UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PRACTICAL TREATISE OF PATENTS FOR INVENTIONS AND OF COPYRIGHT. TO WHICH IS ADDED A SUPPLEMENT, CONTAINING THE LAW ON PATENTS TO THE PRESENT TIME. WIIH SUGGESTIONS O F M A N ^ A L T F. RATIONS 1 N THAT LAW; \ND ^n Abstract of tije i£ah)£i IN AMERICA, SPAIN, AUSTRIA, NETHERLANDS, AND FRANCE. By RICHARD GODSON, M.P. IJARRISTER AT LAW. LONDON: SAUNDERS AND BENNING, LAW BOOKSELLERS, (late J. BUTTKRWORTH AND SON,) 43, FLEET STREET. 1832. If) N DON : JMMNfin i;v c. IliiWIHUH AND SIlNS, DM.l. VM(l), t PREFACE THE SUPPLEMENT. It was the intention of the Author of" A Prac- tical Treatise on the Law of Patents for hiventions and of Copyright^'' several years ago, to bring- out a second edition of his work ; but the expec- tation that alterations would speedily be made in the law obliged him to desist. Those expec- tations have not been realized. A Committee of the House of Commons sat, heard evidence, and reported the same, in June, 1829; and yet no legislative provisions have been made to amend the law. Since the publication of the Treatise in 1822, many decisions have been pronounced in the Courts of Law and Equity, and he felt cor strained either to publish a second edition or 11 PREFACE. Supplement. lie preferred the latter plan, because the purcliasers of the first edition would possess the law, as administered at the present time, at a low price ; and for those, who were not possessed of the original book, the Treatise and the Supplement (if bound together) would make a complete work. The Author also pre;ferred the form of a Sup- plement, because it enabled him to throw out suggestions for the improvement of the law of Patents, and to give his opinion generally upon the policy and details of the law, which he could not have done with propriety in the second edi- tion of a book, professing to state only the rules of law as they exist, and not as they (in the opi- nion of the writer) ought to be made. Whilst the Author of this Supplement was meditating a second edition of his work, a pub- lication appeared, entitled "A Practical Treatise of the Law of Patents for Inventions," and ano- ther work, entitled " A Treatise on the Law of Literary Property." Every lawyer has a full, un- doubted right to publish a book upon the same PREl'ACl".. Jll subject which has occupied the attention of a brother lawyer, but it would perhaps be a liberal course to pursue, if the writers of the latter works would condescend to quote the names of those, who, having collected all the cases to- gether, having analysed their contents, and hav- ing systematically arranged the rules of law ex- tracted from the judgments given in them, have much abridged their bodily labour and mental exertions. The Author of this Supplement w^ell re- members with what studious care he analysed all the cases on Patents and Copyright, and anxiously formed general rules from particular cases, and gave very full directions to inventors to enable them to make correct specifications. His task occupied him three years, but with his analysis lying before them, and adopted by them, it could not be a great exertion for two persons to write Treatises on those subjects in three months. An Abstract of the Laws of Foreign Countries sivinir protection to Inventions, has been made IV PREFACE. from the Appendix to the Report of the Com- mittee of the House of Comfnons : and the books of Cases decided and reported in Ame- rica have been consulted and cited. It is hoped, that before another session of Par- liament has been permitted to pass away, the Legislature will have formed a good code of Laws for the better protection of Inventions. Hall Staircase, Inner Temple, nth October, 1832. PREFACE PRACTICAL TREATISE. To collect and explain the Laws protecting that species of property which arises more particularl}^ from the exertions of inoenious and learned Men — to furnish the library of the Artist with a book wherein he might readily find the rules of law, subject to which he must give publicity to his inventions, if he intend to secure exclusively to himself the benefits accruing from them — and to inform the Scholar of the extent and duration of his power over the productions of his mind — was the task imposed on himself by the Author of the following Treatise. How far he has succeeded in the execution of his undertaking, he now leaves to the judgment and candour of the Reader. The rights conferred by a Patent for an Inven- tion, and the Copi/ of a Book, differ in their Origin : The one species arising from grants made by the Crown regulated by an Act of Parliament, and VI PREFACK. the other being at the present day conferred by- enactments in several statutes. But they are similar in ilieir Nature; and the protection af- forded to the labours of the ingenious Artist, and the literary productions of Genius, are therefore subjects which must necessarily interest the same class of readers. It is that circumstance which has induced the Author of this Treatise to in- clude them in the same work. The laws which prevent persons making ma- chines or printing books, from those in which by purchase they have acquired a property, are in their nature restinctive; and give to inventors and authors different kinds of Monopolies: hence it has been necessary to introduce a brief account of Monopolies in general, as they were formerly made by Royal Grants, or created by individuals. To render the matter as clear as possible, the work therefore begins with Monopolies as ihey stood at Common Law, or can be made at this day ; it then proceeds to the developement of the Law of Patents for Inventions. And, because many of the principles of Copyright can be illus- trated by the reasoning on Patents, that branch of law is last explained. Other Monopolies, such as have been granted to Public Coinpanies to enjoy an exclusive trade to different parts of the world, belong to the law of PKF.FAC'E. Vll Commerce, and come not therefore within the design of the present Work ; and perhaps the third chapter of the first book ought on that ac- count to have been omitted. In the Text of this Treatise it has been the anxious wish of the Author to state the Principles of the Law, with examples to explain them, in as concise yet comprehensive a manner as the sub- ject w ould admit. Aiming at a middle course he has endeavoured to treat the matter with a per- spicuous brevity, that the work might not be tedi- ous to the professional reader; and yet he hopes that it will be found sutiiciently full, as not to be obscure to the Artists and Scholars who may be led to peruse it. The Notes are subjoined w ith the intention of affording full information to those persons who may wish to see the cases more at length ; and to serve as a Commentary on the text for the use of scientific men who may not have an easy access to a Law^ library. In the Appkxdjx are collected together the necessary forms and the principal Acts of Parliament that have been referred to in the Work. A copious IxDKx has been added, by which it is hoped that every point of law in the whole Treatise may readily be found. On the Necessitij or Utilitj/ of a I)Ook, similar to the one now presented to the Public, it is not for the Author to expatiate: though it may be allowed to him to observe, that the Law of Patents for Inventions has never yet been fully and scien- tifically investigated; that it is so little known among Artists, that it is supposed that not one half of the Patents which have been obtained could bear the test of a legal inquiry ; and that the cases of Copyright have never before been formed into a distinct and independent Treatise. In this attempt to extract the principles upon which the numerous cases on the Law of Patents for Inventions, and of Copyright, have been de- cided, and to reduce them into a System — in this endeavour to reconcile apparent inconsistencies, and to arrange the whole in a logical manner — the Author has spent some time, and employed much labour. If the positions of Law should be found in general to be correctly and clearl}^ stated, he hopes to meet with that indulgence which it is usual for the Profession to extend to every one who attempts to explain any part of our Laws, for any inaccuracies which possibly may be found in his Work. Hall Staircase, Inner Temple, 21 St December, 1822. SUPPLEMENT PATENTS. Analytical Table of the Contents, as well of the Supplement as of the Practical Treatise. The second column of figures contains the pages of the Supplement. CHAP. I. INTRODUCTION. — OF A PATENT GENERALLY I. At common Law ..... II. By the Statute of Monopolies 1. The policy of that statute. 2. The condition for the specification 3. No right to dernand a patent 4. The mode of making letters patent 5. The offices for patents. 6. The parts of a patent. 7. The matters wliich make it void Page 44 1 td. 45 46 47 id. 4S id. 49 CHAP. H. OF THE INVENTOR. An inventor within the meaning of the statute may be I. A discoverer ..... II. A publisher, or .... III. An introducer of a foreign invention . General observations on the inventor 52 54 50 id. CONTENTS. CHAP. III. OF A NEW MANUFACTURE, OR THE SUBJECT OF A PATENT. Page A new manufacture within the meaning of the statute may be I. A substance or thing 7nade ...... 58 It is essential that it be 1. New . . ... 2. Not used before, — neither 1. By others, — nor . 2. By the inventor . 3. Vendible; and . 4. Material and useful II. A machine or instrument .... III. An improvement or addition: IV. A combination or arrangement of things already known V. A principle, method, or process carried into practice by tang ble means ...... 1. As to a principle . . . . 2. As to a method or process. 3. Patent for a method, but subject to something mate- rial and tangible .... VI. A chemical discovery ....... 96 VII. A foreign invention . . . . . . .98 General observations on new manufactures .... 99 60 ib. G2 6 64 13 65 66 14 70 71 75 14 78 16 80 82 24 24 CHAP. IV. OF THE SPECIFICATION, I. The general properties and nature of a specification . . 100 25 II. The connection of the patent and specification . . . 101 26 III. The particular descriptions varying according to the kind of the invention, as when it is 1. A substance . . . . . , . 107 2 CONTEXTS. Jjid the patent will be vuid generalli) xv/ien 1. The terms are ambiguous . 2. Necessary descriptions are omitted 3. Parts claimed are not original, — -or 4. Useless parts are put in to mislead 5. The drawings are incorrect 6. Or.e of different ways or different ingredients named, fails, — and .... 7. One of several effects specified is not pr duced ...... 8. The thing described is not the best known 2. xln instrument or machine .... 3. An improvement or addition 4. A combination ...... 5. A method carried into effect by tangible means 6. A chemical discovery .... 7. A foreign invention ..... General ubscnations on specifications .... xr Puo . 109 29 . Ill 29 . 112 33 . 116 3t . 118 36 Us . 119 37 . 120 . 121 39 . 124. . 127 . 131 . 134. . \S5 . . id. . 136 CHAP. V. OF THE PRACTICE OF OBTAINING A PATENT. I. The several instruments, -which are, 1. A petition and Affidavit to support it 2. The Attorney-General's report 3. The bill for the patent, and then 1. The King's warrant 2. The sign manual . 3. The signet 4. The privy seal 4. The jijatent .... 5. The specification . 1. The time allowed to enrol it 2. Certificate of its enrolment 3. The inspection of the specification 138 40 139 46 id. 110 id. 47 id. 48 id. id. id. 141 id. 48 142 49 143 id. XIV CONTENTS. 1. Generally, though iiivtntioii be new . .190 1. If cop.tinry to law . . .191 2. Mischievous to the state . . . id. 2. In particular . . . . . .195 1. If patentee be not the inventor . id. ^. If the subject be not a proper one . id. 3. If the specification be not sufficient . id. 4. If not obtained in the usual manner . id. II. JVhat things do nut vitiate a patent generally . .196 HI. Proceedings by scire facias to repeal a Patent . . id. 70 1. By whom it may be obtained . . . .197 2. The necessary instruments .... id. 1. Memorial 198 2. Sunnxions, itc. . . . . .id. 3. Pleadings, &;c id. 4. Evidence 199 72 5. New trial ...... id. 6. Judgment, costs, &c. .... 200 3. Surrender of the patent to be cancelled . . id. 1. The enrolment of the vacatur . . 201 2. The certificate thereof .... id. CHAP. X. FOREIGN LAWS RESPECTING INVENTIONS. The American haw ...... The inventor ..... The manufacture .... The specification .... The practice of obtaining the letters-patent Caveat ...... The acts of Congress The construction of the patent The property in an invention Legal proceedings for an infringement When patent void, and how cancelled 73 id. 74 id. 75 76 id. id. 77 id. 78 COKTENTS. The Spanish Law ..... The inventor .... The manufacture The specification The practice of obtaining the patent The property in the patent Legal proceedings When void, how cancelled T/te /Austrian Law ..... The inventor .... The manufacture The specification The practice of obtaining the patent The property in it . . . Legal proceedings When void, how cancelled The Law in the Netherlands The inventor .... The manufacture The specification The practice of obtaining the patent The property in it . . . Legal proceedings When void, how cancelled The French Law ..... The inventor .... The manufacture The specification The practice of obtaining the patent The property in it . Legal proceedings When void, how cancelled 78 id. id. 7f) id. 80 81 id. 82 id. id. 8y 81- 85 86 id. 87 88 id. id. id. 91 id. id. 92 id. 93 id. di 97 id. id. TABLE OF CASES CITED IN SUPPLEMENT TO PATENTS. Page Page Barton v. Hall . . • 65 Hadden, The King v. . 71, 72 Bloxam v. Elsee 3, 5, 14, 26 36 Hall V. Gervas and Boot . 67 52, 57, 61 62 Hullett V. Hague . . 17, 56 Brunton v. White . . . • 65 Jones v. Pearce . . . 4, 65 Campion v. Benyon . 29 33 Lewis V. Davies . . , 14, 66 Crompton v. Ibbotson • • 34 Lewis V. Marling . 3, 6 , 37, 67 Crosley v. Beverley 29, 31 39 Lister, The King v, . . . 71 Daniel, The King v. . • 71 Pennock v. Dialogue 13, 73 Felton V. Greaves • SO Redmund, In Re . . . . 49 Forsyth's Case • • 68 Savory v. Price . . . . 34 Fussell, The King v. • . 71 Severn v. Olive . . . . 67 Granger, Ex-parte . . . 61 Webster v. Uther . . . 64 TABLE OF CASES CITED. Page Abingdon, Lord, The Kins; « 234 Aikin, WilkUis v. 233, 247, 292, 294 Allien, Darcey r. 13, 191 Alpe, Bedoe u. 40 Amatt, Cartwright v. 162 Amery, Rex v. 177 Anonymous, Cro. Car. 380. 37 , Godb. Rep. 131. 26 , Latch. Rep. 192. 40 . , 5 Mod. Rep. 142. 40 , 6 Mod. 32. 40 , Moor. Rep. 595 , Noy, 27 , 2 Rob. Rep. 400. 40 , 1 Show. Rep. 292.40 , Styl. Rep. 190. 38 .— , 1 Vern. 120. 327 Archer u. Willingrice 286 Arkwrisht, The King v. 53, 60, 74, 100, 112, 118, 123, 126, 177, 179, 181, 192, 195, 198. Page Arkwright V. Nightingale 176, 183, 194 Arnyard, Yovatt u. 173 Ashley v. Harrison 283, 286 Attorney-General v. Brandon 352 r. Taylor 178 V. Vernon 189 B. Bach V. Longman 280 Bacley, Flemming u. 350 Cambridge v. Wigloy 120 Baldwin, JoU'erys v. 295 Bailer v. Walker 333, 359 Barnard, Wyatt v. 241, 240, 282, 295 Burnett v. Chetwood 223 Baron and Boy's case 38 Babkett V. University of Cam- bridge 328, 363 Basket v. Cunningham 215, 36 2 TABLE OF CASES CITED. Basket 0. Parsons V. Watson 230 337 254 341 286 104 141 204 Bate, Rex r. Ikthurst V. Kearsley JBeale, Bellis v. Beaumont, George v. Beck ex parte Beckett v. Donaldson Beckford v. Hood, 221, 291, 330, 369 Bcresford, Du Bost v. 213, 295 Bensley v. Bignold 348 Benbow, Murray r. 213 Bellis V. Burghall 286 V. Beal 286 Bellington, The King v, 285 Bell V, Walker 240 Bedoeo. Alpe 40 Bignold, Bensley v. 348 Biicot's case 44 Blackwoll V. Harper 290, 293, 359 Blake V. Nicholson 349 Bland, Latour u. 2S2, 313 Blizard, Jenkins v. 258, 269 Bointon, Smith r. 39 Bonner v. Field 301 Boulton, Hornblower v. 80, 91, 157 u. Bull 54,70,72,80,82, 84, 86, 92, 118, 177, 183, 188 Bovill V. Moore, 70, 114,117, 122, 124, 131, 173, 178, 187 Bowles, Carnan v. 210, 230 . , Jeffery v. 231, 367 Boydell V. Drummnnd 258 Brandon, Attorney. General v. 352 . , Clifiord V. 283 Branson, Morris tJ. 71 Bristow V. Waddington. 28 Brodie, Williams v. 127 Brokit, Fish v. 235 Brooke r. Clarke 210 . V. ?Jilleken 353 Brough V. Parkins 235 Brown V. Crcome 256 V. Mooie 70, 123 Bruce V. Bruce 330 Brunton v. Hawke^ 60, 09, 115, 119, 120 Page Bull, Boulton V. 54, 70, 72, 80, 82,84, 86, 92,118, 177, 183, 188 Burghall, Belles v. 286 Burnet v. Chetwood 213, 223, 241 Butterworfh v. Robinson 240 Button, Piatt u. 282, 364, 306 Byron, Lord, v. Johnson 312, 366 c. Cambridge, University of, v. Baskett 328, 363 V, Bryer, 335 Cameron v. Gray 177 Canham v. Jones 171 Carnan ». Bowles -, Eyre u. 210, 230 320, 322 , Stationers' Company v. 235. 317 Carr t>. Hood V. Jones Carter, The King v, Cartwright v. Amatt • V. Earner Cary v. Faden V. Kearsley V. Longman Chetwood, Burnett z>. Clarke, Brooke v. — V. Price ». Searle Clement, Rex v. V. Golding Bryer, Univerblty of Cambridge 335 Clift'ord V. Brandon Cobbett, Plunkett v. Cockerell, Wood v. Cockrane v. Smethurst Cole, Gibbs v. Coleman v. Walthen Coles, Newsombe t,*. Collins, Tonson v. Coinian, Morris v. Company of Merchant Adven- turers u. Rebow 14 Coniyns, Trusler u. 231, 367 (yongreve, Walker v, 68 (JoopfT, Gahagan y. 305 247 253 40 162 137 230 215, 231,244 231,242 213,223, 241 210 310 286 254,343 281 283 279 187 104 186, 323 284 259 203 310 XXXll TABLE OF CASES ClTEI>. o. Oldham v. Longmead Olive V. Gwyn O'Reilly ex /jar/e 145,162, Osborne v. Donaldson Owen, Manby v. Oxberry, Longman v. Oxford University, Hills v. Page 164 178 168, 185 363 344 314 327, 362 V. Richardson 337 P. Page 73. Faucet Paley, Dr., case of Parker, Manton v. 61, 114, Parker, Stationers' Company v. Parkins, Brough v. Parsons, Baskett r. Partridge, Stationers' Compan 235, Pearce, The King v. Pears, Watson a. Perceval v. Pliipps Phrazier, Prodgers v, Piniiock V. Rose Piatt V. Button 282, 364, Playne, Harmer v. 118, 128, Plunkett V. Cobbelt Pool V. Sacheverel Pope V. Curl Power y. Walker Price, Clarke u. , Macfarlane v. Priestley's case Prodgers u. Phrazier 282, 235 245 119 332 235 330 y V. 332 278 142 227 184 215 366 134, 185 279 343 225 313 310 127 212 184 Q. Queen, The, v. Dyer 235 . V. Iiigersall 39 Queensberry, Duke of, u. Sheh- beare 225, 309 R. Pag<5 Raincock, Hicks 1'. 186 Read v. Hodges 240 Reed, The King u. 237 Rebow, The Company of Mer- 210, 177, SI. chant Adventurers v. Rennett v. Thompson Reviere, Forsyth v. Rex V. Amery — V. Bate — V. Clement — V. Creevy — V. Cutler — V. Foster — V. Haine — V. Handy — V. Hunt — V. Lambert • — r. Maynard — V. Rusby — V. Waddington — V. Watson — V. Walter — V. AVhife — V. Wright Richardson, Macklin i . , University of Ox- ford V. 337 Road, Harvey v. 236 Robertson, Butterworth u. 240 Roper u. Shealer 322 Rose, Pinnock v. 215 , Webb V. 222 Roworth V. Wilkes 216, 233, 247, 290, 292 Rundall, Murray v. 316 Rusby, Rex v. 35 S. Sacheverel, Poole v. 343 Sandys v. East India Company 14 14 283 55 177 254 254 254 CO 40 198 285 277 279 38 35 19 255 252 255, 277 253,254 224, 284 Sayer v. Dicey Sayre v. Moore Scarlet's case Searle, Clarke v. Sedon v. Serrate 220 233, 234, 294 40 286 268 TABLE OF CASES CITED. xxxi Page King, The, v. Hunt 277 .——— V. Maynard 31 V. Metcalfe 103 . ■ V. Miles 200 . . V. Pearce 278 . . V. Heed 237 . V. Smith 257, 347 J). Topham 278 V. Waddington 19, 28, 32 V. Weaver 278 V. Wheeler 80, 81, 83, 96, 105, 110,123, 182 V. Whider 40 V. Woodfall 252 V, Wray 40 Kinnersley, Dodsley v. 239, 248 Kirby, Hogg u. 171,247,268,271 Knaplock v. Curl 223, 309 Koops ex parte 142, 170 L. Laborie, Gallini f. 286 Lucy's case 144 Lambert, Rex v, 279 Langmead, Oldham 0. 164 Latour r. Bland 282,313 Lawrence 0. Smith 213 Leadbetter, — • v. 367 Leckie, Gale P. 214,309 Lee, Stationers' Company v. 235, 332 Leeson o. Halt 259 Lewis V. Walter 256 , Shutt V. 286 Liardet o. Johnson 121 Longman, Back v. 280 , Cary v. 23 1 , Gurney v. 342 V. Oxberry 314 D.Tripp 271 Longman, Storace v. 282 V. Winchester 232 Lovell, Stuart u. 256 Lye, Crutwell v. 271 M. . Macfarlane v. Price 127 Macklin v. Richardson 224, 2S4 Page Mackmurdo v. Smith Z03 Maltby, Hayne v. 162 Manby v. Owen 344 Manton v, Manton 60, 69, 76, 86, 173, 179 V. Parker 61, 114, 119 Marchant v. Evans 251 Marlow,Stationers'Company u. 332 Martin van Hubeck's case 40 Mason v. Murray 244 Matthews's case 11 Matthews, Lord Gallway v. 258 Matthewson v. Stockdale 228, 232 May V. Smith Maynard, The King v. Mawman v. Gillett -, Gillett V. 259 31, 38 348 348 103 200 Metcalfe, The King v. Miles, The King v. Millar V. Taylor 204, 244, 309, 310, 311, 315, 318, 320, 322, 323, 331, 344, 362 Miller o. Donaldson 363 Milliken, Brooke o. 353 Moore, Browne v. 70, 123 , Bovill ». 76,114,117, 122, 124, 131, 173, 178, 187 -, Say re v. 233, 234, 294 282,314 71 320 285 282, 285, 314 244 26 213 285 244 316 215,231 V. Walker Morris v. Branson V. Coleman V- Harris V. Kelly Motte V. Falkner Moyle o. Ewer Murray v. Benbow -^s V. Elliston , Mason V. V. Rundall , Trusler v. N. Neri, Taylor v. Newberry v. James Newsombe v. Coles Nicholson, Blake v. Nightingale, Arkwright V. Stockdale Nokes, Styles v. 286 173 259 349 V. 176, 183, 194 247 255 sxx TABLE OF CASES CITED. Gurney v. Longman Gwyn, Olive v. H. Page 342 178 Hac!(]ain*s case Haine, Rex* v. Hall's case Handy, Rex v. Hare v. Harford , Taylor v. Harford, Hare v, Harman v. Plane Harper, Blackwell Harris, Keene v. , Morris v. Harrison, Ashley y. V. Hogg Hart, The King v. Hartley's case Hastinge's case Harvey v. Road Hawkes, Brunton o. 26 167, 198 285 285 61 164 61 118, 128, 134, 185 V. 290, 293, 359 271 285 283, 286 290 275 82 11 235 60, 69, 115, 119, 120 Hawkesworfh, Dr.'s, case 239 Hayner. Maltby 162 Heat h cote ex /)cr/e 146 Hedding, Grant o. 26 Heriot C.Stewart 256,275 Hesse o. Stevenson 158, 165, 166 Hicks 7>. Raincock 186 Hill, Dawkes v. 40 V. Thompson 53, 64, 66, 72, 80, 97, 104, 112, 116, 174, 179, 184 • V. Wilkinson 185 Hills V. University of Oxford 326, 362 Hlmeu. Dele 212,219 Hodges. Read u. 240 Hogg, Harrison v. 2L0 u. Kirby 171,247,268,271 Holt, Leeson u. 259 Hood, Beckford v. 221, 333, 359 , Carr v. Hook, The Kinj, u Hope, Graham v. 247 26 258 Page Hornblower v. Bolton 80, 91, 157 Hoyle V. Lord Cornwallis 235 Hucldart v. Grimshaw 61, 67,72, 74,78, 113, 187 Hunt, The King o. 277 I.J. Jackson, Grierson v. 245, 363 James, Newberry v. 173 Jeffery v. Bowles 231, 367 Jeiferys v. Baldwin 295 Jendwiiie v. Slade 291 Jenkins v. Blizard 258, 259 Jessop's case 72 Ingersale, The Queen v. 39 Johnes, Fores v. 212, 295 Johnson's case 20 Johnson, Liardet v. 121 Johnston, Lord Byron v. 312, 366 Jones, Canham v, 171 , Carr v. 255 , Delany v. 256 K. Kearsley, Bathurst v. 841 , Gary v. 215, 231, 244 Keene r. Harris 270 Kelly, Morris v. 282, 285, 314 King, The, u. Lord Abingdon 245 ^ V. Arkwright 53, 67, 74, 100, 112, 118, 123, 126, 177, 179, 181, 192, 195, 198 . V. Bellerton 285 V. Carter 40 _ V. Clement 254, 343 V. Copeland 41 V. Cutler 60, 81, 106 26, 32 V. Davies V. Else V. Fermer V. Flat V. Foster, V. Gaul u. Gilbert V. Hart :;. Hook 60 40 344 40 41 41 275 25 TABLE Ot' CASES CITED. x\ix Copeland, The Kingr. 41 Cornwallis, Lord, lloyle v. 236 Cousins V. Smith 27 Creevy, Ilex v. 254 Croome, Brown v. 256 Cross V. West wood 24, 37 Crutwell y. Lye 271 CuUier, Davison v. 37 Cunningham, Basket v. 245, 362 Curl, Knaploc-k v. 223, 309 Curl, Pope V. 225 Curry u. Walter 254 Cutler, The King v. 60, 81, 106 D. Dale, Ilimc r. Darcy v. AUipn Davies, The Ring v. Davison v. Cullier Dawkes v. Hill Day and Martin's case De Berenger v. Wheble Delany v. Jones Dibdin v. Swann Dicey, Sayer v. Dickinson, Smith v, Dilley V. Doig Dodsley v. Kinnersley Doig, Dilley v. Dolland's case Donaldson v. Beckett __ , Miller v. — , Osborne u. Drummond, Boydell «. Du Bost V. Beresford Dunkin, Earl Granard V. Dye, The Queen v. 212, 219 13, 191 26, 32 37 40 172 2S7 256 283 290 173 185 239, 248 185 55,62 204 363 363 258 213,295 226 235 E. Earner, Cartwright ». 157 East India Company, Sandys 0. 14 Eaton, V. 326 Edgeberry u. Stephens 56, 60, 98 EUiston, Murray v. 285 Else, The King v. 60 Evans. Marchant v. 251 Ewer, Moyle r. Eyre v. Carnan , Giiersou v. 26 320, 322 185 F. Falkner, Motte v. 244 Faucet, Page u. 235 Faden, Cary v. 230 Fenn's case 31 Fenner, The King v. 40 Field, Bonner v. 301 Fish V. Broket 235 Fleet, The King i;. 344 Fleming u. Bailey 350 Ford ex parte 286 Fores u. Jones 212 , 295 Forrester v. Waller 223 Foster, The King u. 40 Forsyth u. Riviere 55 Fox ex parte 74, 118 , 146 Francis, West v. 298 ,306 305 ,309 286 258 41 G. Gahagan v. Cooper Gale V. Leckie 214 Gallini v. Labori Gallway, Lord, u. Matthews Gaul, The King u. George v. Beaumont 104 0, Wackerback 169, 190 Geroch, W^hite v. 220^ 223, 280 Gibbs V. Cole 186, 323 Gilbert, The King u. 41 Giles V. Wilcox 240 Gillet V. Mawman 348 Gilliver u. Snaggs Godfrey v. Turnbull Golding, Clementi u. Graham v. Hope u. Thompson Granard, Earl of, v. Dunkin Grant v. Hedding Gray, Cameron v. Griersonu. Eyre ■ V. Jackson Grimshaw, Huddart v. 314, 366 259 281 258 258 226 26 177 186 245, 363 61, 67, 72 74,78. 113, 187- TABLE OF CASES CITED. XXXIU Page Serrate, Sidon i\ 268 Seymour, Stationers' Company V. 332 Shebbeare, Duke of Queensberry u. 225, 309 Sherwood, Southey r Shutt V. Lewis Slade's case , Jendwine r. Smethurst, Cochrane v. Smith y. Bointon , Cousins u. V. Dickinson , The King v. • , Lawrence v. , Macmurdo u. • , May V. Siiaggs, Giiliver v. Southey v. Sherwood 213,214, 363 2S6 27 291 101 39 27 172 257, 347 218 303 259 314, 366 213, 214, 365 26 225 Staddam's case Stanhope, Thompson u. Stationers' Company u. Carnan 235, 317 V. Lee, 235, 332 c'. Marlow 332 ■ • u. Parker 352 • V. Partridge 235, 332 V. Seymour 332 y. Wright 235, 332 Stephens, Edj>;eberry v. 56, 60, 98 Stevenson, Ilesse v. 158, 265, 166 Storacc u. Longman Stockdale, Matthewson r. , Nightingale v. Streater, llopor v. Stuart, Ileriot v. ■ V. Loveli Styles V. Nokes Symonds, Thompson v. Suckerman v. Warner Swanii, Dibdin v. 282 228, 232 257 322 256, 275 256 256 290, 296, 301 32 283 T. Page Tabart -j. Tipper 279 Taylor, The Attorney General V. 178 V. Hare 134 , Millar V. 204, 244, 309, 310,311, 315, 318, 320, 322, 323, 331, 344, 362 V. Neri 286 Tennant's case 53, 60, 62 Thompson, Graham v. 258 ■ , Hill V. 53, 64, 66, 72, 80, 97, 104, 112, 116, 174, 179, 184 , Rennett v. 210, 283 V. Stanhope 225 V. Symonds 290, 296, 301 Tipper, Tabard u. 279 Tonson V. Collins 203 V. Walker 244 Topham, The King v, 278 Tripp, Longman v. 271 Trusler u. Comyns 231,367 V. Murray 215, 231 Turnbull, Godfrey v. 259 Turner y. AViiiter 96,109,112, 117, 119, 120,136, 156, 178 Vernon, Attorney-General v. 189 w. Wackerback, George r. 169, 190 Waddiiigtoii, Rex v. 14, 28, 32 , Bristow V. 26 Walcot V. Walker 213, 363, 369 Walker, Bailer v. , Bell v. , V (Jongreve , Moore v. , Power V. -, Tonson V. 333, 330 248 68 282, 314 282, 313 2U -, Walcot y. 213, 363, 364 xxxtv TABLE OF CASES CITED. Waller, Forrester v. Walter, Curry v. — — , Lewis u. -, Rex V. Walthan, Coleman u. Warner, Suckermann o. Watson, Baskett v. , Rex V. V. Pears Page 223 254 256 252 284 32 337 255 142 27H 222 228, 305 24, 37 297 Weaver, The King v. Webb V. Rose West V. Francis Westwood, Cross v. Wheble, De Berenger v. Wheeler, The King v. 80, 81, 83, 96, 105, 110, 123, 182 Whider, The King v. 40 White V. Geroch 220, 223, 2S1 . , Rex V. 255, 277 Whittingham v. AVooler 247 Wigley, Bambridge v. 120 Wilcox, Giles v. 240 Wilkes, Ro worth v. 216, 233, 217, 290, 292 Wilkins V. Aiken 233, 247, 292, 294 Wilkinson, Hill v. Williaras v. Brodie t). Williams Page 185 127 171 286 232 Williiigrice, Archer u. Winchester, Longman v. Winter, Turner u. 96, 109, 112, 117, 119, 120, 136, 156, 178 Wood V. Cockerell 187 V. Zimmer 56, 64, 121 Woodfall, The King v. 252 Wooler, Whittingham u. 247 Wray, The King v. 40 Wright, Rex u. 253, 254 , Stationers' Company u. 235, 332 Wyatt V. Barnard 341, 246, 2S2, 295 Y. Yovatt V. Arnyard z. 173 Zimmer, Wood v. 56, 64, 121 ADDENDA ET CORRIGENDA. Page 46. note (g). — It is mentioned that the Editor of the Reposi- tory of Arts professes to assist Inventors in making Specifications. On the wrapper of the Technical Repository there is an advertisement that Mr. Thomas Gill, the Editor^ is accustomed to lend every assistance that patentees can require. Page 64. note (<), and p. 188. note (c). — As to the expenses of making experiments before the trial of a cause, see Severn v. Olive., 3 Brod. and Bing. 72. in which case it was decided that they are not to be allowed. Page 1 13. note (x). — A patent was taken out for an improved method of making sail cloth without any starch whatever. The improvement or discovery (if any) consisted in a new mode of texture, and not in the exclusion of starch ; the advantage of excluding which had been dis- covered and made public before. Held that the patent was void as claiming, in addition to what the patentee had discovered, the discovery of something already made public. Cawpiun v. Dcnyon and Another .y 3 Brod. and Bing. 5. Page 172. note (a). — And see Makepeace v. Jackson, 1 Tuuut. 770. Page 184. line 25. — For " law. It will however in the mean time yiant, &c." read law btfure it isill grant, S;c. Page 192. note (/»).— And see 3 Inst. 184. Page 208. line 9. — For " continue in," read return to. Page 213. note (=). — And see the New Edinburgh Review. Page 271. note (a).— And see 6 Taunt. 522. 2 Alar^h. 236. Page 285. note (7).— Morris v. Harris, 1 Maddox Cli. Pr. 15 J. 2d edition. Page 286.— In note, after " 7 Ves. 617." read " And see 5 Taunt. 212. 2 Marsh. 551." # A PRACTICAL TREATISE ON THE LAW OF PATENTS FOR INVENTIONS ; AND OF COPYRIGHT. BOOK I. ON MONOPOLIES. CHAP. I. INTRODUCTION. OF MONOPOLIES IN GENERAL. Each individual, by the natural rights of mankind, is entitled to exercise an uncontrouled power over every kind of property of which he is once legally in possession ; whether obtained by purchase, or produced by labour. The buyer of any merchandize, or a machine, or a book, would therefore be at liberty to dispose of his goods in any way that would be most conducive to his own advantage, or he might increase the number of the machines or books to any magni- tude that profit or pleasure might dictate. Monopolies A moiio- polj'. Monopo- lies among the an- cients. Modern monopo- lies. Commer- cial com- binations. This natural right to unlimited freedom in trade has, at different times, been invaded, both by the Sovereigns of States, and by the indi- viduals who compose them. — By the former it is effected when they assume the prerogative of granting an exclusive privilege to particular per- sons of the sole trade in any article of commerce mentioned in their grants — By the latter, when with nefarious and unfair means, or in excessive quantities, they obtain possession of the neces- saries of life, and vend them at exorbitant prices. These innovations and restrictions on trade, which would otherwise be /ree, are called Mono- polies. (a) The monopolists among the ancients, both in Greece and at Rome, as Thales, Pythocles, &c., and the Roman merchants speculating in olives, were of that description, which, at the present day, would be called engrossers, persons bene- fiting themselves to the injury or ruin of their countrymen, but doing it without the authority or connivance of their governments. In modern times kings and their subjects have respectively enriched themselves by monopolies, differing in their nature and extent, but attended with the same baneful consequences to the com- munity After the introduction of the Feudal system into Europe, and during the time it was strictly (a) MonopoUum,, airo rou jw,ovou, xa< 7fui\eQ[xai, quod est, cum unus solus aliquod genus mercaturae uaiversum emit, ut solus TCDtlut pretiuni ad suum libitum statuens. 