons, be held invalid, by reason of such pur- 
 chase, construction or acquisition or use of the invention, by the person 
 first aforesaid or by those to whom he has sold the sani3, unless the 
 same was purchased, constructed, acquired or used, with the consent or 
 allowance of the inventor thereof, for a longer ))eriod than one year 
 before the application for a patent therefor — making the invention one 
 which had become public and in public use. 35 V., c. 26, s. 48. For 
 notes see pp. 4^8-438. 
 
 47- AH specifications, drawings, models, disclaimers, judgments and 
 other papers, except caveats, shall bo open to the inspection of the public 
 at the Patent Office, under such regulations as are adopted in that 
 behalf 35 V., c. 26, s. 44. For notes see pp. 438420. 
 
 48. Clerical errors which occur in the framing or copying of any 
 instrument in the Patent Office, shall not be construed as invalidating 
 the same, but when discovered they may be corrected under the authority 
 of the Commissioner. 35 V., c. 36. s. 45. For notes see pp. 439-432. 
 
 68 
 
Pi 
 
 I: 
 
 I-'. 
 
 u3S 
 
 THE PATENT ACT OF CANADA. [Appendix III. 
 
 I a: 
 
 1 > 
 
 i K 
 
 I 
 
 49. If any patent is destroyed or lost, a certified copy thereof may 
 l»e issued in lieu thereof, upon the person who applied therefor paying 
 the foes hereinbefore prescribed for oUice copies of documents. 35 V., 
 c. 2G, s. 49; the Patent Act (IS-SO) ; .53 V., c. 13, s. 4 (1890). For 
 notes see pp. J^tli-Jf.}.!. 
 
 50. Every Court, jmlj^e and person whomsoever shall lake notice of 
 the seal of the Patent OHlce and shall recei.e the impression thereof in 
 evidence, i • !ke manner as the impressions of the Great Seal are received 
 in evidence, and shall also take noticf; of and receive in evidence, without 
 further proof and without pioduotion of the originals, all copies or ex- 
 tracts certitied under the seal of the Patent Oftice to be copies of or 
 extracts from documents deposited in such office. 35 V., c. 26, s. L', 
 vari. For iw(ch see pp. 4''-'-4'^4- 
 
 51. No officer or employee of the Patent Office shall Iniy, sell or 
 acquire or traffic in any invention or patent, or in any right to a patent : 
 and every such purchase and sale, and every assignment or transfer 
 thereof by or to any officer or employt'e, as aforesaid, shall be null and 
 void, but this provision shall not a])ply to any original inventor, or to 
 any acquisition by bequest. 3.') V., c. 26, s. 4, part. For notes see pp. 
 
 52. The Commissioner may, from time to time, subject to the ap- 
 j)roval of the Governor-in-Council, make such rules and I'egulations, and 
 prescribe such forms, as appear to him necessary and expedient for the 
 purposes of this Act, — and notice thereof shall be given in The Canada 
 Gazette; and all documents, executed in conformity with the same and 
 accepted by the Commissioner, shall be held valid, so far as relates to 
 proceedings in the Patent Office. 35 V., c. 26, s. 3. For notes see p/i. 
 430-U1- 
 
 53. The Commissioner shall cause a repo-t to be prejjared annually 
 and laid before Parliament of the proceedings under this Act, and shall, 
 from time to time, and at least once in each year, publish a list of all 
 patents granted, and may with the approval of the Governor-in Council, 
 cause such specifications and drawings as are deemed of interest, or 
 essential parts thereof, to be printed, from time to time, for distribution 
 or sale. 35 V., c. 26, s. 5 ; 36 V., c. 44, s. 1. For notes see pp. JfJ^l-J^J^o. 
 
 (Part XV. of Book.) 
 
 OFFENCES AND PENALTIES. 
 
 54. Every patentee under this Act shall stamp or engrave on each 
 patented article sold or offered for sale by him the year of the date of 
 the patent applying to such article, thus : " Patented, 1886," or as the 
 case may be ; or when, from the nature of the article, this cannot be 
 done, then by affixing to it, or to every package wherein one or more of 
 
"■« 
 
 Appendix III.] THE PATENT ACT OF CANADA. 
 
 53f) 
 
 suoli articles is or are enclosed, a label marked with a like notice ; and 
 any such patentee selling or offering for sale any such patented article 
 not so marked, or not enclo.;ed in a package so marked, shall be liable t<» 
 a penalty not exceeding one hundred dollars, and in defau.^, of the pay 
 ment of such penalty, to imprisonnient for a term not exceeding t\v(» 
 nJon*,hs. .38 V., c. 14, s. 3. l-'or notes ste pp. .'f.'f'i-^.'f'-K 
 
 55. Every person who writes, jmints, prints, moulds, casts, carves, 
 engraves, stanij)s or otherwise marks upon anything made or sold by 
 him, and for ihe sole making or selling of which he is not the patentee, 
 the name or any imitation of the name of any patentee for the sole 
 making or selling of such thing, witliout the consent of such i)atentee, — 
 or who, without the consent of the patentee, writes, paints, prints, 
 moulds, casts, carves, engraves, stamps, or otherwise marks upon any- 
 thing not purchased from the patentee, the words " patent," '• letteis 
 patent," "Queen's Patent," "patented." or any word or words of like 
 import, with the intent of counterfeiting or imitating the stamp, mark, 
 or device of the patentee, or of deceiving the public and inducing them 
 to believe tliat the thing in question was made or sold by or with the 
 consent of the patentee or his legal representatives ; or who oJiers for 
 sale as patented any article not patented in Canada, for tho purpose of 
 deceiving the public, is guilty of a misdemeanour, and liable to a fine 
 not exceeding two hundred dollars, or to imprisonment ^or a term not 
 exceeding three months, or to both. 35 V., c. "20, s. .lO. For notes see 
 pp. UQ-Jf.55. 
 
 56. Every person who wilfully makes or causes to be made any false 
 entry in any register or book, oi any false or altered copy of any docu- 
 ment relating to the purposes of this Act, or who produces or tenders 
 any such false or altered docr.ment \\\ evidence, knowing the same to be 
 such, is guilty of a misdemeanour, and shall be liable to be ])unished by 
 fine and imprisonment accordingly. 35 V., c. 2'j, s. 51. For notes see 
 p. 455. 
 
 (Part XVI. of Book.) 
 
 PATENTS ISSUF.D UNDER FORMER ACTS. 
 
 57. Every patent issued under any Act of the Parliament of Canada, 
 or of the legislature of the late Province of Canada, or of the legislature 
 of any Province now forming part of Canada, shall remain in force for 
 the same term and for the same extent of territory as if the Acts under 
 which they were issued had not been repealetl, but subject to the pro- 
 visions of this Act in so far as the same are applicable to them : 
 
 2. The Commissioner may, upon the ap})lication of the patentee 
 named in any such patent, who is the inventor of the subject matter of 
 the patent, if the subject matter of the patent has not been known or 
 used, and has not, with the consent of the patentee, been on sale in any 
 of the other Provinces of Canada, issue, on payment of the proper fees 
 

 ■iJa 
 
 ^40 
 
 THE PATENT ACT OP CANADA. [Appendix III. 
 
 in that behalf, a ]>atent under this Act, extending such Provincial patent 
 over the whole of Canada, for the remainder of the term mentioned in 
 the Provincial i.atent. 35 V., c. 26, s. 32 ;— 38 V., c. U, s. 6. For 
 notes see ivp. JfO*J-J^b7. 
 
 58. Every patent heretofore issued by the Patent OfBco in respect of 
 which the fee required for the whole or for any unexpired portion of the 
 term of fifteen yeai-s, has been duly paid according to the provisions of 
 the law under which such patent was issued in that behalf, has been and 
 shall be deemed to have been issued for the terms of fifteen years, sub- 
 ject, in case a partial fee only has been paid, to its ceasing on the same 
 conditions in which jiatents hereafter issued are to cease under the oper- 
 ation of this Act. 46 V.. c. 19, s. 1, itart. For notes see pp. 457-459. 
 
 59. Every ]»atent issued prior to the eighth day of ^pril, one thous- 
 and eight hundred and seventy-tive, under the Acts respecting patents 
 then in force in Canada, shall extend over the Province of Pi-ince Ed- 
 ward Island for the ren^'^inder of the term mentioned therein. 38 V., 
 c. 14, s. 4, ;j«>"^ For notes si^e pp. ^jO-^Of). 
 
 r 
 
 
 i 
 
 ' 
 
 1 
 
 ; ■ 
 
 ;' 
 
 
 
 ., f ' 
 
 Sections 8 axd 9 of 55-56 Vic, c. 24 (1892). 
 
 * 
 
 Sec. 8. (Patent Act Amendment oi' 1892.) On each application for 
 a ))atent, a thorough and reliable examination shall be made by competent 
 examiners to be employed in the Patent Office for that purpose. 55-56 
 v., c. 24, s. 8. For note see p. 4^jO. 
 
 Sec. 9. (Patent Act Amendment of 1892.) This Act shall only 
 apply to patents issued after the passing hereof: 55-56 V,, c. 24, s. 9. 
 For note see p. ^GO. 
 
 Si! i . 
 
 I' c 
 
F^ 
 
 INDEX. 
 
 541 
 
 INDEX. 
 
 PAGE. 
 
 Abandonment. 
 
 When the invention has been in public use or on sale for more than one 
 
 year, etc 1.3!) 
 
 Canadian illustration of 1.S9 
 
 Re(iuires proof beyond all reasonable doubt 140 
 
 Possession by the public defined in sec, 46 140 
 
 Failure to prosecute in U. S. more than two years after last official action, 
 
 works abandonment by statute 439 
 
 Abandoned Applications. 
 
 Not publications in England 408, 409 
 
 May be obtained in U. H. by order of Connnissioner 428 
 
 No provision for obtaining in Can 4'J8 
 
 Abandoned Application (see Letters Patent). 
 
 Acceptance by Public. 
 
 Evidence of invention 45 
 
 Account. 
 
 May be taiien, notwitlist&nding the pending of appeal 310 
 
 Discovery of names of persons ordered to be given 310, 311 
 
 Acquiescence. 
 
 Raises presumption of validity 301' 
 
 Aggheciation. 
 
 Is not patentable 1.30 
 
 Hailes v. Van Wormer as bearing on 1,30, 131, 132 
 
 The doctrine in Haiku v. Van Worwa- stated 132 
 
 Instance of a " valid aggregation " 131, 132 
 
 Operative parts of machinery not the «"bject of 1.32 
 
 Doctrine of, in Reckeiidor/er v. Faber doubted 132, 133 
 
 The doctrine in Pickcrhnj v. JfcCnlloinjh that all constituents must qualify 
 
 each other 133 
 
 Doctrine in Pickering v. McCtilloufih explained away 133 
 
 Each element need not qualify every other 133 
 
 The elenif uts need not act simultaneously 133^ 
 
 Hunter v. Carrick, leading case in Ontario Courts on aggregation dis- 
 cussed 133, 134 
 
 If new and useful result obtained by the combination, there can be no 
 
 aggregation , " 134 
 
 Illustrated 134, 135 
 
 Recent U. IS. cases bearing on 135- 
 
 iy 
 
542 
 
 INDEX. 
 
 .\< 
 
 '• ' 1-'. 
 
 .', ,« 
 
 Allowance (see "Consent "). page. 
 
 Ante Mortem Profits. 
 
 When not recoverable 26!* 
 
 Anticipation (see " Kuowledge or Use "). 
 
 Anticipation. 
 
 Wliere no actual manufacture has been made, caution is to be observed 
 in dealing with 146 
 
 Any Person, 
 
 Meaning of in sec. 7 '28 
 
 May mean " firM ami iiidepemhnt inventor " 30 
 
 A PPKALS 270 
 
 To Privy Council (Eng. ) 281, 286 
 
 Re 8ci. fa. proceedings 342, 343 
 
 Applications. 
 
 Sec. 7 re-arrangement of sec. 6 of Act. of 1872 27 
 
 No withdrawal of, without consent of eacli registered assignee 117, IIS 
 
 As to amendment after assignment of interest in U. S lis 
 
 Pending applications in Canada not open to inspection 428 
 
 Abandoned applications may be furnished in U. S. when ordered by Com- 
 missioner 428 
 
 No provision for obtaining abandoned applications in Canadian Patent 
 Office 428 
 
 Applications (see " Couflicting "). 
 
 Art. 
 
 Means any new and useful art or any new and useful process 22 
 
 Defined by Supreme Court, U.S 22 
 
 ' ' An Arc is a process " 22 
 
 When processes are not patentable 22 
 
 Not patentable when they will not produce any physical effect 23 
 
 Assignments. 
 
 By inventor 212 
 
 Must make oath and sign specifications prior to obtaining Patent 212 
 
 If inventor be dead, how assignee m.iy obtain Patent 212 
 
 In U. S. one copy of, and one original to be executed by inventor 212 
 
 Fee for registration of, in U. 8. A 212 
 
 Prior legislation as to 214 
 
 As to similarity of provisions for, in U. S. A 214, 21;') 
 
 Documents which should be in writing 215 
 
 Defined 216 
 
 As to necessity for registration of 216 
 
 Effect of registration in U. S. A 217 
 
 Effect of registration in U. S. A. and Canada contrasted 217, 218 
 
 ^ec, 26, Canadian Patent Act, whence derived , 218 
 
 
INDEX. 
 
 543 
 
 A SSSIGNMENTS — Continued. 
 
 PAGE. 
 
 Anomaly in Sec. 26, Can. Patent Act 218 
 
 How this Sec. 26 should be amended 218 
 
 In reading TJ. S. cases bearing on assignments, caution to be observed . . 219 
 
 Various forms of, defined 221 
 
 By a Corporation, how to be executed 222 
 
 Kight of action for past infringement not conveyed Ijy 222 
 
 Parol evidence admissible to explain , 222 
 
 In U. S. , when it must be recorded 222 
 
 Fee chargeable for recording in U. S 222 
 
 In Canada duplicate originals to be executed 222 
 
 Registration of, in England essential 22.3 
 
 As to right^to assignment from employees 223 
 
 Oral assignment in U. S. A., may be enforced in equity as between em- 
 ployer and employee 22.'1 
 
 The words "without notice " should be added in sec. 26 223 
 
 Sec. 26 goes further than our Registry Act for Ontario 22;^ 
 
 As to eflfect of registering, with full knowledge of prior assignment 223 
 
 No time limit in Canada within which to effect registration 224 
 
 Referring to original Patent refers also to reissue . . 224 
 
 As to warranty in 224 
 
 May l)e by parol in U. S. A. , proof of when relation of employee and em- 
 ployer exists 224 
 
 May pass that which is in existence at the time 224 
 
 May also pass that which is not now in existence 224 
 
 As to assignment, or deed to a dead man 224, 225 
 
 As to reitisue to .assignee, in place of inventor, when assignment had not 
 
 been recorded in time 225 
 
 Patentee or license cannot derogate from his own grant 225, 231, 235 
 
 Gives no right to damagcj already accrued unless such intent is stated . . 225 
 By a bankrupt in U. 8., all Patent rights pass to assignee by virtue of 
 
 statute 225, 226 
 
 The x'eceiver of an insolvent debtor in U. S. entitled to his Patent rights. 226 
 Assignment and interest in a Patent in U. S. must be in writing, and 
 
 exception thereto 226 
 
 In U. S. A. are not required to be under seal 226 
 
 In U. S. A. are not required to be recorded 226 
 
 In N. Y. State acknowledgment before a notary sutticcs 226 
 
 Not necessary in U. S. that all administrators should join in 226 
 
 Of expired Patents good as a power of attorney 226 
 
 A mere certificate not suHicient as an assignment 226 
 
 When Patent issued by mistake to inventor, legal title may vest in 
 
 assignee 227 
 
 Deed of, "all property and estate wheresoever and wheresover, etc.," 
 
 carries right to a Patent 227 
 
 Interest in Patent in U. S. A. may be sold to satisfy judgment debt .... 227 
 
r i ;, 
 
 . I 
 
 !l 
 
 I' i t , 
 
 r.;i 
 
 y 
 
 ■■i 
 
 o44 
 
 INDEX. 
 
 PAGE. 
 
 Assignments — Continued. 
 
 W hen it contains general expression as to modifications, etc. , does not 
 cover subsequent improvements not covered by claims of existing 
 
 Patent 227 
 
 Assignment of an imperfect invention with all improvemenfi covers the 
 
 perfected result 227 
 
 An exclusive licensee may be held liable to make payments though the 
 
 Patent had lapsed for non-payment of fees 230 
 
 N.B. —This was an exclusive license which vas tantamount to an assign- 
 ment, no covenant to pay implied. 
 Assignment of an invalid Patent in U. S. A. may be sufficient considera- 
 tion to support pro-note 230 
 
 Express warranties may be incorporated in 230 
 
 Right to manufacture, sell and use, may be granted separately 231 
 
 As to, of mis-named invention 233 
 
 Deceived purcliaser may rescind sale 234 
 
 A shop riglit is a personal right and not subject of assignment 234 
 
 Bills Given for Patent Rights (see Notes Given for Patent Rights). 
 