11 Co. Rep. 86 3 Inst. 181. in general. i followed, commerce was spurned and rejected as an ig-noble employment, far beneath the dignity of a freeman and warrior : but when the fury of the martial spirit had somewhat abated, and the countries became a little settled, the want of the comforts and even necessaries of life, incident to every country where the art of war has been preferred to the occupations of peace, soon urged some of the people, particularly the inha- bitants of the different towns, to form themselves into societies for the purposes of carrying- on their pursuits in trade with facility and in safety. To them immunities were granted by the Sove- reigns in whose states the places were situated. And afterwards the corporate bodies of many cities associated together for the protection of their common interests. The first combination was the Hanseatic Hanscatu league, formed about the end of the twelfth cen- ^*="'^- tury, to which many extensive privileges were granted. This confederation, promoting com- merce and the interests of each other, soon astonished Europe by the accumulation of wealth which it rapidly gathered, and the im- mense power, its inseparable concomitant, which it quickly obtained. At length its augmenting influence created an alarm that it would become dangerous to the independence of the sovereign power in Europe. The members of it were commanded by the governments of the several countries forming parts of the league to reside within their native towns ; that they might, by b2 Monopolies Progress of com- merce. Progress of mono- polies. their commercial pursuits, enrich the dominions of their respective princes. The association thus weakened was gradually reduced to in- significance. Commerce, having once revived, was not to be destroyed by the dissolution of this league — She continued to spread her beneficial influence over several countries. The monopolies, re- strictions, immunities and privileges, which pro- tected her in the earlier stages of her progress were transferred by each prince from the mem- bers of the league to the inhabitants of the places within their own states. The towns, with the facilities and assistance which exclusive privileges afford, increased in population, and became rich and powerful. At first, the joint efforts of large bodies of citizens were alone capable of supplying to their princes the large sums of money which were necessary to relieve their wants, or to gratify their inclina- tions. Hence the advantages to be derived from monopolies were first bestowed on corporate bodies. In this manner commerce arose, and spread her influence. When the opulence of individuals en- abled them to advance money for the use of their sovereigns, they too were rewarded with char- ters and privileges. Monopolies may thus be traced. They were formerly granted to many towns confederated together — afterwards they were given to sepa- rate towns — and ultimately were conferred on in general. t> individuals. It is the last species of them which is the immediate subject of the first hook of this Treatise. To the Hanseatic league Endand is in some Monopo ^ '^ lies in measure indebted for her wealth. London, how- England. ever, was the only town which was admitted to form a part of that celebrated confederacy. The Metropolis, and most of our cities and corporate towns, are indebted to King John for their commercial pre-eminence arising from his endowments, and his gift of their greatest fran- chises. The privileges of the cinque 'ports, the nursery of the English navy, were first granted by King John upon condition of supplying him with ships in his wars. From his death to the reign of Elizabeth there is very little variation in the commercial history of this country. Its power kept continually, though slowly, increasing beneath a heavy bur- then of Monopolies. The public purse being under the immediate control of the Parliament, the Kings of England often exercised the prerogative of conferring exclusive grants ; either to supply the deficiency of their revenues, or to reward their necessitous adherents. It was the policy of Queen Elizabeth never to recur to Parliament for a supply of money, if she could possibly avoid it. To such an alarming height had monopolies accumulated during her reign, that towards the end of it they threatened the destruction of commerce, and the annihilation of the best interests of the country. The people could no longer bear the oppressive 6 Monopolies and pernicious eftects of them, and tliey loudly called for some redress. To prevent an abroga- tion of lier power by an act of parliament, she cancelled the patents that were considered to be the most oppressive. It should, however, be mentioned, that all the grants and exclusive privileges made in her rei2:n were not detrimental to the interests of the nation. It was under the auspices of Queen Eli- zabeth that the Huguenots settled in Norwich, Sandwich, Colchester, and other places, where they carried on woollen and linen manufactories to the great benefit of the country. It was by her charter that the East India Company was established ; which grant, though a very great monopoly, has contributed very largely to the splendour and influence of England in the scale of nations. Stat, of At length the Legislature interfered, and, with cautious policy, taking a middle course, between the right of all persons to a free trade, and the assumed power of the Crown, declared by stat. 21 Jac. c. 3., that the Sovereign might make grants of the exclusive privilege of sale to individuals who produced new inventions^ and to those only ; still allowing that common right to take effect if the grants, even for new inventions were not properly made. Upon that statute is founded all the law on Patents for Inventions. It was in vain that King Charles attempted to renew the grievance of monopolies. That statute aft'oided an insur- mountcible barriei against every attempt tointro- in general. 7 duce them, and he did not possess sufficient power to have it repealed. Whilst the parhamcnt was strenuously exerting Monopo- itself to conhne the prerogatives of the Crown dividuab. within the limits of the common laWj they had also to contend with the malpractices of the sub- jects, to the monopolist among the people — the forestaller(a), the engrosser (6), and rcgrater{c). Many statutes were passed to correct the abuses they introduced, which were afterwards repealed, and the matter left to the rules of the common law : to that head of monopolies a separate chapter will be devoted. The Statute of James just referred to is Monopo- merely declaraory of the co mmon law. Hence o'fJ,adit- it appears that the monopoly, which can be ^^^^' created by the Crown, arises merely from the grant, conferring on an individual the privi- lege of the sole making and selling some article or thing. It can be made, when thereby, no other (a) Forestel, faristel, foristellum, foristellarius, is de- rived from two Saxon words, \iz. far or fare (via or iter) and stall, interceptionem, 3 Inst. 195. It may also be derived from the circumstance of thus preventing the articles from coming to the stalls in the market, from fore before, and stalle, a standing place. (*) Ingrosser is derived from in and gross, great. " Is in genere dicitur qui intcgram roi alirujus copiam cmcndo satagit comparare, ut distrahendo postea carius vendiit, a Gall. le gros, pro integro vel plenitudiue." Spelman. (c) Regrating is derived from re, again, and the French grater, to grate or icrapc ; and signifi^'th the scraping or dressing of cloth or other goods, to sell them again ; or from rcgratement^ Huckstery, 3lubt. 195. 2 8 Monopolies person is restrained in what he had before, or prevented from following his lawful trade (d) ; which grant, at the present day, can only be for a new Invention. When, therefore, it is in con- templation to constitute a new monopoly, recourse must be had to parliament. This transcendent power of the Legislature has, in several in- stances, particularly in confining the trade to the East Indies and other parts of the world to different companies, been often and wisely ex- erted. Under peculiar circumstances, statutes have also been passed to increase the benefits and advantages derived by the inventor from the patent for his invention, either by extending its duration, or by enlarging the number of persons that may at one time be interested in it. Account ^y the Legislature other exclusive privileges ^'/jJPy' as Copyrights in books, engravings, &c. have been conferred. Copyright being the subject of the Third Book of this Treatise, it will be un- necessary to make any other observation at pre- sent, than merely to remark that it was formerly considered to be founded on common law, but that it can now only be viewed as part of our Statute Law, The manner in which the laws on monopolies may be systematically arranged, may be collected from an examination of the preceding historical i sketch, and the following analysis. The inves- tigation, it is conceived, necessarily leads to the enquiry into monopolies, when made (f/) Hawk, I. 470. in general. Bv THE King ; and therein 1. How they stood at common law. 2. Under the Statute of James ; ivhence arise Patents for Inventions. By Individuals : as to 1. Forestalling. 2. Engrossing. 3. Regrating. By the Legislature: 1. The Statutes respecting the trade with foreign countries. 2. The statute ofS Ann. ichence arises Copy- right. 8. The statutes as to the Fine Arts. The whole matter of this work is, therefore, divided into three parts : — First, Monopolies in general, as they are governed by the rules of the common law, are cursorily described : — Secondly, the limited monopoly in Inventions, created by patents, is investigated : — and. Thirdly, the sta- tutes giving Copyrights in books, and in the pro- ductions of the Fine Arts, are explained. 10 Monopolies CHAP. II. OF MOfJOPOLIES MADE BY GRANTS. LETTERS Patent, or grants of the Crown, by which the exercise of the natural right of a person to use in any way he pleases every thing by him once legally possessed, is restrained, and monopolies in general created, may be classed for consideration under the following heads: — 1. Grants that loere valid at common law. ^. Those that were bad at common law. 3. Those that bj/ statute law are permitted to be made. I, Grants valid at common law. It is clear, that at common law the King could make a patent, to continue for a reasonable timCy to any person who, at his own charge, or by his own industry, wit, or invention, had introduced any new and projitable trade into the realm, or any engine that had never before been used, tending to the furtherance of a trade; by virtue of which the patentee might confine the whole use of it to himself, and enjoy all the benefit ac- cruing from it (a). (a) Noy. 182. ; Hawk. P. C. 231. made by grants. 11 For in the 9th year of Elizabeth a patent was granted to a Mr. Hastinges of the sole trade for several years, of making frisadoes, in considera- tion that he had brought the method of making them from Amsterdam (6). This patent was con- sidered as vahdj until it was shewn that some clothiers had before its date made baize of simi- lar workmanship. A patent was also granted to a Mr. Matthews^ a cutler (c), because, as v/as suggested, he had brought the invention from beyond the seas. The grant was supported^ until it appeared that other cutlers had, with a slight difference only, made similar knives ; and then it was declared to be void. There is another case which illustrates the law as it anciently stood. A patent had been granted for the sole and only use of a seive, or instrument for melting lead. In the Court of Exchequer Chamber {d), it was said that the question was, whether it was newly invented by the grantee ? whereby he might have the privilege of exclusive power over it; or else used before, in which case they were of opinion that he should not have the sole use of it. It is said to be the better opinion (e), that the King may also grant to particular persons the sole use of some particular employments (as of printing the Holy Scriptures, and law books, &c.) (b) Noy Rep. 182. 10 Mod. 131. Godb. 125. (c) Noy Rep. 183. ( Regrat- to obtain an undue influence over the markets, and to gain an unfair profit, is by regrating. The offence is also well described in the statute of Edward VI. (k) — Whosoever shall by any means regrate, obtain, or get into his hands or possession in a fair or market, any corn, wine, fish, butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons, conies, or other dead victual whatsoever that shall be brought to any fair or market to be sold, and shall sell the same again in any fair or market holden or kept in the same place, or in any other fair or market within four miles thereof, shall be deemed a rcgrator. A regrator is sometimes called a chopper, or jobber; and sometimes a bagger, a higler, or huckster. It is very difficult to say whether a court of justice would now decide that regrating is a crime at common law : I shall therefore merely state the principal case under this head of the subject. Mr. Rusby (/) was indicted for getting into his possession, and selling again on the same day, (/c) 5 and 6 Edw. VI. c. 14. (/) Giidler on Forestalling, ) 1 Hawk. P. C. c. 80. s. 5. ip) Lane 59. 'rrin.7Jac. 1. 43 BOOK II. ON PATENTS FOR INVENTIONS. CHAP. I. INTRODUCTION. — OF A PATENT GENERALLY. The manner in which our Sovereigns, mistak- ing the extent of their prerogative, created mo- nopolies, and the pernicious consequences Avhich flowed from those grants, have been ex- plained in the first Book of this Treatise. It was there stated, how the limitation of the power of making grants of exclusive privileges was defined by the common law, and how the exercise of it was moderated by the prudent determinations of the judges. One species of monopolies, it has been shewn, are those, which, although founded on grants, are allowed by statute law. From that source the Law of Patents for Inventions spring. It is a branch of the law, in its nature and conse- quences as pleasing to consider, as that of the first book was irksome. For although they are monopolies, yet they are very limited ones ; and are as beneficial in their effects, both to the in- ventors and to the community, as the old kind were detrimental to the best interests of the state. 44 Patents for Inventions Patents at The commoii law, however, is not altogether Conunon , /• t • Law. silent on the question of Patents for Inventions. All monopolies were declared generally to be void. The giants of the crown were, at com- mon law, construed with the greatest strictness. Yet, even by that law the King had the power of conferring on the inventor of any useful manu- facture or art the exclusive power of using or vending it for a reasonable time (a). Patentsby But the law of patents for inventions, as it James. ^^^ Stands, rests for support on the statute of 21 James (6). After a declaration that all monopolies are void, it is, by the sixth and principal section of that act, enacted, " That any declaration before mentioned shall not extend to any letters pa- tents and grants of privilege for the term of fourteen years or under, thereafter to be made, of the sole working or making of any manner of new manufactures (c) within this realm, to the true and first inventor (d) and inventors of such manufactures, which others at the time of mak- ing such letters patents and grants shall not use, so as also they be not contrari/ to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or gene- rally inconvenient. The said fourteen years to be accounted from the date of the first letters patents, or grant of such privilege thereafter to (a) 3 Inst. 181. 2 Hawk. P. C. 293, B. I. c. 79. s. 20. Noy 182. ante. 10. (b) 21 Jdc.l. c. 3. ante. 14. (t) Post, Chap. 3, (rf) Post, Chap. 2. i generally. ^^ be made, but that the same shall be of such force as they should be, if that act had never been made, and of none other." This statute has always been considered as Encou- merely declaratory of the common law preroga- of'ai.tists. tive of granting- patents : but the acknowledged power of the Crown was so seldom exerted in favour of the inventor of a useful manufacture, that the legislature was compelled at once to put an end to the licentious and grievous monopolies, and to hold out encouragement to the ingenious artist. The necessity of some legal provision, to se- cure a reward to those who would exert their abilities, employ their time, and spend their money in the production of something new and useful to the community, was apparent to every one. But the question as to what kind of protection is the most proper to be afforded to the inventor, has since given rise to much discussion. It seems but just that he, who informs the public of a new method of increasing their wealth, should gather for himself the first fruits of his ingenuity and labour. Hence the great and almost certain remuneration given by the statute of James, — that an inventor shall have a limited monopoly in his own manufacture,— is the most appropriate recompence that can be awarded to him ; for, in proportion as the invention is valuable to soci- ety, will the amount of his own profits increase. Upon tliis statute numerous observations, as to ^^^^"l^^ its policy and the construction it ought to receive, Jac. have been made by learned men, many of them 46 Patents for Inventions differing' in opinion. Whilst some have thought it a very wise and useful measure, others have described it as oppressive to inferior tradesmen. Of its pohcy nothing can be said in a legal trea- tise. The opinions, as to the kind of construc- tion which it ought to receive, will be noticed when those parts of the subject to which they apply are mentioned ; and the whole of them will be collected together, when the rules for the construction of the statute of monopolies, as it relates to patents for inventions, are ex- pounded {e). Condition This important statute, marking out the specUi^ca- boundary to which the royal grants should in tion. future extend, left the terms on which they might be obtained, to be settled at the plea- sure of the Sovereign. In the reign of Queen Anne a condition was introduced into the patent : that if the inventor did not by an instru- ment under his hand and seal particularly describe (f) and ascertain the nature of his in- vention, and in what manner the same was to be performed, and also cause the same to be inroll- ed in Chancery within a certain time (generally one month) therein mentioned, then the letters patent, and all liberties and advantages what- soever thereby granted, should utterly cease and become void. By thus obtaining an exact statement (g) of the nature and use of the invention, the public (e) Post, Chap. 6. (/) Post, Chap. 4. (g) The description must be very correct. Even a slight ioadrerteiit omission will, it appears, (post, ch. 4.) invalidate generallj/. 47 are benefited, and have an equivalent for this limited monopoly. The instrument containing this required description is called The Specifi- cation. Thoiiffh the power of the Kinp; to create Nonght monopolies was closely defined by the statute of patent. James, and grants of them in future were to be made only to the authors of new inventions ; 5'et there is not any clause or enactment, by which the subject can demand them as a right. This great encouragement to industry, this fruitful source of wealth, is still the free gift of the King. It emanates from him as the Patron of Arts and Sciences at the humble request of his subject ; and it is as a gracious favour that he extends this protection to the inventor. All grants from the crown are matters of The grants public record (h), as being the deeds of the first J xeiilr^ magistrate ; and are next in dignity to the acts Patent. of the state. They are either in the form of the grant. A man, whose thoughts have long dwelt on the same subject, overlooks many things forming part of the manu- facture which lead him to the invention. It is therefore oftea very prudent to call for the skill, experience, and unpreju- diced judgment of others, to enable him to make a good spe- cification. The Editor of the Repertory of Arts, new serieSf a work in which the specifications of new patents are monthly published, and which also contains much useful information respecting new inventions and improvements in the Arts and Sciences, professes, by an advertisement attached to it, to assist inventors in making a correct specification, and to be otherwi'^p of use in obtaining the patent. {h) Dr. and Stud. B. 1. d. 8. 48 Patents for Inventions charters, or letters (i). These letters are either open, and thence called Literce Patentes, being addressed to all his Majesty's subjects ; or else close, Literce clausce, addressed to particular persons. It is by the letters patent, that grants of the sole privilege and exclusive property in inventions are made. Offices for 'J'q prevent grants of this description from pateuts. I o ^ I being surreptitiously obtained, numerous offices are established, communicating in regular sub- ordination. In them the proceedings are nar- rowly inspected by the King's law officers, before they are sanctioned by the royal authority ; and that the great seal may not be affixed without the utmost caution being used, and due consider- ation given to the subject of the grant, the letters patent must first pass by the dilatory and expensive method of bill{k). The parts The clausc in the patent by which the speci- tent. fication is required has been given (/). It is thought that a short description of the several parts of the patent will make the different bear- ings of patent law more readily seen, and the numerous rules respecting it more easily com- prehended. In the patent (m), after a recital of the petition and its prayer, it is stated that his Majesty, of his special grace, certain knowledge, and mere (0 2 Bla. Com. 346. (k) Post, Chap. 5. (0 Ante. 46. (m) Foj a patent at length with all its clauses see Appendix. generally. 4 motion {n), has given and granted the matter requested by the petitioner. Tliat he, his execu- tors, administrators, or such others as they shall agree with, shall lawfully make, use, and vend the invention, during the time therein expressed, (generally fourteen years,) within that part of the dominions in which the inventor has peti- tioned to use it. It then goes on to command that all persons, bodies politic and corporate shall not dare to imitate the same, pr make any addition to or subtraction from it, without the licence (o) of the petitioner, his executors, admi- nistrators, or assigns, in writing under his or their hands and seals ; disobedience subjecting them to the punishment for a contempt, or to be proceeded against in an action at law (/?). It also directs that mayors, sheriffs, &c., and all other the King's officers and ministers, shall not molest the patentee in the exercise of his invention. There are several regulations connected with Matters the grant that are mentioned in the patent, the ^ak^^j non-observance of which will render it void (9), ^°^'^- If it should appear to the King, or any of the privy council, that the grant is contrary to the provisions (particularly the sixth section) of the statute of monopolies, or that it leads to the use of any invention protected by a prior patent, or that the patentee or his representative has trans- ferred or divided it into shares, or declared any (n) [n the old grants special! gratia, certa sciential etmero motu. (o) Spe post, chap. 7. (/>) See post, chap. 8. (g) See poit, chap. 0. E . 50 Patents for Iventiom, trust of it, to or for any number of persons exceedin«^ the number of Jive, or those five have presumed to act as a corporate body, or in any wise contrary to an act of Parliament therein recited, respecting assurances of ships and mer- chandize, then the patent is to be declared to be void. In the construction of this proviso executors or administrators, however numerous they may be, are collectively to stand in the place, and to be considered as and for the single person whom they represent (r). Then comes the proviso for the particular description or specification of the invention to be made in a given time. And lastly, it is granted that the letters patent shall be construed (s) and adjudged in the most favourable and beneficial sense for the best advantage of the grantee, notwithstanding any defective and uncertain description of the nature and quality of the invention, and of its materials. Which instrument the patent is the formal, as the SPECIFICATION is the substantial,^art of this limited monopoly. Division Whence it appears that the most logical order of maUer . , * ' ° respecting in which the matter of this book on patents can be arranged, will be to begin with investigating the law respecting the true and first inventor, the subject of his invention, and the nature of the description v/hich he must give to the public to secure his limited monopoly. Having exa- (r) See post, chap. 7. (s) See post, chap. 6. generalli/. 51 mined the contents of the grant, it will then be the best time to set forth the mode of obtaining it. Being once in possession of the patent, the questions as to its construction and the property in it will arise. And then will follow the reme- dies which may be resorted to by an inventor, if he suffer any injury from an infringement of his right. And lastly, the method by which the public may deprive him of the grant, if it be not a good one in law, will be examined. %% ftS Patents for Inventions. CHAP. II. Op the Inventor. THE most important business of an enquiry into the laws respecting patents for inventions, is to obtain an accurate knowledge of the following questions : — Who is he that has found out some- thing new, or who is the inventor of the subject? What is an invention, or a proper subject for a patent ? How is the thing to be described, or the specification to be made ? These topics claim particular attention, and therefore a Chapter will be devoted to the examination of each of them. In prosecuting the investigation of the first question — who is the person that the law will adjudge to be the true and just inventor of a manufacture, within the meaning of the statute — the decisions will lead to the consideration of, — I. A discoverer of a new thing^(a). II. A publisher of an invention. III. An introducer of a foreign invention. I. A Discoverer of a new thing. That a discoverer, or he who Jirst finds out (a) Since the word " inventor" has in patent-law several distinct meanings, it is thought that this Treatise will be ren- dered more intelligible if that word is made a generic terrrif, scd if £o each of its meanings a separate name be given. 1 The inventor, 63 a thing, of which a limited monopoly may law- fully be granted, should have the advantages accruing from it secured to him by patent, if he apply for it, is one of the fundamental maxims of this branch of the law. But, to prevent abuse, the protection which the laws afford to this species of monopoly is strictly watched. No person, who has not without assistance/orwerf the original idea of the subject in his own mind, will be enabled to keep any patent which he may have obtained. . If the principle of the invention be taken from a scientific work (6), the patentee is not an inventor. Nor will he be entitled to hold the grant, if he has in any manner been informed of the secret by another person in England. Mr. Tennant (c) had a part of the process, indispensable in ren- dering the subject of his patent of any utility, suggested to him by another person. It was therefore determined that he was not the inventor. In vain it will be urged that the patentee has embodied the principle, that the method of reducing it to practice is his own discovery, and that great genius has been exerted to form the subject. In the great caseof the King v. Arkwright (d), (b) Post, King v. Arkwright, printed cas. 182. Day. Pat. Cas. 129. And see Hill r. Thompson, 2 B. Moore 456. (c) Dav. Pat. Cas. 429. (J) Mr. Arkwright's machine consisted of ten distinct part-i. It may be useful to know the opinion of Mr. Justice Buller on each of them, with references to the printed £»»«# 5^ Patents for Inventions. the point was ag^itated, — whether the machine for which the patent had been granted, was in- vented by Mr. Arkwright — it was satisfactorily proved, that every part which was not old, or had not been used for the same purpose to which it was then applied was either not material or not useful. It was therefore determined that he was yet the inventor of a new manufacture. II. A Publisher of an Invention. If two persons severally discover the same thing, the one who obtains a patent for it, before the other has made the matter public, will be adjudged to be "the true and first inventor," and be entitled to hold the grant. This rule is necessary to insure an early production of the efforts of genius. An objection was raised to the patent of Dolland (e), that he was not the inventor of the No. 1. The beater, taken from Emerson's book, p. 182. No. 2. The iron frame, not new, if used, p. 182. No. 3. The feeder, InTented by John Lees, p. 183. No. 4. The crank, not new, p. 183. No. 5. The filleted cylinder, not new, p. 185. No. 6. The rollers, not new, p. 185. No. 7. The can, if new, not material and useful, p. 186. No. 8. A machine for twisting, and No. Q. A spindle and flyer, never Used, p. 186. No. 10. A regulating wheel, not used, p. 187. And see King y. Murray^ Rep. of Arts, Vol. III. N. S. p. 235. The patent was for improvements in the construction of air- pumps. Messrs. Boulton and Watt proved that they had used every one of the parts which it was pretended were new, and the verdict was given for the Crown to repeal the patent. («) In Boulton ». Bull, 2 Hen. Bla. 487. The patent llie inventor. new method of making object-glasses, for that Dr. Hall had made the same discovery a long time before. It was held^ however, that, inasmuch as the public were not acquainted with it, Mr. Dolland must be looked upon as the inventor. He was not only a discoverer of it, as well as Dr. Hall, but he was the Jirst publisher. This doctrine was confirmed in the late case of Forsyth v. Reviere(/), in which it was held that, if several persons simultaneously/ discover the same thing, the party who first communicates it to the public, protected by a patent, the pub- lisher, becomes the legal inventor, and is entitled to the benefits to be derived from the invention. It is therefore necessary that a discoverer, who does not wish that a grant should be ob- tained, either by himself, or by any other person finding out the same thing, should imme- diately make his discovery known. But if he has a desire to enjoy the advantages which may arise from the sole use of the invention by himself, he will act with prudence, if he procure granted to Mr. Dolland, was for an invention of a new method of making the object-glasses of refracting telescopes, by compounding mediums of different refractive qualities ; whereby the errors arising from the different refrangibility of light, as well as those which are produced by the spherical surfaces of the glasses, were perfectly corrected. BuUer, J. The point contested in DoUand's case was, whether he, or Dr. Hall, was the first and true inventor within the meaning of the statute ; Hall having first made the discovery in his own closet, but never made it public, and on that ground DoUand's patent was confirmed. (/) Chitty, Jun., Protr. of Crown. 182. n. 56 Patents for Inventions. a patent immediately before the matter can b« divulged by another person. 111. An Introducer of a foreign Invention. The sixth clause, and indeed the whole of the statute of monopolies, being made for the benefit of the subject, has been construed in his favour. If the objects of patents are new in England, they certainly come within the equity of a statute, by which it was intended to encou- rage new devices that might probably prove useful and beneficial to the kingdom. Whether the invention was learnt by travel, or produced by study, the intention of the legislature is equally fulfilled ; and therefore, soon after the passing of the Act(g), a patent, granted for something which had been practised beyond the sea, was held to be good and valid. This construction has ever continued to be put upon that clause. It was confirmed by a late case (/i), in which it was declared to be good law. Upon the whole, then, the character of an inventor may be obtained by a person in three ways, by bringing with him and publishing to his countrymen the productions of the genius of foreigners ; by publishing what others as well as himself may have found out at home; or by pub- lishing what he alone has discovered. {g) Edgeberry y. Stephens, 2 Salk. 477. (h) Wood t). Zimmer, Holt. N. P. C. 58. New Manufactures. CHAP. III. Of a new Manufacture ; or, the subject of A Patent. THE statute of monopolies having been made for the encouragement of commerce, the word " manufacture" has received a very extended signification {a). It has not indeed, as yet, been accurately defined ; for the objects, which may possibly come within the spirit and meaning of that Act, are almost infinite. That the principles upon which a great variety of things have been declared to come within the design and to claim the protection of that statute may be clearly understood, it will be proper to divide the manufactures into their several kinds. An arrangement, at once simple and correct, could not easily be suggested; it is therefore hoped that the following classification of them will assist in the present enquiry, andthat it will also be found useful in elucidating the rules for making out the specification of patents. There is not any thing which conduces so much towards rendering a description of a manufacture, concise (a) A summary of what things come within the words " new manufacture" will be found given by Eyre, C. J. in 2 H. Bla. 492. ; by Dallas, G. J., in 2 B. Moore, 448. ; by Eldon, C, in 3 Meriv. 629. ; by Abbott, C. J., in 2 Barn. & Aid. 349. 68 Patents for Inventions. yet clear, as a knowledge of the several objects of patentSjin their kinds distinct from each other(6). A new manufacture may be, I. A substance, or thing made. II. A machine, or instrument. III. An improvement, or addition. IV. A combination or arrangement of things already known. V. A principle, method, or process, carried into practice by tangible means. VI. A chemical discovery. VII. A foreign invention. I. A SUBSTANCE, OR THING MADE. A substance appears peculiarly to have been contemplated by the legislature, as the most pro- per object for a patent. *'A manufacture," says Lord Kenyon, " is something made by the hands of man." (c) But it is not for every substance, nor for every thing which is discovered, that a patent can be obtained and supported. It must be wew?, or it will come within the purview of the former part of the statute of James against monopolies. It must, by the words of the act, not have been used. It must be vendible; or, not being re- (6) It will be noticed that this arrangement is not strtclltf logical as to the several kinds of manufactures ; but that it has been formed with a view to illustrate the reported cases^ and for the sake of simplicity in the observations on them, (c) 8T. R. 99. New Manufactures. quired in trade, it cannot be a proper object for protection. It must be perfect in itself, and the means must be adapted to the end, or the public will not receive any benefit from it ; at least, the barter between them and the monopolist will be greatly in favour of the latter. In its effects it must be useful and beneficial, or it will be un- worthy of notice. These are the primary qualities, and are not peculiar to any one species of manufacture, but must be found in every discovery for which a patent is sought. These properties may be con- sidered as the TEST by which the fitness of an invention to support a patent may be ascer- tained, (rf) Before the several kinds of manufactures are particularly described, it will therefore be proper to investigate the exact nature and extent of those qualities which are common to all of them. Every manufacture within the meaning of the statute must, at least, be 1. New. 2. Not used before, — neither 1. By others, — nor 2. By the inventor. 3. Vendible. 4. Useful. Some incidental properties, as that the means must be adapted to the end intended to be pro- duced, will be best understood, if examined when treating of the specification. CO Patents for Inventions. 1. Must Not only must the subject be new, in the com- mon acceptation of that word, as to the world in general, but it must not be copied from a scien- tific work. The beater in Mr. Arkwright's ma- chine was taken from Emerson's book, (e) Though it may be learned abroad, (/) yet it must not be suggested by a friend at home, (g-) And where the patentee claimed the exclusive liberty of making lace, composed of silk and cot- ton thread mixed, and not of any particular mode of mixing them ; upon its being clearly proved and admitted that silk and cotton thread had before that time been mixed on the same frame for lace in some mode or other, the patent was declared to be void, (h) There was not any thing particularized which was a novelty. A patentee summed up the principle {i) in (e) Ante, 53. Rex v. Arkwright, Printed Case, 182. Day. Pat. Cas. 129., and see Repertory of Arts, N. S. 27th Vol. 252. The question of novelty arose in Manton v. Mau- toD, Dav. Pat. Cas. 333 ; see 2 B. Moore, 456. and Brun- ton V. Hawkes, 4 B. & A. 541. (/) Edgeberry v. Stephens, 2 Salk. 477. (§•) Ante, 53. Tennant's patent. Dav. Pat. Cas. 429. {h) King V. Else, Bull. N. P. 76. Dar. Pat. Cas. 144. (0 Rex ». Cutler, 1 Stark. N. P. C. 354. and see 3 Mer. 629. The defendant stated his inventiou to consist of a new mode of feeding the fire in a grate. The fuel necessary for supplying the fire was introduced at the lovrer part of the grate, in a perpendicular or oblique direction. The manner of performing it was set forth in the description and draw- ings annexed. It was proved that grates had been made prior to the date of the patent upon the same principle, although they did not possess all the advantages of this pa- tent one. The effect was produced in the old ones by con- New Manufactures. 61 which his invention consisted, but did not set forth any instrument, or any new particular fnode of applying that principle. The patent was in consequence adjudged to be void for want of novelty, although the application of the principle, as described in the specifi- cation, was new. If the subject has been published, though un- remarked, among other things, it is not new ; for no man can appropriate the invention of ano- ther person. And if the effect has been pro- duced by a similar method, it is known in law. (k) If a contrary rule vvere to prevail, it would be impossible to say what publication of a fact should take away its novelty, and prevent its becoming the subject of a patent. When the objects of two grants are sub- stantially the same, they may both be valid, if the modes of attaining the desired effect are essentially different. (/) It is expressly provided by the statute of James 2. Must I , -I' n r not have that the subject nt for a patent must be one been used. tracting the grate, whilst in the new ones the grates remained of the same size. In both, the coah were wound up from below the grate. (k) Hare v. Harford and Taylor, C. P. 14 July, 1803. Repertory of Arts, N. S., 3d Vol. 232. By the invention, io brewing beer the essential oil of hops was preserved, and the water boiled. The water had been boiled by a similar methody which must necessarily have preserved the oil, although not intended to do so. And see Manton v. Pari(er, Pat. Pat. Cas. 330. (0 Huddart v. Grimshaw, Dav. ,Pat. (las. 290. 62 Patents for Inventions. *' which others at the time of making such letters patent and grants shall not use." (m) It must not have been used, either by other persons, or by the patentee himself. Used by It has been stated, that if several persons others. . . ^ about the same time discover the same thing, that he is accounted the inventor who makes the first communication of it to the public, (n) Thus it was considered by the Court that Dr. Hall had not used his discovery of the object-glasses, be- cause he had not made it known ; and that the mere knowledge of the fact, without its being published, was not a using within the mean- ing of the statute, so as to render Dolland's patent void, as one granted to a person who was not the real original inventor of the subject of it. It has been seen (o) that the circumstance of several parts of Arkwright's machine having been used before the grant was obtained, weighed very strongly with the judge who tried the va- lidity of his patent. But if the secret of an invention be known only to a few persons, and one of them put it in practice and make an actual use of it, then a patent afterwards obtained by any one of them is void. This happened to Mr. Tennant, {p) whose grant was declared to be invalid, because (rn) 21 Jac. I. c. 3. s. 6. (n) Ante, p. 54. And see 2 Hen. Bla. 487. (o) Ante, p. 53, in note, printed case, 50, 182, 861. Day. Pat. Cas. 129, 139, and see 2 B. Moore, 452. (/)) Dav. Pat. Cas. 429. J^ew Manufactures. 63 a bleacher, who had not divulged the secret to any other person but his two servants, had how- ever used the same kind of bleaching* liquor for several years anterior to the date of the patent. An example is given by Mr. Davis (^) that seems to be a little at variance with this general rule. A person who sought a patent for mak- ing spectacles, incautiously told an acquaint- ance of the principle of the invention; by which means a person of the same trade immediately made a similar pair. The discoverer saw them in the shop window and employed a friend to purchase them for him. The patent passed the Great Seal a few days afterwards, and thus it is said "^that his patent was rendered secure." It does not appear that this patent ever came before the Court. There are many reasons which may, it is conceived, be assigned why the grant would not be good in law. By the imprudence of the discoverer himself two persons at least became acquainted with his invention before the patent was sealed, and one actually made the article, and exposed it to sale. The moment the third person bought it, he, as one of the com- munity, took possession of it. It was then made public, if it had not become so by the exposure to sale. It is difficult to imagine upon what principle this publicity could be done away with ; certainly not by the gift of it back to the disco- verer. There was knowledge of the secret, — an (?) Day, Pat. Cas. 445. 64 Patents for Inventions. Used be- fore pa- tent ob- tained. Experi- ments. actual making, — and a public sale, by a person who was not the patentee, (r) Not only is it required that the subject shall not have been publicly used, but the patent will be void if the inventor had made any use of it himself prior to the time of obtaining his grant. Thus, the patent for British imperial verdigris,(s) because the inventor had, for four months prior to the sealing of the grant, sold the article under a different name, was, in consequence thereof, declared to be void. Whether experiments made with a view to try the efficacy of an invention, or the full extent of a discovery, are a using within the meaning of the statute of James has not yet been decided. (0 (r) See Wood o. Zimmer, 1 Holt. N. P. C. 60. (s) Wood V. Zimmer, 1 Holt. Rep. N. P. 58. S. C. in Repertory of Arts, N. S. 27th Vol. 171. under the names of Wood V. Zimmerman. This patent was for a new mode of making verdigris, to be called British Imperial Verdigris. It was one objection to it that the article was not new at the time of the patent ; inasmuch as the patentee had previously sold it, Gibbs, C. J. — This question is somewhat new. Some things are obvious as soon a? they are made public. Of others the scientific world may possess itself by analysis. Some inventions almost bafile discovery : but, to entitle a man to a patent the invention must be new to the world, The public sale of that which is afterwards made the subject of a patent, though sold by the inventor only, makes the patent void. It is in evidence that a great quantity was sold in the course of four months before the patent was obtained, and that the patentee* were in the habit of selling his 9iap«- facture. His Lordship left it to the jury to any whether the invention was in public use before the patent was granted. The jury found in the affirmative. (0 See Hill u. Thompsou, 2 B. Moore, 467. A bill was New Manufactures. 6 It would be very difficult to say how much a sub- stance or machine might be used by way of ex- periment before the patent is obtained, without running a great risk of invalidating the grant. The subject of a patent must be vendible mat- 3- Must _ be vendi- ier. It seems reasonable that it should be some- ble. thing capable of being bartered in commerce, — or some substance in contradistinction to any thing that is to be learnt by practice. If it can- not be sold, — upon what principle can it reason- ably claim protection from a statute made for the encouragement of trade and commerce ? There is not a case expressly decided on this point : but it is a fundamental proposition, which will be of great assistance in ascertaining what methods or processes may be denominated new manufactures: and therefore the dicta of the judges respecting it have been collected. Heath J. said (m), " The term manufacturer precludes all nice refinements: it gives us to understand the reason of the proviso, that it was introduced for the benefit of trade ; and that the subject ought to be that which is vendible, otherwise it cannot be a manufacture." " It must be for the vendible matter, and not for the principle." Kenyon, C. J. " I have no doubt in saying that this is a patent for a manufacture, which I understand to be something made by the handR introduced into Parliament last sessions to protect persons making experiments. It was thrown out on the second read- ing. (u) 2 Hen. Bla. 482. IS 66 Patents for Inventions. of man." An opinion that strongly impresses the idea of its being something vendible (x). And in t!ie King v. Wheeler (?/) Abbott, C. J. observed, that the word " manufacture" had been generally understood to denote either a thing made, which was useful for its own sake, and vendible as such, as a medicine, a stove, a telescope, and many other tilings, or to mean an engine, or instrument, or some part of an en- gine or instrument, to be employed either in the making of some previously known article, or in some other useful purpose, as a stocking frame, or a steam engine for raising water from mines, 4, Mustbe The number of patents that have been can- andusSul. Celled for not being beneficial to the public is very small ; although it is always distinctly left to the jury to say, whether the invention is a ma- terial and useful manufacture (z). (x) 8 T. R. 99. (j/) 2 Barn, and Aid. 349, 350. (2) Hill V. Thompson, 2 B. Moore 450-454. 3 Meriv 629. and see King v. Arkwright, where it is said that the stripes on the fillets, if new, were not material enough to sup- port a patent. Printed Case, 1 85. Dav. Pat. Cas. 1 35. and see id. 186. id. 138. Buller, 3. Then the seventh article is what they call the can. Holt, (a witness) says, the only differ- ence between the two, the spinning machine, and the present roving machine, is, that the latter has a can ; and indeed, that, at one time, was admitted by the counsel for the defend- ant. If it be so, it brings the case to a shor-i point indeed ; for, if nothing else is new, the question is, whether it is mate- rial or useful? The witnesses upon the part of the prose- cution say, it is of no use at all. In the first place, they had that before which answered the same purpose, though not New Mamifactures. ^7 An inventor may honestly imagine that there is utility in his discovery when there is not. Few men would risk the expense of obtainin* a patent for an article, which they knew to be useless, when it is evident that their reward, de- pending- on the sale, could not possibly be great, unless the manufacture was beneficial to the communitv. But it is not difficult to conceive that a person might endeavour to monopolize a known article of trade, by a patent for some im- material alteration or addition to it, on the spe- culation that the public would give him credit for the patent article being superior to the old one. To prevent such deceit, this general rule is laid down, thai the new manufacture or subject must be material and useful. It must, of itself, be a thing of some consequence in commerce. Although, as Lord Ellenborough observed («), in made exactly in the same form ; it was open at top, it twisted round, nnd laid the thread precisely in the same form, and had the same effect this had ; so if it was new, it is of no use. But they say it is not new ; for, though it was not precisely the same shape, in substance it was the same thin^, that is not contradicted. That part also stands without any contradiction upon the part of the defendant ; for the defendant's witnesses satisfy themselves with telling you they think it intelligible, and it might do without the roller, though it might not be so effec- tual as with the roller. It is admited by several it could do without, that appeared from the experiment made. They shewed you by one of the engines, how it did with the roller, and how without; and that it was done without, just the same as with it. (a) JIuddart v. Grimshaw, Dav. Pat. Cas. 297, 298 See post. 73, n. f2 Patents Jor Inventions. every department of science there are sdme things which are common and cannot be appro- priated, and if one elementary thinjj be sub- stituted for another, and make an important improvement (as if that be done by a tube which was before done by a ring;,) a patent for the improvement would be good, for it is a sub- stantive invention : yet in general the substitu- tion of one material for another in making a manufacture is insufficient to support a patent (6). (b) Walker tJ. Congreve, Eq. July, 1816. Repertory of Arts, 29lh vol. p. 311. Sir J. Leach Vice Chancellor, said, Though new, the invention, which was a barrel for carrying gunpowder, was not of such a nature as to come within the statute of monopolies; and did not exhibit such proof of skill and invention as entitled it to the protection of that law, which encouraged the exertions of genius by enabling its possessors to reap more exclusively its reward. Every thing was not an invention worthy of a patent; nor could every original former of a machine be called an inventor. Every novelty was not an invention entitled to the pro- tection of the statute. A new principle must be discovered; skill and ingenuity must be exerted to entitle an inventor to a patent, the making of an old machine of new materials could not be a discovery, and the plaintiff could claim no protection for an invention, the only merit of which consist- ed in being made of brass instead of wood. When tea was first introduced into this country, earthenware teapots were used ; — but could a person, who made the first one of silver, be entitled to a patent, restraining all his fellow-subjects from using silver teapots, except those bought of him. Next it was said that the form was new ; but was the in- vention of making a barrel like a cylinder worthy of being protected by the statute of the monopolies? Well, but said the patentee, my barrel is strengthened with hoops. And was it a new thing displaying great ingenuity to strengthen New Manufactures. 69 If a contrary rule were to prevail, a patent might be obtained for a thing, which, in itself, is a mere curiosity. And one great mischief at least would arise; for a person, who, applying this thing, trifling in itself, to an invention of his own, might thus produce something beneficial to the community, would be prevented from avail- ing himself of the use of it for several years. In the case of Manton v. Parker (c), the ques- tion of utility was considered. By means of a perforation in the hammer of a gun, it was speci- fied, that the air formerly confined, would escape^ but that, at the same time, the powder would be secured. On experiment it appeared that the powder passed as well as the air. The utility of the invention, and the purpose of the patent thus failing, the plaintiff was nonsuited. The same point was again agitated in the case of Brunton v. Hawkes {cD, and received the same determination. a barrel with hoops ? Was the circular aperture a great in- yerition? No, but the method of shutting was new. And what was the noyelty of placing upon a circular aperture a common pot lid? What was new was unimpoi'tant, (c) Dav. Pat. Cas. 332, and see Manton v. Manton, Dav. Pat. Cas. 348. {(1) 4 Barn, and Aid. 455. and see same Case in Repekt. OF Arts, N. S. vol. 37. p. 105. Bayley, J. Could there be a patent for making in one entire piece what before had been made in two pieces ? I think not : but if it could, I think that still this would not be new. In the mubhroom and the adze anchors, the shank is introduced into the anchor by a hole in the centre of the solid piece; and in reality, the adze anchor is an anchor with one liuke, and the double fluke anchor is an anchor with two flukes. After haying 70 Patents Jar Inventions. II. A Machine or Instrument. From the consideration of substances, it is easy to direct attention to the means by which some new or old thinj^ may be made. Though a man cannot have a patent for making an arti- cle of trade by machinery in general terms, yet any particular machine, engine, or instrument^ used in the production of a substance, is a new manufacture (e). Peculiar j(_ ji^ugj, possess the pvopei ties which have been shewn to be necessary not only to a sub- stance, but to every other manufacture. One of its qualities must be pre-eminent — it must be very useful. If the article that is produced by the machine be old, it must be furnished to had a one-fluked anchor, could you have a patent for a double fluked anchor ? I doubt it very much. After the analogies alluded to in argument, of the hammer and pick- axe, I do not think that the mere introducing the shank of the anchor, which I may call the handle, in so similar a mode, is an invention for which a patent can be sustained. (e) Boulton V. Bull, 2 Hen. Bla. 492. and.see Brown v. Moore^ Eq. Nov. 1815. Repertory of Arts, 28 vol. p.60. Eyre^ C. J. It was admitted that the word manufacture was of extensive signification ; that it applied not only to things made, but to the practice of making, to principles carried into practice in a new manner, to new results of principles carried into practice. Under things made, we may class, in the first place, new compositions of things, such as manu- factures in the most ordinary sense of the word. Secondly, all mechanical inventions, whether made to produce old or new eff"ects ; for a new piece of mechanism is certainly a thing made. New Manufactures. 71 the public at a much cheaper rate. The com- munity must receive some benefit from the in- vention ; and when it is not a new article which is introduced, the old one must, in some respect, be rendered a better commodity for trade. III. An Improvement, or Addition. An addition to or improvement of a manu- facture, whether it be of a substance or machine, is considered as a new manufacture in law, and is allowed to be the subject of a patent. So early as in the reign of Elizabeth, in Bircot's case (/), it was decided, that if the substance was in esse before ; an addition, though it made the former article more profitable, was not a new manufacture. This doctrine was overruled by Lord Mans- field (g) ; who said, that the objection tliat there can be no patent for an addition, would go to repeal every patent that ever was granted : that it was a question open on the record, and the defendant might move in arrest of judgment. No such motion was ever made, and the decision has ever since been recognized as law. But the patent must be conjined to the addition or improvement, that the public may purchase it without being encumbered with other things (/t). If the grant extend to the whole, it will be (/) 3 Inst. 181. {g) In Morris r. Branson, Bull. N. P. 76. (A) 2 Hen. Bla. 463, 73 Patents for Inventions. invalid ; for the property in the addition or im- provement can give no right to the thing that has been improved. Thus in Jessop's case (z), the patent was held to be void, because it was taken out for the whole watch, when the inven- tion consisted merely of a single movement. Huddart's invention differed from that of Bel- four's, because the thing which was effected with a ring or circle by the latter person was produced by a tube in the mode of making ropes by the former ; and therefore he should have taken his patent for that improvement (7). (i) Cited by Buller, J. in Boulton v. Bull, 2 Hen. BIa.489. (j) Huddart v. Grimshaw, Dav. Pat. Cas. 265, and same case in Repertory of Arts, N. S. 4 Vol. 156, and see Hill V. Thompson, 2 B. Moore 451, and ante, 68. The patent in this case was for " A new mode or art of making great cables " and other cordage, so as to attain a greater degree of *' strength therein bt/ a more equal distribution of strain *' upon the yarns." It appeared that a Mr. Belfour had invented some machinery which he thought would produce the same effect as Captain Huddart's now did : but it failed. It was contended that the object of the plaintiff and Bel- four was exactly the same, the obtaining an equal stress upon each yarn. That Belfour's machine did not succeed, and the plaintiff's was only an improvement of it. That the subject of a bad patent becomes public property ; and no person m- proving it can have a patent for the whole. Even if the first patent were good, leave to use it must be obtained, and then it may be made the substratum of another machine : but the second patent should be for the improvement. Ellen- borough^ C. J. In inventions of this sort, and every other, through the medium of mechanism, there are some materials which are common, and cannot be supposed to be appropri- ated in the terms of any patent. There are common elemen- tary materials to work with in machinery : but it is the New Manufactures, There appears in the case of Harmer v. Playne an exception to this rule, — that the patent should be for the addition, and that it should be kept distinctly apart by itself, in order that it may easily be distinguished from the substratum to which it has been applied. A patent had been granted to Harmer for a ma- chine, of which he afterwards discovered sonjc improvements. The second grant, in which was described the machine as improved, was of the privilege to make use of and vend " his said in- veniion," which evidently appears at first sight to mean a patent for the whole machine. Yet, inasmuch as the second patent recited the first, it was held that the grant was merely for adoption of those materials to the execution of any particular purpose, that constitutes the invention. And if the application of them be new, if the combination in its nature be essenti- ally new, if it be productive of a new end and beneficial to the public, it is that species of invention, which, protected by the King's patent, ought to continue to the person the sole right of vending it. But if, prior to the time of his obtaining a patent, any part of that which is of the substance of the invention has been communicated to the public in the shape of a specification of any other patent, or is a part of the ser- vice of the country, so as to be a known thing, in that case he cannot claim the benefit of his patent. Now with respect to the tube it does seem to me, with submission to you, an important difference from the mere circle through which it passes, because it keeps it in a degree of confinement for a greater time, and more certainly obtains the end pointed out. In Mr. Belfour's specification the same end is to be obtained ; and had the patent been taken out for that to be done by a tube, which was before done by a ring or circle, I should have thought the patent i;<^od, for that is a dietinct substantial invention. 1 Patents for Inventions. the addition, and was valid. (A-) Lord Eldon seemed to lean very much against this patent, when it was before him in Chancery prior to its being- examined in a court of law (/). A person may take for the foundation on which he intends to erect the superstructure of his improvements, either a thing that has been long known, or one that has lately been made public ; either the subject of an expired patent, or that of one which is void(m) But if the improvement cannot be used without the subject of an existing grant, he must wait until it is expired. He may, however, at once take out a patent for the im- provement by itself, and sell it («). In all these cases he must claim nothing more than the mere addition ; and it is better to protest against considering any other part of the manufacture being taken as his own invention (o). The general quality most peculiar to an addi- tion, is, that it must be useful. It must be a real substantial improvement {p). If the manufacture in its new state merely answer as well as it did before, the alteration is not such an invention as is worthy of a patent (9). Duller, J. observ- ed that many parts of a machine may have been known before, yet, if there be any thing material and new which is an improvement of the (it) 11 East. 109. (0 14 Ves. 133, 4, 5. (m) Huddart v. Grimshaw, Dav. Pat. Cas. 271. (n) Ex parte, Fox, 1 Ves. and Beam. 67. (o) Post, Chap. IV. Specification. (p) See ante, p. 66. as to the uiilifj/ of the invention. (q) King V. Arkwright. Printed Cas. 182. Dav. Pat. Cas. 129. New Manufactures. trade, that will be sufficient to support a patent. The only difference between Mr. Arkwright's two machines — the old one for spinning, and the new one for roving, consisted in a can. Suppos- ing that the new patent had been obtained for an improvement of the old machine, then the question whether the can was absolutely neces- sary for roving would have arisen (r). r IV. A Combination or x\hrangement of Things already known. A combination or arrangmejit of old mate- rials, wlien, in consequence thereof, a new effect is produced, may be the subject of a patent. This effect may consist, either in the production of a new article, or in making an old one in a better manner or at a cheaper rate. This manufacture may be made of different substances mingled together; or of different machines formed into one ; or of the arrange- ment of many old combinations. And there can be little doubt that if a personwere to combine the different subjects of several expired patents, he would be the inventor of a new manufacture. Each distinct part of the manufacture may have been in common use; and every principle upon which it is founded, may have been long known, and yet the manufacture may be a pro- per subject for a patent. It is not for those parts and principles, but for the new and useful (r) Printed Cas. 185. Dav. Pat. Cas. 138. See ante, p. 66, n. 76 Patents for Inventions. compound, or thing thus produced by combina- tion, that (he grant is made : it is for combining and using things before known with something then invented, so as to produce an effect which was never before attained (l). If to an old machine, consisting of combina- tions, an improvement (w) be made by adding a (t) Manton v. Manton, Dav. Pat. Cas. 346. (m) Bovill 7). Moore: For this case at Nisi Prius, see Pav. Pat. Cas. 361. In Bank see 2 Marsh. 