 Bills of Exchange Act (1890). 
 
 Bills to be marked ' ' given for a Patent right " 19' 
 
 Provisions of sub-sees. 4, 5 and 6 of sec. 30 461 
 
 Bond. 
 
 In scj./a. suit. 337, 338, 330 
 
 Breaches. 
 
 Particulars of 311 
 
 Broadened Reissue 17S 
 
 Burden of Proof. 
 
 On party seeking to avoid Patent 364 
 
 Caveats. 
 
 A caveat is intended to answer a double purpose 40.5 
 
 It is only when one desires to perfect or improve an invention that there 
 
 is any o))ject in filing 40.') 
 
 Caveats in Canada to be filed only by inventor 405 
 
 Caveator not entitled to notice of a pending application 405 
 
 What description a caveat should contain 405, 406 
 
 Fee on filing 405 
 
 As to the notice mentioned in sub-sec. 2 406 
 
 One year after tiling. Commissioner in Canada under no obligation to give 
 
 notice 406 
 
 Procedure in event of new application coming in similar to that of 
 
 caveator 406 
 
 Whether there is appeal to Supreme Court from Exchequer Court in con- 
 flicting applications 406 
 
 « 
 
INDEX. 
 
 545 
 
 PAGE. 
 
 Caveats — Continued. 
 
 Procedure in the event of a caveat being overlooked by Commissioner .... 407 
 Practice in U. S. A. when caveat ia accidentally overlooked and- Patent 
 
 granted to another 407 
 
 In U. S. A. may carry Ijack invention to date of filing caveat 407, 408 
 
 The granting of a Patent while a caveat is pendiqg does not render Patent 
 
 void 407 
 
 Who may apply for a caveat in Canada 407 
 
 Caveat not conclusive evidence of imperfection 408 
 
 As to provisional protection in the United Kingdom 408 
 
 Fee for caveat in U. S. §10 409 
 
 Caveat in U. S. may be renewed from year to year, and must be restricted 
 
 to a single invention 409 
 
 A caveat in Canada only exists for one year, no provision for renewals . 409 
 Meaning of the term " caveat " in the United Kingdom 409 
 
 Certificate. 
 
 Not sufficient as assignment 226 
 
 Chemical Equivalents. 
 
 Instances of 128 
 
 Must be such, at date of Patent 128, 129 
 
 Claims. 
 
 Additional or third copy of, to be filed 91 
 
 What a functional claim covers 99 
 
 How an invention should be claimed 100 
 
 As to construing claims 101 
 
 Interpreted by drawing and specification 103, 104 
 
 Abandonment through failure to claim 104, 105 
 
 One claim may cover both a machine and a process 105 
 
 Diflerence between English and American claims noted 108 
 
 Each a separate Patent 195 
 
 As to dropping out an alleged element from a claim not being allowable 
 
 238, 239, 240 
 
 Decision thereon in Grip v. Bntterfield doubted and not followed 239 
 
 N.B. — The judgment of Supreme Court, Canada, in Carter v. Hamilton 
 (p. 239), decided that plaintiff must be confined strictly to his device 
 (including "the tape "), and th-^t one cannot drop an element out of a 
 claim : 239 
 
 Clerical Errors. 
 
 Sec. 48 relates to clerical errors made in Patent Office only 429 
 
 Clerical errors allowed to be corrected by order of Chancery Divisional 
 
 Court, Ont 429 
 
 What constitutes a clerical error 429 
 
 Provisions for correcting clerical errors in U. S 430 
 
 69 
 
 ill 
 
546 
 
 INDEX. 
 
 PAGE. 
 
 Clerical Errors — Contixued. 
 
 At common law in EnglaDd, Ma;3ter of Rolls has power to direct amend- 
 ment of Patent 130 
 
 Cost of correcting clericaJ error in the name in a British Patent 430, 431 
 
 Illustrations of Englit-h sptvnfitaitions where clerical errors were corrected 431 
 
 Correction of clerical errors in application for British Patent 431 
 
 Common Law, right in Caoauia to correct clerical error 431, 432 
 
 Oloth Workers of Ipswich Case (A. D. 1615). 
 
 First legal recognition of Crown grant 1 
 
 Combination, New. 
 
 Defined 45 
 
 Combination. 
 
 Should be distinctly cbumel 291 
 
 Defined 3s» 
 
 Commission (Foreign). 
 
 Case need not be tecfanicaUr at iasme to obtain 276 
 
 CoMPULsoHV Licenses rEsGLANB). 
 
 When fiist introduce*! in Enfland 164. 219 
 
 What petition mast shew in or»ier to obtain 219 
 
 Procedure before Bciard ^4 Tride as to 219 
 
 Circumstances under wiajdj may be had in United Kingdom 35T 
 
 Provisions as to, pra<ctkallv iii.>perative 3o7, 35S, 359 
 
 Coxceiver. 
 
 Earliest 5# 
 
 Conception. 
 
 Earliest 53 
 
 Date of arrival in U. S. A. of inventor or agent is taken as date of GO 
 
 Conflicting Applicatioss. 
 
 To be adjudicated on hv 3 arbitrators 154 
 
 No time mentioned for appointment of arbitrators 154 
 
 No time mentioned for giring award 155 
 
 No provision for, if ca*e aos deciiiwl 155 
 
 Award final 155 
 
 No provision for re^-iew of award 155 
 
 lioard of Arbitrators, a jpadkial tribunal 155 
 
 Exchequer Court has octocvrrent jurisdiction 155, 156 
 
 No rules in Exchequer Cobi* 5ach as in U. S. in interference cases 136 
 
 On whom the burden of proof may lie 156 
 
 In U S. burden of pixMMf is ta** on later applicant 159 
 
 Some provision in Canada as to secrecy in statement submitted should be 
 
 ma.le 156 
 
 Appeal to Supreme Cooit, Canada 156, 157 
 
SUDBX 
 
 547 
 
 PAOK. 
 
 Conflicting Applications — dnttmnuid. 
 
 When there are three or luort t!iniiii!lang applications 160 
 
 As to the oath taken befort urlimnfiirs 160, 161 
 
 Who may administer the oath 161 
 
 Tariff of fees not stated „ 161 
 
 First applicant, if he be truf iir^'mttir nnd the first to make known his 
 invention to the public ahiudd i« guetHrretl 162 
 
 OONSENT. 
 
 To make, use, etc., to Ik; in wcinmc- ■ • ■ 4 
 
 Consent clause ilropped out irf I" >, ^x, 69 
 
 Necessary to raise constructivt uiiuiifiiument 69 
 
 County Coukt. 
 
 Has no jurisdiction to trj' Pateut Kwe 281 
 
 Damages. 
 
 When treble costs were recoventlik 248, 269 
 
 In Eng. you cannot have bntli an ummml: of profits and damages 248 
 
 As to provisions of Lord Oaim^" Ain nir ilamages 248 
 
 License fee as a measure of 249, 250, 253 
 
 As to unfair commercial compaliitiiFni a» ;i ftictor in computing 249, 256 
 
 License fee in a foreign country aim nakan as a criterion in Canada 250 
 
 No interest allowed on unliijuidiOBClamagea 251 
 
 Eng. practice more analogous tn nin* tdiou that of the U. S 251 
 
 History of legislation as to damugat iiL C ^ 252 
 
 In U. S. Court of Equity niuy aw«i» ■ lamagea in addition to defendants' 
 
 profits : 252 
 
 In an action at law in U. S. jduhrntfr itiunagea not measured by defen- 
 dants' profits ...^ 252 
 
 Mode of assessing 253 
 
 Rule established by Sup. Ct. I*. 'S. 5b ofta case of Seymour v. McCormick. 253 
 Proof of a license fee for two imju't^'tmunts . lot competent to show dam- 
 age sustained by infringement iii imt 253 
 
 Where there has been no use, oul.v luiminal damages recoverable 254 
 
 Evidence as to, not to be coujfcjuVTii]. 254 
 
 Burden of proving damages ib nii tiitt plaintiff 254 
 
 Actual, meaning of in U. S. A 255 
 
 In Canada actual, and not exemjilur*- will- he awarded 255 
 
 Recovery of, does not vest in iufrinjttn CIih right to continue to use 255 
 
 When damages are nominal 255 
 
 In the absence of license fee, it it ammHettry to show plaintiff' could have 
 supplied the demand, and that bitt Sic tie infriugment, he might have 
 
 made sales 255, 256 
 
 Necessarj' to show what jjrotit iliht jflantiff might have derived from di- 
 verted trade 266 
 
 In U. S. damages may be Bupjilnmmttwl l)y the forced reduction in price. 256 
 As to presumption that plaintiff wiuilii liave had diverted patronage. . . . 256 
 
548 
 
 INDEX. 
 
 PACK. 
 
 Damages — Continued. 
 
 When they may be fixe<l by estimating a reasonable royalty '25(> 
 
 Method of recovery of, in U. S. (1) in equity, (2) at law 256, 257 
 
 Material and controlling facts in estimating '257 
 
 Plaintiffs' loss not defendants' gain, should l)e the standard 257. 
 
 Actual, not alwaj'S to be proved strictly 257 
 
 In making estimate of actual damage, points of uncertainty should be 
 
 solved against defendant 257 
 
 U. S. statutory provision enabling Court of Equity to assess, originated 
 
 in 1870 257 
 
 Erroneous form of Canadian Supreme Court decree in Smith v. Goldic, 
 
 giving plaintiff lx)tli damages and profits. 258, 25!) 
 
 May not be awarded against Iwth manufacturer and user 258, 25!^ 
 
 Erroneous method of estimating in Pinkerton v. Cotr, 3 Q. U. (L. C. ) • • • • 25i( 
 
 Rule in estimating to some extent, arbitrary 259 
 
 Lump sum awarded for 259, 260, 268 
 
 Civil Code of Quebec as bearing on 26(^ 
 
 LachfH as bearing on 260 
 
 Suits for damages on account of threats in England and in Canada. . .260, 26i 
 Cases re threats on same footing in Canada as in England before Act of 
 
 1883 261 
 
 The statement re threats must l>e not only untrue, but without reason- 
 able and probable cause 261 
 
 Not recoverable against a workman, but only against a master 261, 262 
 
 Remote consequential damages to lie disregarded 262, 264 
 
 As to estimate of in the Province of Quebec 262 
 
 Assessment of, not usuallj- appealable 267 
 
 When defendants" profits may lie criterion of plaintiffs' loss 268 
 
 In absence of direct evidence. Court will assess damages as a jury 268 
 
 Mode of estimating, in Cartfr v. Ro-»> (Ont.) 268 
 
 Jurisdiction as to amount of, claimed 275 
 
 Undertaking as to 302 
 
 Dead Grantee ok Assignee 224, 225 
 
 Death (see " Letters Patent "). 
 
 Defences in a Patent Suit. 
 
 Forty-four defences enumerateil 326, 327, 328, 329, 330, 331 
 
 As to defence of prior public use or sale in Canada and in U. S 329, 330 
 
 Unauthorized use for more than one year prior to application not fatal to 
 
 validity of Canadian Paiei.t 330 
 
 Unauthorized use for two years prior to application in U. S. would be 
 
 fatal to U. S. Patent 330' 
 
 Design Patent (U. S.i. 
 As to damages 
 
 297 
 
INDEX. 
 
 549 
 
 PAGE. 
 
 Discovery. 
 
 Difference between * ' discovery " and " invention " 35 
 
 Diverted Trade. 
 
 Damage.-, for 255, 256 
 
 Documents. 
 
 Which should be written 215 
 
 Which may be registered 216 
 
 Domicile. 
 
 Meaning of term 91 
 
 Double Use. 
 
 When patentable 40 
 
 Drawings. 
 
 How to be executed 109, 110 
 
 For U. S. Patent Office 110, 111 
 
 Price to be paid for copies of 413 
 
 Certificate on 436 
 
 Title of invention need not be on 436 
 
 Disclaimer. 
 
 When it originated in (Canada 7, 195 
 
 When it originated in U. S. A 195 
 
 U. S. Rule 195, as bearing on 196 
 
 U. S. Rule 196, as bearing on 196 
 
 Tliat whicli sub-sec. 1 , sec. 24, relates to 196 
 
 Parts of claims are not referred to as subject matter of 196 
 
 Cannot be called in to modify and save a combination claim 196 
 
 Limited to mistake, accident or inadvertence 196, 197 
 
 Fee payable on attaching disclaimer to Patent in Canada and in U. S . . . . 197 
 
 No disclaimer necessary for useless matter or void claims 197 
 
 Function of, is to eliminate all claims for invention not new with patentee 197 
 Must relate to a material and substantial part of the thing patented .... 198 
 
 Void, should fraud be shown 198 
 
 Must not cliange the invention 198 
 
 Original Patent cannot be revived by disclaimer in reissue 198 
 
 How it must be executed 199 
 
 Defects in Patent Office form No. 26 (Can. ) 199 
 
 Suggested form of 199, 200 
 
 Extent of interest to be stated in U. S 200 
 
 Extent of interest not referred to in our Act and is therein defective.. 200, 201 
 
 Meaning of term " first inventor " in sec. 24 201 
 
 Apparent meaning of (c) sub-sec. 3 of section 24 201, 202 
 
 Practice in U. S. on failure to file 202 
 
 Practice in Canada as to filing, during progress of suit 202 
 
 Provided for by British Act of 1883 203 
 
560 
 
 INDEX. 
 
 
 ! I J 
 
 PAflE. 
 
 Disclaimer — Continued. 
 
 Practice in Canada contrasted with that in England 202, 20;i 
 
 No penalty or disability stated on failure to tile in Canada 202, 204 -20S 
 
 Penalty in U. S. A. on failure to Hie 204 
 
 May be made, pending action in England 205 
 
 As to unreasonable neglect or delay in filing 205 
 
 When unreasonable neglect or delay commences 205 
 
 When delay is not unreasonable 205, 206 
 
 On failure to file, judge has discretion as to cost in Canada 206 
 
 Wiiether tlaniages are recoverable in Canada in event of unr asonable neg- 
 lect or delay to file, an open question 206 
 
 Strange provision in English Act as to damages before disclaimer filed . . 206 
 
 Effects of disclaimer 206, 207 
 
 As to joint owner making 207 
 
 Sub-section 5, section 24 does not relate to one who is not inventor 208 
 
 Must be for material and substantial part 208 
 
 Owner of sectional interest not authorized to file 20S 
 
 Our section an obvious blending of sections 7 and 9 nf U. S. Act of 1837.. 208 
 
 As to fractional interest in 209 
 
 Improvements suggested in our section as to 209, 210 
 
 As to, in case of a claim " with or without " a special element 210 
 
 As to, during suit in U. S. A 210 
 
 Failure to disclaim in U. 8. A. effects costs 211 
 
 No time stated for filing, in Canada 210 
 
 Effects of sec. 32, Patent Act, Canada, as bearing on 211 
 
 Constructive disclaimer 211 
 
 As to judicial disclaimer 244, 245 
 
 Meaning of involuntary error . 244 
 
 By the Court 325 
 
 Where there may be elimination of that which is old in a claim 325 
 
 Apparent contradictions in sec. 32, and how they should be remedied . . 325, 326 
 
 Economical Effect. 
 
 When patentable 45 
 
 Employees of Patent Office. 
 
 May not buy, sell, acquire or traffic in any invention or Patent or right to 
 
 Patent 434 
 
 May, however, obtain Patent as original inventor 434 
 
 May obtain and hold Patent by bequest 434 
 
 As to gift " ititer vivon " 434 
 
 Making false entries in book or register 455 
 
 Employees in U. S. Patent Office. 
 
 Cannot take out Patent while in that employ 434 
 
 May acquire right by inheritance or bequest 435 
 
 May patent invention after leaving the Patent Office 435 
 
INDEX. 
 
 551 
 
 Paoe. 
 Employees in U. S. Patent Office — Continued. 
 
 Employees, otlicr than in Patent Ottice, entitled to Patent in the absence 
 of agreement with the (iovernnient to the contrary 435 
 
 Equivalents. 
 
 Should be well known at the date of Patent to be such 129 
 
 In U. S. Circuit Courts, element of age uniformly ignored 12"J 
 
 The term " equivalent " as defined in Supreme Court, U. S 121) 
 
 Erroneous Headnotes (see " Headnotes Erroneous "). 
 
 Estoppel.* 
 
 When assignee is estopped from denying that patentee is original inventor. 224 
 
 When a licensee cannot plead that patent is void 234, 23'), 2.36 
 
 When employee is estopped 23(5 
 
 On bankruptcy, Eng 237 
 
 When a partner is not estopped 237, 238 
 
 Where the grantee may not set up as a ilefence the invalidity of Letters 
 Patent 292 
 
 Eviction. 
 
 When there may not be, etc 229 
 
 Takes place when Patent annulled by decree of Court 229 
 
 Or if Patent repealed by sci. /a 229 
 
 Examiners. 
 