211. The plaintiff was assignee of a patent granted to John Brown "for a machine for the manufacture of bobbin lace, or twist net, similar to and resembling the Buckinghamshire lace net, and French lace net, as made by the hand with bobbins on pillows." At the trial, Gibbs, C J. told the jury that if they thought Browne had invented a perfectly new combination of parts from the beginning, though all the parts separately might have been used before, his specification would be good. But if they should be of opinion that a combination of a certain number of those parts had previously existed up to a certain point, and that Browne had taken up his invention from that point only, adding other combinations to it, then his speci- fication, which stated the whole machine as his invention, was bad. The jury were of opinion that, up to the point of crossing the threads, the combination was not new ; and ac- cordingly found a verdict for the defendants. Gibbs, C. J. I think a little confusion has been made between a new machine for making lace, and lace made in a new method by a machine partly old and partly new. In order to try whether it be, or be not, a new machine throughout, we must consider what the patent purposes to giye to the patentee, and what privileges he would possess under the patent. Now the patentee is entitled to the sole use of this machine; and whoever imitates it, either in part or in the whole, is subject to an action at the suit of the patentee. Suppose it had been a new invention from be- JVeiv Manufactures. *27; set of new combinations, the patent must be for the new combinations only ; for then, as in the case of a simple improvement, the patent is granted only for the addition. If it be taken out for the whole machine thus combined, it will be void. In all instances of this kind of manufac- ture the ostensible object of the patent must be the neiD combined matter, and not any part of the old article, materials, ingredients, or ma- chine {x). There may be, said Lord Eldon, a valid patent for a new combination of materials previously in use for the same purpose, or for a new method of applying such materials. But, in order to its ginning to end, and after Browne had obtained his patent Heathcote had made a machine like those which he now makes ; — is there any doubt that such a machine would have been an imitation, in part, of Browne's invention ? Indeed all the defendant's witnesses agreed in stating that, though the same thought might have occurred to two persons, yet if Browne had seen Heathcote's machine, before he made his own, they should have had no doubt but that, up to a certain point, Browne's was an imitation of Heathcote's. It is not im- material to consider that the drawing or plans of the machine were divided into six dilFerent sections, each containing a part of the machine in a different stage of its progress; and that as to one of them, which contained all the principles of the warp, the witnesses said that every part of that section ex- isted in the old machine ; and that a machine carried no further than that would have been a very useful invention. IIow then can it be said that Brown's specification, which described from its root a machine containing a part which was common to Heathcote's, does not contain more than Browne himself invented ? («) '2 Hen. Bla. 4H7. Dav. Pat. Cas. 267, 8, 9. quality. 78 Patents for Inventions. being effectual, the specification must clearly express that it is in respect of such neic com- bination or application, and of that only, and not lay claim to the merit of original invention in the use of the materials (j/). As to the possibility of combinations and pro- portions of quantities, times, &c., in a process being legal subjects of patents, mention will hereafter be made (s). Peculiar The peculiar quality of an arrangement is its novelty. It is the new adoption of the old mate- rials to the execution of any particular purpose that constitutes the invention («). It must also be a substantial and beneficial alteration. A slight variation or transposition of parts will not sustain the patent. V. A Principle, Method or Process carried INTO Practice by tangible Means. Though a philosophical principle, an ele- mentary truth, simply and by itself, unorganized and known only in theory, cannot be monopo- lized, yet, (it is said,) that a principle carried into practice may be the subject of a patent. It is, (as some observe) not for the principle itself, but for the method, mode, manner, or process (founded on that principle) by which a (j/) 3 Meriv. fi'29. (2) Post. 84, &c. (a) Huddart v. Grirashaw. Dav. Pat. Cas.278. New Manufactures. 79 thing" new and beneficial is made, that the patent is granted. It is, (say others,) not so much for the method or process (as these words are used in common acceptation), as it is in fact for the device, substance, or thing made, or for the instrument or substantial means of pro- ducing the desired effect. In short, that the patent, though taken out for a method, is in reality for a substance or machine, if the thing described in the specification be some composi- tion of material parts. ■ 'It will be endeavoured to shew, from the rules already laid down and investigated, that neither a principle nor a method, as such, can be the sub- ject of a patent. The same conclusion will be deduced from the judgments delivered in several cases; and afterwards it will be the business of this section to attempt to establish, that it is for a principle or method, when it is carried into prac- tice by tangible means, and then only, that a patent ought to be granted — tliat, in fact, it is for the tangible means, and not for the 'method; or in other words, that a patent, when it is said to be for a method, cannot be supported, unless the thing invented is a substance or machine. And hence it will be proper to examine an invention of this description, whether it be a proper subject for a patent, when — 1 It is a principle. 2 It is a method or process. 3. Patent for a method, but tlie subject is something material. 80 Patents for Inventions, 1. AstoR That a mere abstract principle (6) cannot, principle. * i \ / under any pretence whatever, be monopolized, admits of no doubt. The elements of every science are common property — data — upon which every man may exercise his ingenuity ; or otherwise the means of making improvements would be entirely destroyed. A patent must be for &. vendible matter, — and how can a principle, be matter, and become ca- pable of being sold ?(c) Eyre, C. J. thought that a principle so far em- bodied and connected with corporeal substances, as to be in a condition to act and to produce effects in any art, trade, or mystery, or manual occupation, might be the subject of a patent. It is the better opinion that a patent for the application of a. principle must be as bad as one for the principle itself. It seems impossible to specify a principle, or describe its application to all cases, which affords a very strong reason why it cannot possibly be the subject of a patent (rf). (6) The law on this division will be found in the cases of Boulton and Watt o. Bull, C. P. 2 Hen. Bla. 463. Horn- blower r. Boulton, 8 T. R.. 98: and King v. Wheeler, 2 Barn, and Aid. 345. and Hill v. Thompson, 2 B. Moore, 431. (c) Ante, 65. (d) 2 Hen. Bla. 485. Buller,3. The very statement of what a principle is proves it not to be a ground for a patent, it is the first ground and rule for arts and sciences, or, in other word', the elements and rudiments of them. A pa- tent must be for some new production from those elements, and not for the elements themselves. It is admitted that if a man by science were to devise the means of making a dou- ble use of a thing known before, he could not have a patent J^ew Mamtfactures. 81 Though a person cannot have a grant for the discovery of a double 2ise of a thing known before, yet it is no objection to a patent that its subject is founded on the same principle as another, if the former be for a substance distinctly ditferent from the latter (e). In the case of Cutler(/) it was re- marked by Ellenborough, C. J. that if the paten- tee had claimed a grant for his new instrument, by which he supphed the fire-grate with fuel from below, and had not confined himself to the principle, which was old, his patent might have been supported. An opinion in which it is evidently presumed that two grants might be made for manufactures on the same principle. And in The Kingu. Wheeler, (gO Abbott, C. J. observed — But no merely philosophical or ab- stract prmci/^/e can answer to the word manu- facture. Something of a corporeal and sub- ^' stantial nature, something that can be made bi/ man from the matters subjected to his art and skill, or at the least some new mode of employ- ing practically his art and skill, is requisite to satisfy that word. Hence it may fairly be concluded, that neither a principle, nor the application or practice of principle, can be the subject of a patent. for it. A principle reduced to practice can only mean a practice founded on principle, and that practice is the thing done or made ; or, in other words, the niauufacture which is invented. (e) 2 Hen. Bla. 486. (/) Kingu. Cutler, 1 Stark. Rep. 354. Ante, 60, 1. is) 2 Barn, and Aid. 350. G 82 Patents for Inventions. s. As to a That a mere method of makins: a thinff, or a method or •' ° ^' process, process, 01' a manner of operating, cannot be the subject of a patent^ is not quite so clear. Much discussion has taken place on this rule, which will be laid before the reader, that he may form his own opinion. The first case which is to be met with on this point is that of Dr. Hartley, who had a patent for a metJiod of securing; buildings from fire. The invention consisted in disposing plates of iron in buildings so as to produce that effect. That decision certainly goes the length of proving that a method, independent of the thing made, or the things used to produce the article, is a new manufacture within the meaning of the statute of James. And the language of Eyre, C. J. (Ji) is very strong. He said that the effect produced was no substance or composition of things ; it was a mere negative quality, the absence of fire : that the effect was produced by a new method of dis- posing iron plates in buildings; and that in the na- ture of things the patent could not be for the effect (h) In Boulton v. Bull, 2 Hen. Bla. 493. Dav. Pat. Cas. 208. And see 2 Hen. Bla. 492., where the same learned judge observed, that " Under the practice of making — all new artificial manners of operating with the hand, or with instruments in common use, nezo processes in any art produc- ing effects useful to the public ; — new methods of manufactur- ing articles In common use, where the whole merit and effect produced are the saving of time and expense, and thereby lowering the price of the article, may be said to be new ma- nufactures in one of the common acceptations of the word, and agreeable to the spirit and meaning of the act." New Manufactures. 83 produced. He thought it could not be for the making- the plates of iron, which, when disposed in a particular manner, produced the effect ; for they were things in common use. But, that the invention, consisting in the method of disposing those plates of iron so as to produce the effect, and that effect being a useful and meritorious one, the patent seemed to him to have been very properly granted to Dr. Hartley for his method of securing buildings from fi"e. But it is worthy of observation, that Eyre, C. J. was the only judge who spoke in favour of the legality of Dr. Hartley's patent ; and that he was of opinion that even a principle might be the subject of a patent (i). Dollond's patent for the onethod of making the object glasses of telescopes comes next in the order of time : but that decision cannot be an authority here ; for BuUer, J. in a subsequent case said, (_/) tliat " the question whether the subject, and specification of that patent were good was not agitated at the time." Delivering the opinion of the Court in a late case, (/t) Abbott, C.J. enumerated the different kinds of things which might become objects of a patent, and observed, that '" the word manufac- ture MAY, PERHAPS, cxtcud to a ucw proccss to be carried on by known implements, or elements acting upon known substances, and ultimately producing some other known substance ; but producing it in a cheaper and more expeditious (0 Ante, 80. (j) 2 Hen. Bla. 470. Dav. Pat. Cas. 172. (&) 2 Barn. & Aid. 349. g2 84 Patents for Inventions. manner, or of a better and more useful kind." And afterwards he added, " Supposing a new process to be a lawful subject of a patent, the patentee may represent himself to be the in- ventor of a new process, in which it should seem that the word " method ' may properly be used as synonymous with process." The doctrine of Eyre, C. J. had long been doubted ; and the manner in which Abbott, C. J. expresses himself confirms that doubt, but im- poses the duty of giving the point a full inves- tigation. It is conceived that such a device, method, or process, cannot be a manufacture within the meaning of the statute of James, because it is destitute of one of the qualities ab- solutely necessary to be found in a new manu- Jacture, or subject proper for a patent, — mate- riality. The description given by that very learned judge. Eyre, C. J., is not of any thing that can be made. There is nothing corporeal, — nothing tangible, — nothing that can be bought or sold ; no instrument by which the supposed benefit is produced, and which might, as an article of trade, be purchased and used by ano- ther person. (/) (0 Ante, 58., and see Boulton v. Bull, 2 Hen. Bla. 486. Buller, J. This brings us to the true foundation of all pa- tents, which must be the manufacture itself ; and so says the statute 21 Jac. I. c. 3. All monopolies, except those which are allowed by that statute, are declared to be illegal and void : they were so at common law ; and the sixth section excepts only those of the sole working or making any man- ner of new manufacture ; and whether the manufacture be Aew Manufaclures. 85 When an invention is not of a thing made, it can only be known, by being taught by the in- ventor himself, or by being learnt from experi- ments made on the faith of the description given of it in the specification. With that assistance^ however well the method or process may be set forth, some time and experience must necessarily be required before a person can make use of the invention so beneficially as the discoverer. But the public are not bound to make experi- ments, (m) and therefore it seems reasonable to infer that a mere process or method cannot be the subject of a patent. But, supposing it possible that a new method of operating with the hand, or a new process to be carried on by known implements or elements, might be so described as to be, by bare inspection, made as beneficial to the public as to the disco- verer ; that neither time nor labour, skill nor experience, are required to put it in practice : still it is not a substance or thing made by the hands of man, it is not vendible ; which, it has been shewn, is an inherent primary quality of a new manufacture, {n) To permit a new method to be a manufacture within the meaning of the statute of James with or without principle, produced by accident or by art, is immaterial. Unless this patent can be supported for the manufacture, it cannot be su[)ported at all. I am of opinion that the patent is granted for the manufacture, and I agree with my brother Adair that verbal criticisms ought not to avail, but that principle in the patent, and engine in the act of Parliament, mean, and arc, the same thing, (w) 2 Hen. Bla. 484. (n) Ante, 59. 86 Patents for Inventions. would be to establish the rule that if a man could make a double use of a thing known before, he might have a patent for it ; a doctrine of which directly the reverse was laid down by Buller, J., and not disputed, (o) The advantages of a method or process, in truth, arise from the skill with which it is per- formed. Suppose, for instance, that one per- son can with a certain machine produce a parti- cular article of dress of a certain quality ; and another, with the same machine, by using it in a different manner, can make the same article in half the time, and reduce it to half the price ; however new and ingenious this method may be, still it is nothing substantial or corporeal (/?). But suppose, that in Z/ms using the machine some ap' parently inconsiderable alteration is made, that would be sufficient to support a patent {q) ; and it is, indeed, difficult to imagine that any beneficial effect could be produced without some material alteration in the instrument itself; and then, why not oblige the inventor to take out a patent for the improvement ? It is expressly enacted in the statute of the 21 James I., that the new manufacture must not be *' hurtful to trade, nor generally inconve- nient." To monopolize such methods as above enumerated appears to be particularly hurtful to trade. In every branch of it there are work- men who use the machines employed in their respective trades more skilfully than their fel- (o) In Boulton v. Bull, 2 Hen. Bla. 486.,. aucl see Man- ton y. Mautou, Dav. Pat. Cas. 344. (/;) Ante, b%, (q) Ante, 67, 8. New Manufaclures. 87 lows. This superior skill may be in consequence of a particular method of applying their imple- ments. But it would be carrying the doctrine to a great length to decide that the workmen are entitled to patents for their respective methods of working. And further, every master is bound to teach his apprentice the best way or means within his knowledge of following his trade. If, therefore,, a master obtained a patent for fourteen years for a particular method of operating with known instruments, to produce a known article in less time than usual, or of making it better and more useful, such apprentice would not be allowed to exercise his hands in the most skilful manner he was able until several years after he had com- menced business for himself. Such a patent would, indeed, be '' generally inconvenient." There would be a monopoly in tscry handicraft trade ; (r) one person only in each calling would be allowed to work in the most skilful manner. For these reasons, — that Dr. Hartley's case is the only one in support of the doctrine, and he did not first make iron, nor first discover the effect of iron on fire, so that he was not the inventor of any substance or instrument, — that a method does not possess the qualities which have been shewn to be inherent in the subjects of patents, and can be known only by making (r) See Repertory of Arts, N. S. 27th Vol. 252, for some pertinent observations on the effect of patents talcen out so extensively as to deprive mechanics of the materials used in their trades. And see ante. 68. n. 88 Patents for Inventions. experiments, — and that it is inconvenient io the pubhc, particularly to masters and appren- tices that methods should be monopolized ; it might perhaps be fairly inferred that a method or process is not a new manufacture within the meaning of the statute of monopolies. The same inference will hereafter be made from the cases, which shew that a patent for a method maybe obtained and supported, provided the sub- ject of it be some material tangible substance(s). 3. Patent Though an attempt has been made to prove, thod^but that neither a philosophical principle nor a mere •T^i*^*^e- "method or process can be monopolized, yet a thing ma- principle, method, or process, when it is con- terial. * "^ i i -i • nected with corporeal substances, and when it is carried into effect by tangible means, may be the subject of a patent (<). Such is the technical use that has for a long time been made of the word '' method " in patents, that it is quite com- mon for inventors to ask for a patent for a method of doing something, and then to set forth a description of some new substance or machine. It is a convenient way to avoid giving a title to the invention. And therefore, it is now clearly established, that if the patentee claim a method, and yet in the specification describe some tangi- ble matter, the grant is valid. In other words, though the patent is for something called a method, yet the real subject of the grant is either a substance, machine, improvement or com- bination. (5) Post, 95. (0 2 Hen. Bla. 463. 8 T. R. 101. 2 Barn, and Aid. 360. J^ew Manufactures. 89 This rule rests for support upon the celebrated Watt's case respecting Watt's Steam engine. The ^^ ^" patent was granted for a '' new method " of less- ening the consumption of steam and fuel in fire engines ; thus using the old one with some alterations in a more beneficial manner than was before known. The specification stated that the method was founded on certain principles ; and described the mode of applying those principles to the pur- poses of the invention, which was effected by cer- tain additions to the old engine. The novelty consisted in keeping the steam vessel as hot as the steam that entered it ; first, by inclosing it in a case of wood, or any other materials that trans- mit heat slowly ; secondly, by surrounding it with steam or other heated bodies ; and thirdly, by suf- fering neither water nor any other substance cold- er than the steam, to enter or touch it during the time of working. The condensation of the steam was produced in vessels distinct from the steam ves- sel. This was entirely new, as in the old steam or fire-engines water was admitted into the cylin- der or steam vessel to condense the vapour. The remainder of the specification was merely specu- lative, and had not been carried into practice. The manner of making these alterations was not set forth. An Act of Parliament reciting the patent to have been granted for making and vending certain engines invented by Watt, extended to him for a longer term than fourteen years the privilege of making, constructing, and selling the aaid engines. 90 Patents for Inventions. In the Common Picas no decision took place, although it was twice before the court. In the first instance, the judges were equally divided in opinion, and at the second time they confirmed the grant, upon an understanding that it should be carried on error into the King's Bench, for the opinion of the judges of that court. So much doubt having existed, and so much discussion having taken place on this topic, it may be useful to extract a few sentences from the opinions of the learned judges, who ex- pressed their sentiments on the validity of Watt's patent: and to state the judgments more at length in the notes. Eyre, C. J. supported the grant, because he thought that a principle might be the subject of a patent (m). Rooke, J. (x) What does method mean, but mode or manner of effecting ? what method can there be of saving steam orfuel in engines, but by some variation in the construction of them. A new invented method therefore conveys to my under- standing the idea of a new mode of construction. Kenyon, C. J.(j/) The principal objection made to this patent by the plaintiffs in error, is that it is a patent for a philosophical principle only, neither organized, nor capable of being organ- ized ; and if the objection were well founded in fact^ it would be decisive, but I do not think it is so. No technical words are necessary to explain the subject of a patent. By comparing (a) 2 Hen. Bla. 492. (x) 2 Heu. Bla. 478. (^) 8 T. R. 98. 1 New Manufactures. ^* the patent and the manufacture together, it evidently appears that the patentee claims a monopoly for an engine or machine composed of material parts, which is to produce the effect described ; and that the mode of producing this is so described as to enable mechanics to produce it. Ashhurst, J. was of the same opinion, Grose, J.(z) I do not consider it as a patent for the old engine, but only for an addition to, or improvement of, the old engine. Lawrence, J. (a) The word '' engine " may signify device, and that Watt meant to use it in (z) 8 T. R. 103. Taking it, however, as a patent for an engine, it is objected that the thing was made before, and that the patent should have been for the addition only., and not for the whole engine : but I ^iO not consider it as a patent for the whole engine, but only for the addition to or improvement of the old engine. The method is disclosed in the specification, and it is by the adoption of what is there disclosed, and by managing it in the way described. The patent, therefore, is only for that additional improve- ment as described in the specification. It signifies nothing whether the patent be for the engine so made, or for the me- thod of making it, if that method be sufficiently described in the specification. I incline to think that a patent cannot be granted for a mere principle : but I think that, although in words, the privi- lege is to exercise a method of making or doing any thing ; yet if that thing is to be made or done by a manufacture, and the mode of making that manufacture is described, it then becomes in effect, by whatever name it may be called, not a patent for a mere principle, but for a manufacture, for the thing so made, and not merely for tlie principle upon which it is made. (a) hT. R. 106. r should feel great difficulty in decid- ing that a principle might be the bubject of a patent. In 92 Patents for Inventions. that sense^ and the legislature so understood it, is evident from the words '' engine " and " me- thod" being used as controvertible terms. On the other hand Heath, J. (b) observed. No ' doubttheinventorm?g"Ai/t«ueA«rf a patent for his machine?'?/, but could not have one for a method, order to see what the invention was, it is necessary to re- fer to the specification. "Engine" and "method" mean the same thing, and may be the subject of a patent. "Me- thod" properly speaking, is only placing several things and performing several operations in the most convenient order; but it may signify a contrivance or device. So may an en- gine, and therefore I think it may answer the word method. So principle may mean a mere elementary truth : but it may also mean constituent parts. The clause is not for an im- provement to a fire engine for any particular purpose, but generally to an invention for lessening the consumption of steam, applicable to all fire engines for whatever purpose they may be used, and whatever may be their construction, by an alteration of, and addition to, parts which are com- mon to all, and upon which their powers of working depend. In the argument, the engine to diminish the consumption of steam was confounded with that which it was intended to improve. Some difficulties in the case have arisen from con- \ sidering the word engine in its popular sense ; namely, some mechanical contrivance to effect that to which human strength without such assistance is unequal. But it may also signify device; and that Watt meant to use it in that sense, and that the legislature so understood it, is evident from the word "engine" and "method" being used as controvertible terms. Now there is no doubt but that, for such a contrivance, a patent may be granted as well as for a more complicated machine ; it equally falls within the de- scription of a " manufacture," and unless such devices did fall within that description, no addition or improvement could be the subject of a patent. (6) 2 Hen. Bla. 481. The question is, inasmuch as this in- vention is to be put into practice by means of machinery, Nezo Manufactures. 93 And BuUer, J. said, (c) I consider the patent as granted for the whole engine, instead of an improvement; and void for requiring too much. Hence it appears, that, of the very learned j udges whether the patent ought not to have been for one or more machines; the method is a principle reduced to practicej it is in the present instance the general application of a princi- ple to an old machine. No doubt that the patentee might have had a patent for his machinery. If there may be two different species of patents, the one for an application of a principle to an old machine, and the other for a specific ma- chine, one must be good and the other bad ; that which is the subject of a patent ought to be specified, and it ought to be that which is vendible, otherwise it cannot be a manufac- ture. Another objection may be urged against the patent, upon the application of the principle to an old machine, which is, that whatever machinery may be hereafter invent- ed, would be an infringement of the patent if it be founded on the same principle. If this were so, it would reverse the clearest positions of law respecting patents for machinery, by which it has been holden that the organization of a ma- chine may be the subject of a patent, but the principles can- not. If a patent were obtained for a principle, the organ- ization would be of no consequence; the patent for the application of a principle must be as bad as the patent for the principle itself. (c) 2llen. Bla.488. We are not told wherein the invention consists, whether there be an addition to the old machine, or whether it be only in the application of the old parts of the machine, or in what is called at the bar the principle only, or in what that principle consists. There is nothing new in the engine. I consider this patent as granted for the whole engine. The fire engine was known before; and, though the patentee's invention consisted only of an improve- ment of the old machine, he has taken the patent for the whole machine, and not for the improvement alone. A patent for an addition is good : but then it must be for the addition only, and not for the old machine too. 94r Patents for Inventions. Tvlio delivered their opinions upon Watt's pa- tent for " A METHOD of lessening the consump- tion of fuel in the steam engine," and his speci- fication, in which was described the alterations and additions of machinery to be made in that engine to produce the intended effect, six held that it was good, and^wjo thought that it was void. Among the six learned judges, who thought that this patent was valid, five conceived, that if it were doubtful whether a patent could be granted for a method, yet, technical words placed aside, this one was, in reality, for a sub- stantial improvement in the steam engine, al- though it was called a method, and that it ought therefore to be supported: whilst the other judge. Eyre, C. J. thought tliat a principle or method, if reduced to practice, might, of itself, , be the subject of a patent. And it may be col- lected from the expressions of the two learned judges who thought the patent void ; that it was their opinion that the invention was a substan- tial improvement, and would have supported a patent for an improvement ; but that inasmuch, as the patentee claimed a jnethod, and in the specification described an improved engine ; the latter did not support the former, and there- fore that the grant was invalid. From these opinions it is submitted that a method as such cannot be the subject of a pa- tent(rf) — that when an inventor obtains a patent for a new method, if he does not give to the world some new and useful substance, or ma- (d) Aote, 88. NeiD Mamtfactures. ^^ cliine^ something material and tangible, the grant is invalid. Upon this point therefore the law seems to be — that the terms — mode, manner, method, principle, process, &c. are to be considered as synonymous. And that a patent for a method is only good, when in the specification there is something of a corporeal and substantial nature properly described. It is to be lamented that Mr. Watt did not take out his patent for an improvement of the steam engine, as Duller, J. and Heath, J. thought that he ought to have done. Much dis- cussion v/ould then have been prevented, and the anomaly that a method under any circum- stances could be the subject of a patent, would, in all probability, have never been introduced. The judges who finally decided this case felt that Mr. Watt deserved to have the full benefit of his invention, and were therefore, perhaps, inclined to think favourably of his specification ; and at last it was declared to be a valid patent because the invention, though called a method, was in fact something substantial and very bene- ficial to the public. The circumstance, that the validity of that grant was questioned, when this part of the law had not been much investigated, accounts for the contrariety of opinions expressed upon it. Lest such a patent or specification should not be able successfully to bear the test of a legal enquiry, an inventor under similar circumstances had much better take out his patent for an improvement. 96 Patents for Inventions. VI, A Chemical Discovery. The discoveries in chemistry have of late been so numerous, and are become so important to the community by the assistance which is deriv- ed from them in the improvement of many arti- cles of trade, that it is the opinion of many per- sons, that if methods or processes in general cannot be the subjects of patents, yet a chemical process ought to be considered as a new manu- facture within the meaning of the statute of 2J James. It is upon that account that they have been placed in a division by themselves. If distinct rules should ever be laid down by which encouragement might be held out to ingenious men to make experiments in this branch of science ; care at the same time must be taken that support and importance are not given to mere curiosities. Patent Howcvcr, as the law now stands, a chemical medicines, dlscovcri/ (e) comcs within the description of a manufacture only when it gives to the community some substance, (/) or compound article, new and unused, vendible and beiiejicial. (g-) Of this de- scription are medicines, a fruitful source of pa- tents. They partakeof the nature of a substance, (e) The patents of this description which have come be- fore the Courts, are iu the cases of Turner v. Winter, 1 T. R. 602. ; King v. Wheeler, 2 Barn, and Aid. 345. ; Hill v. Thompson, 2 B. Moore, 424. The latter case at Nisi Prius, in 1 Holt. 636 ; and in Equity, 3 Meriv. 622, &c. neither of ■which patents could successfully bear a legal enquiry. (/) Heath, J. 2 Hen. Bla. 481, 482., and by Buller, J. id. 487. {g) Ante, 59. JVeM? Manufactures. 97 and also of that of a combination, or a compound of ingredients. Jt is no available objection to a patent for a medicine, that the properties of the several drugs of which the subject is composed were already known, if the grant be for the speci- fied compound, and not for the articles or in- gredients of which the mixture is made. On the other hand authorities are not wanted to shew that the mere process of a chemical discovery is a new manufacture. Mr. Jus- tice Dallas, in delivering the opinion of the Court on Hill's patent (h) for " The Inven- tion of certain Improvements in the smelting- and working of Iron," said, '' It has not been contended that it is a patent introducing^ into use any one of the articles mentioned therein, as singly and separately taken ; nor could it be so contended, for the patent itself shews the contrary ; and if it had been a patent of such a description, it would have been impossible to support it, for slags, as well as mine rubbish and lime, had undoubtedly been made use of before it was passed. But it is said, it is a pa- tent for combinations and proportions, produc- ing an effect altogether new, bjj a mode and pro- cess, or series of processes, unknown before, or to adopt the language made use of at the bar, it is a patent for a combination of processes altogether new, leading to one end." From whence it might be inferred, that a chemical process may be the subject of a patent. (A) Hill V. Thompson, 2 B. Moore 448. ante 82. H 98 Patents for Inventions. Referring the reader to the authorities quoted, and the arf^uments urged in a former part of this work, to shew that a method or process in gene- ral is not a new manufacture, I shall merely ob- serve that if a new substance is really produced, the grant, by the same reasoning that a method may be claimed when the object is a machine, will be valid (z). VII. A Foreign Invention. The liberality of the Courts of English Juris- prudence soon gave to the words " New Manu- factures" a signification so extensive and gene- ral, that, in the oldest case in our reports it was decided, that a patent might be granted for a new manufacture which was " new in this realm,'* although it was originally invented abroad {k). The foreign article, if it have the requisite qualities (/) when published in this kingdom may, to become a new manufacture within the meaning of the statute of James, belong to any one of the classes of subjects for patents above enumerated (m). From the decision in Edgeberry v, Stephens it might be inferred, that if an Englishman publish an invention whilst abroad^ he is never- theless entitled to a patent for it, if he apply for one before it is known in this country. (e) Ante 82 & 88. ( /c )Edgeberry tJ.Stephens, 2 Salk 477. {/) Ante 59. (wj) Aote 58. New Manufactures. 99 This construction of the statute has been of the greatest benefit to commerce by thus na- turalizing the inventions of other nations. And indeed without such a rule patentees would, upon almost every trial for infringements, be met with evidence that the manufactures or parts of them were not new, because they were known in some distant country. Though a new manufacture has really been General invented, the benefits arising from it will be lost tionson* to the inventor, if the patent is not rightly f^^cT™*^"" taken out. Yet it is often very difficult to know under which of the divisions of this Chapter inventions ought to be arranged. When the effect is some new substance or composition of things, the patent ought to he taken out for the new substance or composition without regard to the mechanism or process by which it has been accomplished ; which, though perhaps also new, can only be useful as produc- ing the new substance. When the thing discovered is no particular substance, but is the means of producing one ; when it is a machine, the patent can only be maintained for the mechanism. But whether it is best in the case of improved machinery that the patent should be obtained for the whole, protesting against any claim to the old parts, or " whether it should be taken simply for the im- provement, be it a single piece or combination, is a question for the judgment of the inventor. h2 *^ Patents for Inventions. It matters not that two patents profess by their titles to be for the same objects, if the inventions are really different in their nature, and in the effects they produce. Under the title method, patents are made for every kind of new manu- facture : and several grants are often obtained at the same time with the general title for an im- provement of a particular article. CHAP. IV. Of the Specification. The part of the grant most important to the public, and with which the inventor is more immediately concerned, is the specification — the instrument in which is contained the description of the new manufacture for the information of the public. The rules of law respecting the specification of an invention will lead to the consideration of I. Its nature and general properties. II. Its connection with the patent. III. The particular description oj each kind of manufacture. I. The general Properties of a Specifi- cation. IN the specification {a) the invention must be (a) King v. Arkwright, printed case 172. Dav. Pat. Cas. 106. The Specificalion. \q\ accurately ascertained, and particularly describ- ed : it must be set forth in the most minute detail. The disclosure of the secret is consi- dered as the price which the patentee pays for this limited monopoly ; and therefore it ought to be full and correct, (for the benefits thus secured to him are great and certain,) in order that the subject of his patent may at its expiration be well known, and that the public may reap from it the same advantages as have accrued to him. The courts of law have ever looked with jea- lousy on the specification, lest the bargain between the public and the inventor, as Lord Buller, J. Upon this point it is clearly settled, that a man, to entitle himself to the benefit of a patent for a mono- poly, must disclose his secret, and specify his invention, in such a way, that others may be taught by it to do the thing for which the patent is granted; for the end and meaning of the specification is to teach the public, after the term for which the patent is granted, what the art is ; and it must put the public in possession of the secret in as ample and benefl- cial a way as the patentee himself uses it. This I take to be clear law, as far as it respects the specification ; for the patent is the reward which, under an Act of Parliament, is held out for a discovery ; and therefore, unless the discovery be true and fair, the patent is void. If the specification in any part of it be materially false or defective, the patent is against law, and cannot be supported. It has been truly said by the counsel that if the specifica- tion be such that mechanical men of common understanding can comprehend it to make a machine by it, it is sufficient: but then it must be such that mechanics may be able to make a machine by following the directions of the s^pecification with- out any new inventions or additions of their own. The (juestion is, whether upon the evidence this specification comes within what I have btated to you to be necessary by law in order to support it. 102 Patents for Inventions. Eldon called it, should be too much in favour of the patentee (6) ; and hence more questions have arisen upon it in the courts of law than upon any other part of the grant, and more patents have been declared xioid on this than on any other ground. It therefore behoves the inventor to be very circumspect. II. The connection of the Patent and Specification. The patent and the specification have always been considered as connected together, and dependent on each other for support. The one may be looked at, to understand the other. If the specification be obscure, the patent may be referred to for an explanation ; and to learn what the patent is the specification may be read (c). Still, however, the specification must contain within itself a full description of the invention. When taken together they should be complete, and afford every information that may be re- quired. The title The patent and specification are linked ofpatent. , i , • » • , . . . together by the title given to the invention in the patent, and the description of it set forth in the specification. The specification must support the title of the patent. The latter should not indicate one thing, and the former describe another as the subject of (6) Dav. Pat> Cas. 434. (c) 8 T. R. 95.; and bee 2 Hen. Bla. 478. The Specijicalion. 103 the grant : because if the petitioner had repre- sented himself as the inventor of the matter really discovered, it might perhaps be well known that the thing was of no utility, or was in com- mon use, and he might not have obtained a grant as the inventor (rf). And therefore a patent taken out for a tapering brush was not sup- ported by the specification of a brush, in which the hairs or bristles were made of unequal lengths (e). This doctrine, with respect to the inventor claim- Claiming '■ loo much ing too much, was illustrated by Lord Eldon, who in the observed, — '' I will go farther, and say that not only must the invention be novel and useful, and the specification intelligible, but also that the specification must not attempt to cover more than that which, being both matter of actual dis- covery, and of useful discovery, is the only pro- per subject for the protection of a patent. And I am compelled to add, that if a patentee seek by his specification any more than he is strictly entitled to, his patent is thereby rendered in- (d) 2 Barn, and Aid. 350, 1. (e) Kiug V. Metcalfe, 2 Stark. N. P. C. 249. The patent was for the manufactureof hair brushes, which weredcscrihed to be tapering brushes. It appeared that the hair or bristles in each compartment of the brush varied in length from a quarter of an inch to an inch. Eilenborough,C J. — Tapering means conveying to a point : according to the specification, the bristles would be of unequal length ; but there would be no tapering, no conveying to a point.— His loidship advised the jury to find that it was not a tapering, but only an unequal brush.— Verdict for the Crown. 104 Patents J or Inventions. effectual, even to the extent to which he would be otherwise fairly entitled (/)." As if there be a patent for a machine, and for an improvement upon it, which cannot be sustained for the ma- chine ; although the improvement is new and useful, yet the grant altogether is invalid on ac- count of its attempting to cover too much (g). Indeed the title of the patent being a definition or short description of the patent, should not be very extensive, nor yet very confined, but should be commensurate with the thing invented, and correctly inform the public of the exact nature of the thing, which they may expect to find de- scribed more at length in the specification. A patent was therefore considered as taken too extensively, and consequently void, when, a new lamp being the object, the title indicated that the invention was an improved mode of lighting cities, towns, and villages {h). (/) Hill V. Thompson, 3 Meriv, 629. See S. C. in 2 B. Moore, 454. ; and 1 Holt, N. P. C. 636. ante 71, 2. (g") George v. Beaumont, and others, Eq. Reper- tory of Arts, N. S. 2 Vol. p. 252., and see 2 Hen. Bla. 489. (Ji) Cochrane o- Smethurst, K. B. 1 Starkie 205.; Same case. Repertory of Arts, N. S. 27 Vol. 192. The patent was granted for *' A method or methods of more completely lighting cities, towns, and Tillages." The novelty consisted in an improvement of Argand's lamp, in which the flame is placed between two currents of air, by bringing in a current of atmospheric air, whilst the impure air escaped by means of a tube, through the external part of the lamp, which conducts . the air to the flame. The most important part of the invention, the exclusion of the foul air from returning, was obtained by the non-absorbing cover, which formed what was called the The Specification. 105 And another patent, which was for a new or improved method of drying and preparing malt, was considered as incorrectly made, and not sustained by a specification, in which was de- scribed a method for heating-, &c. ready made malt (^). line of exclusion. It was contended by defendant, after some technical objections, that the specification was larger than the patent, because it alluded to ship lights, convoy signals, theatres, churches, &c, and to the generality of the words^ *'or otherwise by preserving it in a state of purity." Le Blanc, J., inquired if there was any specification of the use of the line of exclusion, or a description of what it is. The Attorney -General contended, that Lord Cochrane had not by his patent claimed too much, although he might have inserted too much in his specification. Le Blanc, J. Under the general terms of the patent, must it not be taken with reference to the specification ; and if the specijicaiion is too large, is not the patent so too ? The Attorney -General. Bringing in a current of pure at- mospheric air is not new : but bringing the current of atmo- spheric air, and excluding all other air, is new. Le Blanc, J. I think the patent cannot be supported : it is in substance a patent for an improvement in street lamps, and should have been so taken. PlaintilT nonsuited. (0 King V. Wheeler, 2 Barn, and Aid. 350. post p. 110, In fact the malt, by being thus exposed to a great degree of heatj would colour more beer than it otherwise would do. But such was not stated to be the object of the patent. Abbott, C. J. Upon reading the patent and the specifica- tion, it appeared to me that the proviso had not been com- plied with. It is obvious that if the patentee had not invented the mat- ter or thing, of which he represents himself to be the inventor, the consideration of the royal grants fails, and the grant con- sequently becomes void ; and this will not be the less true if it should haj)pcn that the patenlce has in\euled some other 106 Patents for Inventions. Many patents appear to be for the same thing-, a circumstance which sometimes puts thegrants in jeopardy. It is better to prevent all objections to the title that the patent should be taken out for those parts hy name, which are new and essentially different from any prior invention. And moreover if one thing be mentioned in the patent as a new manufacture, and the spe- cification describe the manner of making another thing quite different although the patent would be good, if the manufacture claimed had been described, or if on the contrary the subject spe- cified had been claimed, yet for tliis incongruity, and because the patent is not supported by the specification, it is void. Thus a patent for an invention founded on a principle already known, for lifting fuel into the fire grate from belovv the grate, in the specification whereof was described new apparatus, was held to be bad for not claiming the new instrument as the thing in- vented (/c). thing, of which upon a due representation thereof he might have been entitled to a grant of the exclusive use. The language of the patent may be explained and reduced to a certainty by the specification : but the patent must not represent the party to be the inventor of one thing, and the specification shew him to be inventor of another, because perhaps if he had represented himself as the inventor of that other, it might have been well known that the thing was of no use, or was in common use, and he might not have ob- tained a grant as the inventor of it. (yfc) King o. Cutler, 1 Stark. N. P. C. 354. Ante 60. The Specification. 107 III. The Description of each Kind of Manufacture. With respect to the description of the thing found out, whilst tracing the several properties of a good specification, the same arrangement of the different kinds of new manufactures will be adopted as that which was followed in the former Chapter. That classification was made to keep the several kinds of subjects distinct, in order that, being viewed apart, general rules for describing them might more easily be framed, and more readily understood. In the specification of a substance the thing t. Sub- *■ stance, itself should be accurately ascertained. The materials of which it is composed, tiie method by which it is made, and the use to which it is to be applied, should be accurately developed, and particularly described ; for corporeal substances seldom afford any information of the mode of making, or the manner of using them. In the former Chapter under the division sub- stance were investigated the qualities that must necessarily be found in every manufacture fit to be the subject of a patent. At a similar and corresponding place in this Chapter will now be enumerated those causes which render all sorts of specifications incorrect, and in consequence make the patents void. In tiie divisions ap[)ropnatcd for the rules illustrative ot the modes for making proper de- rules. 108 Patents for Inventions. scriptionsof each subject, will he»eai'(er be inves- tigated such mistakes as are likely to be fallen into by persons attempting- to describe the sub- jects of patents. Ociieral It is a fundamental rule, on which all others for making and judging of a specification depend, that the secret must be disclosed, and the inven- tion described in such a manner, that men of common understanding, with a moderate know- ledge of the art, may be enabled to make the subject of the patent. The description must be confined to the manufacture, that the novelty may be known. Extraneous matter, however learned, must not be introduced to darken it. Though it is ad- dressed to the public in general, it need not be so circumstantial, or so explanatory, that persons entirely ignorant of the elements of the science from which the subject is taken may thereby alone be able to learn and use the invention. Nor, on the other hand, should the description be so concise as to become obscure (/). The clearness of the description will of course depend upon the matter of the invention : but upon the whole it may be observed, that if a per- son of moderate capacity, having a little know- leds-e of the science which led to the invention, can immediately see the method pointed out, and easily apprehend the purport for which the sub- ject was invented, without study, without any (0 Bull. N. P. 76. Dav. Pat. Cas. 106, 128. 2 Hen. Bla. 484, 496. 11 East. 107, 8. 2 Barn, and Aid. 354. The Specification. 109 invention of his own, and without experiments, the disclosure is fully and fairly made. That this general proposition, as to the requi- site description, may be fully understood, the grounds upon which patents have been cancelled for the insufficiency of the specification will now be examined. The specification is bad, wlten I. The terms are ambiguous. II. Necessary descriptions are omitted. III. Parts claimed are not original. IV. Things are put in to mislead. V. The draicings are incorrect. VI. One of different ways, or different ingre- dients named, fails. VII. One of several effects specified is not produced. VIII. The things described are not the best known to the patentee. If the terms in which the description of the i. Terms subject is expressed be ambiguous ; if the words Jus.'^" are used in any other sense than that in which they are generally understood, the invention may be wholly or partially concealed : and therefore on that account the grant would be invalid. It is mentioned in Turner's specification, (m) " take any quantity of lead, and calcine it ; or minium, or red lead," from whence it was in- ferred that the lead only was to be calcined ; and a doubt would arise whether the minium or the red lead was to be calcined. Such an objection, if the only one, would probably not invalidate a (m) Turner v. Winter, 1 T. R. 602. 110 Patents for Inventions. grant, though a similar ambiguity is carefully to be guarded against. In that case, however, calcination would not produce the effect ; fusion was necessary. It was objected to the same patent, that the substance intended to be produced, and called white lead, could only be applied to a few of the purposes of white lead. The answer, that it was not intended to make white lead, was not sufficient. In the specification the inventor should have stated that the effect produced a substance similar to white lead, and then have set forth the useful purposes to which this new substance might be converted ; and ought not to have misapplied the term white lead. There was also another word in that specifica- tion which was not intelligible. It was directed thai fossil salt should be used. Now fossil salt is a genus having many species ; and only one of the latter sa/ gem would answer the intended purpose. If a term have a technical meaning, or one differing in the usage of trade from the ordinary sense annexed to it, the word may be received in its perverted sense ; and, if the manufacture be otherwise intelligibly described, a mere verbal inaccuracy will not vitiate the patent : (n) but if a word be not used in its common acceptation, then it should be explained. Thus, in Wheeler's specification (o) it ap- (n) 2 Hen. Bla. 485. (o) King V. Wheeler, 2 Barn, and Aid. 349. ante 105. The Specification. 1 1 1 peared, that by the word malt the patentee meant barley fully prepared for making beer ; but that the word malt, in its common acceptation, is applied to the grain as soon as it has germinated by the effect of moisture, and before it has been dried : and it was held that he ought to have explained his meaning. If, in a manufacture something well known be used, and the inventor give a design of it which appears to be of a different thing, though he means that the thing known should be used, the specification is in terms ambiguous ; and it will be considered as being worded with an en- deavour to conceal the invention and deceive the public. Thus Mr. Arkwright, although he used the old spiral cylinder in his machine, so managed the drawing and description, that on the face of the specification it appeared that he intended to use a parallel cylinder, (p) The several distinct parts of the subject of a ^^^.y^^"^" patent may be divided into the new and the old. scriptions ' -^ oiniUed. In a specification all that is new must of course be clearly elucidated; — the old parts may be dis- tinguished as they are material and immaterial in producing the desired effect. Any particular thing, although in common use, when it is applied in a new manner to the production of a new effect, is material, and becomes a part of the substance of tlic inven- tion, and must be described. And if it is not mentioned, and its use pointed out, the descrip- {p) Printed Case, 175. Dav. Pat. Cas. 113. 1 ]2 Patents for Inventions. tion will be defective. It is only the well knoicn and immaterial old parts that need not be de- scribed {q). A material alteration^ from rollers in general, had been made in the rollers of Arkwrig-ht's machine of which no description was given ; and it was considered as wilfully concealed, (r) Mr. Arkwright's machine was intended to prepare for spinning not only cotton but si!k, flaXj and wool ; yet he described all the parts of it as one entire instrument. He did not state, as he should have done, that the hammer in the front of it was only to be used in preparing flax (s). Other parts, which were put on or off as occasion required, appeared as though they were fixed, and to be used in every stage of ma- nufacturing each of the articles {t). Which are omissions that were considered of sufficient importance to invalidate the patent. But this rule must not be extended to the ru- diments of a science, nor to the mere incidents of a subject. If gold were directed to be used in a state of fusion, the manner and utensils for putting it in that state need not be mentioned(M). 3. Paris That the new parts of the subject may be noiorigi- more clearly seen and easily known, the patentee- must not only claim neither more nor less than {q) Hill V. Thompson, 2 B. Moore, 450, 455, &c. ante 66. (r) Printed Case, 173. Dav. Pat. Cas. 107. (9) King t). Arkwright, printed case 175. Dav. Pat. Cas. 117. (/) Id. printed case 173, Dav. Pat Cas. 109. (w) Turner i'. Winter, 1 T. R. 602, I ual The Specification. US his own invention, but he must not appear even unintentionally to appropriate to himself any part which is old, or has been used in other ma- nufactures (x). Those parts that are old and {x) Huddart v. Grimshaw, Dav. Pat. Cas. 295. Ellen- borough^ C. J- As to the bobbins, they are not worth men- tiooing ; the springs and tube are the things in which it should seem the principal originality of the invention con- sists. It is contended that the springs are not an essential part of the invention : if they are enrolled as an essential part, whether they are so or not, it would certainly go to destroy this patent, because no deceptive things are to be held out to the public; those that are material are to be held out as material ; according to the evidence of Mr. Rennie they are material. It appears to me that the springs in Belfour and Huddart's machine both produce the same end to regu- late the tension. Now if it is a spring to regulate the tension of the yarn, which is essential to be regulated, it does seem to me ; but it is for your judgment to say whether it is a ma- terial part of the invention, and relied upon as such, as it should seem it is by both ; and if it is the same, then that which has been communicated by Mr. Belfour, Mr. Huddart cannot take the benefit of. It is for you to say, for that is the substance of the case, as to the invention of the patent, whether avy essential part of it was disclosed to the public before. If you think the same effect in substance is produced, and that the springs in Mr. Belfour's, by producing tension, obtains a material end in the making of ropes in this way proposed, and that it is in substance the same as in the otiier, this patent certainly must, upon principles of law, fall to the ground. Ifyou think it is not the same, or if you think it is not material, though we have had the evidence of Mr. Rennie upon its materiality — if you think this patent has been for a new invention, car- ried into effect by methods new, and not too large beyond the actual invention of the party, in that case the patent may I 1 14 Patents for Inventions. immaterial, or are not of the essence of the invention, should either not be mentioned, or should be named only to be designated as old. Tlie patentee is not required to say that a screw or bobbin, or any thing in common use, is not part of his discovery ; yet he must not adopt the invention of another person, however insignifi- cant it may appear to be, without a remark. If any parts are described as essential without a protest against any novelty being attached to them, it will seem, though they are old, that they are claimed as new (?/). The construction will be against the patentee that he seeks to mono- polize more than he has invented, or that, by dwelling in his description on things that are immaterial or known, he endeavours to deceive the public, who are not to be deterred from using any thing that is old by its appearing in the specification as newly invented. They are to be warned against infringing on the rights of the patentee, but are not to be deprived of a manufacture which they before possessed (s). It seems therefore to be the safest way in the specification to describe the whole subject, and be sustained. But if you think otherwise in point of law or expediency, the patent cannot be sustained. The verdict was for the plaintiff, with nominal damages : but it is evidently at variance with the opinion of Lord Eilenborough. (3/) Boville V. Moore, Dav. Pat. Cas. 404. and see Man- ton V. Parker, Dav. Pat. Cas. 329. (3) Dav. Pat. Cas. 279. and 3 Meriv. 629. new. The Specijicalion. 115 then to point out all the parts which are old and well known. Upon the same principles of reasoning, but One of certainly with much more force, if there be se- things not veral things specified that may be produced, and one of them is not new, the whole patent is void. This point underwent a very full discus- sion in the case of Brunton v. Hawkes (a). (a) 4 Barn, and Aid. 550. Abbott, C. J. It seems to me, therefore, that there is uo novelty in that part of the patent as affects the anchor ; and, if the patent had been taken out for that alone, I should have had no hesitation in declaring that it was bad. Then, if there be no novelty in that part of the patent, can the plaintiff sustain his patent for the other part, as to the mooring-chain ? As at present advised, 1 am inclined to think that the combination of a link of this particular form, with the stay of the form which he uses, although the form of the link might have been known before, is so far new and beneficial as to sustain a patent for that part of the invention, if the patent had been taken out for that alone. But, inasmuch as one of the things is not new, the question arises whether any part can be sustained. It is quite clear that a patent granted by the crown cannot ex- tend beyond the consideration of the patent. The King could not, in consideration of a new invention in one article, grant a patent for that article and another. The question then is, whether, if a party applies for a patent, reciting that he has discovered improvements in three things, and in the result it turns out that there is no novelty in one of them, he can sustain his patent. It appears to me that the case of Hill V. Thompson, which underwent great consideration in the Common Pleas, is decisive upon that question. Bayley, J. 1 have no doubt that if the patent be bad as to part, it is bad as to the whole. If the patent is taken out for many different things, the entire discovery of all those thingi is the consideration upon which the king is induced to make 116 Patents for Inventions. 