 Number of, now in U. S. Patent Office 442 
 
 Deficiency of numbers in Canadian Patent Office 443, 460 
 
 Reliable examination to be made by competent examiners 460 
 
 Examination. 
 
 Reliable examination to be made by competent examiners in Canadian 
 Patent Office 460 
 
 Exchequer Court Act (Amended 1891). 
 
 Gives jurisdiction to Exciie{[uer Court as to conflicting applications for 
 patents, etc., as to annulling and infringement 20 
 
 Exchequer Court (Canada). 
 
 Jurisdiction of, re infringement, etc 270 
 
 Appeal to Supreme Court, Canada, from judgment of 270 
 
 Advantages of bringing action in 270 
 
 Jurisdiction of, as to matters under sec 37 347, 348 
 
 Exclusive Use 355 
 
 Experimental Use (see Public Use). 
 
 *NOTB.— Estoppel by limiting the invention by employment of a specified material or thing : 
 Bee Gates' Iron Works v. Fraser (Hay 14th, 1894), Sup. Ct., U. S., Pat. Off. News, vol. 1, p. 73. 
 Rusk having limited himself expressly to a soft metal safety pin, the use of wooden safety pins 
 being old, there is no infringement by the use of a hard cast-iron safety pin. Also Walker, sec. 350. 
 

 .V 
 
 'i > 
 
 1 t 
 i 
 
 i 
 
 iff! 11 
 
 il 
 
 1 ' 
 
 f ' 1.^ 
 
 
 111 
 
 ! 
 
 
 1 
 
 ,1' t 
 
 Vi 
 
 ■{ 
 
 
 
 
 
 1 
 
 M 
 
 5 
 
 m 
 
 . 
 
 552 
 
 Experts. 
 
 INDEX. 
 
 Pa(»i. 
 
 Testimony of 
 
 In Quebec, called in to adjudicate 
 
 Evidence of 
 
 False Entries. 
 
 In any book or register 
 
 Section 56 applies more particularly to employees of Patent Office 
 
 Fees. 
 
 Tariff of 409, 
 
 Any document affecting or relating to a Patent may be registered in 
 
 Canada 
 
 The new tariff relates to Patents issued after July 9, 1892 
 
 Inconsistency in the present provision for Patent fees 
 
 As to fees on filing notice under sec. 8 411, 
 
 As to fees on a reissue 
 
 Cost of reissue increased 
 
 Fees received under this Act to be paid over to Minister of Finance and 
 
 Receiver-General 
 
 No person to be exempt from payment of any fee 
 
 Exceptions when fee paid may be returned 
 
 Commissioner retains $10 of the fee paid in these exceptional cases 
 
 Royalty payable by Government to use a patented invention 
 
 Whether the Deputy-Commissioner is authorized to report on the royalty 
 
 be paid by Government 
 
 How this royalty may be recovered 
 
 Final Injunction (see Injunction (Final) ). 
 
 Foreign Ships. 
 
 As to use of patented invention in 
 
 Canadian or British vessels may not make unlicensed use of invention . . 
 
 Forfeiture of Patents. 
 
 Surplusage at end of sub-sec. 3 in sec. 37 
 
 Extension of time to manufacture and import to one owner may not enure 
 
 for the benefit of co-owners 
 
 No provision as to extension where there are plurality of owners 
 
 Where non-manufacturer did not create forfeiture (see Barter v. Smith). . 
 
 Only one extension of time to import 
 
 Where importation did not create forfeiture 
 
 As to importation of parts to be put together in Canada 371, 
 
 Finding in Barter v. Smith — Case No. 1 
 
 Provisions of Act of 1869 as to manufacture before the end of three years 
 
 from date of Patent 
 
 As to importation avoiding Patent under Act of 1869, after expiration of 
 
 eighteen months from date of Patent 344, 
 
 Provision of Act of 1872 voids Patent for non-manufacture after two years. 
 
 127 
 279 
 280 
 
 465 
 
 455 
 
 410 
 
 410 
 411 
 411 
 412 
 412 
 413 
 
 413 
 414 
 414 
 414 
 414 
 
 415 
 415 
 
 417 
 417 
 
 369 
 
 369 
 369 
 370 
 369 
 370 
 372 
 372 
 
 344 
 
 345 
 345 
 
 > \m 
 
INDEX. 
 
 .553 
 
 Page. 
 FoRFKiTUKE OK PATENTS — Continued. 
 
 Further delay to manufacture allowable I ty Commissioner under Act of 
 1872 34r> 
 
 Sole juriHdiction granted to Minister of Agriculture or his Deputy (whose 
 decision shall he final), under Act of 1872 346 
 
 Provisions of Act of 1875, allowing for extension of time to manufacture 
 lifter two years 345, Mb 
 
 Provisions of Act i»f 1882, authorizing Commissioner to extend time for 
 importation for period not exceeding one year 346 
 
 Application to extend time to imi)ort, under this Act of 1882, to be 
 made within tliree months of expiration of first twelve months of life 
 of Patent 346 
 
 Verbal changes made by R. S. C. (1886) 346 
 
 Changes made as to non-manufacture and importation by Act of 1890. .340, 347 
 
 Jurisdiction of Minister of Agriculture ami Deputy taken away by Act of 
 1890 347 
 
 Jurisdiction extended to Exche(|uer Court, Canada, in the matter of non- 
 manufacture and im])ortation by Act of 1890 347 
 
 As to jurisdiction of Excheciuer Court and Pnivinciul Courts 347, 348 
 
 Non-manufacture and unauthorized iinportation may now be specially 
 pleaded in defence, in action of infringement 348 
 
 Although Minister at the time had mv/i/.s/c* jurisdiction, the original bill 
 in •Smith v. Ooldic was dismissed by the Court on the ground of un- 
 authorized importation 348, 349 
 
 Proceedings may be had, by Act of 1891, in the matter of non-manufac- 
 ture and importation, as in an ordinarj- suit, or by information in the 
 name of the Attorney-General of Canada 349 
 
 Changes made as to provision for non-manufacture and importation liy 
 Act of 1892 349, 350 
 
 New sentence, voiding interest of ])er8on importing or causing to be im- 
 ported, added in Act of 1892 350 
 
 Foreign countries in which there are restrictions as to importation of pa- 
 tented articles 350 
 
 The object of provisions as to non-manufacture and importation is to pro- 
 tect and encourage home manufacture 350, 364 
 
 Canadian Patents subject to conditions for non-manufacture and importa- 
 tion (query as to Patents for processes iii/ra) 351 
 
 Conditions used to be endorsed on back of Patent 351 
 
 No provisions as to manufacture and importation in L'. 8. A.; Patentee 
 has exclusive interest 351 
 
 In United Kingdom patentee is subject to compulsory license 352 
 
 In most Fairopean countries there are provisions as to manufacture and 
 importation 352 
 
 " Art "or " process " excluded from provisions of sec. 37 as to non-manu- 
 facture and importation 352, 353 
 
 Definition of " art " or " process " 352 
 
 70 
 
 m 
 
'f:l:i 
 
 554 
 
 INDEX. 
 
 if 
 
 hi 1 
 
 ^!- 
 
 I !•: 
 
 Page. 
 FoRFLiTURE OF Patents — Contitiued. 
 
 Definition ol " invention " 352 
 
 Conditions as to non -manufacture and importation have never been con- 
 strued strictly 353 
 
 Notwithstanding non-manufacture within time prescribed, and unauthor- 
 ized importation, Letters Patent in Bart"!' v. Smith were upheM 353 
 
 Meaning of term '* Carry on In Canada the construction or manufacture." 
 
 353, 354 
 
 Construction or manufacture further defined 354 
 
 There shouh) J)e an offer of a fair barj>ain accompanied with an offer for 
 
 payment 354 
 
 Paragraphs a and h of sec. 37 shouUl be made uniform 355 
 
 Patentee can only have axcliisire use for two years or during authorized 
 
 extension 355 
 
 Possible exception as to a "process," in which patentee may have exclu- 
 sive right 355 
 
 " Catt-iing it to he. mad'. " must refer to a making with consent of patentee 
 
 after a reagouaftle price has been agreed upon 355 
 
 ^^ Reasonable firict,'' what constitutes 355, 35G, 357, 358, 359 
 
 Determining as to reasonable price, 358, 359 
 
 Reasons for conditions as to non-manufacture and importation may be the 
 lowering of prices of commodities to the public and not protection of 
 
 Canadian industries 359 
 
 Whether the Court should fix reasonable price 359, 36(» 
 
 As to necessity for maintaining a manufactory or establishment for making 
 
 in Cana«la 360 
 
 Section provides that manufacture when once commenced, must be con- 
 tinuously carried on — how interpreted 360 
 
 Substitution for wording of this section by Mr. Tache in Barter v. Smith. 360 
 Not incumbent to show that active effort was made to create a market . . 360, 399 
 
 Meaning of saJe for reasonable price modified 360, 36 1 
 
 Immaterial importation should not cause forfeiture of Patent 361-370 
 
 If Patentee consent to importation by others, it brings him within the 
 
 prohibition o* the .Statute 36 1 
 
 Importation of component parts, to be put together in Canada, falls 
 
 within prohibition 36 1 
 
 Connivance by Patentee in improper importation is ec^ual to importing 
 
 himself 361 
 
 'mportation of manufactured devices to be combined in Canada violates 
 
 the prohibition (see Mitchell and Hancock Inspirator Co.) 362 
 
 Opposite \iew taken by Sir John Thompson of The Mitchell and Hancock 
 
 • bispiraior Co. decision 361! 
 
 Views on importation and manufacture modified by Sir John Thompson. . 362 
 Importation of common commercial article, not specified as essential part 
 of invention, doeii not operate as a forfeiture 36*2 
 
INDEX. 
 
 565 
 
 Pack. 
 Forfeiture of FATSiiTS— Continued. 
 
 One may freely import an article open to every person in Canada to manu- 
 facture, import, sell and use 36;i 
 
 No express provision against importing into Canada the various elements 
 
 of a combination much less for importing one element 36,S 
 
 That which it is prohibited to import (■■< the invention for tvhich the Patent 
 
 is ijrauled 36.S 
 
 Patent to be void as to the interest of the person or persons importing 
 
 or causing to be imported 363 
 
 Questions as to non-manufacture and importation should be treated not 
 
 after strict letters of the law 363 
 
 Principles which should i/ouern as to importation and manufacture. .363, 364 
 
 Burden of proof on the party seeking to avoid the Patent 364 
 
 Judgment in Barter v. Smith endorsed in Supreme Court (Can.) and in 
 
 Ontario Courts 304, 36.1 
 
 Provision in U. S. Act of 183'2 as to manufacture and importation 36r» 
 
 Proviso retained in U. ''. Act of 188(5 . . . 365 
 
 Not necessary at that time in U. S. for patentee to seek to obtain a 
 market 
 
 3G.I 
 
 Parties who sought tlun to tlefeat Patent in U. S. A. must show that 
 patentee refused to sell the patented iuvention for a reaaonable pric(- 
 
 when application was made to purchase 365 
 
 Refusal of patentee in U. S. A. to furnish devici^ does not justify use of 
 
 infringing article •. 365 
 
 Two modes of procedure in Canada as to voiding a Patent for breach of 
 
 condition 366 
 
 Proceedings by information, in the name of Attorney-General, confined to 
 
 Exchetpier Court (Can. ), elsewhere, ordinary form of procedure 366 
 
 Provincial Courts now have inferentially jurisdiction on questions for 
 
 breach of conditions 367 
 
 Non-manufacture or unauthorized importation may be grounds for net. fa. 
 
 proceedings in Provincial Courts 367 
 
 Difficulties of Provincial Courts dealing with (juestions under section 37 . . 367 
 Proper cribuniil to deal with questions of non-manufacture and importa- 
 tion is Exchequer Court, Canada 367 
 
 Kxtension of time as to manufacture 36S 
 
 Whether Commissioner can grant mote than one extension 368 
 
 Extension of time can be granted only as a continuation without interrup- 
 tion of the respite, of which it is prolongation 368 
 
 Importation of parts to be put together in Canada falls within tlie prohi- 
 bition of the section 37(5, 377, 3H1, 382 
 
 I'his finding as to iuiportatiou of parts practically reversed 374 
 
 Importation of the invention is prohibited not the parts 374 
 
 As to refusal to sell 375 
 
 As to payment of annual sum by way of license 375 
 
 " To license," mear to sell the use of the invention 375 
 
.666 
 
 INDEX. 
 
 n 
 
 I 
 
 Pace. 
 Forfeiture op Patents — Continued. 
 
 Where payment \>y way of rental did not sufHce 375 
 
 Finding in Case No. II 377 
 
 Finding in Case No. Ill 378 
 
 Proof of refusal to sell and of non-manufacture in Case No. 1 378 
 
 A patentee who is ready either to furnisli a patented article or to sell the 
 right of using, is within the meaning of the law as to manufacture. . . . 379 
 
 Finding in Case No. IV., on illegal importation 381 
 
 Finding in Case No. IV., discredited 381 
 
 Finding in Case No. V 383 
 
 Finding in Case No. VI 383 
 
 Finding in Case No. VII 384, 385 
 
 Wliere the articles imported do not embody the elements or claims of the 
 
 Patent, they cannot affect it 385 
 
 New cause of forfeiture added by section 46 427 
 
 Finding in Case No. IX 386, 38", 388 
 
 Where a rental was held sutticient and a sale not necessary 387 
 
 Reasons why Case No. X. may not be a precedent 388, .389 
 
 Finding in Case No. X 390 
 
 Importation of samples or models is not prohibited 391 
 
 As bearing on elements of claim or articles imported into Canada 
 
 391, 392, 393, 394 
 No penalty for importing parts ; elements are not tiie invention (for 
 
 which the Patent is granted) 395 
 
 Knglish cases supporting tiiis view 395 
 
 Finding as to manufacture and importation in Ciise No. X 395 
 
 Finding as to refusal to sell at a reasonable price— Case No. X 396, 397 
 
 Patentee not Ixmnd to sell unconditionally .397 
 
 Provisions as to manufacture and importation may be to prevent exac- 
 tions of exorbitant prices .397 
 
 If Patentee is in a position to furnish the patented article or to license its 
 use, at a reasonable price to any person desiring to use it, his Patent 
 
 ought not to be forfeited , 398, :M 
 
 Tliis desire must be one expressed — offer of a fair bargain and of a pay- 
 ment 39!.' 
 
 An inconsiderable importation after authorized time does not void Patent .399 
 
 Nor imjjortation of models or samples 399 
 
 •Confusion as to the (juestion of refuml to kpH 399 
 
 As to question whether importation of parts to be put together in Canada 
 
 voids Patent 399 
 
 Clashing of decisions as to 399 
 
 Ditliculty in determining what may be " a rcasoiiahit pricf " 400 
 
 Exception when the Commissioner fixes " n reasonohle price " 400 
 
 French autliorities bearing ni\ non-manufacture and importation. 400, 401, 40*2 
 Practice in Gernumy, Belgium and Italy, us to manufacture, etc Vf' 
 
INDEX. 
 
 557 
 
 Page. 
 Forfeiture of Patents — Contimied. 
 
 Provisions in Canada as to manufacture and importation of questionable 
 utility 402 
 
 No forfeiture in U. S. for non-manufacture 402, 403 
 
 Foreign countries in which there are statutory provisions relative to non- 
 manufacture and importation 403 
 
 Countries in which there are no restrictions as to 404 
 
 Form. 
 
 Cliange of, not inventioa, except it involves change of operation or exe- 
 cution 136, 137 
 
 Forms of Canadian Patent Offick. 
 
 Set out in Appendix I 476, 490 
 
 Alterations and additions which might be made 4.35, 436, 437 
 
 Petition should follow tlie wording of the Patent Act of 1886 435 
 
 Serial number of original Patent should be set out in Forms 6 and 7 
 
 relating to reissue .... 435 
 
 Certified copies of Letters of Administration or of the will to be attached 
 
 to the petition of executor or administrator 435 
 
 Title of the invention not now called for on drawings 436 
 
 Certificate on drawings 436 
 
 Suggested improvements in form of oath 436, 437 
 
 Before whom oath may now be taken 437 
 
 Affidavit, Form 22, should be on belief 436, 437 
 
 Oath should not be stated to be taken before a J. P. only 437 
 
 No form of oath on application for reissue by legal representatives nor on 
 
 application for Patent by legal representatives, nor by an assignee if 
 
 the inventor be dead, nor for a shop license, territorial interest, etc. . . 437 
 Forms 24 and 25 of assignment should not be alone personal to assignee 
 
 but to assignee, liia legal representatives and assigns 437 
 
 As to defects in Form 20, disclaimer 4.37 
 
 New form suggested 199, 200, 437 
 
 Slight deviation from, will not vitiate 438 
 
 Fraud. 
 
 Licensee may challenge Patent when fraud exists 230 
 
 Functional Claim. 
 