4. Paris or Jf (liinffs useless and unnecessary have been things put . _ ° -^ , in to mis- mixed with a substance, or attached to a machine, though the terms are intelligible, and every ne- cessary description has been introduced, and the parts claimed are only those which have been newly invented, the patent is void. Of this nature are those parts that have never been used by the patentee. It is from that circumstance inferred, that they have been introduced to over- load the subject, and, by clouding the descrip- tion, to mislead the public, and conceal the real invention. Thus in Arkwright's machine the introduction of several things (6), which were never used by him, was considered as done merely to mislead the public. If any considerable part of a manufacture be unnecessari/ to produce the desired effect, it will be presufiiCd that it was inserted only with a the grant. That consideration is entire ; and, if it fails in any part, it fails in ioto. Upon an application for a patent, although the thing may be new in every particular, it is in the judgment of the crown, whether it will or will not, as matter of favour, make the grant to the person who has made the discovery. And when application is made for a patent, for three different things, it may be considered by the persons who are to advise the crown as to the propriety of the grant, that the discovery as to the three things toge- ther may form the proper subject of a patent, although each per se would not induce them to recommend the grant. It seems to me, therefore, that if any part of the consideration fails, the patent is void in toto. (jb) Ante, p. 53, 54, n, and see Printed Case 182, 186, 187, and see Dav. Pat. Cas. 129, 139, 140, also Hill u, Thompson, 2 B. Moore, 450. 7%e Specification, 117 view to perplex and embarrass the enquirer. In the specification to Turner's patent (c) for pro- ducing a yellow colour, among other things minium is directed to be used, which it appear- ed would not produce the desired effect. In the same case, among a great number of salts which were specified, it was left to the public to use those they pleased, without either of them in particular being pointed out, and only one would answer the intended purpose. For either of these reasons the validity of a patent could be impeached. Although the unnecessary part had occasion- ally been used, it would still be a question whe- ther it had not been put there to mislead the public. But this rule is not so strictly enforced that a person is compelled to go on using every part of his invention to secure and continue his patent- right. If any particular parts have been once fairly introduced, and not laid aside, until, by some discovery or contrivance made subsequent to the date of the patent, they were found to be unnecessary, the patentee may, without prejudice, leave them out ; or cease to make use of them. But the presumption is against the inventor, until he give a good reason for the disconti- nuance (c/). Watts in his specification gave a description Matters of of several things which, being incomplete, would not have supported a patent ; and yet, inasmuch (c) Turner v. Winter, I T. R. 602, ante. (d) BoKille V. Mooro, Dav. Pnf. ('as. 398. 118 Patents for Iniienllom] as he did not claim them as part of the subject of his patent, it was considered that they were inatters of intention only, and that the specifica- tion was not rendered less intelhgible by intro- ducing- them(e). 6. The It is not absolutely necessary to annex to the drawings .„ . i i i- • i incorrect. specHication a model, diagram, picture, or draw- ing, descriptive of the manufacture (/). If with- out it the subject is clearly described, it is better omitted. It is however an easy way of illustrat- ing the parts of a machine, and therefore has generally been adopted. It was formerly said that in every instance in which a drawing was introduced, it was indispensable that it should be drawn on a scale, &c. (g) : that in it the diameters of wheels, the lengths of levers, &c., every pro- portion and relation of the parts, ought to appear in due ratio to each other : and that the whole should be capable of being put together without leaving the length, breadth, or relative veloci- ty, of any of the parts to be found out by conjec- ture and experiments, or the patent would be void. Arkwright's machine (li), though shewn in a perspective drawing, could not be made foF want of a scale to determine its dimensions. This rule has of late been modified. If a (e) Boulton v. Bull, 2 Hen. Bla. 480. Dav. Pat. Cas. 187,8. (/) 2 Hen. Bla. 479. Dav. Pat. Cas. 187. aod see Ex parte Fox, 1 Ves and Beam. 67. {g) Harmaru. Piayne, 11 East. 112. 14 Ves. 130. S.C. (/() King V, Arkwrighl, Printed Case 176. Dav. Pat. Cas, 114. The Specijication. 1 1 9 common mechanic can make the subject of the patent from the drawing in perspective, it is not necessary that there should be a scale. It was also formerly considered that the words of the spe- cification ought of themselves to be sufficiently descriptive of the improvement; that the specifi- cation onght to contain within itself all the neces- sary information, without the necessity of having recourse to a diagram ; and that, if a diagram were given, it ought to be taken merely as an illustration, and not constituting a principal, or essential part of the specification ; and therefore that a person was not bound to look at the dia- gram to learn the invention. But a very learned judge has however held that if a drawing or figure enable a workman of ordinary skill to con- struct the improvement, it is as good as any written description (?). The consequences which attend the introduc- e. One of tion of any thing into the specification, merely to wj^'sTus. misguide the public, have been mentioned. The means must be adapted to the end (/). The de- scription must not give several ways and methods which may or may not answer, according to the skill exercised in the attempt to produce the ma- nufacture. Thus, in the specification of Win- ter's patent (A), a great number of salts were (0 Brunton r. Ilawkcs, 37 vol. Rep. of Arts, N. S. p. 105. and see S. C. 4 Barri. and Aid. 541. 1 Stark. N. P. C. 201. and post. 127. {j) Dav. Pat. Cas. 331. And see Manton v. Parker, Dav. Pat. Cas. 328. 2 D. Rloorc, 457, 458. (A) Turner y. Winter, 1 T. 11. 602. 120 Patents for Inventions, mentioned, by which it appeared that the pub- lic might take either of them to make the sub- jects of the patent. There was only one of them that would produce the effect, and there- fore his patent was void. Even if there be only one thing which will not answer the intended purpose, the specification is incorrect. 7. Somcof Not only must there not be any unnecessary several ct- *^ _ ^ "^ •' fectsspe- means mentioned in the specification, but effects cified, not i i i i i produced, that cannot accurately be produced must not be mentioned and described. The patentee should inform the enquirer of the exact nature of i.e manufacture invented. If the article describeil have not the qualities, or the machine produce not the results which are set forth in the specifi- cation, the grant is invalid. Such is the law too, if the patentee take his grant for the invention of several things, and he fail in any one of them. By Winter's inven- tion (/) three things were to be produced : one reason for its being considered void was, that the second article, which was called in the patent '' white lead" was, in fact, quite a ditferent sub- stance, and which could be used only for a very few of the purposes for which common white lead is applied. Bainbridge's patent (m) for the improvement of the hautboy was for new notes; — in the plural number. On proof, it appeared that he had only found out one new (0 Turner v. Winter, 1 T. R. 602. (w) Baiubridge v. Wigley, K. B. Dec. 1810. Repert. of Arts, N. S. 18th Vol. p. 127.; and see Bruntoa y. Hawkes, 4 Barn, and Aid. 451. The Specification. 121 note ; and he consequently failed in an action of damages for an infringement of the grants although great ingenuity had been exerted^ and the fingering was rendered less complicated by the invention. Althouffh the description may be otherwise s- Thing ° 1 ./ described, complete and correct; although the means may not the l)6St« be adapted to the end, and the things specified be produced ; yet, if the subject be not given to the public in the best and most improved state known to the inventor, the patent is void. If, at the time of obtaining the grant, he was ac- quainted with a mode of making his manufacture more beneficial than the one specified, the con- cealment will be considered fraudulent. Thus Lord Mansfield held a patent for " steel trusses'* to be void, because the inventor had omitted to mention that in tempering the steel he rubbed it with tallow, which was of some use in the opera- tion. (/) In the specification for a patent for making verdigris, (m) aqua fortis, which was used by (I) Liardet v. Johnson, Bull. N. P. 76. ; and see I T. R. 608. (m) Wood and Others v, Zimmer and Others, 1 Holt. 58. S. C. in Rep. of Arts, N. S. 27th Vol. 171. Ante 64. Gibbs, C. J. It is said that this patent makes verdigris, and is therefore sufficient. The law is not so. — A man who applies for a patent, and possesses a mode of carrying on that inven- tion in the most beneficial manner, must disclose the means of producing it in equal perfection, and with as little ex- pense and labour as it costs the inventor himself. The price that he pays for his patent is, that he will ena- ble the public, al the expiration of his privilege, to make it 1 23 Patents for Inventions. the inventor, was not mentioned. It appeared that the patentee mixed the aqua fortis with great secrecy, which raised the presumption that he knew of its value when the grant was sealed. The patent was therefore declared to be void. Nor can any alteration^ known to the inventor before he procures the patent, be made, however insignificant it may be, even if it were nothing more than the means of working the machine a little more expeditiously, without raising a pre- sumption that the patentee fraudulently con- cealed the best method. A lace machine, (n) for in the same way, and with the same advantages. If any thing which gives an advantageous operation to the thing invented be concealed, the specification is void. Now, though the specification should enable a person to make verdigris sub- stantially as good without aqua fortis as with it ; still, in- asmuch as it would be made with more labour by the omis- sion of aqua fortis, it is a prejudicial concealment, and a breach of the terms which the patentee makes with the public. (n) Boville v. Moore, Dav. Pat. Cas. 400. Gibbs, C J. There is another consideration respecting the specification, which is also a material one ; and that is, whether the pa- tentee has given a full specification of his invention ; not only one that will enable a workman to construct a machine an- swerable to the patent, to the extent most beneficial within the knowledge of the patentee at the time ; for a patentee, who has invented a machine useful to the public, and can construct it in one way more extensive in its benefit than in another, and states in his specification only that mode which would be least beneficial, reserving to himself the more beneficial mode of practising it, although he will have so far answered the patent as to describe in his specification a machine to which the patent extends; yet he will not have satisfied the law by communicating to the public the most The Specification. 12S ^vhich Mr. Boville had obtained a patent, was worked with greater expedition 63/ bending toge- ther two teeth of the dividers, or by making one longer than the others, than if it were used as specified. This mode of using it was known to the inventor before he obtained the patent; and, therefore, Gibbs, C. J. thought that the patent was bad on that account. If the patentee use cheaper materials in making Cheaper materiaU. the manufacture than those he has enumerated, his grant will not be sustained by his proving that the articles specified will answer the pur- pose as well, (0) It signifies not in what manner this advantage accrues to the patentee ;— it is not necessary that any palpable alteration has taken place ; that something has been added or something taken away from the invention as specified, to render the patent void ; it will be invalid if 1)7/ any means whatever a benefit is derived by the pa- tentee, which was concealed from the public at the time the patent was obtained, even if it be merely a small part of a machine on which a par- ticular motion is impressed at a given moment in a particular direction, {p) If this improved manner of usinff the inven- inadvert- " ency. beneficial mode he was then possessed of for exercising the privilege granted to him. And see Brown v. Moore, Hep. of Arts, 28th Vol. p. 60. (o) 1 T. R. 607. 1 Holt's N. P. C. 60. King v. Wheeler, 2 Barn, and Aid. 345. {p) King V. Arkwright, Printed Cases, 50. The cylinder in the specification was a parallel one: but that which was used, spiral. 124 Patents for Inventions. tion be unintentionally left undescribed, still the patent is void. *' If it was inadvertent/' says GibbSj C. J., speaking of Boville's omission in not describing the bending of the teeth, " if he actually knew and meant to practice that mode^ and inadvertently did not state the whole in his specification, he must answer for his inadvert- ence." {q) Subse- But if it appear that this better mode of using covery. the manufacture be a subsequent discover?/ ; that the patentee has since the date of the grant found out this new means of carrying on his own in- vention to a better effect ; then the grant will continue valid (r) : but, as before stated, the pre- sumption of concealment will be against him. ^]iinf'^' Upon these grounds, and for these reasons, (q) BovIUe V. Moore, Dav. Pat. Cas. 413. Gibbs, C. J. observed to the jury, — You will say whether you thiuk there is any fraudulent concealment in the specification. A Juryman. — It might be inadvertent, and not fraudulent. Gibbsj C. J. — Certainly j and if it were inadvertent, if he actually knew and meant to practise that mode, and inad- vertently did not state the whole in his specification, he must answer for his inadvertence : but it might be a subsequent discovery. Verdict for the defendant. (r) Boville r. Moore, Dav. Pat. Cas. 401. Gibbs, C. J. If Mr. Brown, since he obtained his patent, had discovered an improvement, effected by bending the teeth or adding a longer tooth, he might apply that improvement; and his pa- tent will not be affected by his using his own machine in that improved state : but if, at the time he obtained his patent, he was apprised of this more beneficial mode of working, and did not by his specification communicate it to the public, that must be considered as a fraudulent concealment, although it was done inadvertently, and will render the patent void. The Specification. 125 applicable to the specifications of almost all kinds of manufactures, many patents have been de- clared to be void. The inventor bearing them in mind, and attending; to the nature of each kind of manufacture, whether it be a substance, or machine, &c. as it is distinguished from the rest in the last Chapter, will be able, by avoiding similar errors, to make a correct specification for any invention. Indeed, no further assistance can be given to him than that which may be derived from a few general observations on the description peculiar to each manufacture. The description of a machine must disclose the nature of the invention, and the manner in which it is to be performed. It must be minute without perplexity, and luminous without being overwrought. When it descends to particulars, the elements that are known to all should not be noticed ; nor yet, in its fulness, should any thing be included that is not necessary to render it in- telligible. It should be such that a common mechanic, with a reasonable degree of skill upon the subject, may comprehend it. Though it need not be so full as to instruct a person igno- rant of the first principles of mechanics in the method of its formation and use ; yet, on the other hand, a pert, n eminently skilled in the subject must not be required to make it. A rea- sonable knowledge and skill (of which the jury decide) must be possessed by the person who complains that the specification is obscure, and that he cannot make the machine. No contriv- ance or addition, no trial or experiment, it is Scientific books. 126 Patents fur Inventions. said, must be resorted to for a full knowledge of the invention (s). This rule must, however, be taken in a limited sense. Though no inventive faculty must be exercised, nor any thing new added, yet trials, if they are not essentially ne- cessary, may be made. If the inventor leave any thing to be found out by experiment, the specification is bad : unless the data, manner of performing, and the expected results are so clearly given that it may easily be done. Reference may be made to the rudiments of that science by which the principles of the machine are explained, but not to scientific books, (t) A proposition, or truth generally known, needs no reference; and that which can be found only in some particular treatise must be explained, but not claimed as new. If a piece of machinery be contemplated for the purpose of giving a full description of it, the several parts, as wheels, rollers, screws, springs^ &c. &c., must be set forth, together with the proportion of their diameters, thickness, tension, &c(m). Then the method by which they are united, and the relative velocities of the moveable parts (:c). If the thing specified be the component parts of two machines, the uniorf of the parts that make up each of them must be clearly shewn (j/). (s) 2 Hea. Bla. 484. (0 H East. 105. (u) King V. Arkwright, Print. Cas. 174. Dav. Pat. Cas. 111. («) Id. Printed Cas. 62. 179. Dav. Pat. Cas. 122. (y) Id. Printed Cas. 174. and 177. Dav. Pat. Cas. Ill, and 117. 1 The Specification. 127 If parts of the machine are to be put on and off during- some of its operations, in order to pro- duce the desired effect, or if several articles are intended to be worked on, or several manufac- tures to be produced, — it must be distinctly stated what those parts are, their proportions for different purposes, and where they are to be applied (::). It has been shewn that the «rant must not ^"- ^*"' *-■ prove- be more extensive than the invention («) ; and mentsor , . , , ■ n . addilions. that, where the patent is tor an improvement or addition, the inventor cannot monopolize the whole subject. The specification will therefore be incorrect, if it contain a description of more than the improvement or addition (6) ; unless it particularly distinguish the new from the old parts. The inventor is not bound down to any par- ticular mode of describing his improvement, so that he informs the public exactli/ in what his invention consists. He may describe it by words, or by diagrams (c) : but he must con- fine himself to his invention. («) Ibid. (a) Ante, 71. (6) Williams v. Brodie, cited by counsel in King v. Ark- wright, Printed Cas, 162., and see Da v. Pat. Cas. 57. (c) Macfarlane v. Price, 1 Stark. 199. Action for in- fringement. — The patent was for certain improvements in the making of umbrellas and parasols. The specification professed to set out the improvements as specified in certain descrip- tions and drawings annexed : but no distinction was made either in the description, or by any marks in the drawings, betweea what was new and what was old. EUendorough, C. J. The patentee in his specification ought to inform the person who consults it what is new and 128 Patents for Inventions. The patent for the improvement of a thing", or for the thing" improved, is in essence for the same manufacture {d). The inventor may either ac- curately describe the addition, and then point out the method by which it is applied to the known parts ; or he may describe felie whole as one machine, and then particularize the parts newly discovered. It is not absolutely necessary that the old parts should be described. They may be referred to generally, if the whole is not thereby rendered unintelligible. Thus in Jessop's case (e), whose invention consisted of a single movement in a watch, it was said to be sufficient to refer gene- rally to a common watch, and then to give direc- tions how the new part was to be added to it. There is one decision on an improvement which appears to be an anomaly. Harmar (/") obtained a %vhat is old. The specification states that the improved instrument is made in manner following. That is not true since the description comprizes what is old as well as what is new. Then it is said, that the patentee may put in aid the figures. But how can it be collected from the whole of these, in what the improvement consists ? (d) 2 Hen. Bla. 481, 2. (e) 2 Hen. Bla. 489. (/) Harmar v. Playne, 11 East, 101. Thepatent was for ** a machine invented for raising a shag on all sorts of wool- len cloths, and cropping or shearing them, which together come under the description of dressing woollen cloths, and also for cropping or shearing of fustians." There were draw- ings of the machine. Harmar afterwards invented some im- provement of his machine, for which he prayed a patent ; which patent was granted upon the usual condition, that he should ascertain the nature of the said invention or the said improvements. The second specification recited the first The Specification. 129 patent for a machine. Having very much im- patent, and described the whole of the machine, without shewing in words or marking in the drawing where the first machine ended, or from what point the improvements began. The improvement could only appear by comparing together the two specifications. It was contended for the plaintiff, that the patent and specification referring to it are to be con- strued together as one instrument. The first patent being enrolled, the public were bound to take notice of it : and being recited in the second, the improvements easily appeared by comparing them. That it was more convenient to give a description of the whole, than by a literal compliance to state what the improvements were. For the defendant it was said, that improvements should be distinctly marked and made known by this second speci- fication alone, without further search or trouble. Le Blanc, J. Suppose the specification had merely de- scribed the improvements, — must not the party still have referred to the original specification, or at least have brought a full knowledge of it with him, before he could understand truly to adapt the new parts described to the old machine ? Ellenboroughf J. It would lead to great inconvenience, if books of science were allowed to be referred to. A person ought to tell from the specification itself what the invention was for which the specification was granted, and how it is to be executed. If reference may be made to one, why not to many works It may not be necessary indeed, in stating a specification of a patent for an improvement, to state pre- cisely all the former known parts of the machine, and then to apply to those the improvement : but on many occasions it may be sufficient to refer generally. But however, 1 feel impressed by the observation of my brother Le Blanc, that the trouble and labour of referring fo and comparing the for- mer specification with the latter would be fully as great if the patentee only described in this the precise improvements of the former machine. Reference may be made to general science. The court certified to the Lord Chancellor in favour of the ipecificatioii. K ISO Patents for Inventions. proved it, he procured another patent, in which the first was recited. In the second specification, without any reference being- made to the descrip- tion of the former subject, the whole machine so improved was set forth, without the new parts being distinguished from the old ones. The se- cond grant was held to be good, because the se- cond patent by reciting the first referred to its specification, which by the enrolment was matter of record, and therefore supposed to be within every person's knowledge. It must be here observed that Harmer referred to his OWN patent. It seems by the same reason- ing, that it might be laid down as a genera li ule, that every person, making a manufacture f 'cm the subjects of several expired patents, might recite and refer to the specifications of them, without taking any notice of their contents. Sometimes it is difficult to determine, whether the improvements be an addition of new parts, properly so called, or the parts of an old machine newly arranged with some material alteration. In the latter case it is safer to claim the whole as a new engine ; and then in the specification to distinguish accurately between the old and new manufacture, shewing the peculiar qualities of each, the improvement effected, the means that produced it, and the use to which it is to be applied. Different From these decisions it appears that there are spSt>in<' several ways of making a correct specification of prove- ^'^ improvement : — ment. First. By describing the whole manufacture. The Specification. ISl and then particularizing with great exactness the addition of the inventor. Secondly. By a description of the whole ma- nufacture, pointing- out the parts that either are old or not material to the invention. Thirdly. By giving an accurate and intelli- gent description of the improvement, and the manner in which it is applied to the subject, or parts that are old. Fourthly. By describing the whole manufac- ture, if it be an improvement of another for which a patent has been obtained, taking care to refer- in the new specification to that of the former patent. Every combination appears at first sight to be iv. Com- , . , IP, I • • bination. subject to the same rules lor describing it, as an improvement or addition. The same end, a clear and intelligent description of the manufac- ture, without any extraneous matter, is to be ob- tained : but the manner of attaining it is somewhat different. If it is only a combination of substances, mate- rials, or parts of machines in common use, pre- viously applied for the same or different purposes, then the specification v/ill be correct which sets out the whole as the invention of the paten- tee (g): if, he clearly express that it is in respect ig) Boville r. Moore, 2 Marsh, 211. S, C. Dav. Pat. Cas. 411. A patent was taken out by Mr. Brown, for "a machine or machines for the manufacture of bobbin lace, or twist net, similar to and resembling the Buckinghamsiiire lace net, and French lace net, as made by the hand with bobbins or pillows," who a« igned it to the plaintifl". k2 132 Patents for Inventions. of such new combination or application, and of that only^ without laying- any claim to the merit of Gibbsj C. J. Now, gentlemen, the objections made to this specification upon this part of the case are, that it goes farther than it ought ; that it states more to be the invention of Mr. Brown than really was so ; and I think I may state generally to you, that they say that all that precedes the crossings of the threads is old, whereas he has stated it as part of his inven- tion ; and besides that they state, that the forks and dividers which he has stated as part of his invention are equally old. I think with respect to the principle, if there existed at the time Mr. Brown took out his patent engines for the mak- ing of lace, of vehich his was only an improvement, then his patent ought to have been only for an improvement ; and certainly, if he could have supported his patent for an engine, his specification ought to have pointed out those parts only which were of his invention, as those to which his privilege applied ; and if you should be of opinion ; that he has in his specification stated more than he is entitled to, as what was his invention, then in my opinion his speci- fication is bad. Now the answer that the plaintiffs have endeavoured to give to that objection is this: — -They say there is nothing in the world that is absolutely new ; you may refer it all to first principles. The wheels are well known ; and yet you may state them in your specification as one of the means by which you effect your purpose. Levers are well known : but yet you may state them in the same way ; that cer- tainly is so. They go on to say, their invention consists not in this or that particular part, of which their machine is composed, as being new, but in the conformation of all the parts of it; the novelty consisting in that conforma- tion : and if the new conformation of all those parts was of the plaintiff's invention, then, although every one of the parts was old, they would be entitled to a patent for a machine composed by that new conformation of the whole; but if you find that another person had combined all those parts up to a given point, and that Mr. Brown took up i The Specification: 133 original invention in the use of the materials. Nothing more than the invention must be claimed. Every old part which is essential and his combination at tliat point, and went on combining be- yond that, if the subsequent combinations alone were his invention, the former combinations he will have no right to. Those combinations could not exist before, unless there had existed an engine in which they were found ; and if there existed before this time an engine in which they were found, it is for you to say, whether this which Mr. Brown has invented is any more than an improvement of that engine, or whether it is the invention of a new engine. If Mr. Brown has only invented an improvement of the old engine, be it Heathcote's, or be it any one or two engines which existed before, then his specification by which he claims the whole to himself will be bad. If, on the other hand, you think that he has invented an engine, which consists of a perfectly new conformation of parts, although all the parts were used before, yet he will be entitled to support his patent for a new machine. • Now I wish to have what I state upon this subject, observed by the counsel on both sides, that they may be aware how I put it. If a combination of those parts ex- isted before ; If a combination of a certain number of these parts existed up to a given point before, and Mr. Brown's invention sprung from that point, and added other combinations to it ; then I think this specification, stating the whole machine as his Invention, is bad. If on the other hand you think he has the merit of Inventing the combination of all the parts from the beginning, then I think the specification is good, and that he is entitled to your ver- dict. — Verdict for the defendant. Gibbs, C.J. — Gentlemen, I will just ask you this : — do you find that the combination of the parts up to the crossing of the threads is not new ? Foreman, — Yes, my Lord. Juryman^ — The threads then taking a new direction, and 134 Patents for Inventions. material in producing the intended effect will be considered as claimed, if it be not designated as old. If the part in common use be even an elementary principle, or a single combination, and effect a new end, it becomes a part of the substance of the invention, and must be protested against as not being* claimed. If the invention consist of a new set ofcombi^ nations added to a manufacture composed of combinations, then, though the effect produced be different throughout, the specification should only describe the new combinations which have been invented, and how they are to be added to the old ones. If the combination consist of the subjects of several patents which have expired, or of some new ones that have been bought, it would appear from the reasoning of Ellenborough C. J., that a description of the method by which they were combined, with a reference to the several speci- fications, would be all that was required to sustain the patent (h). V, Method Pursuing: the same order in ffivins" rules for earned ^ _ . into prac- making specifications as was followed in the iic€» former Chapter when the different subjects of patents were examined, the necessary description of the fifth kind of new manufactures — principles, or methods carried into practice by tangible means — must now be investigated. certainly the most valuable part to the plaintiflF, is a new invention: but we are of opinion it is nothing more than an improvement. (A) Harmar y. Playne, 11 Ea&t. 107. ante 129. The Specification: 1S5 It was shewn in the last Chapter that aprlncl- specifica- 1 11 J ^ I • n mi ^\ox\ of a pie could not be the object of a patent. The principle, impossibility of giving a description of it, in every instance in which it might be used, was urged as a strong argument against its being allowed to be monopolized. Reasons have also been assigned why a me- Specifica- thod merely as such, is not a proper subject for a method, patent. If a method can be the subject of a pa- tent, the description of it must indeed be very accurate. It must be so clear and evident that no experiments must be necessary to learn it, and to put it in practice as beneficially as the patentee enjoys it. If neither a principle nor a method can be the Spedfica- v.,r« , ... , . -, tionofthe subject 01 a patent withm the meaning of the tangible statute of James ; if, when a patent is obtained JJ-Spi^e for a method, it is in fact granted for the tansible ^^"'^^^ ']^' ° ° to practice means of carrying that method into practice (i) ; it is quite evident that the specification of a method is governed by the same rules as if the description was to be given of some one kind of the above mentioned manufactures, whether the real subject of the patent be a machine, improve- ment or combination, and therefore that any fur- ther comment would be superfluous. When a chemical discovery is the foundation vi. Che of the invention for which the patent has been 7overy!'' granted, inasmuch as the substance or thing produced, and not the principle, process, or me- thod, is the legal subject of the patent, it ought to be described. The ingredients, their pro- (i) Ante 80,82-88. J 36 Patents for Inventions, portions, the times of mixing, &c., ought to be fully stated, and then the beneficial use to which the substance can be applied (/). viT. Fo' ^ manufacture uhen first introduced into reign In- vention. England, whether it be a substance or machine, an improvement of something already known here, or a combination of native discoveries, still it must be fully and correctly explained. Its specification is regulated by the same laws, and is subject to the same critical examination, as if it were an English invention. Thus it appears that every part which is new, however minute, must be clearly described. In the specification of a substance, the simplest ele- ments of which it can be formed, and the best modes of making and using it, must be accurately stated. In descriptions of machines there must with scrupulous fidelity be set forth the cheapest materials, the most exact proportions of the parts, the most expeditious and the best mode of conducting them, with the precise times of putting on, or taking off, any part of the machine : and an improvement or new combination must be kept distinctly apart from the old manufacture. The public must be put in possession of the manufacture in a way as ample and beneficial as the patentee enjoys it. (J) Turner u. Winter, 1 T. R. 602. The specification to this patent is what a scientific man, unacquainted with legal strictness, would naturally have made. It contains almost every fault generally found in the descriptions of this class of manufactures. It is therefore given fully in the different parts of the texL Practice of obtaining them. 137 CHAP. VI. Op the Practice of obtaining Letters Patent FOR Inventions. Having pointed out the person, who is the first inventor, and shewn what things are new manu- factures within the meaning of the statute of James, and what are the several properties of the specification, — the practical part, the mode of obtaining the patent, next demands atten- tion. That no improvident grant may be obtained from the Crown, the petitioner is required to attend at several offices under government, that the claims set forth in his petition may be care- fully scrutinized and fully considered by the law officers of the Crown. Hence many instruments are made preparatory to the patent itself. This course necessarily increases the price of money paid for the patent : but it secures alike the public from imposture, and the Crown from deceit; and prevents the evils arising from an illegal pri- vilege of exclusively making and vending some particular manufacture which may not be worthy of protection. 138 Patents for Inventions, As many of the instruments are furnished at the public ofiires, those only are given in the Appendix which must be prepared either by the petitioner or his agent. But it is thought that the interest of the enquirer would not be best consulted, nor the fullest information afforded to him, without a full description of the contents of every one of the documents ; as by that means he will be enabled not only to examine whether the instruments are correct, but at once be able to see the whole routine of procuring the patent, and the conditions upon which it is obtained. The manner in which all letters patent are to be passed is pointed out by the statute 27 Hen. VIII. c. 11.: but it would be useless to shew how the method varies according: to the matter of the grant, and therefore this Chapter will be confined to the manner of passing patents for inventions. petuilfn. '^h® ^^s* step to be taken by an inventor is to present a petition (a) (which is written on un- stamped paper) to the King, to grant him letters patent. It recites that he has discovered something (naming it) likely to be of general benefit, of which he is the true and first inventor, and that it has never before been used. He then prays for letters patent to secure to himself the sole use of his invention for fourteen years. The patent is in general made out for Eng- land only : but it will be extended to the Colonies, if they are named in the prayer of the petition. (a) See Form of the Petition, in the Appendix. Practice of obtaining them. 139 An affidavit (6) sworn before a Master, or Theaffida- master extraordinary in Chancery, must accom- pany and support the allegations of the petition. The petition and affidavit are then left at the office (c) of the Secretary of State for the Home Department. When the petition has lain a few days in the 2. Attor- ' ^ nej'-Gene- office at the Home Department, an answer, rals re- which is a reference of it by the Secretary of ^^^ ' State to the Attorney or Solicitor General for his opinion, will be given. It is generally written on ihe back or margin of the petition, which, when thus marked, is taken to the chambers of either of those crown law officers, from whom in a few days a report thereon may be obtained. The report, after reciting the reference, the petition, and the affidavit, states, that inasmuch as it is at the hazard of the petitioner whether the invention be new, or will have the desired success, and as it is reasonable that his Majesty should encourage arts and inventions which may be for the public good, it is therefore the opinion of the reporter that the royal letters patent should, as desired, be granted to the petitioner, provided a particular description of the nature of the invention should be enrolled within a given time in the Court of Chancery. It is this opinion that a particular description of the invention should be enrolled, which gives rise to that important instrument, the " speciji- caiion." (b) See Form of the Affidavit in the Appendix. (c) At the Treasury staircase, Whitehall. 140 Patents for Inventions. This report is now made as matter of course, and without any trouble to the petitioner, unless a caveat, of which mention will be made here- after, has been entered. 3, Thebill The report is taken from the office of the At- for the pa- tent, torney General to that of the Secretary of State for the King's warrant. This warrant is an echo of the report, and gives authority to his Majesty's law officer to prepare a bill containing the grant for the royal signature. In it the exact time in which the specification must be enrolled is mentioned. The warrant is carried to the patent office (d) of the Attorney or Solicitor General for the bill which is to be marked as examined by him. At the bottom his Majesty is informed by his Attorney General that all such clauses, prohibitions, and provisoes, as are therein inserted, are usual and necessary in grants of the like nature. The bill is the rough draft of the patent, and contains all its allegations. Indeed, it is verba- tim the same as the patent, except the attesta- tion to the latter instrument. When prepared, the bill is carried to the office of the Secretary of State, for the King's sign manual, (e) from whence it is taken to be passed at the signet office. (/) The clerk of the signet prepares a warrant to the Lord Keeper of the Privy Seal, whose clerk gives another warrant, (d) No. 4. Old Buildings, Lincoln's Inn. («) Equity Cas. 54 — 209 ; and see 2 Inst. 554, 555. (/) In Somerset House. Practice of obtaining them. 141 in which the body of the patent is recited, di- rected to the Lord Chancellor. The warrant from the Lord Keeper of the 4. Thepa- Privy Seal is taken to the patent office of the Lord Chancellor, where the patent is made out and sealed, (g) When a patent has once passed the great seal, its date cannot be altered, {/i) The nature of the description required in the 5. The specifica- specification, and the manner in which it must be tion. given, have been fully investigated. (?) It must be under the hand and seal of the inventor ; (k) and is sometimes accompanied with a design or drawing in the margin, to which, from the body of the patent, references must be made, to render the whole instrument intelligible. Before the invention is particularly described in the specification, a recital is made, that a patent had been granted to the inventor to secure to him the whole benefit arising from it ; and that therein a proviso was inserted requiring a de- scription of the invention, and that in conse- quence of such requisition the patentee makes the specification. The terms of that proviso are given in the Introduction. (/) (g) For an abriHgmont of the contents of a patent see the Introduction, ante, p. IS. ; and for its parts at full length, see Appendix. (h) Ex parte Beck, 1 r>ro. Cha Ca. 578. (0 Ante, Chap. IV. (k) 21 Jac. I. c. 3. sect. 6. (I) Ante, 46. A copy of Mr. Watt's specificatioD will be found in the Appendix. 142 Patents for hiventions. The time The time formerly allowed for the enrolment allowed . , ' , , • • tor enrol- of the specification was four months: but it is now generally confined to one tnonth, unless the inventor make an affidavit that he intends to apply for patents for Scotland and Ireland, and then it is extended to six months. A few in- stances have occurred in which a still longer time has been allowed to enrol the specification : but in a late case the Lord Chancellor would not put the great seal to a patent by which the specifi- cation was to be concealed for a considerable length of time. The Attorney General will, un- der special circumstances, enlarge the usual pe- riod at any moment before the patent is sealed. When the patent is once sealed, the specifica- tion must be acknowledged before a Master in Chancery, and lodged in the Enrolment Office{m) before the expiration of the time therein men- tioned. The day is inclusive. If the patent, therefore, be enrolled on the last day of the month, when that is the given time, it is suffi- cient, (n) The legislature alone can grant relief, if the time has transpired : the Lord Chancellor has refused to interfere on such an occasion, (o) (?«) Petty Bag Office, Rolls Yard, Chancery Laue. («) Watson V. Pears, 2 Campb. 294. (o) Ex parte Hoops, printed by mistake for Koops, 6 Vea. Jun. 599. Ex parte Bock, 1 Bro. Cha. Ca, 578. Applica- tion was made for time to enrol Koop's specification. Lord Eldon^ C. I cannot do that ; for (he patent is void if the proviso be not complied with. You should have applied to the Attorney General before the patent passed for a longer time upon the special circumstances. I tannot take the great Practice of obtaining ihem. 143 If the time for the enrolment is expired, or any thing- else has occurred in suing- for the pa- tent, whereby it will be rendered void, it is ad- visable to conceal the invention, and to begin de novo with another petition for a patent. It is a very safe way to remedy all defects in form. A certificate of the enrolment, which is always Certifi- indorsed on the back of the specification, may roiraenr^' be had at the same time. The specifications are kept open for the in- inspectioa spection of the public, and copies of them may cation!' at all times be obtained. Attempts have been made to induce the Lord Chancellor to dispense with the enrolment of the specification, or to keep it concealed, which have always been un- successful (g). In some cases the legislature seal from a patent, and repeal it in the most essential point : it is a legal grant, with a proviso for the benefit of all the King's subjects. You can do nothing except by an act of Parliament to enlarge the time mentioned in the proviso. (^f) Ex parte Hoops (for Koops) 6 Ves. 595. The object of the petition was, that the Lord Chancellor would dispense with the enrolment, or that some provision should be made to prevent the specification from being made public : suggest- ing the danger that foreigners might obtain copies of the specification in consequence of the enrolment. Lord Eldon. How can I do this? Either upon this or some other case in the last sessions a clause for this pur- pose was inserted in an act of parliament ; and upon the motion of Lord Thurlow, upon reasons applying not only to that, but to all cases, and seconded by Lord Rosslyn, the clause was universally rejected, and rejected as it appeared to me upon very substantial grounds, in which I readily concur. As to the worth of the apprehension suggested, a man hai 144 Patents for Inventions. lias however permitted the specification to be concealed. Mr. Lee(r) obtained an act of par- liament 53 Geo. III. c. 179, by which his speci- fication was ordered to be deposited in the Court of Chancery, to be kept secret from the public for fifteen months ; and to be produced only by order of the Lord Chancellor, and by him to be examined whenever occasion required. 6. Caveat. fhe caveat is an instrument by which notice is requested to be given to the person who en- ters it, whenever any application is made for a nothing more to do than to pirate your invention in a single instance ; and he will then force you to bring an action, and then the specificatioa must be produced. But, with regard to the king's subjects, a very strong ob- jection occurs, which makes it necessary that the specifica- tion should be capable of being produced. They have a right to apply to the patent office to see the specification, that they may not throw away their time and labour, per- haps at a great expense, upon an invention, upon which the patentee might afterwards come with his specification, al- leging an infringement of his patent ; when, if those persons had seen the specification, they never would have engaged in their project. The enrolment is therefore for the benefit of the public. (r) See Lacy's Case, Rep. of Arts, N. S. 29 Vol. p. 2.50. The Lord Chancellor observed that Mr. Lee's case was a very peculiar one : it was for securing to the state, in the time of war, the benefit of a most important discovery. If Mr. Lacy could make out that the state was to be benefited by his inven- tion in any peculiar way, as in the case of preparing hemp and flax, it might be doubtful whether he might not have a se- cret specification. His lordship was of opinion, however, that the legislature would pause a long time before they pass- ed such an act in future. He could not put the great beal io a patent without seeing the specification. Practice of obtaining them. 145 patent for a certain invention which is therein described in general terms (s). One caveat is left at the chambers of the At- torney General, another at those of the Solicitor General. They must be annually renewed. If application be made for a patent for an in- vention similar in its nature to that mentioned in the caveat, then all the parties arc summoned to attend upon the Attorney or Solicitor General, who separately examines each party. If he thinks that the inventions are not the same, both parties are entitled to patents : but if he should be of opinion that they are the same, then his report shews to whom the patent ought to be granted. (s) Ex parte O'Reily, 1 Ves. Jun. 112. Several caveats were entered against sealing a patent for a new Italian Opera House. From the whole of this long case, which is very full of facts, the opinion of Lord Thurlozs respecting caveat-3 may be collected. He declared that he would not sign a patent which did not hold the parties under some controul (if the case required it), even though there should be no caveat against it; and that it was not sufficient merely to an- swer objections, but that the party petitioning must lay a proper case before him. Nothing is required from those who oppose a patent, but to shew that they have an interest. There were many considerations, he observed, which cer- tainly would not rest with him to b.? determined upon that petition. The use the King might derive from its having been before him, was, that the true state of that part of the case upon which the King's judgment would turn had come out more intelligibly than it had before. The thing that came nearest to his ofiice was to see that the King was not deceived, and that he did not throw out of his hands that authority which ought to be retained. L 146 Patents for Inventions. If the disappointed party think that he is injured, he should immediately enter a caveat at the Chancer?/ patent office ; and when the grant comes for the great seal, the Lord Chancellor will privately examine all the parties concerned, and do justice between them. Other reasons may induce persons to enter a caveat at the chancery office ; as was done in one case, to prevent the great seal from being put to a patent, wherein the petitioner was allowed^/!ee?2 months to enrol the specification ; The Lord Chancellor in consequence refused to seal it (t). And where a petitioner applied for a patent in respect of certain improvements in steam engines, a caveat was entered under an existing grant, from which, it was alleged, the subject of this new patent was borrowed. The Lord Chancellor sealed the patent, upon reading the affidavits, in one of which, made by an engineer, it was stated that the subjects did not resemble each other (w). Costs of Although the Lord Chancellor is very averse to a caveat, at this late stage of the business ; yet, if he think that the opposition was not unrea- sonable, he will not give costs (x). Such is a caveat, the manner of entering it, and the practice respecting it. Of its nature and effect much misconception has arisen. It does not create any right : but is sim- ply a request to be favoured with information. (t) Ex parte HeathcUe in the matter of Lacy^ Rep. of Arts, N. S. 29 Vol. p. 250. (m) Ex parte Fox, 1 Ves. and Beam. 67. (x) Id. Practice of obtaining them. 147 If the applicant think that he is unjustly de- prived of an invention, after he has been heard before the Lord Chancellor, he has no remedy but a scire facias, to repeal that which has been sealed {tj). Upon tlie whole, therefore, the entering a caveat is nothing more than giving information that there is an invention nearly completed ; and requesting that, if any other person should apply for a patent for the same thing, the pre- ference may be given to him who entered it. Which request is complied with, by the courtesy of the crown, upon its being satisfied of its rea- sonableness by the report of the Attorney-Gene- ral, or the opinion of the Lord Chancellor. And when the patent is granted, it is to be judged of as though no caveat had ever been entered. The privileges derived from a patent take vn. Pa- effect only in England : but if the Colonics are '^"^*/j^. named therein, then it extends to them. «'* bexides . , _ England. If it is the wish of the inventor to exercise his invention exclusively all over the united king- doms, he must take out separate patents for Scotland and Ireland. By Act of Parliament, this exclusive privilege may be preserved to the inventor in any other places, over which this government has authori- ty, as in the West India Islands. iy) Post Chap. IX. l2 148 Patents for Inventions. 11. The Acts of Parliament to enlarge Patents. I. An %4ct to pro- long the Terra of a patent. The sub- stance of acts to prolong the term of a pa- tent. Now that the necessary forms and instru- ments have been described; the manner of solicit- ing, and the matter contained in the acts of parliament, which are sometimes passed to give greater utility to the statute of James, shall be stated. An Act to procure the term of a patent is procured in the usual manner, in which private ones are obtained, by notice and petition. The notice {a) after stating that an application will be made to parliament for an act to prolong the term, or rather to grant a new term to the patentee for the sole enjoyment of the benefits accruing from the invention (naming it) granted to him on a certain day. If the patent has been made for Scotland and Ireland, then the no- tice must state that the act is to extend its {a) Order of the House of Commons, 30 June, 1801. The substance of an act to prolong the terra of letters patent mny thus briefly be described. After reciting that letters patent have been granted for England, Scotland, and Ire- laud, and setting forth their respective dates, and the clauses for the inrolment of the specification in the respective Courts of Chancery in England, Scotland, and Ireland ; the act further recites that the specification has been so enrolled. Then, if zmprovemenls have been made, the dates of the several patents for thera, and the inrolraent of their specifications, arc recited in the same manner. Then follows an abstract of the assignments of the patent right, if any have takea i Practice of obtaining them. 149 authority over those places. If a subsequent patent has been obtained for improvetnents and additions, then it should be stated that it is the patentee's intention to apply for a new term for the use thereof in England, Scotland, and Ireland. This notice should be signed by the solicitor or agent for the patentee, and should be inserted three times in the London Gazette. If the pa- tent be also for Scotland and Ireland, then the notice should be inserted three times in one of the Edinburgh papers, and three times in the Dublin Gazette. These advertisements must appear in the respective months of August and September, or one of them (b) preceding the sessions in which the application is to be made. A petition, with a copy of the patent annexed to it, for leave to bring in the bill, is then pre- pared. It describes the invention as in the patent (c), place. After -which it is usual to state the special circum- stances that induce the petitioners to ask for an enlarge- ment of the term. The reasons generally assigned are, the impossibility of the patentee receiving any reward for his labour and ingenuity, in the short space of fourteen years, arising either from the great expense and length of time taken up before the machine or invention could be bene- ficially used, the large capital necessarily employed, or that the public will not be much benefited, unless, by a greater length of time, the patentee should be enabled to sell his invention at a lower price. Sometimes the reason given is the heavy expense of suits at law. At another time the patentee asks for these indulgences to avert impending ruin, (6) Order, 30 Juue, 1801. (c) Order, 26 May, 1685. 150 Patents for Inventions. and gives the dates of the three grants for the use of the inventors in England, Scotland, and Ireland. And if patents for improvements have been obtained for those three kingdoms, then the several dates of those three patents must be stated. Afterwards the special matter, with the reasons for the application {d) that may appear to the patentee to be important, should be set forth. Then follows the prayer of the petition- It must be signed by the parties who are suitors for the bill. This petition is referred to a select committee, who examine the witnesses, and inspect the newspapers in which the notice has been insert- ed. The chairman then reports to the house that the committee have examined the matter of the petition, and that the standing orders of the house relative to bills for confirming or prolonging terms of letters patent have been complied with. Leave is then given to bring in the bill, to which a copy of the pa- caused by the great expense he has been put to in endeavour- ing to perfect his invention : and he therefore calls on the legislature to assist him, and thus encourage ingenuity that is exercised for the advantage of the public. It is then enacted, that the sole right to the invention, or the improved inven- tions, be vested for a given number of years, being an ad- dition to the original term, in the patentee ; or, if it has been assigned, then in his assignee. If it be a machine, the rules at ivhich it shall be vended are particularly specified ; and all contracts for using it remain the same as though the act had not passed. 00 Order, 24 November, 1699. Practice of obtaining thenil 151 tent is annexed (e). This bill is read 2i first time^ and ordered to be read a second. On the second reading, upon being presented, it is re- ferred to a select committee, who hear witnesses, and then report to the house that they have ex- amined the allegations of the bill, and find the same to be true ; upon which the house orders the bill to be engrossed. On the third reading it is passed,and carried up into the House of Lords, by the member who conducted the bill through the House of Commons into that of the Lords. The usual routine in the House of Lords of passing a private act, by which term the bill is there designated, is to read it immediately a first time, and then for the chairman of the select committee to move that it be read a second time, and referred to a select committee ; before whom the witnesses are examined by the chair- man, who reports to the house that the allega- tions in the act are true. Upon his motion the act is read a third time, and passed. The Com- mons are informed of the agreement of the Lords to the act, and it receives the royal assent. It is provided that nothing therein shall hinder any person from making or using an invention that is different from the one mentioned in the act. If the subject of the patent has been gradually improved, then the act provides that a specification of the whole inven- tion, in its improved state, shall be enrolled in the Court of Chancery within a given time, which is generally six months. It is enacted, that objections, which would have af- fected the validity of the patents before the passing of the (e) Order, 13 May, 1690. 15a Patents for Inventions. II. Jtt Jet to en' able the patentee to assign to more than Jive persons. In an Act of Parliament to enable a paten- tee to assign to more than five persons : after a recital of the date of the patent for the original subject, and also of that for the im- provements (if any have been granted) ; the proviso by which the patent is declared to be void, if it be transferred to any number of per- sons exceeding five, is set forth. Then follows the special circumstances ; as, that the undertak- ing requires a large capital ; and that, to make it beneficial to the public, such large sums of mo- ney are required, that rendered it impossible for five persons to use it. It is thereupon enacted, that the patentee may transfer his right to any number of persons not exceeding the number therein mentioned ; with a proviso, that nothing in the act contained shall be construed to confirm or give greater force or validity to the letters patent than they legally possessed before the passing of it. The act, though private in its nature, is ge- nerally made a public one, to prevent the ex- pense of pleading it specially. (/) act, shall afterwards have the like force and eifect in law as before the passing thereof ; and that the invention shall not become the property of more thankee persons. It is ge- nerally added that the act (to prevent the trouble and ex- pense of pleading it specially) shall be deemed a public one. (/) See 41 Geo. IH. c. 125, Local and personal acts. 153 CHAP. VI. Of the Construction of Letters Patent. The inventor having obtained a patent, it is now time to state the principles^ and expound the rules by which it is to be construed. The matter may be divided for consideration into three parts as it respects the construction— 1. Of letters patent in general. 2. Of those for inventions. 3. Of the acts of Parliament enlarging the patent-rights. "In ordinary cases/' says Mr. Chitty, Jun. in his Treatise on the Prerogatives of the Crown, (a) " between subject and subject, the principle of construction is, that the grant shall be construed, if the meaning be doubtful, most strongly against the grantor, who is presumed to use the most cau- tious words for his own advantage and security. But in the case of the King, whose grants chiefly flow from the royal bounty and grace, the rule is otherwise ; and crown grants have at all times been construed most favourably for the King, where a fair doubt exists as to the real meaning of the instrument, as well in the instance of grants from his Majesty, as in the case of trans- fers to him." (a) See pags 391, 3, aod the Authorities there collected. ^^* Patents for Inventions. '' But tlie rule that grants shall be construed most favourably for the King*/' he adds, '' is subject to many limitations and exceptions. (6) ''In the first place, no strained or extravagant construction is to be made in favour of the King. '' If the intention be obvious, royal grants are to receive a fair and liberal interpretation accord- ingly. And, though the general words of a grant may be qualified by the recital ; yet, if the intent of the crow^n be plainly expressed in the granting part, it shall enure accordingly, and shall not be restrained by the recital. "In the second place, the construction and leaning shall be in favour of the subject, if the grant shew that it was not made at the solicita- tion of the grantee, but ex speciali gratia, certd scientid, et mero motu regis. Though these words do not of themselves protect the grantee against false recitals, &c. '' In the third place, if the King's grants are upon a valuable consideration, they shall be con- strued strictly for the patentee for the honour of the King. " So where the King's grant is capable of two constructions, by the one of which it will be valid and by the other void, it shall receive that interpretation which will give it effect ; for that will be more for the benefit of the subject, and the honour of the King, which ought to be more regarded than his profit. '' A decided uncertainty (c) will avoid a grant from the Crown, not only as against the pa- (6) Id. p. 393, 4. (c) Id. p. 394. The construction of them. 1 55 tentee, but also as against the King, because it raises a presumption of deceit." " But the rule id certum est quod cerium reddi potest obtains, even in case of the Crown ; and therefore, if a grant refer or has relation to that which is cer- tain, though it be not matter of record but mere matter of fact, or in pais, it is sufficient." " But •where a particular certainty precedes, it shall not be destroyed by an uncertainty or a mistake com- ing after." '' Misrecitals and false suggestions or de- ceit (d) will in certain cases invalidate a grant from the Crown." Such are the general rules for the construe- S; Con- structioti tion of all kinds of letters patent. It becomes of a pa- necessary to state the principles upon which the ventions" decisions respecting patents for inventions in particular are founded. The exposition of the patent, w^hether it regard the invention or other matters connected with it, is in truth nothing more than a statement of the meaning of the statute of monopolies which was made in favour of the subject, and ought therefore to be explained most liberally to his advantage. The formal parts, — the usual covenants, and the provisoes — must be expounded by the gene- ral rules above laid down. The patent for an invention contains the expres- sions ex speciali gratia, certd scicntid, et mero motu ; and upon that account the construction (f/) Id. p. 396. 