 What it covers 99 
 
 Grip v. Butteufield 237, 238, 2.39 
 
 H'.ADNOTEH Erroneous .38, 43, 55, 56, 134, 189, 190, 239, 323 
 
 f'^LDER in Due Course. 
 
 """♦^nition of 462 
 
 Hoi'E Manufacture. 
 
 Provisions to protect 350, 364 
 
o58 
 
 INDEX. 
 
 f t 
 
 Pil 
 
 
 l.ii 
 
 ; ;iJ 
 
 fn: r I'! 
 
 Iiliit 
 
 Pace. 
 Implied License. 
 
 Right of vending implies the riglit to use 426 
 
 Instance of implied Uctnxe under set-. 46 232, 426 
 
 As to the period covered by sec. 46 426, 427 
 
 Implied License in U. S. A 228, 231 
 
 Importation (see " Forfeiture of Patents ".) 
 
 Importation. 
 
 Immaterial in extent, does not void Patent 361 
 
 Importation by others, with consent of patentee, if component parts are 
 
 to be put together in Canada, falls within the prohibition 361 
 
 Connivance by patentee at importation voids Patent 361 
 
 Only one extension of time to import 369 
 
 .Samples or models not prohibited 391 
 
 Improvemknts. 
 
 Made on existing patented inventions 83, 84, 85 
 
 Infants. 
 
 May obtain Letters Patent 28 
 
 Contract with, voidable 28 
 
 In Quebec, are incapable of contracting 29 
 
 In (ireat Britain, may be patentees 29 
 
 Informalities. 
 
 Ill oath 86 
 
 Infringement. 
 
 Legal and equitable owners to lie made parties to, suit in U. S. A 2.32 
 
 On failure to obtain consent in writing to make, conntruct or put in practice 
 
 an invention 2f5 
 
 As defined in section 29 24.i 
 
 When a written document is unnecessary on sale of patented article 245 
 
 <Jn obtaining patented article from person not authorized to make or use. 246 
 
 Action for 269, 270 
 
 .lurisdiction of Exchequer Court as to 270 
 
 Appeal to Supreme Court Canada from Excliequer (Jourt 270 
 
 Usually takes place l)y substitution of equivalent parts 28(i 
 
 How question of infringement may be determined 286 
 
 It is not, to make, use or sell anything described, but nC. claimed 287 
 
 Omis.sion of an element avoids infringement 287, 288 
 
 Exception thereto in England 289, 290 
 
 The mere making of an article constitutes ... 288 
 
 Infringement of one claim sutlices 288 
 
 Immaterial whether all claims be valid if one sued on is 289 
 
 English cases as to infringement of essential feature of, etc. : see also 
 
 I'erkovcr v. Itowland.% 10 I^ P. C, p. 234 289, 290 
 
 Differently regarded in England tlian in Canada or U. S. A 290 
 
INDEX. 
 
 5o9 
 
 Page. 
 Infringement — Continued. 
 
 By use of " mechanical equivalents " 291 
 
 Use for experimental purposes is 291 
 
 A dismantled machine held an infringement in England .... 293, 294 
 
 Doubts concerning resolved in favour of Defendant 294 
 
 As to, in foreign countries 294 
 
 As to sale of a single element with intent to use with other elements .... 
 
 294, 295, 296 
 
 Absence of intent to infringe is no excuse 29.5 
 
 Mere changes in form, number and size or location do not avoid 295 
 
 Jurisdiction of U. S. Courts 2fl(i, 297 
 
 Circuit Courts of Appeal (U. S.) 296, 297 
 
 Infringement Suits. 
 
 Where the " venue " must be laid 275, 276 
 
 The word ' ' may " referring to " veiixe " in section 40 is obligatory 276 
 
 Who may be parties to suits in U. S 279 
 
 Who may be parties to suits in England 280, 281 
 
 Action may be brought both against manufacturer and user 281 
 
 Bare lie uisee cannot sue in his own name 281 
 
 Directors of a company whose .servants infringe are personally liable 293 
 
 Certificate in, in England 292 
 
 As to costs in 292, 293 
 
 Members of a partnership can be sued individually as infringers, but a 
 Secretary of a partnership association is not individually liable 295 
 
 Injunction (Interim). 
 
 Only granted when there is a fair primd facie case of validity made out 
 
 297, 298 
 
 Material to be used on motion for 298 
 
 As to presumption of validity on application for 299 
 
 Infringement or danger of infringement must be clearly shown on appli- 
 cation for 299 
 
 Bonds taken in U. S. to secure against damages 299, 30O 
 
 Public acquiescence in Letters Patent raises presumption of validity .... 301 
 
 When, may be dissolved 301 
 
 Not granted, if patentee has been guilty of laches 301 
 
 What constitute laches 'Mil 
 
 As to undertaking as to damages .302 
 
 The age of Patent is material to right to ■ 3<J2 
 
 Must be no doubt as to plaintiff's title or defendant's infringement in 
 
 order to o'otain 302, 303 
 
 The question cf " balance of convenience " on an application for . . . .303, 304 
 
 Injunction (Final). 
 
 When Canadian Courts first aecjuired right to grant 30.'i 
 
 When Canadian Courts could grant interlocutory injunction .305 
 
 Inspection or account ntay also be ordered by the Court .30.'> 
 
)60 
 
 INDEX. 
 
 Pace. 
 Injunctiox (Fisal) — Continued. 
 
 Proceedings for oontmnpt ii injunction disobeyed 30» 
 
 Suspension of injoiKtioa 305, 30(> 
 
 What plaintiff most pfove in suit for 906 
 
 In Cana<ia as wtU as in England Court may order destruction of infringing 
 
 article 306- 
 
 May Ije violated by ale of component parts of machine 306 
 
 When plaintiff may W en joint d for selling or using after the expiration of 
 
 the Patent 306 
 
 Where it may b<e rehired 306, SOT 
 
 W^ill not \)e granted vhen the only infringement has been long discon- 
 tinued 307 
 
 An action for infringement lies to restrain threats against an alleged in- 
 fringer 307 
 
 When the d'e-feodant is estopped from raising arguments against valitiity 
 
 of Pai^T*- T suit for 3C»7, 30(s^ 
 
 Couit ra« .r -rte by way of injunction notwithstanding promise not to 
 
 again .' v 307 
 
 May be granted when there is an intent to infringe W^ 
 
 What rb i'.t>cree of, sFiooId contain 3*JH 
 
 Inspection. 
 
 Refers to an wspedtLoa 'j'J .i;.-»cbinery or process and not to insjtection of 
 
 books Sdf^ 
 
 Must be shown tliat it is material for plaintiflf 's case 3t)8 
 
 Form of atfidaxit nt^essary in England to support application for SJ<* 
 
 To whom the order for inspection should be confined when plaintilflEs and 
 
 defendants are competitors in trade SOS, 30^ 
 
 Order for may direct that machinery be put to work and sample of goods 
 
 taken 3»)9 
 
 As to secret process, when Court ■would not order a disclosure of S'X^ 
 
 Disclosure of swret process not compellable 309 
 
 When the oompoation of infringing article may be ordered to be disclosetl. 300 
 
 No order for when articles not m possession of defendants 3»}0 
 
 How far secret process and names of customers may be ordered to be 
 
 disclosed 3»i9 
 
 Defendants may aho obtain an order for 310 
 
 When insp>eetion of detendauts' works has been refused 31t> 
 
 A right to, not an absolute riglit, but discretionary with Court 310 
 
 When 1ar}i*j< may W no grouml for refusing an order for 3I<> 
 
 Limitevl to process as to which x pr'imd facie, case of infringement is made. 310 
 
 Defendants may be allowed to nspect plaintiflFs' process 310 
 
 Solicitors and two experts allowed to inspect defendants' device and to 
 
 make experioMSta 310 
 
 Insufficiex'cv. 
 
 Of specificatioo to be specially pleaded 317 
 
rKDKX. 
 
 561 
 
 Paob. 
 Intent. 
 
 When injunction may be granteB <ra; afiowing intent to infringe 308 
 
 Interest. 
 
 On damages and profits 250, 251, 252, 265 
 
 Interference (U. S). 
 
 Practice in U. S. A. on 149, 150, 157, 158, 159 
 
 Statement required in U. S. A. wftea invention made abroad 158 
 
 N.B. — Foreign inventor to etouiilHli priority, cannot go behind the date of 
 
 receipt of bis application ly an agent in U. S. A. or in U. S. Patent office 
 
 except his invention hue been giwviuuHly printed or patented in the foreign 
 
 country. 
 
 As to reduction to practice in OT.. *. A 157 
 
 Interim Injunction (see Injuntiiiijii (IJifcerim)). 
 
 International Convektiok „ 78, 79 
 
 Inventor First. 
 
 Rules as to right to obtain patain .ih- Between rival inventors in U.S.A. .51, 52 
 U. S. practice as to "race of dili|Hnije ' aot the intention of our Legis- 
 lature ,52 
 
 First applicant in United tin^rdoni dm tirst inventor ,52, 53 
 
 Kule as to first " introducer '' Jmi. Cnitaid Kingdom, not applicable to 
 
 Canada ._ - ,53 
 
 Earliest " conceiver " if he aot»; ^wticdii reasonable diligence is ,54 
 
 Day and hour of ax)pIication settlef griority aa to, in Austria- Hungary 53 
 
 Patentee nnist be first inventoi inCiniula or elsewhere 55, 56 
 
 Law of England and that of U. 'S. (fiifbr* aa to 59 
 
 English precedents rather thaiiT'. >> precedents should govern in Canada.. 59 
 
 Meaning of term " original anci iiMi ih-ventors '' iu U. 8. A 59, 60 
 
 Does not mean absolutely and wJilkiuC i^ualirication. . . 61 
 
 Suggested amendments to (mr Aitt. ■wctiim 7 56, 57 
 
 U. S. rules as to " race of diligeuafc' ai*- between rival inventors not appli- 
 cable to Canada 62 
 
 Practice in England as to prior iq^Hii-ant 63 
 
 Inventor. 
 
 Meaning too restricted in Becrtum * 74 
 
 Invention. 
 
 Defined - 22, 2.3, 24, 25 
 
 Difference between " di8C()verT '" ;iniC "invention " defined 35 
 
 What constitutes ' ' invention ' 35, 36, 87 
 
 Great simplicity of, no objection, 'lufl natiier recommendation 36 
 
 Courts now more 1' ^ral in dfltoiTmunitf iw to sufficiency of 36 
 
 New method of using, if it pntduiH* aew ami useful results, patentable . 37 
 
 Lack of 37 
 
 Arrangement of printed matter on tiiiltets in U. S. not invention 37, 38 
 
 71 
 
r)62 
 
 INDEX. 
 
 !ti- 
 
 Paoe. 
 Invention' — Continued. 
 
 New combination of oltl elementa patentable 38 
 
 " Effect or result" does not constitute "invention," but the mechanical 
 
 means by which it is attained 40 
 
 Patentable and n<>n-{>atentablL inventions defined in recent English oases. 40, 41 
 
 Defined in our Act 41 
 
 Acceptance of new device by the public and extensive use, evidence of 
 
 invention 42, 45 
 
 New combination of old elements patentable 42, 43, 44, 46 
 
 If combination pro«luces new and useful results, it is patentable 42, 43 
 
 Patent upheld in Sup. Ct. Can. , shown to be anticipated in Smith v. Oreey . . 43 
 Change in mode of operation, producing new or more economical effect, 
 
 patentable 4.') 
 
 Adoption by the public and displacement of other devices is evidence of 
 
 invention : 45 
 
 Large sales not conclusive evidence of : see also Saunders v. Allen, 67 0. 
 
 V,., March 13th, 1894 45, 46 
 
 What heading invention must come under 47 
 
 Reijuisites for invention 47 
 
 Must not be known or used Ijefore applicant's invention thereof ... .47, 49, 50 
 
 Provisions of Patent Act of 1826, U. C, as to 47 
 
 Provisions of Patent Act, U. S., 1790 and 1793, as to 47 
 
 Peipiisites of Invention under Patent Act of 1849 (Can.) 48 
 
 Provision as to prior knowledge or use in foreign country under Act of 
 
 1849 48 
 
 This provi.so has now disappeared 48 
 
 Provision in U. S. A. as to prior knowledge or use in a foreign country . . 48 
 
 Date of application prima facie evidence of priority 53 
 
 " Race of Diligence " — rules as to in U. S. A 54 
 
 " Race of Diligence" — rules not applicable to Canadian cases 62 
 
 Suggestions from others 54 
 
 In European couatries first introducer entitled to Patent, except in cer- 
 tain countries 55 
 
 First to reduce to practical form, may be first inventor in U. S. A 60 
 
 Four classes of 94 
 
 " Primary " and " secondary "' inventions defined 127, 128 
 
 Aggregation is not, analogous use is not 130, 120 
 
 Mechanical sk^'l not 135, 136 
 
 Omitting one element not invention unless it causes new mode of 
 
 operation 1 36 
 
 Change of form or size not invention unless it involves a new mode of 
 
 operation 136, 137 
 
 Old devices in new combination without producing any new mode of 
 
 operation, not 137 
 
 Mere duplication of |)arts not 137 
 
 Mere substitution of one material for another, if the result be only greater 
 
 cheapness or durability, and not involving change of method, not .... 138 
 
INDEX. 
 
 563 
 
 PA(iE. 
 
 JxvKNTiON— Co«<im<ef/. 
 
 Wlieie a cliange of form may be 138 
 
 Where a change of size may be 138 
 
 Wliere a change of proportion may be 138, 1.39 
 
 Wliere a change of material may be 139 
 
 Where (lu{)lication of parts may be 139 
 
 Where change of arrangement of parts may be 139 
 
 Wliere change of locjvtion may be 139 
 
 Joint Applications. 
 
 What is referred to in section 27 241, 242 
 
 Joint Grants. 
 
 Wiuit the term means in section 7 242 
 
 Joint Owners. 
 
 Are not co-partners 233 
 
 Joint Tenancy. 
 
 How to avoid 32 
 
 Jury Trials. 
 
 Not specifically abolished in Canada in Patent suits 277, 278 
 
 .Jury notice struck out 278 
 
 No jury in England unless Court so directs 278 
 
 Knowledge or Use. 
 
 The effect of Tha Queen v. La Force, as to 57 
 
 Must be knowledge by the public, not secret knowledge 57, 58 
 
 " Known or used " defined 58, 59 
 
 In foreign countries as to 61 
 
 What constitutes a "public knowledge or use " in Canada, difficulty as 
 
 to defining 63, 64 
 
 " Known or used " disjunctive 64 
 
 Means " known or used by the public " 64 
 
 IvNowN OK Used. 
 
 Defined 58, 59 
 
 Laches. 
 
 No interim injunction will be granted if patentee guilty of 301 
 
 Wh.1t constitutes " Laches " .301 
 
 Lapsed Application 152 
 
 Legal Representatives. 
 
 Includes also assignees (See also section 2, Patent Act) 225 
 
 Do legal representatives include assigns, in Canada 427 
 
 In U. S. A. legal representatives include assigns 427 
 
 Legislation as to Patents. 
 
 The first enactment in Lower Canada and Upper Canada 2 
 

 ill; 
 
 U 
 
 > ( 
 
 I!' '' 
 
 : 
 
 504 
 
 INDEX. 
 
 1 II 
 
 m 
 
 . ( 
 
 i I 
 
 
 
 
 1 
 
 B 
 
 
 
 ij 
 
 
 1 
 
 
 ! 
 
 tri 
 
 1 
 
 i 
 
 1 
 
 JKf 
 
 i 
 
 PA(iK, 
 
 Letters Patent. 
 
 No common law right to , 
 
 Discretionary with the Crown , 
 
 When discretion Hist exereiseil 
 
 How executed and issued 27 
 
 Who may obtain, in Canada 28, 29 
 
 May issue to " assignee " provided oath be made by inventor, etc 30 
 
 May issue in the name of " assignee " of deceased inventor 30 
 
 Two or more may make joint application 31 
 
 Uights of joint patentees 31, 32, 33, 34 
 
 Privilege extended to aliens as well as subjects 34 
 
 Aliens as well as subjects may obtain J.etters Patents in United Kingdom. 34 
 
 Anala^ous use not patentable 40, 120, 121, 122 
 
 Substitution of " mechanical e(|uivalent " not patentable 123, 124 
 
 Non-analagous use may l)e patentable 40, 120, 123 
 
 Requirements for obtaining 70 
 
 Prima facie evidence of validity 70, 71 
 
 Scientific principle or abstrtact theorem not proper subject for 71) 72 
 
 Abandoned applications for 72, 7.3 
 
 Application for, when prior foreign Patent has issued 73 
 
 Time within which notice of application to be given in Canada under 
 
 section 8 73, 7(f 
 
 Foreign country, meaning of in section 8 74 
 
 Applications for in section 8 7.") 
 
 Meaning of year and when it expires, on ajjplication for under secticm 8 . . 7.> 
 
 Defects in section 8 on application for 7'i, 77 
 
 Efl'ect of prior issue of foreign Patents 77, 78 
 
 Effect of expii-y of a foreign Patent 79, SO, 81, 82 
 
 How the expiry of a foreign Patent is to be proved 81 
 
 How to iletermine whether prior foreign Patent exists 82, S3 
 
 As to communications from abroad in England 87 
 
 Not supported by oath of inventor, void in U. S 88 
 
 In U. S., no provision to issue to assignee of deceased inventor 89 
 
 In England, may issue to legal representative 89 
 
 In England, no provision for issue to assignee of deceased inventor 89 
 
 Making ^^ without vonseiil, etc., of inventor," before Patent applied for, 
 
 may infringe patent subset^uently granted GO 
 
 Practice in U. S. on application in event of death 90 
 
 Practice in Canada in event of death 90 
 
 Application for, requirements to be observed 91, 92 
 
 Application in Canada to be perfected wniiin two years 92 
 
 Application in U. S, to be completed within two years 93 
 
 Application not to include two inventions 93, 94 
 
 In England, only one invention in each Patent 94 
 
 Whether machine, process and product may be included in one Patent . . 9i> 
 When process .and product may be inoluded in one 96, 9G 
 
If 
 
 INDEX. 
 
 /)G5 
 
 Page. 
 Lettehs Patent — Continued. 
 
 Adflressed to those skilled in the ftrt 102 
 
 Description, when, and when not, fatally defective \02, 10.3 
 
 J^iilure to wind up with specitic claim may not void English Patent . 107, 108 
 
 In ftieat Ikitain, to be construed liberally 108 
 
 When Commissioner may ol)ject to grant 118, 119 
 
 Grounds for refusAl to grant by Commissioner 119, 120, 121, el »tq. 
 
 To sustain here must be invention as well as novelty and utility 119 
 
 Grounds on which Commissioner may refuse to grant 150, 151 
 
 What the notice to be given by Commissioner should contain on the 
 
 refusal to grant 151 
 
 Procedure on appeal from Commissioner's decision on refusal to grant.. 1 al, 152 
 
 Appeal in the matter of lapsed application for \tVi 
 
 Conflicting applications fcr 15.3-162 
 
 Grant and duration of 162-172 
 
 Title or name 163 
 
 iJrant of, in Canada conditional as to manufacture and importation 163 
 
 Not now specifically stated on face of Patent as formerly the case 163 
 
 As to the exclusive right conferred by 163, 164 
 
 A British Patent binding as against the Government 164 
 
 .Jurisdiction of CouHs as to 164, 165 
 
 As to payment of partial fee for 165 
 
 Form of issue of 165, 166, 167 
 
 Mistake in sub-section 2 of section 21 166, 167 
 
 Issued to a dead applicant 167, 168 
 
 Proceedings to be taken to rectify 167, 168 
 
 Term of 168, 172 
 
 Eighteen year Patents in Canada 169 
 
 Previous legislation as to term of Canadian Letters Patent 169 
 
 Term of U. S. Patents 170 
 
 Extension of, in U. S. abolished 170 
 
 Care must be taken that Patent be not allowed to expire by non-payment 
 
 of fee in time 170, 171 
 
 If allowed to expire, cannot be renewed except by special Act 171 
 
 Provision should be made in Canada for enlargement of time to pay fees. 171 
 
 Countries in which there is no prolongation of time to pay fees 171 
 
 Countries in which prolongation of time to pay taxes allowable 172 
 
 Surrender of 183, 186 
 
 Each claim is a separate Patent 195 
 
 In England if one of the claims be void the whole Patent may *>■ .">id. 202, 203 
 One invalid claim does not invalidate all claims of Canadian Patent . . 203, 204 
 
 Proceedings to obtain Patent on Ijequeet when inventor is dead 213 
 
 Legal representatives as patentees 213, 214 
 
 Interest saleable at common law S15 
 
 In U. S. , exclusive right to patented article exists 219 
 
 In whom interest may be vested 219, 220 
 
FT 
 
 Wl 
 
 ■V.I' 
 
 i . 
 
 5G6 
 
 INDEX. 
 
 Letters Patent — Continued. 
 
 Three olasscB of pei'Hoiia in wlioia interest may vest 2,'U 
 
 In case of joint apijlications, all assignnients sliall be registered 241 
 
 When a I'atent may he void 242, 243, 244 
 
 The omission of anything ahsolutely material to utility a fatal defect. . . . 244 
 
 Common law, right ol' the Crown to repeal 3.S4 
 
 Repeal of, in United Kingdom hy proviso in the grant 33r) 
 
 (■rounds for repeal of 335 
 
 Government employees may be patentees in U, S . 417 
 
 Covering war nuinitions in Great Britain 417 
 
 As to using Canadian invention in foreign sliip 414 
 
 Seetion 4') does not relate to Canadian or British ships 417 
 
 Compulsory licenses in (ireat Britain only relate to Patents granted since 
 
 January 1st, 1884 417 
 
 Purchasers of patented articles Ijefore issue 418 
 
 I'rovisions of prior Canadian Acts as to purciuisc before issue 41S, 410 
 
 Is the purchase with tiie consent or fraud of the inventor? 419, 420 
 
 The words " consent '" or " allowance " added in revised Act of 1886. . . . 421 
 Provisions as to purchase before issue like that in U. S. Act of 1839 .... 421 
 
 Section 4() may not include ' ' process ' 421 , 423 
 
 Process not included in the U. S. section 422, 423 
 
 Party construrling a machine before application, with patentee's consent, 
 
 may lawfidly continue to use after date of Patent 423 
 
 A use by fraud not protected under U. S. section . . 424 
 
 If a member of a firm makes a machine at expense of firm, the fi' ' 
 
 continue to use after grant of Patent 424 
 
 Rigiit of party who has purchased or constructed prior to application 
 
 confined to the sjwclnc machine 424 
 
 Three classes of persons included in section 46 424 
 
 Section 46 is not specific 424 
 
 In the U. 8. section, four classes are included 42/5 
 
 When destroyed or lost, certified copies may be issued in lieu 432 
 
 Cost of obtaining copy of Canadian Patent 432 
 
 Cost of obtaining copy of U. S. Patent 432 
 
 For ( rreat Britain, lost or destroyed, duplicate thereof may be caused to 
 
 be sealed by Comptroller 433 
 
 Proceedings taken to obtain duplicate in (ireat Britain and fee for same.. 433 
 
 No search as to novelty in U. S. and no claims before Act of 1S36 443 
 
 Issued under former Acts (Can.) 456, 457 
 
 Retrospective provision under section 58 as to unexpired portions of fifteen 
 
 year Patents 457, 458 
 
 Why this legislation became necessary and U. S. decisions bearing thereon. 458 
 
 When expiry of foreign Patent limits life of U. S Patent 459 
 
 License. 
 
 Need not be registered 215 
 
 What constitutes 216, 217 
 
INDEX. 
 
 5(i7 
 
 r.\f;K. 
 License — Continued. 
 
 In Caiiiida, must l)c in w riting 2'2I 
 
 In Knglaml, must he in writing 'i'il 
 
 When void as against public policy '2-.H 
 
 Iniplied in U. S. A., wiien relation of employer ami eniplnyee exist . -'2N, 'I'M 
 
 Implication docs not arise in Canada in the samt; way as in U. S. A -IVJ 
 
 Only instance of implied license in Canaila is under section 4(5 "JH'J, 42(> 
 
 To sell does not iin])ly right to make 2'2S 
 
 ^^'hen (ioveinment has used, there may he an itnplied license '22.S 
 
 To make and use does rot authorize siile 22S 
 
 Wlien there may not he an " FIviction " 220 
 
 Decision in (Ivk ii v. Waison, 2 Out. R. ou " Eviction " doubted 22!l 
 
 Not assignable unless i* ••.itains authorizing words 230 
 
 On <iissoliition, cont'tiuing partner is entitled to license 2.'{(l 
 
 To manufacture at a certain i ace is not transferable 231 
 
 U. S. Federal Courts have not jnrisiliction as to 231 
 
 When licensee may not escape liability for arrears 232 
 
 To use, how construed 232 
 
 To a party witliout the words " his assigns " is merely personal 233 
 
 When licensee may not set up license as defence 233 
 
 Fee need not be in writing, may be shown by parol 233 
 
 Of a shoj) rigiit, is personal and not a- gnablo 2,34 
 
 Parol evidence cannot vary 23H 
 
 Is determinate by licensee 240 
 
 N. B. — In Xoxon v, Xoroii, 24 Ont. 11. there was no cxrlusice right granted, 
 nor was tlierc any express covenant to keep on making, as was the case 
 in St. Paul Plow Wort^ v. Si'trliwi, 140 U. S., see p. 240. Where licen- 
 see may repudiate, no time for license being fixed : 8ee also Riil;/es v. 
 Mulliner, 10 R. P. C. p. 21. 
 
 Licensee. 
 
 May challenge Patent on ground of fraud 230 
 
 May be bounil althougii he has not read license, and exception thereto.. . . 231 
 May show that articles niiule by liini ilo not embody invention 233, 234 
 
 License Fee. 
 
 In foreign country no criterion as to damages 250 
 
 As a measure of damages 24!), 2r)0, 253 
 
 Limitation. 
 
 Of right of action 276 
 
 Lunatic. 
 
 No provision in our Act as to 30 
 
 Provided for in Great Britain 30 
 
 In U. S. liable oidy for actual damages 30 
 
 Machine. 
 
 Definition of .... 23 
 
568 
 
 INDEX. 
 
 f'i 
 
 i'i ! 
 
 i. 
 
 
 in 
 
 
 9 
 
 % 
 
 
 
 w 
 
 ■ 
 ■ ) 
 
 1 
 
 'iiJ 
 
 'i'l 
 
 i'i 
 
 
 ■'li 
 
 :; «. 
 
 ■t ^19? 
 
 Paok. 
 
 Maxufactube. 
 
 Definition of 24 
 
 Has more extended meaning in England 24 
 
 Extension of time as to 368 
 
 Wliether Commissioner can grant more than one extension 368 
 
 Extension of time can be granted only as a continuation without interrup- 
 tion of tlie respite of wh'ch it is prolongation 368 
 
 Manufactort. 
 
 As to necessity of maintaining in Canada 360 
 
 Markinc; Patented Articles. 
 
 Should l)e marked " Patented " with the year 445 
 
 Should Ije marketl on the article itself or on a label attached to a package 445 
 
 Penalty for failure to mark 445, 447 
 
 Patented article must be sold or offered for sale before party is liable to 
 
 penalty 446 
 
 Only when article cannot be stamped or marked it is permissible to mark 
 
 a lal>el and attach it to article or package 446 
 
 In V. S. besides the word " Patented " date and year of the Patent must 
 
 be added 446 
 
 In C'aiijula the year alone suffices 446 
 
 In the U- S. no i)enalty in the nature of fine or imprisonment, but dam- 
 ages may not be recovered in infringement suit on failure to mark. .446, 447 
 In U. S. complainant must show that the defendant was duly notified be- 
 fore suit brought, and defendant that there was no mark 447 
 
 Notice in U. S. may lie eitlier verbal or written 447 
 
 Our section refers to stamping or engraving (does this cover a painted 
 
 notice ?) 447 
 
 Tiie term "fixing thereon " as in U. S. section is more comprehensive. .447, 448 
 As to marking |)atented articles in Eran'!e, Tunis, Turkey and Switzerland. 448 
 
 No provision in Canada for marking the package itself 448 
 
 As to marking "Patented " in England and Germany 448 
 
 Penalty for marking in England " Patented " that which was not patented 
 
 is to 448 
 
 As to marking " Patented " in U. S. A. after expiry of Patent 449 
 
 Markixo Falsely as Patented. 
 
 Our prolix wording of sec. 55 taken Iroin sec. 5 of U. S. Act of 1842 449 
 
 The word " used " omitted from the Canadian section 460 
 
 Provided one does not make or self in Canada a patented article falsely 
 
 marked, he is not within section 55 450 
 
 Not neces.*ary here or in the States to put name of patentee on patented 
 
 article . 460 
 
 The three classes covered by section 55 450 
 
 Neceijsary to show nn intent to deceive the public 451, 464 
 
 As to obtaining consent of patentee or his legal representatives 460, 461 
 
INDEX. 
 
 569 
 
 Page. 
 3Iarking Falsely as Patented — Continued. 
 
 In Canada, there must be an oflFering for sale of the falsely marked article 
 
 to be witliin provisions of section 55 451 
 
 The article itself must be falsely marked 452 
 
 Section 55, relating to falsely marking, does not include " a process "... 452 
 A corporation is responsible for act of its superintendent for fixing the 
 
 word "Patented " to unpatented articles 453 
 
 What the plaintiff must prove in U. S. on a charge of 453 
 
 What it is necessary to show in Canada on a case of falsely marking . . 453, 454 
 
 Maximum fine in Canada of S200 454 
 
 In U. S. , thf penalty is $100 for each offence of 455. 
 
 False Trade Marks 455 
 
 Married Women. 
 
 May be patentees 28 
 
 Letters Patent are " separate estate '" 28 
 
 In Lower Canada, husband sliould join or give consent in writing 29 
 
 Under no disabilities in Great Britain 29 
 
 In U. S. liable to damages for infringement 30 
 
 A married woman, infant or one under guardianship in U. S. may be 
 
 "assignee" 30 
 
 •Competent in U. 8. as witness in interference 30 
 
 Mechanical Equivalents. 
 
 Defined 124 
 
 Elementary mechanical powers 124, 125 
 
 Test of equivalency 125, 129 
 
 A thing may be eijuivalent if it does p-^re, but can't be if it does less 125 
 
 Ontario suits liearing on equivalency 126, 127 
 
 Testimony of experts as to 127 
 
 Primary and secondary inventions as bearing on 127 
 
 Defined 129 
 
 English cases on 130 
 
 ^Mechanical Skill (see " Invention "). 
 
 Minister of Agriculture, Deputy. 
 
 No longer Deputy Commiscioner of Patents 22 
 
 Models, 
 
 Not required for Canada unless asked for 115 
 
 Not required in U. S. unless called for 116 
 
 Reijuirements as to 116 
 
 Not to be considered bivsis of reissue in U. S 117 
 
 May amend specification with reference thereto 117 
 
 Rarely required in foreign countries and exceptions thereto 117 
 
 Monopolies. 
 
 Statute of, declaratory of common law 1 
 
 72 
 
 f-^i 
 
o70 
 
 INDEX. 
 
 ( ' u 
 
 i-" 
 
 ' 
 
 Pace. 
 Monopolies — Continued. 
 
 (jtli section thereof foundation of present Patent Law for the United 
 
 Kingdom 1 
 
 Text of (ith section, 21 .James I., a. ',^ 2 
 
 First introducer into the realm the true and first inventor 2 
 
 Monopoly. 
 
 lioyiil grant of, held void 1 
 
 Wlien the ( Jovernment adopts invention, the patentee has not the usual 
 two years' niouopoly of use 415 
 
 Months. 
 
 Meaning of term in U. S. A. and in Canada 93 
 
 Mean Calendar, in U. S. A 170 
 
 Mort(;a(;e. 
 
 Interest it vests in mortgagee 221, 222 
 
 Retiuirementa for execution of, in U. 8 .'. . 221 
 
 Namks and Addkksses. 
 
 Must be given in particulars 31 1 , 322 
 
 New Use ok Double Use. 
 
 When a " new use " may be patentable 40 
 
 Non-Manufacture (.see Forfeiture of Patents). 
 
 Notes Given fok Patent Rights. 
 
 Provisions vl sub-sections 4, .'5 and 6 of section 30 of Bills of Exchange 
 
 Act (I8!I0) 461 
 
 "(Jivenfora Patent Right " are the prescribed words for face of such 
 
 notes 461 
 
 Indorsee or transferee of notes so marked tai<es, subject to any defence or 
 set off in respect of the whole or any nart of the note wliich would 
 
 have existed between original parties 4<)1 
 
 Penalty for issuing, selling or transferring such notes without the pre- 
 
 8cril)ed words 46 1 
 
 \Vithout the words "given for Patent Rigiit " note and any renewal 
 thereof void, except in the hands of a liolder in due course, without 
 
 notice of sucli consideration 461 , 462 
 
 As to the decision in Gi> riu v. Bntkc, 9 Ontario Reports 462, 46.S 
 
 \Vith(iut the prescribed words, note void between original parties 462 
 
 Holili r ill dill' coiifxe defined 462 
 
 When title of note is tlefective 4<i2 
 
 RiglU of 8ubse(|uent holder 46.S 
 
 Meaning of term " issues " in sub-suction 6 of section 30 463 
 
 The object of the words "given for a Patent Right " 464 
 
 (Jood defence to show that alleged Patent Right is void 464 
 
 Statement of C<immou Pleas Divisional Court in (tirriii v. Burke, that pre- 
 scribed words migiit be omitted at pleasure of maker without Injing 
 amenable to penal clause, discredited 464 
 
 t '. 
 
INDEX. 
 
 571 
 
 Page. 
 Notes Given for Patent Rights — Continued. 
 
 Opposite view taken in Court of Appfcitl in Jo/nison v. Martin 4(54 
 
 By amendment in Revised Statutes of Canada (1886), c. 123, sec. 12, the 
 
 law now made more stringent 465 
 
 Penalties prescrilied 46.'> 
 
 When a note given for a Patent Right is good without the prescribed 
 
 words 465, 466 
 
 The prescribed words to be on the face of the note 466 
 
 Provisions as to prescribed words extend to licenses 466 
 
 Judgnient in Sainuel v. Fain/reve, 24 Ont. R. relating to note given for 
 
 Patent Right 466, 467 
 
 As to marking note given for Patent Rights in U. S. A 467 
 
 Notice. 
 
 Not necessary to give notice under sections when prior Patent is British. 412 
 When the life of a Canadian Patent under section 8 is shortened 412 
 
 Novelty. 
 
 Examination as to 46 
 
 Different changes in U. S. Legislation as to 49 
 
 When not negatived in U. S. A. by prior publication 49 
 
 NVhen negatived and not negatived in Kngland 50 
 
 Defect in our Act as to 50 
 
 When negatived in U. 8. A 50 
 
 Burden of proof of want of novelty 54 
 
 Meaning of, differs from that in U. 8. as well an in England 140 
 
 When, not negatived 141 
 
 When, it is negatived 141 , 142 
 
 Oath. 
 
 As to informalities in 86 
 
 Prima facie evidence as to first inventor 87 
 
 Requirements of 88 
 
 Affirmation provided for 88 
 
 Defect in Canadian form of 213 
 
 Suggested im])rovements in form of 436, 437 
 
 Before whom oatii may now be taken 437 
 
 Taken out of Canada and before a.)u<lge shouhl have the seal of his Court 
 
 atlixed '. 48.") 
 
 Taken before a notary puldic should have iii j seal of office alHxed 485 
 
 In case of assignment before issue of Patent aHidavit to be made by inven- 
 tor not by assignee 485 
 
 If inventor be dead executor or admistrator must make oath tiiat person 
 named as inventor was inventor 485 
 
 Offences and Penalties {et seq) 445 
 
 Offical Gazette (U. 8.) 
 
 No. of Patents issued in U. 8. up to 5th December, 1893 442 
 

 i. 
 
 ^Ht: 
 
 i ; «: 
 
 fl-.,. 
 
 ^:^. 
 
 572 
 
 INDEX. 
 
 Pagk. 
 Official Gazette (U. S.) — Continued. 
 
 Volume 1 of, commenced June Ist 1872 442 
 
 Number of employees in U. S. Patent office 442 
 
 Report of U. S. Commissioner for 1893 442 
 
 Official Public Document. 
 
 Seal receivable in evidence without proof of the signature, or official 
 character of the person appearing to have signed the document. . . .4.33, 434 
 
 Particulars. 
 
 No specific enactment in Canada as tu 311 
 
 Delivery of part culars is a ]/roceedinrf in the action and within sec. 31.. . . 311 
 
 Provisions in English Acts as to 311 
 
 Besides the tim'^ and place, names and addresses must be given in England. 31 1 
 In England plaintiflf must deliver with statement of claim, or .subsequently 
 
 by order of Court particulars of breaches 311 
 
 Wliat particulars of l)reache8 should give to the defendant 311, 312 
 
 Should distinguish which of several processes or claims have been in- 
 fringed 312 
 
 Not the office of particulars to answer, interrogatory, as to construction of 
 
 Patent 312 
 
 Where a whole specification is relied on, particulars are not to be given. . 312 
 In Ontario particulars may be obtained as to pages and lines of specifica- 
 tion as well as claims alleged to be infringed 312 
 
 Practice in Ontario as to indication of place of infringement 312 
 
 (ireater particularity recjuired in defendant's particulars of objection than 
 
 in plaintiff's, of breaches 312 
 
 As to distinction between particulars of breaches and particulars of objec- 
 tion 313 
 
 Must contain names and places of residence of prior users as well as refer- 
 ence to parts of books 313 
 
 Plaintiff entitled to know name of l)(>ok or newspaper and date of Patent, 
 
 name of patentee and page of publication 313, 314 
 
 The page of the book must be defined 314 
 
 Where it was held not necessary to give pages and lines of each alleged 
 
 anticipating Patent 314 
 
 Time of infringement properly specified if stated to be n a certain day or 
 
 between specified dates 314 
 
 \\'lien page and line of specification need not l>c given, because claims 
 
 alleged to be infringed had been pointed out 314, 321 
 
 As to further and i)etter, when order may be obtained for 315 
 
 As to costs of in England and in Canada 315 
 
 In England, Judge must certify as to, being reasonable and proper 315 
 
 Why such certificate should also be recjuired in Canada 315 
 
 Dates of prior users and their present addresses to be given 316 
 
 In foreign (commissions, names of witnesses proposed to \te examined 
 should be given 317 
 
INDEX 573 
 
 Paoe. 
 Particulars — Continued. 
 
 As to insufficiency and sufficiency of speciiicationa 317 
 
 Insufficiency of si)ecification should be specially pleaded 317 
 
 Defendant should point out any particular defect in specification he is 
 
 aware of .... 317 
 
 Grounds should be stated for alleging insufficiency of specification 317 
 
 As to amendments of 317, 318 
 
 As to first and true inventor 318, 3'24 
 
 In England Court will not require defendant to say who was the first and 
 
 true inventor 318 
 
 Particulars of fraud to be set out 319 
 
 No coats to be allowed in England for particulars, when no certificate of 
 
 Judge 319 
 
 Practice as to, ii> U. S 319 
 
 The words " wnere " and "residence" in U. S. statute refer to cities, 
 
 villages or towns, and not houses, etc 319, 320 
 
 Must be rendered in U. 8. at least thirty day.s before trial 320 
 
 Practice as to, in England 320 
 
 There need be ijo particulars of objections of " general public knowledge " 320 
 In England, Court has discretionary power to go beyond particulars of 
 
 objections rendered 320 
 
 Defendant must state which of plaintifif's claims arc alleged to be antici- 
 pated by specification cited 320, 321 
 
 Plaintiff may not be called upon at an early stage to give the names of 
 persons to whom as alleged the defendant had sold, and dates of such 
 
 sales 321 
 
 Defendant must point out what parts of specification relied on are antici- 
 pations 321 
 
 Practice, as to, in Canada 321, 322, 323 
 
 May go outside of, at trial, if knowledge of objections is acquired subse- 
 
 <|uent to examination 321 
 
 In Ontario names of prior users, as well as dates and occasions of such 
 
 use must be given 322 
 
 Section 24, of Patent Act of 1872, first gave jurisdiction in Canada as to. 323 
 Provision for exclusion of evidence and not excision of defence if particu- 
 lars be not delivered 323 
 
 Practice as to, of common law origin 323, 324 
 
 No special legislation in Canada as to, except in sci. fa. proceedings 324 
 
 As to encumbering record with copies of immaterial Patents 324 
 
 Parties to Suits (see Infringement). « 
 
 Patents, Commissioner of. 
 
 Minister of Agriculture is tx officio 25 
 
 Deputy Minister of Agriculture no longer Deputy Commissioner of 
 
 Patents 25 
 
 Rehearing, arising out of change of official Deputy 26 
 
574 
 
 INDEX. 
 
 m 
 
 r* . 
 
 m ' 
 
 Page. 
 
 Patentability or IxvEjrriON. 
 
 For an improvenaesit S3, S4, 85 
 
 Patentees — Joixt. 
 
 Xot partners : each stAV nae invention without accounting to others 31 
 
 Whether " joint leitkncy " or " tenancy in common " exists 32 
 
 How to avoi<i " joint tenancy " 32 
 
 < hie c ^ several " joint owners " may liiing action - . . 33 
 
 Riglits of cfi-ownen ... 33 
 
 Separate dc>cum«it shoolti l»e executed defining position of 31 
 
 Document may be re^jt«re«l 31 
 
 Patent .'^ct of the United Kingdom. 
 
 ( )nl y section 103 ade'.'t^ Canada 2 
 
 Patent Act of 1^23 (L. C). 
 
 The earhest Act in the Province of Lower Canada 3 
 
 Derived from U. .S. Act of 1793 3 
 
 Patent Act of 1^26 ^U. C.)- 
 
 'i'he earliest Act in the Province of Upper Canada 3 
 
 The suliject matter of " invention " defined, .as now 3 
 
 Not to l>e '* knomn or nsed "' Ijefore application 3 
 
 Distinguished from 21 Jac. 1 c. 3 section 6 3 
 
 Applicant in Canania to lie "true inventor " not merely "importer" 3 
 
 Who might obtain Patent for fourteen years 
 
 Consent to make. ast. etc. , to he in icritiiuj 
 
 What uiight l-»e pleiuiai in defence 
 
 Provision as U.< utintnaioti (interference) 
 
 Impeachment l»y 4icL /a 
 
 Fees j^ayaVilt 
 
 RejMjaled in 1 Sol 
 
 Patent Act of 1S29 «L. C). 
 
 Provisions of Act of iJteS extended to certain travellers in foreign lands. 5 
 
 Patent Act of 1^1 «L. <'.). 
 
 Inventions in l". S. A. and Her Majesty's dominions in America, with- 
 drawn from provision:} of Act of 1829 5 
 
 Patent Act of 1^6 (L. C). 
 
 Lower Canada Acts ooosolitlated 5 
 
 Patent Act of 1S49 ICas.). 
 
 First Act after the Union of Lower Canada and Upper Canac'a 5 
 
 Who migbt uhtain Patent 6 
 
 Conditions ou vfaich invention might he patented 6 
 
 Patentee to he j»Ie aii>l only inventor 6 
 
 No Patent ir. Canada if first patented in U. S. A 6 
 
 Issue triable by a juiy 6 
 
 Treble ousts in additka to damages 6 
 
mcflEx 
 
 575 
 
 Pa.;e. 
 
 *3,*4.8o 
 
 s.... 31 
 
 32 
 
 32 
 
 33 
 
 33 
 
 :u 
 
 34 
 
 3 
 3 
 
 3 
 3 
 3 
 
 3 
 3 
 
 with- 
 5 
 
 5 
 
 5 
 
 6 
 
 6 
 
 6 
 
 6 
 
 6 
 
 6 
 
 Paise. 
 Patent Act of 1849 (Car.) — Ctn/ziniied. 
 
 Proviso as to prior foreigu knovitiiuK i)L' uae . 6 
 
 " Disclaimer "' first provided inr 7 
 
 " /^e/.fi'HC '' first provided iw 7 
 
 As to use of specific macliiue. „„_ 7 
 
 Design Patents first issued 7 
 
 Marking " Patented ' providtifl "iiir 7 
 
 Patent Act of 1851 (CA>i.). 
 
 Act of 18'2fl (U. C.) and Am .if ttSSWdE.. C.) repealed 8 
 
 Extending Provincial I'atent* 8 
 
 First introducer into Canada 8 
 
 Making, etc. , without written cmuimii actionable 8 
 
 Patent Act of 1852 (Cak.). 
 
 Bui'eau of Agriculture estalilisLttfl 9 
 
 Patent Act of 1857 (Can.). 
 
 As to I'atents issued between 3M*' jnit liiHt) 9 
 
 Patent Act of 1859 (U. C). 
 
 Repeal of Patents by sri fa. amfl girmedure 9 
 
 Patent Act of 1859 (C. S. €^c. 'M)i. 
 
 Repealed by Act of 1S72 10 
 
 Patent for fourteen years 10 
 
 No power to grant injunction 10 
 
 Design defined 10 
 
 First introducers into Canada. ';n<'«wmiin»as to re-enacted 11 
 
 Provisions as to first introdueen- mgHiiLed l)y Act of 1869 11 
 
 Patent Act of 18G6 (Cak.). 
 
 As to interfering applications II 
 
 Patent Act of 1869 (Cak.). 
 
 First Act since Confederation - 11 
 
 Patent Ofiice constituted 11 
 
 Minister of Agriculture madeCionnuHWdaer of Patents 12 
 
 Aliens, residents for one year, muj •iinain Patents 12 
 
 Aljsidute novelty tlie world ovw 12 
 
 Not to be " iw puhlir unt (w mi iodM'' in any of the Provinces of the 
 
 Dominion when applicatimi niufii. . 12 
 
 Provision allowing a])plicuti<m i«'j]ilih: :iix months after issue of foreign 
 
 Patent 12 
 
 Model to be provided _>^. 13 
 
 Total iluration of Patent fift«teii amies' 13 
 
 As to manufacture and iniportiOiKUi 13 
 
 No provision as to extension of trnH 13 
 
 ^Vhen " caveat " was void . 13 
 
576 
 
 INDEX. 
 
 ■4^?^ I 
 
 >'- 
 
 Page, 
 Patent Acts for New Brunswick. 
 
 Earliest Act in 1^34 14 
 
 Foreigners might Ije patentees prior to Confederation 14 
 
 Requisites for a patentable invention 14 
 
 Damages in infringement suits 14 
 
 No Patent refu8e<l l>ecause of Patent in a foreign country but expired 
 
 witli foreign Patent 14 
 
 Patent Acts for Nova Scotia. 
 
 Earliest Act in \KiS 14 
 
 Declaration by inventor 15 
 
 Who might obtain Patent 15 
 
 Term fourteen years 15 
 
 Patent Acts for Prince Edward's Island. 
 
 Foreigners might \ye patentees prior to Confederation 14 
 
 Acts repealed 17 
 
 Provisions of Patent Act (1872), Canada, extended to Prince Edward 
 
 Island by Act of 1875 16, 17, 459 
 
 ( As to extension of Provincial Patents to Canada 17 
 
 Who might formerly obtain Patents and how 17 
 
 Patent Act of 1872 (Can.). 
 
 Our present Act foundeil on 15 
 
 Foreigners might obtain Patents 15 
 
 Restrictions as to residence withdrawn 15 
 
 Acts repealed by 16 
 
 Patent Act of 1873 (Can.). 
 
 Before whom oath may lie taken 16 
 
 Duplicate specification may be dispensetl with and printed drawings and 
 
 specifications may be substituted 16 
 
 Patent Act of 1874 (Can.), 
 
 As to Supreme Court, New Bmnswick 16 
 
 Patent Act of 1875 (Can.). 
 
 Act of 1872 extended to Prince Edward Island 16 
 
 As to "reissue" 16 
 
 As to extension of time U» manufacture 16 
 
 Provisions as to Prince Edward Island 17 
 
 Patent Act of 1882 (Can.). 
 
 Time to import extended 17 
 
 Patent Act of 1883 (Can.) 
 
 Patent deemed issued for fifteen years notwithstanding payment by five 
 
 year instalments 18 
 
 Patent Act of 1884 (Can.). 
 
 Bill or note to 1)6 marked ' ' given /or a Patent Right " 18 
 
 Proviaions as to IS 
 
Page. 
 
 14 
 
 14 
 
 14 
 
 14 
 
 xpired 
 14 
 
 14 
 
 15 
 
 15 
 15 
 
 14 
 
 17 
 
 dwartl 
 
 16, 17, 459 
 
 17 
 
 17 
 
 15 
 
 15 
 
 15 
 
 16 
 
 16 
 
 js and 
 16 
 
 16 
 
 16 
 
 16 
 
 16 
 
 17 
 
 17 
 
 by five 
 18 
 
 18 
 
 18 
 
 INDEX. 577 
 
 Paoe. 
 Patent Act of 1886 (Can.). 
 
 Defining jurisdiction of Supreme Court of North-West Territories 18 
 
 Patent Act of 1886 (R. S. C). 
 
 Acts of 1872 and Amendments revised 19 
 
 Came into operation Ist March, 1887 1 
 
 Patent Act (Amendment) of 1888 (Can.). 
 
 As to appointment of Deputy Commissioner of Patents and his duties. . . 19 
 
 Patent Act (Amendment) of 1890 (Can.). 
 
 Gives Exchequer Court jurisdiction in xci. fa 19 
 
 Jurisdiction of Minister of Agriculture and Deputy as to " manufacture " 
 
 and " importation " taken away 19 
 
 As to registration of documents relating to Patents 19 
 
 Patent Act (Amendment) of 1891 (Can.). 
 
 Provision as to manufacture and importation amended . . 20 
 
 Patent Act (Amendment) of 1892 (Can.). 
 
 Patents first granted for eighteen years, etc 20 
 
 Amending Act of 1892 takes eflfect from July 9th, 1892 460 
 
 Patent Act (Amendment) of 1893 (Can.). 
 
 As to additional copy of claims 20 
 
 And for signature of Patents by Deputy Commissioner 20 
 
 As to payment of fees and payment of .§2 fee on giving notice under sec. 8 20 
 
 Patent Act (Can.). 
 
 As amended by Acts of 1888, 1890, 1891, 1892 and 189.3, and as it stands 
 amended subsequent to the session of the House of Commons of Canada 
 in 1894, set out in full in Appendix III 460 
 
 Patent Acts (Can.). 
 
 Karliest Patent Acts derived from U. S. sources 61 
 
 Whether American or English precedents should be followed 61 
 
 Patent Attorneys. 
 
 Any person in Canada may practice as Attorney without any (jualirication 444 
 
 Recommendation in U. S. to create Patent Bar 443, 444 
 
 Chartered Institute of, in United Kingdom 444, 445 
 
 Qualification for becoming Associate Member of the Chartered Institute 
 
 of Patent Agents, England 445 
 
 Penalty for practising as Patent Agent in England in contravention of the 
 
 Act relating to the Chartered Institute 444 
 
 Patent Bar. 
 
 Recommendation of Commissioner of U. S. as to 443, 444 
 
 Patent Office (Can.). 
 
 When first established 25 
 
 Patent Office Forms (see Forms of Canadian Patent Office) 476-490 
 
 73 
 
m. 
 
 •v'l 
 
 
 r i < 
 
 [s'ii 
 
 r 
 
 ' ':i 
 
 578 INDEX. 
 
 Paue. 
 Patent Office Rkcord (Can.). 
 
 When it liecoincs published abroad 113 
 
 And how it miglit invalidate British or foreign Patent 113 
 
 Published monthly by the Government 437, 440, 441 
 
 Subject matter and illustration of Trade Marks sliould also be given . .437, 438 
 Orticial number of the application and date of filing should be given with 
 
 Letters Patent 438 
 
 When the Record is sent to public libraries in European countries 438 
 
 Record not published for about six weeks after date of issue of Canadian 
 
 Patent 438 
 
 This gives time to make foreign applioations before publication in foreign 
 
 countries 438 
 
 Should contain reports of judgments in Patent cases 440 
 
 ^Vhen the Patent OtHce Record commenced 441 
 
 Nund)er of Patents issued in Canada in 1889, '00, '1>1, '92, '93 441 
 
 Patent Office Rules (see Rules of Canadian Patent Office) 471-475 
 
 Penalties (see Offences and Penalties). 
 
 Pending Applications (Can.). 
 
 Amendments to 440 
 
 No form of supplemental oath to accompany enlarged claim 440 
 
 Possession uy Public (see Abandonment) uo 
 
 Powers of Attouney. 
 
 Ill U. S. all members of a firm must be named 97 
 
 How substitution may be made 97 
 
 May be revoked at any stage 97 
 
 In U. S. assignment of interest will not revoke 98 
 
 How to be executed for foreign countries Ill, 112 
 
 Foreign countries for which Powers must be legalized Ill, 112 
 
 Difficulty in way of inventor applying for Patent himself 212, 213 
 
 Primary Patent. 
 
 As to " primary " and " secondary " inventions 127, 128 
 
 When invention is of low order will not receive broad construction 129 
 
 Prior Knowledge. 
 
 Under Act of 1849 and now 48 
 
 Prior Use. 
 
 Calls for strong proof 66 
 
 Privileged Communications. 
 
 When, and when not 319 
 
 Privy Council (Eng.). 
 
 Appeals to 281-286 
 
 Appeal not of right in infringement suit 281 
 
 Leave to appeal must be first obtained 282 
 
 
INDEX. 
 
 579 
 
 Paok. 
 Privy Council (Eng.) — Continued. 
 
 Wlieii leave to appeal may, and may not be granted 282 
 
 What tlie petition for leave muat contain 28.'{, 284 
 
 Form of petition 284, 285 
 
 As to sittings of 283 
 
 Certified copy of record not necessary on petition for leave 283 
 
 Material to he sent for use in England 283 
 
 Application for leave is ex parte 284 
 
 No minimum of amount involved fixed on application for leave 284 
 
 Where there is a right to appeal, minimum limit involved fixed at8i2,00O. 284 
 
 Bond of ?2,000 required on petition for leave 285 
 
 Approximate cost of petition to appeal 285 
 
 Tkocedure. 
 
 In 8ci. fa. in Ontario 337, 338 
 
 To void Patent for breach of condition as to manufacture and importa- 
 tion 35<J 
 
 Pkocedure, Exchequer Court (Can.). 
 
 In Excheijuer Court 270, 271 tt seq. 
 
 Principal rules relating to 271, 272 
 
 Sittings of 273 
 
 General Rules and Orders of 273 
 
 Cost of writing out evidence 273 
 
 Retrospective jurisdiction of 273, 274 
 
 Retrospective jurisdiction as to Trade Marks 274 
 
 Process in 274, 275 
 
 Process (see Art) 22, 23 
 
 Process — Use of before Issue of Letters Patent (see Letters 
 Patent). 
 
 Process. 
 
 May not be included in section 46 421, 423 
 
 Not covered by section 55 as to false marking 452 
 
 Profits. 
 
 No recovery of interest on infringer's profits 2.'>2 
 
 Not relevant to question of plaintiff 's damages 252 
 
 As a measure of damages '2(i2 
 
 In taking account of when defendant may be deprived of costs 262 
 
 Account of, when plaintiff is assignee, only to be taken from date of assign- 
 ment 263 
 
 Stay of proceedings to account pending appeal 263 
 
 Must show that defendant has made profits 263 
 
 The account is one of profits made by infringer, not loss sustained by 
 
 plaintiff 263 
 
 What defendant's affidavit in giving account of must show 263 
 
 i 
 
'Mi 
 
 1 
 
 h; HI 
 
 ) i", 
 
 f 
 
 f 1 
 
 •i' 
 
 f? 
 
 I'm' 
 
 V 'I,! 
 
 580 
 
 INDEX. 
 
 Page. 
 
 Pkofits — Continued. 
 
 Accouut of, may be proved under bankruptcy in England 263 
 
 Defendant treated as Truntee of 'iGS, 264 
 
 Definition of 264 
 
 As to allowance for defendant's Halary 264 
 
 Without deduction for loss is recoverable 265 
 
 Interest allowable on, except when profits are regarded as unliipiidated . . 265 
 
 Infringer must account for definite saving by him 265 
 
 In estimating, effect of accjuiescence by plaintiff 205 
 
 What the account must show 265 
 
 Estimate of, when patentee reduces his own price in order to compete. 265, 266 
 
 " Segregation " of (when profits do not attach to entire machine) 266 
 
 The rule in W'hitnc.i/ v. Moirry in estimating, and in what it consists.. 266, 267 
 
 Exceptions to the rule in Whitney v. Mowry 266, 267 
 
 Iiule in Whitney v. Moirri/ referred to in Su])reme Court (Can.) 267 
 
 When plaintiff may recover entire profits 26H 
 
 If there be no advantage gained, there may be no profits 268 
 
 Ante iiiorleni, not recoverable unless property, etc., be added to the 
 estate 269 
 
 Protest. 
 
 As to filing, against tiic issue of a Patent 161, 162 
 
 PUOVINCIAI, I'aTKNT. 
 
 When, extended over whole of Canada 457 
 
 Public. 
 
 Do the terms "public" and "in public use" at end of section 46 refer 
 to the Canadian public 428 
 
 Public Document. 
 
 Proof of official public document 432, 433 
 
 Public Use. 
 
 Experimental use not a public use 67 
 
 Sale for profit, not always 68 
 
 In Great Britain 6!>, 70 
 
 Proof recjuired bej'ond all reasonable doubt 140 
 
 Public Use or on Sale. 
 
 Meaning of, since the revision of the Patent Act (Can V mi' be with 
 
 consent 66 
 
 Invalidating public use in U. S. A. with or without u 
 
 Publication. 
 
 Drawings without descriptive words may be 50 
 
 Whether date of filing application at Ottawa is 60 
 
 Practice in Canada, U. S. A. and United Kingdom as to pending applica- 
 tions being publications 60 
 
INDEX. 
 
 581 
 Pacjk. 
 
 Publication — Continued. 
 
 Printe<l description or iwssession by the public, grounds for refusal of n 
 
 Patent 142, 143 
 
 Difference between meaning, and effect of, in Great Britain, U. S. and 
 
 Canada # 143, 144, 145, 14(i 
 
 What printed description must indicate 143, 144 
 
 New test in England as to jirior publication 144 
 
 Prior, in foreign magazine ]>ublished in (ireat Britain, invalidatts British 
 
 Patent 144 
 
 Defined 144, 145 
 
 As l)earing on foreign Patent in a country belonging to International 
 
 Convention 144, 145 
 
 Tlie law on subject of, in Knglnnd stated 145 
 
 It is immaterial wiiether pu))lication in Kngland be in foreign language or 
 
 in English 146 
 
 As to, in Canada ' 146 
 
 Meaning of "jirinted publication" referred to in sub-sec. (fi). sec, 1(5. ..14(5, 147 
 
 Defects in section 16 147 
 
 Sub-section (d), section Ifi, refers to, l)efore date of application in Canada. 147 
 
 In U. S. A., must antedate invention 147 
 
 In U. S. A., foreign publication, prior to invention, though it had not 
 
 reached the U. 8., voids Patent 146 
 
 What is material as to, in Canada and U. S 147 
 
 In Patent Otlice Library at Ott.iwa, full text of U. S. specifications have 
 
 been received for several years, also English and French specifications . 1 48 
 
 Meaning of sub-section {«"), .section Ifi 148 
 
 Defects in sub-section (e), section 16 149 
 
 Procedure in Canada in relation to prior publication and priority of inven- 
 
 ti(m 148 
 
 Particulars as to 313, 314 
 
 PuKCHASER Before Issue. 
 
 Section 46 may not include ' ' process " and as to said purchaser 428 
 
 Queen v. La Force. 
 
 Synopsis of judgment and extracts from 57-64 
 
 " Quia Timet " Suits 299 
 
 Pace of Diligence (see Invention). 
 
 U. S. rules as to 62 
 
 Reasonable Price. 
 
 As to determining amount of 358, 359, 360, 361 
 
 Meaning of, modified 360, 361 
 
 Difficulty of determining what it may be under section 37 400 
 
 Reasonable Royalty. 
 
 Estimating 256 
 
\ '. I- 
 
 !'■! 
 
 i'l I 
 
 m 
 
 ■ f1 
 
 t. 
 )i 
 
 582 
 
 INDEX. 
 
 Page. 
 Record (see Patent Office Record). 
 
 Reoistratiox. 
 
 In Canada any document affecting or relating to a Patent, capable of . . . . 221 
 Fee for, §2 221 
 
 Registkatiox, Effect of (see Assignments). 
 
 Reissue. 
 
 First provided for in Canada 7 
 
 U. S. provisions as to, similar to ours 1 7JJ 
 
 Rule 14, Patent Uttice, Canada, as bearing on . 173, 174 
 
 Patent Otiice model not sulficient basis to found a reissue in U. S 174 
 
 Meaning of words " defective " and " inoperative " in section 23 174 
 
 Corrections in Letters Patent must be promptly made 174 
 
 Not authorize<l if it includes that which was not in the original specitica- 
 
 tiou, etc 174 
 
 Questi»n whether matter described and not claimed may not be deemed 
 
 as altiir done<l 1 75 
 
 Matter previously tlescribed but not claimed in original Patent has been 
 
 subjectof, in Canada 175, 170, 177 
 
 Allowed when specification is insufWcieut as to description, or claim, or 
 
 Ixith 175 
 
 As to question of abandonment 175, 17() 
 
 Patent dates b:ick to original application 1 76, 1 8S 
 
 As to, with broatlenetl claims 177 
 
 Cannot )te, of that wiiich luis been expressly disclaimed 177 
 
 Narrowing of claims on, may be made, regardless of age of Patent 178 
 
 Only with broadened reissues that element of age becomes material I7H 
 
 Reason why a claim cannot be enlargetl after undue lapse of time I7.S 
 
 Ry analogy of rule, as to effect of public use, a delay of more than two 
 
 years would void reissue in U. S 179, ISl, '92 
 
 If same analogy prevail in Canada, one year would suttice 179 
 
 As to voidanc'j of, in Wh'ttfhij v. Goimkij, in Ontario Courts 179, 180 
 
 Cases of a reissue of a reissue 1 SO 
 
 Cases referred to in ]Yithr(no v. Maktli ., where reissued Patents have 
 
 been hehl goo<l 181 
 
 Rule of /(yh''s shouM ha strictly applied for broadened reissue 181 
 
 Delay of two years ordinarily evidence of abandonment 181 
 
 l>bjectionable if third parties have meanwhile ac(|uired rigiits . 181 
 
 Four faults which make Patents reissiuible IS2 
 
 Omission of an element in a claim held to be an illegal enlargement. ... 183 
 
 Must l>e for the saine invention 183 
 
 Commissioner in Canada may receive evidence that proposed amendments 
 were part of the original invention under Rule 14, where there is neither 
 
 model nor drawing 18.3, 184 
 
 Commissioner t<> decide the whole law antl fact > relative to 184 
 
 Patentee may re-describe his invention in amended specification 185 
 
INDEX. 
 
 583 
 
 Page. 
 
 .... / 
 .... 17:^ 
 .173, 174 
 .... 174 
 .... 174 
 .... 174 
 
 174 
 
 175 
 
 71 
 
 li 
 
 7« 
 8! 
 7' 
 
 177 
 17« 
 I7S 
 I7.S 
 
 I7tt 
 180 
 ISO 
 
 181 
 
 181 
 
 181 
 
 ISI 
 
 IW 
 
 18.S 
 
 is.-i 
 
 p.\r.E, 
 Reissue — Continued. 
 
 As to oath to be taken by applicant for 185 
 
 Practice as to, in U. S. A 18.} 
 
 Wliat atatemer 1 on oath in U. 8. must contain IS.'), 186 
 
 This statement on oath wanting in Patent office practice in Canada. .. . 186 
 
 Original claim if reproduced in reissues subject to re-exaniination 186 
 
 No form of petition in Canada for obtaining reissue l)y legal representa- 
 tives of deceased patentee 186 
 
 Reissue of Patent by one having a partial interest shouhl avail oidy to 
 
 him and these claiming tlirough him 186 
 
 As to petition for, made l)y assignee 186 
 
 Practice in U. S. since 1S70 as lj reissues procured by assignees 187 
 
 If Patent be not exclusively assigned in Canada affidavit must state that 
 application for reissue is made witii consent of assignees : See Patent 
 
 Office note to Form "Jl, Appendix 1 488 
 
 To whom, may be granted 187, 188 
 
 Right to, not affected l)y grants of licenses 188 
 
 No damages for intermediate user 188, 189 
 
 Patent may be split up into distinct and separate parts by 100 
 
 If original Patent be for process, it may be issued in two parts— one for 
 
 process and the otlier for product 190 
 
 But may not be after lapse of considerable time 192 
 
 As to Government fees payable on 191 
 
 Apparent f > versigiit as to fees 191 
 
 Earliest provision for reissue in U. S. A 191 
 
 Earliest ])rovisi()n for, in Canada 191 
 
 Decision of Commissioner cannot be (piestionetl upon grounds of fraud ... 19*2 
 
 Function the Commissioner performs is judicial . 192 
 
 Disclaimer entere<l by mistake or inadvertence may be withdrawn l)y .... 192 
 Claims originally al)andoned by patentee may not be contained in .. 192, 19.S 
 
 An element cannot be droppeil out of a claim liy 193 
 
 No provision provided for, in England 193 
 
 What may Ixj tlie subject of, in U. S. A 193 
 
 Patent declared void by Court may be reissued 224 
 
 When there is more than one assignee, consent of all assignees must be 
 
 stated to have been obtained by affidavit on application for reissue. . . . 4.W 
 This C(Uisent should properly be signed and tiled 43»J 
 
 Remotk Damages ; jdo, 204 
 
 Reported Cases. 
 
 As to reported Patent Cases in Ontario 441 
 
 As to reported Patent Cases in Quebec 441 
 
 Result. 
 
 If combination produce new and useful result, it is patentultle 42, 43 
 
 Right of Action. 
 
 When it expires in Canada 276, 277 
 
584 
 
 INDEX. 
 
 ir-: 
 
 , PAOK 
 
 Right of Actiox — Contimied. 
 
 Not barred by lapse of six years in Ontario or five in Que1)ec, from date 
 
 of hist act of infringemr'nt 27K 
 
 When it expires in France, Cierniany and Switzerland 277 
 
 Royalty. 
 
 Not f)ayable l)y both user and manufacturers 2.'J0 
 
 Payable even tiumgli thei'c be no user 2")<) 
 
 Interest allowed on royalties from time they were payable 250, 251 
 
 To be established, must be uniform, sale of a single license not sufficient . 253 
 Kstablished in one State of the Union not to be taken as the standard for 
 
 all other States 255 
 
 Money paid in settlement of a suit does nut establish 25,") 
 
 Monej' reserved us the whole or part jjrice of the Patent does not esttib- 
 
 lish 255 
 
 To make and use, no criterion for royalty to make and sell 255 
 
 Wliere there is no established royalty, general evidence of utility, and 
 
 siijieriority may be con8idere<l 255 
 
 Paid, usually the standard 257 
 
 Reasonable, to be determined by evidence 257 
 
 Payable by (ioverumeut 414, 415 
 
 How, may l)e recovered 415 
 
 RuLKs OF Canauian 1'aten't Office. 
 
 Commissioner, althou^'h he has power to make, has no power cither to 
 end or mend 43S, 440 , 
 
 WkU'U it is |iermissible to adopt a form conformable to the letter and spirit 
 ..f tile law 438 
 
 Apjtlii ution for I'atent must be perfected within two years after tiling of 
 the Petition 4.*W, 439 
 
 This rule rigorously a<liiered to 439 
 
 111 r. S. there is discretionary power to extend' time to perfect applica- 
 tion 439 
 
 When extreme jwvorty was held sufficient excuse in U. H 4l\9 
 
 Wiun incapacitated through ill-health or disorder— sutticicnt excuse in 
 i;. S 439 
 
 Abaniloned application in U. S, of foreign applicant not revived on show- 
 ing expiry through inailvertence of a clerk 439 
 
 In U. S. , failure to prosecute for more than two years after last official 
 action, works abandonment by Statute 439 
 
 Sale. 
 
 Meaning of " on sale " 87, ^8 
 
 SCIKK Fa(;ia8. 
 
 The ( 'ourts in which proceedings may l)e had to repeal Patent by net, 
 
 /., .331, 332, 311 
 
 As to tiling certificate avoiding u Patent (see lection 35) 341 
 
PAGE 
 
 1 (late 
 
 
 
 276 
 
 
 277 
 
 
 250 
 
 
 2r)() 
 
 ..250. 
 
 251 
 
 lent . 
 
 253 
 
 inl for 
 
 
 
 255 
 
 
 2.-).-) 
 
 estub- 
 
 
 
 255 
 
 
 255 
 
 y. a»«l 
 
 
 
 255 
 
 
 257 
 
 
 
 257 
 
 .414, 
 
 415 
 
 
 415 
 
 her to 
 
 
 .438, 
 
 440. 
 
 1 .><i>irit 
 
 
 
 4:« 
 
 ling ..f 
 
 
 ...4.38, 
 
 489 
 
 
 4H9 
 
 ppliun- 
 
 
 
 439 
 
 
 439 
 
 riise III 
 
 
 
 439 
 
 show- 
 
 
 
 4.19 
 
 oliiciiil 
 
 
 
 439 
 
 6 
 
 7, «H 
 
 by iri. 
 
 
 U, 33*2 
 
 ,341 
 
 
 341 
 
 INDEX. 
 
 .585 
 
 Pa<;e. 
 Scire Facias— Contiyitted. 
 
 Suggested changes to be made in section ,35 341 
 
 Time should ))e allowed for appeal ))efore final entry of appeal becomes 
 
 absolute 341, 342 
 
 Fee payable on registering judgment .342 
 
 As to appeal from Provincial Courts and Excheijuer Court, Canada, in re 
 
 repeal of Patent .342 
 
 Further bond of .*!.')0 only recjuired on appeal from Exchequer Court (.*.')00 
 
 is the usual bond reijuired on appeal to Supreme Court Canada from 
 
 Supreme Court of .Judicature, Ontario) 343 
 
 As to a as ;ing fresh ovidence on appeal 343 
 
 In ordi .„. suit. Patent only null and void as to defendants and those 
 
 claimi..j^ through them .33H 
 
 Where the repeal of a Patent is the principle object, proceedings should 
 
 be by sci. fa 3.3(1 
 
 Proceedings in Ontario, lip<ilna v. Smith, relative to non-delivery of a 
 
 model whicli was held unnecessary 337 
 
 Opposite view of the same in Quebec .337 
 
 Procedure in Ontario on w'l. fa 337, 33M 
 
 Fiat of the Attorney-General of the Dominion required 337 
 
 Bond in 82,000 hitherto required in (»ntario .3.37, .3.38 
 
 Demurrer in iiejjiua v. Smith, contains an erroneous request 338 
 
 Amount of bond in Ontario excessive 338 
 
 Proceedings in " sci.fn." may be now instituted in any of the Divisions 
 
 of Court 338, 330 
 
 .hirisdiction in 1890 given to Exche(jucr Court, Canada 3.39 
 
 Advantages gained by proceeding in Exchecjuer Court, Canada, in the mat- 
 ter of appeal 3.39 
 
 .Joint and several bond in .*!1,0<(0 rfijuired in Ex'lieijuer Court, Canada. . 3.39 
 
 As to forms of ))lcading and ff>rms in ■■<€{. fa .340 
 
 Documents to be filed in .sfi. fa 34(i 
 
 Omission in subsection 2 in section .34 relating to 341 
 
 First introduced into Canada in 1849 .3.32, .333 
 
 How the writ deri . es its name 333 
 
 Fiat of tiie Attorney-(ieneral n ^"le Dominion should be obtained for. . . . 333 
 Now since Act of 186!) there is no limit of time within wliicli pnKteedings 
 
 may be instituted .3.33 
 
 ••'irst case of, in Canada 3.34 
 
 Particulars of breaclies must Ik- delivered with the declaration 3,34 
 
 Proceedings by, in tlie United Kingdom abolislicd, now by petition .3.34 
 
 Writ of, is in the nature of a pleading, and is directed to tiie SherifT .... 335 
 
 I'roccdure on return of writ .3.35 
 
 .Stay of proceedings in a suit while xci. fa. pending .336 
 
 ( Sround for repeal by sci. fa .335 
 
 Who should be parties to sci. fa. suit and the style of cause 3.36 
 
 Hurden of proof !■ on the informant .336 
 
 74 
 
>86 
 
 INDEX. 
 
 PAGK. 
 
 SciRK Facias — Continued. 
 
 Tlie defendant patentee has to open case and lioa reply 330 
 
 Writ of Kci. fa. abolished in Ontario except as to proceedings to annul 
 
 Jjetters Patent 3.'{(i 
 
 If it is desired to annul a Patent as to the world, it is necessary to do so 
 by wi. /a 33H 
 
 Seal ok Patent Office. 
 
 Tlie seal to be received in evidence in every Court 26, '2' 
 
 Copies certified under seal received in evidence -7 
 
 Receivable in evidence without further proof 433 
 
 Copies or extracts certified under seal receivable in evidence 433 
 
 Whether (^madiau Patent issued merely under seal and witliout signature 
 
 is void 434 
 
 In U. S. a Patent issued under seal without signature of Secretary of In- 
 terior, is void, and subse(|ucut signing will not make it valid from its 
 issue 434 
 
 Secret Process. 
 
 What patentee is entitled to iisk by way of particulars 30!t 
 
 SEfiREGATION OF PkOFITS '2m 
 
 Ships (sen Foreign Ships). 
 
 Shop Rkjiit (.see Assignment). 
 
 Not assignable 234 
 
 Specific Machine. 
 
 Rigiit to use a si>ecific machine constructed Iwjfore application for Patent. 
 
 Specification. 4\Het.Hn,. 
 
 DcHned • 98, »« 
 
 The drawing deemed an es8«!ntial part 104 
 
 Must not l>e ambiguous 105 
 
 Sutliciency of 105, lOti 
 
 Clerical errors in 106 
 
 Not necessary to describe the whole 10<i 
 
 Wiien description is insutlicient 106, 107 
 
 How to attack defective spccitication 107 
 
 How to be described and executed 108, 100 
 
 How to tile iu U. S. Patent OHice 1 12 
 
 As to tiling in United Kingdom 1 12 
 
 As to foreign translation 113 
 
 Cost of copies in Canada, United States and England 114 
 
 As to insuthciency and sutliciency of 317 
 
 Stay of proceedings 263 
 
 Threats. 
 
 Action to restrain threats . 307 
 
 Action on account of (see Damages) 260, 261 
 
INDEX. 
 
 PAfJK. 
 3.% 
 
 to annul 
 
 XW 
 
 to do so 
 
 3;i« 
 
 26,27 
 
 27 
 
 43S 
 
 4.W 
 
 lignature 
 
 434 
 
 •y of In- 
 
 from its 
 434 
 
 3011 
 
 2fi(i 
 
 234 
 
 r Patent. 
 
 418 e< s,i,. 
 
 98, »y 
 
 104 
 
 105 
 
 105, 10(i 
 
 106 
 
 10«i 
 
 106, l<t7 
 
 107 
 
 108, 100 
 
 112 
 
 112 
 
 113 
 
 114 
 
 317 
 
 263 
 
 307 
 
 260, 261 
 
 587 
 Paoe. 
 . 96 
 
 Title. 
 
 As to, in the United Kingdom 
 
 Ukauthorized Use ^ee Defences in a Patent Suit), 
 
 Uniform Royalt 253 
 
 Use. 
 
 The right to use, carries with it the right to repair 234, 247 
 
 As to sale and use of territorial interest 234 
 
 What constitutes use, under sec. 29 •J4fi 
 
 Experimental in Kngland does not operate as infringement 246, 247 
 
 Unauthorized when fatal in U. S. to Pateut 33(1 
 
 User. 
 
 Of pirated article experimentally, is infringement 67 
 
 Utility. 
 
 Must exist in some degree 46, 47 
 
 Letters Patent prinul facie, evidence of 47 
 
 Venue. 
 
 Where, it is to be laid in Patent suit 279, 2.80 
 
 Void Patents 242, 243, 244 
 
 Warranty. 
 
 In absence of, there is no inipliwition as to validity 235, 2.36 
 
 Witnesses. 
 
 To specitications how they should sign 108 
 
 Workman. 
 
 Specification should be intelligible to 102, 106 
 
 Workmanship. 
 
 Distinguished from invention Ki5, 136 
 
588 
 
 IHDEX TO APPENDICES. 
 
 INDEX TO APPENDICES. 
 
 APPENDIX I. 
 
 'IM 
 
 ' • 
 
 I 
 
 I 
 
 PATENT OFFICE RULES AND FORMS, CANADA. 
 
 RULES. 
 
 RrLE. PAIJK. 
 
 1. Xo neoesBty f'>r personal appeixrance 471 
 
 2. Applicant responsible for his allegations 471 
 
 3. ("orresjKifHence carrieil on with one person only . . , 471 
 
 4. Docuinent* to I* on fookoap paper, and legibly written 471 
 
 5. Communkatiom t.> Ije addressed to the Commissioner of I'atents, Ottawa 471 
 
 6. PajXTS not conformable to law will he returned 471 
 
 7. MfHkU, «». etc 472 
 
 8. Fees, bow puA 472 
 
 9. A|iplic«tiooL« i.> W prixreeded with within two years 472 
 
 10. Two inv«ntioD« •jannot l>e claimed in one application ... 472 
 
 11. Prot*ft a^aan^t th« granting of Patent not sufficient to prevent iu issue. 472 
 12- Cave»*«. of what composed 472, 47» 
 
 13. Drawings, how executed, and si/e of sheets 473, 474 
 
 14. Keissne of PtitentB 474 
 
 15. Folding cturt , and information relating thereto 474 
 
 16. Inquiri«» as to articles l)cing patentable 474 
 
 17. Proeet'lin^, h.>w facilitated 475 
 
 18. Business cb«>nl>i be transacted in writing .... 475 
 
 19. Awrignmrts, r^btnttion of 475 
 
 :20- Misf*lltB>w CMes, how decided 475 
 
 FORMS. 
 
 FOBM. PAOE. 
 
 1- Petition, by a sole inventor 476 
 
 ft " by joins inventors 476, 477 
 
 8. , " by aaignee or legatee 477 
 
 4> " by inrenior for himself and assignee 477,478 
 
 .Si " by adnunistrator or executor ." 47>* 
 
 #. " for a rciMue (by the inventor) 479 
 
 •7. " " (by the assignee) 479,480 
 
 ,8. Surreoder tc be written on original Patent 480 
 
ID AFFEin>IC£S. 
 
 o8» 
 
 •^ADA. 
 
 PAt;K. 
 
 471 
 
 471 
 
 471 
 
 471 
 
 s, Ottawa 471 
 
 471 
 
 472 
 
 472 
 
 472 
 
 472 
 
 t its i»ue. 472 
 
 472, 47» 
 
 473,474 
 
 474 
 
 474 
 
 474 
 
 475 
 
 475 
 
 475 
 
 475 
 
 PAOE. 
 
 476 
 
 476,477 
 
 *TJ 
 
 477,478 
 
 : 47H 
 
 479 
 
 479,480 
 
 480 
 
 PORM. PAiiE. 
 
 9. Petition for the Certificatciif gammentof fee for further term (inventor). 480 
 " " " (assignee). 481 
 
 Power of Attorney 481 
 
 Power of AtUmrey, rcvouotihiv <tS ..>>.- 481 , 482 
 
 Specitication for a umclmit 482, 4H.'l 
 
 Drawings .^ 483 
 
 Specitication for an art or tfirdUiaB 483, 484 
 
 " for a uomjitmruiHi! ir matter 4S4, 48.j 
 
 Oatiis, ho\^ and by wlniniti' ik« aiiuitt 485 
 
 '• by sole inventor _ 48.'j 
 
 '* by joint iuvoutiiTB >^ 48(! 
 
 " by sole inventor to- iiinmjii iirnl assignee 48fi, 487 
 
 " by sole invt-ntcir iiu utMunue only 487 
 
 " by applicant lor ruwHiu iXuvL-uCorl 487, -'88 
 
 " " ••■ uitwiguee) <if entire interest 488 
 
 What affidavit uinst sttftf wtiimj IFaeBut ia not exclusively assigned 488 
 
 Caveat 488 
 
 Assignment, before iHHue in ffUomC 489, 490 
 
 of I'ateni 490 
 
 Disclaimer « 490 
 
 10. 
 
 11. 
 
 12. 
 IS. 
 14. 
 15. 
 16. 
 
 17. 
 18. 
 
 19. 
 20. 
 21. 
 22. 
 
 23. 
 24. 
 25. 
 2G. 
 
 AFP-EXDIX II. 
 GENKRAL FOltMS, F< HXM* [12J: EXCHEQUtlR COURT (CAN.), Etc. 
 
 27. Summons — Ex. Ct., Can. . ._ _. .")05 
 
 28. Warrant for particulars, Wx.. O. ,. Can r>05, .")(»(> 
 
 29. Assignment by agent in FiiuilmiL t:i) aosignee 491 , 492 
 
 30. " to invoutoi irtmi ".■imnmnicaut in England 492, 49.S 
 
 31. License, shop right 493 
 
 32. " ("ot exulusi ve) -wailii S'tyriicy 494 
 
 32a. " (exclusive) with Ti>.vvihw lud ouvtMiants 495, 4% 
 
 33. Assignment of territorial in; n" ttv, .\stnr ^rant of I'ateiit 497 
 
 34. Endorsement on informutiui <i- 'Uitemt'iit of claim oOti 
 
 35. Assignment of I'atenx uud iitsim improvements 498 
 
 36. " " "UkI liluniM- tiir damages, etc 499 
 
 37. " " iiri'vwiinniriiviaion of prorits, and to deal jointly. 'KiO 
 
 38. License (personal), with tjUuiiurLy paynienta 501 
 
 39. Mortgage of Patent .">02, .^fA 
 
 40. " of Patent, witb r}tm«wi tii 9«ll .")ii3, 504 
 
 41. Power of Attorney to »oll vi^Ulm 504 
 
 42. Fiat of the Attorney Aieiionii ic (Ownulft (.«.•». /a.) 507 
 
 43. Bond (*<•>. /a.) in fl,«tt» 507, 50K 
 
 44. Writ of (Ml. /a.) 508, 509, 510, 511 
 
590 
 
 INDEX TO AFFENDIOES. 
 
 FORM. PACJE. 
 
 45- Sherriff's warrant («ci. fa.) 511 
 
 46. Notice to defendant («t./a.) 512 
 
 47. Declaration (sci. fa.) 512, 513 
 
 48. Particulars of objections (sci. fa. ) 513, 514 
 
 49. Pleas (wi. fa.) 614, 515 
 
 -50. Joinder of issne (net. fa.) 516 
 
 51. General Oixler Ex. Ct. (Procedure, &c. ) 516 
 
 52. Sec. 6, c. 26, 35 V. (1872) 518, 519 
 
 52a General OnUr Ex. Ct., Can., re Impeuchment of Letters Patent 517 
 
 52b General Order Ex. Ct., Can., relating to tiling consents, and as to special 
 
 cases, etc . .517, 518 
 
 63. Reissue under 12 V., c. 24, s. 7 (1849) 519 
 
 54. Disclaimer under 12 V., c. 24, s. 8 (1849) 519, 520 
 
 55. 12 v., c. 24, 8. 22 520 
 
 59. •Synopsis of foreign cases, terms, and who may obtain Patents 521, 522 
 
 < \ 
 
 S 
 
FAGE. 
 
 511 
 
 512 
 
 512, 513 
 
 513, 514 
 
 514,515 
 
 516 
 
 516 
 
 518,519 
 
 517 
 
 o special 
 ..517,518 
 
 519 
 
 ....519, r»20 
 
 520 
 
 521,522