156 Talents for Inventions. must lean in favour of the patentee. Moreover there is a clause inserted, whereby it is expressli/ declared that the letters patent shall be taken, construed, and adjudj^ed, in the most favourable and beneficial sense, for the best advantage of the patentee, notwithstanding the not full and certain describing the nature and quality of the said invention, or of the materials thereto con- ducing and belonging, (e) Although many of the judges have construed the statute of monopolies in favour of the in- ventor, (/) yet formerly they inclined to give to the patent and specification, (which must be taken together when considering the proper con- struction of this grant) a narrow limit ; and, in fact, to no greater extent than the literal mean- ing of its terms. Mr. Justice Duller, however, observed, (g) Whenever it appears that the patentee has made a fair disclosure, I have al- ways had a strong bias in his favour, because in that case he is entitled to the protection which the law gives him. How far that law which au- thorizes the King to grant patents is politic, it is not for us to determine. When attempts are made to evade a fair patent, I am strongly in- clined in favour of the patentee : but, where the (e) See Form of a Patent in the Appendix, (/) Lord Loughborough — " There is no matter of favour that can enter into consideration in a question of this na- ture. The law has established the right of patents for new inventions : that law is extremely wise andjusV^ Dav. Pat. Cas. 55. is) In Turner -o. Winter, 1 T. R. 606. The construction of them. 157 discovery is not fully made, the Court ought to look with a very watchful eye to prevent any imposition on the public. But Kenyon, C. J. observed, {h) " I am not one of those who greatly favour patents ; for though, in many instances, the public are benefited by them, yet, on striking the balance on this subject, I think that great oppression is practised on in- ferior mechanics by those who are more opulent." It is said that Lord Eidon, when Chief Justice of the Court of Common Pleas, in the case of Cartwright v. Amatt, (?) put the question for consideration, — Whether the specification was such that the machinist could make the machine from the description there given, considering the case of a patent not in the light of a monopoly, as it had been generally put, but as a bargain with the public, and therefore to be construed upon the same principle oi good faith that regulated all other contracts; and therefore if the description was such that the invention could be communi- cated to the public, the statute was satisfied. The extent of signification which has been given to the words "first inventor" (A:) and " new manufacture,"(/) and also by what rules the specification {m) is to be judged, have been fully explained ; and therefore I shall only add, (/i) In Ilornblowpr v. Boulton, 8 T. R. 98. (0 In F.astcr Term, 1800; not reported, buf mentioned in argument 11 Ea<-t. 107, and 14 Ves. 131. His Lordship afterwards said that he adhered to the law as he stated it in that case. 14 Ve«. L'^fi., and see Dav. Pat. Cas. 434. (A;) Ante, Chap. 11. (/) Ante, Chap. I] f. (m) Ante, Chap. IV. Patents for Inventions. tliat patents now receive a construction more in favour of the grantee than they formerly did, and that the opinion of Lord Eldon is generally adopted ; that, as the disclosure of the new in- vention is the equivalent for which the grant is obtained, letters patent come within that general rule, by which, when a valuable consideration is given, the grant is to be construed strictly in favour of the grantee, (n) Statutes, it has been shewn, (o) are sometimes made to enlarge the benefits arising from patents for inventions. It was formerly contended that the view taken of letters patent by the Legislature, as expressed in the act of Parliament extending the term of a grant, supported the validity of the patent itself: but it was considered that the legislative provisions left the patent exactly in the same situation in which it was placed before they were enacted, and that the act could not be looked at as a legislative reading of the patent. An attempt was lately made to put a similar construction upon an act of Parliament, by which the patent of Koops(p) was made assignable (n) A.iite, p. 50. (o) Ante, p. 148. (p) Hesse v. Stevenson, 3 Bos. and Pull. 578. Lord Alvunley^ — It is contended that the act of Parliament stated in the case vested a legal interest in Koops ; for that he must be taken against all the world to have that interest which the act of Parliament recites to be vested in him, that act being a public act. But though the act be public, it is of a private nature. The only object of the proviso for making it a public act isj that it may judicially be taken notice of instead of being specially pleaded, and to «!avP the expense of proving I The construction of them. 159 to sixty persons : but Lord Alvanley on that occasion observedj that he could not look into the act for any explanation of the contents of the patent or specification. The patent and specification must, in fact, stand or fall by themselves ; and no extraneous matter can be introduced to explain them and establish their legality. If they are bad in themselves, nothing whatever can make them legal instruments. an attested copy. But it neyer has been held that an act of a private nature deriyes any additional weight or authority from such a proviso ; it only affects Koops, and those claim- ing under him ; and authorizes him to do certain acts M?hich by the letters patent he could not have done. It recites the letters patent, containingaclauseAvhich prevents him assigning to more than five persons ; and then enables him to assign to any number of persons not exceeding sixty. It is not possible then to consider this act as giving title to Koops which he had not at the time when it passed. Such has been the con- struction which has always been put upon acts of Parliament of this nature. AVe are therefore of opinion that no aid is to be derived to the defendant from the act of Parliament. 160 CHAP. VII Of the Property in an Invention. The inventor, being possessed of a patent, with a knowledge of the manner in which it must be construed, is next to be informed of the nature of the property he has acquired, and the uses to which it may be applied. The grounds upon which assistance is refused, in the courts both of common law and equity, to those persons who conceal their inventions, to relieve them from the effects of any breach of faith, will afterwards be investigated, I. Property in a Patent. itsnaiure Thou"h the statute merely mentions the " in- fenerally. '-' •' ersonal vcntor ;" yet the patent is always granted to him, property. i • • " i • i his executors, administratorSj and assigns, and to such others as they at any time shall agree with. It is a personal chattel {a), peculiar in its na- ture as (o 1. Its duration, or the time it may be en- joyed. 2. The number of persons to whom it may be assigned ; or who may at the same moment be interested in it. (c) See 2 Bla. Co!n. Chap. 27. The Property in a Patent. 161 3. Being sometimes enlarged by an act of the state. But in every other respect it is to be viewed in the same light as that in which personal pro- perty in general is considered. This privilege, so valuable to an inventor of i. Dura- the sole working or making his new manufac- ture, is by the statute(6) allowed to be enjoyed/o?' fourteen years or under : which term, by express enactment, is to be accounted from the date of the first letters patent or grant of such privi- lege. Though the king, therefore, when he sees occasion, may grant this right for any time less than fourteen years, yet a patent in which it should be attempted to extend that term would in consequence thereof be void. It is one of the most material conditions (c) 2. iVumber upon which the grant is made, that, if the I'nterested! person interested in it should make any trans- fer or assignment of it, or divide it into shares, or declare any trust, or seek public subscriptions, or should presume to act as a corporate body, or do any thing contrary to the Act of Geo. I. so that more than Jive persons should in any manner become interested, and claim a benefit in the patent, it is declared to be void. Executors and administrators are to be reck- oned, accounted, and considered, as atid for the single person whom they represent, as to the in- (6) 21 Jac. I.e. 3. S.6. (c) Ante 49, 50. and see Appendix for copy of a patent. M 162 Patents for Inventions. Assign- ment of patent. Assign- ment ge- nerally. If patent be void. terest they shall be entitled to in right of the testator or intestate, (d!) Subject to the above mentioned restrictions as to its duration, and the number of persons that may, at any one time, be interested in it, a patent may be assigned in the same manner as other personal property, (e) 1. Generally. ^. Under Commission of Bankrupt. If the grant be valid, the assignment of it in the usual way is of course good and effectual. Where a patentee, having a lawsuit respecting the validity of his patent, made an absolute grant of it, (reserving to himself the legal right until the disputes were ended) in trust for the assig- nee, with a covenant to further assign : it was held, that, upon the determination of the suit, the patent vested without such second assignment. (/") But far different is the effect of an assignment of a grant which afterwards appears to be an invalid one. If he who has a patent-right (g) agree with another person, for a valuable consideration, (rf) 21 Jac. I. c. 3. s. 6. (e) The property in a patent, and the right to exercise it, should go together. See Ex parte O Reily, 1 Ves. Jun. 118. (/) Cartwright v. Amatt, 2 Bos. & Pull. 43. (g) Hayne and another v. Maltby, 3 T R. 438. (and see 14 Ves. 132, 3.) The plaintiffs were assignees of one J. Taylor, of a patent for an engine or machine, to be fixed to a common stocking frame, for making a sort of net or open work, called point net. Permission by an agreement was given to the defendant to use the engine, provided he worked it according to the speciJicaUon, and would not use any other The Property in them. 163 that the latter may use the manufacture for a certain time, upon certain conditions ; yet if the patentee, for a breach of the contract and covenant, bring an action, it may be answered by shewing in any manner that the patent is a bad one, and invahd. But where an action was brought by the assignee of a grant against the patentee himself, for using an invention, the latter was not per- mitted, in violation of his own contract, to in- fringe the patent-right which he had assigned, and to deny that he had any power to convey. patent engine for the same purpose. In an action at law on the agreement breaches were assigned upon the latter condi- tion. It was pleaded, amongst other things, that the specifi- cation was not enrolled in time : that the plaintiiT Taylor was not the Inventor, nor was the machine a new one. To which the plaintiffs demurred. Kenyan^ C. J. It is contended that the defendant shall be bound by his covenant, though the consideration of it is fraudulent and void. This is not to be considered as a co- venant to pay a certain sum in gross at all events ; but to use a machine in a particular way, in consideration of the plaintiffs having conferred that interest on the defendant, which they professed to confer by the agreement. The doctrine of estoppel is not applicable here. The person sup- posed to be estopped is the very person who has been cheat- ed and imposed upon. Bullei^ J. We must consider the intention of the par- ties. If the plaintiffs had the exclusive right to the machine, they might convey it to any other person. It is now dis- covered that they had no such right ; and therefore the defendant has not the consideration for which he entered into his covenant, and notwithstanding which, they say he is still bound. Judgment for defendant. .m2 *^4 Patents for Inventions. by shewing any thing that would invalidate his own patent, (h) On the other hand, if a person, imagining that he has discovered something new, obtain a patent for it ; (t) and then assign it for a valu- (h) Oldham v. Langmead, Sittings after Trin. 1789, co- ram Lord Kenyon, cited by Mr. Wigley in arg. 3 T. R. 439. (0 Taylor v. Hare, 1 New Rep. 260. (and see 13 East. 348. 16 East. 207, 8. 4 M. & S. 37.) The patent was grant- ed for *' an apparatus for preserving the essential oil of hops in brewing." The defendant assigned his right to the plaintiff, upon condition of receiving from him and his part- ner, since deceased, an annuity of 100/ per ann. during the term of the patent. After the plaintiff had used the appara- tus, and paid the annuity to defendant for several years, it was discovered that he was not the inventor. The patent had never been repealed. The plaintiff therefore now brought the action to recover back the money which had been paid to the defendant. Mansfield, Sir James, C. J. In this case two persons, equally innocent, make a bargain about the use of a patent ; the defendant supposing himself to be in possession of a valuable patent-right, and the plaintiff supposing the same thing. Under these circumstances the latter agrees to pay the former for the use of the invention ; and he has the use of it. N on constat what advantage he made of it. For any thing that appears, he may have made considerable profit. He would never have thought of using this invention, if the privilege had not been transferred to him. Heath, J. As well might it be said that if a ^an lease land, and the lessee pay rent, and afterwards be evicted, that he shall recover back the rent, though he has taken the fruits off the land. Chambre, J. Both parties were mistaken. Both have thrown away their money. In the case of Arkwright's pa- tent, very large sums of money were paid for using the The Property in them. 165 able consideration to another, who uses it for some time ; the assignee, though the grant after- wards prove to be a bad one, cannot recover the sum of money he originally gave for the purchase of it. There must not however be the least appear- ance of fraud in the transaction. Both must have acted under the mistaken notion that it was a legal patent. If it were discovered to be an invalid patent before the assignee had made any use of it, according to the rules of equity and good conscience, it would seem that the purchase money ought to be returned. And where the assignee of certain shares in a patent-right covenanted that he had full power to convey, and that he had not by any means, directly or indirectly, forfeited his right over the same ; it was held, that the generality of the former words were not restrained by the latter.Q*) Not only can this property be assigned gene- Bankrupt; rally, but it will pass to the assignees of a bank- rupt patentee, (k) The grant obtained by an uncertificated bankrupt (/) for an invention patent-right : but no money was ever recovered back after the patent had been cancelled. Judgment of nonsuit. (/) 3 Bos. & Pull. 565. and see 2 N. R. 71. (/c) See Montag. Bank. Laws. (/) Hesse v. Stevenson, 3 Bos. & Pull. 577. Lord Alvan- ley. It was next contended that the nature of the property jn this patent was such, that it did not pass under the assign- ment. That the fruits of a man's invention do not pass. It is true that the schemes which a man may hare in his own cy. 166 Patents for Indentions. made since the act of bankruptcy is affected hj the previous assignment of the commissioners ; and, vesting in the assignees, is liable to be seized by them : even in the hands of third per- sons. From the case of Hesse v. Stevenson,(w) we dis- head before he obtains his certificate, or the fruits which he may make of such schemes, do not pass; nor could the assignees require him to assign them, provided he does not carry them into effect until after he has obtained his certifi- cate. But if he avail himself of his knowledge and skill, and thereby acquire a beneficial interest, which may be the subject of assignment, I cannot frame to myself an argu- ment why that interest should not pass as any other property acquired by his personal industry. We are therefore clearly of opinion that the interest in the letters patent was an in- terest of such a nature as to be the subject of assignment by the commissioners. (m) Hesse v. Stevenson, 3 Bos. & Pull. 565. This was an action of coTCnant. It appeared by a case reserved, that in June 1790, one Koops was duly declared a bankrupt. That on the 17th and 18th of May 1801, the said Koops obtained patents. That Koops had assigned a certain share of the patent to the defendant, who had assigned a part of that share to the plaintiff. That an act had passed by which Koops was enabled to assign the use of the said patent to any number of persons, not exceeding sixty ; which act was de- clared to be a public act. On 9th September, 1801, the creditors of Koops executed a deed of composition with him; to which several of his creditors were not parties. The assignees, and most of the creditors, by that deed, did remise, release, and quit claim unto the said Koops, his heirs, executors and administrators, all actions, rents, claims, and demands whatsoever. Koops failed in the performance of the consideration of the said deed; whereupon the assignees entered up judgment upon the warrant of attorney, on 31st March 1802, and on the 14th October following issued a The Properlif in them, 167 cover in what manner patents for inventions are viewed by the bankrupt laws. After deciding generally that a composition entered into by the fieri facias ; and, after taking the goods, &c. of Koops, en- tered upon the premises where the manufactory under the patents and act of parliament was carried on, and took possession of the same. In the deed-poll between the de- fendant of one part, and the plaintiff of the other, was the usual covenant for good title, that the said defendant had good right, full power, and absolute and lawful authority, to assign and convey the said shares, &c. ; and that he had not by any means, directly or indirectly, forfeited any right or authority he ever had or might have had in the said shares. Breach that he had not good title. Alvanley^ C. J. We shall consider the case as though the whole deed were before us. From all the cases upon this subject it appears to be determined, that however general the words of a covenant may be if standing alone, yet if, from other covenants in the same deed, it is plainly and irresistibly to be inferred that the party could not have intended to use the words in the general sense which they import, the court will limit the operation of the general words. The question therefore always has been, whether such an irresistible in- ference does arise. The warranty in this deed, in the usual and almost daily words, where parties intend to be bound by their own acts only, viz. " for and notwithstand- ing any act by him done to the contrary," omits them al- together ; besides which, the defendant covenants that the assignee shall enjoy the property assigned in as ample a manner as the assignor. The omission of the words is al- most of itself decisive. Wo arc therefore of opinion, that the covenant for absolute right to convey is not restrained by the other parts of the deed. It is said, secondly, that the assignees have rcconveyed the whole of their interest : but I am of opinion that deed was not intended to convey, nor did it operate in law as a con- veyance. Patents for Inventions. bankrupt, his assignees, and most of his credi- tors, by which, upon certain terms, the bankrupt had all his goods and chattels attempted to be reconveyed to him, was not a conveyance in law : it was held that the general covenant for good title of a patent-right was not restrain- ed by the covenant in which Stevenson, assignee of Koops the patentee and bankrupt, says that he has not done any act to impeach his title. This decision arose principally from the words '^for and notwithstanding any act by him done to the contrary," being omitted. It may be well to observe that an uncertificat- ed bankrupt, before he attempts to carry his schemes into execution, should obtain from his assignees a renunciation of all benefit of the patent. It was doubted by Lord Thurlow (w), whether a patent, meaning letters patent generally, could be the subject of a trust : but it is humbly con- ceived that one for an invention might become so, in the same manner as other personal pro- perty. Indeed it is expressly granted (o) that it shall not be assigned in trust to more than five per- sons ; thus allowing it to be made a trust for the benefit of that number. There was a trust declared in Cartwright's patent ; and no objection was raised to it on that account, (p) It may be bequeathed in any manner the pa- (n) 1 Ves. Jun. 129. Ex parte O'Reily. (o) Form of Patent, Appendix. (p) 1 Bos. & Pul. 44. 2' The Property in them. 169 tentee pleases. If he make not a will, it is assets in the hands of his administrator. (7) If the patentee does not wish to part wholly Licence to use it. with his patent, he may grant Licences to persons toMse it. And it would appear, in the event of an infringement of the patent-right, that all who have licences may maintain actions for dama- ges, (r) The transcendent power of parliament has, s.Enlarge- however, often been called forth to give a better [Jg patent effect to the right of patentees for inventions, pf^^iia-^ by extending the term of its duration, or in- ment. creasing the number of persons that may, at any one time, become interested in a patent. The extension of the term is made, when it ap- pears that the application, labour, and expense, of the patentee have been so great, that he has not been able to receive, within the time allowed by his patent, an adequate reward from his great undertaking. Other causes have had their due effect upon parliament: — as when the patentee has discovered some improvements which have been attended with great expense, and by which the machine is become much more profitable to him, and beneficial to the community; or where, dying, he has left his family unable to proceed with the manufacture without that indulgence. And the legislature will also lend its assistance when the undertaking is of such a magnitude (g) 1 Ves. Jun. 118. and see 3 B. Sc P. 573. (r) Ante 49. See George v. B. Wackcrback and another, Repertory of Arts, N. S. Vol. XXVII. 252. Patents for Inventions. that five persons are unable by themselves to- reap any benefit from tlie grant, by making- an act of parliament, giving power to the patentee to assign the patent-right to any number of per- sons. The interest in Koops's patent was, by an act of parliament made capable of being divided into sixty shares, (s) In almost every instance in which the legisla- ture has interfered, a proviso is introduced, that every objection in law competent against the patent shall be of the same force against the act to all intents and purposes, {t) But even if that clause is not introduced, yet the patentee, as to the validity of the patent, or his title to it, is in the same situation as though the act had never been passed, (m) II. Property in Discoveries not protected BY A Patent. Some persons, alarmed at the frauds fre- quently practised upon inventors, and strongly impressed with the difficulty of making a sufficient specification, and perhaps suspicious of the manner in which the patent may be construed, have preferred to keep their discoveries secret, and to use or vend their manufacture without the protection of a patent. No one, however, can have a property — an exclusive right — in (*) 3 Bos. and Pull. 565. (0 Ante 152. n. (w) 3 Bob. and Pull. 678. 1 The Property in them. such a subject, (v) Injury and remedy are in- separable in law : but as there is not any rule of law, even in equity, to punish or to prevent any one from making use of such manufac- tures, we may conclude that such discoverers do not sustain an injury to any legal property. Of course, the case is altered, when any fraud is practised in getting at the secret. One (t?) Canham v. Jones, 2 Ves. & Beam. 221 ; (and see Williams v, Williams, 3 Meriv. 157.) The bill stated that Isaac Swainson was, for upwards of thirty years before his death, the sole proprietor of the secret or recipe for prepar- ing the medicine called Velno's vegetable syrup, which he had purchased for 600/., and by his will bequeathed to the plaintiff; who, since his decease, continued to make the same preparation as specified by the recipe ; and made great profit ; and would have made much greater, if the defendant had not imposed on the public a spurious composition under the same name. Demurrer. Sir T/wmaf Plumer, V. C. This bill proceeds upon an er- roneous notion of exclusive property now subsisting in this medicine; which Swainson having purchased, had a right to dispose of by his will ; and, as it is contended, to give the plaintiff the exclusive right of sale. If this claim of mo- nopoly can be maintained without any limitation of time, it is a much better right than that of a patentee. But the violation with which the defendant is charged does not fall within the cases in which the court has restrained a fraudu- lent attempt by one man to invade another's property ; to appropriate the benefit of a valuable interest in the nature of good will, consisting in the character of his trade or produc- tion, established by individual merit ; the other representing himself to be the same person, and his trade or production the same, as in Hogg v. Kirby, 8 Ve?. 215. combining im- position on the public with injury to the individual. De- murrer allowed. 73 Patents for Inventions. person must not use the name of another, nor represent his article to be the same as the one thus secretly made ; or he will be liable to an- swer for damages in an action at law; or be restrained from using it by an injunction, (x) Nor will the court prevent a person from im- parting the secret of an invention which had been the subject of a patent long since expired ; the specification of which was so incorrect, that the discovery still remained undisclosed. (i/) But a man has such a property in his inven- tion before a patent is procured, that if he agree to inform another person of the secret, who binds himself in a penalty not to avail himself, or take any undue advantage of the communica- tion ; he may maintain an action for the breach of that contract, (z) (x) Yovatt V. Arnyard, 1 Jac. & Walk. 394. And the Case of Day & Martin, E. T. June 1 82 1 , before Abbott, C. J. (y) Newberry v. James, 2 Mer. 446. (z) Smith 0. Dickenson, 3 Bos. & Ful. 630. post. 173 CHAP. VIII. Op the Infringement of a Patent, and the Remedies for that Injury. THE patentee having ascertained the nature of the property he has acquired by the grant, the next topic for investigation will be the conduct of persons, when it is considered as an infringe- ment of that right, and the necessary remedies which the law has prescribed for the injury. I. What amounts to an Infringement, Whether the act of the defendant is really an infringement of the grant is a question for the jury- («) The law cannot be evaded by fraud or deceit of any kind. Jt has been decided that the mak- ing or using of any the least part of a manufac- ture (6) is an infringement. If the article manu- factured by the defendant be of a different form,{c) or made with slight and immaterial (a) 2 Hen. Bla. 480. (6) In Manton v. Manton, Dav. Pat. Cas. 348. the alleged infringement consisted in making a perforation in the hammer of a gun, in a direction a little dilTerent to that in the patent article. (c) 2 Hen, Bla. 477. and see Bovill v. Moore, Dav. Pat. Cas. 405. Gibbs, C. J. I remember that that if as the ex- Patents for Inventions, additions, or by the substitution of things some- what different from those used by the patentee ; yet, if the manufactures are really and substan- tially the same, the patentee is entitled to a re- medy at law. (d) pedient used by a roan in Cornwall, who endeavoured to pirate the steam engine. He produced an engine, which, on the first view of it, had not the least resemblance to Boulton and Watt's. Where you looked for the head, you found the feet ; and where you looked for the feet you found the head. But it turned out that he had taken the principle of Boulton and Watt : — it acted as well one way as the other ; but if you set it upright, it was exactly Boulton and Watts' engine. (d) Sec the elaborate opinion of the court in Hill v. Thomson, 2 B. Moore, 447. Dallas^ J. Whether the pa- tent be valid or not signifies nothing in this particular case, if the defendants have not worked according to the specifi- cation. To prove the infringement of the patent one wit- ness only was called ; this part of the case therefore de- pends entirely upon his testimony ; and, before adverting to the evidence in question, it will be necessary to look at the patent, as far as it relates to this part of the subject. It has not been contended that it is a patent introducing into use any one of the articles mentioned therein, as singly and se- parately taken ; nor could it be so contended, for the patent itself shews the contrary ; and if it had been a patent of such a description, it would have been impossible to support it • for slags, as well as mine rubbish, and lime, had undoubted- ly been made use of before it was passed. But it is laid, it is a patent for combinations and proportions, producing an effect altogether new, by a mode and process, or series of processes, unknown before ; or, to adopt the language made use of at the bar, it is a patent for a combination of processes altogether new, leading to one end; — and this being the na- ture of the alleged discovery, any use made of any of the in- gredients singly, or used in partial combination, omitting some, apd making use of all or some, in proportions essen- Remedies for an Infringement. I75 If there are some articles well specified, and others that are only mentioned in the specifica- tion, without any intention of their being con- sidered as perfect instruments, but merely as speculative matter, as was done by Mr. Watt in his patent, (e) although the latter cannot be protected, and may consequently be infringed with impunity; yet an infringement of the for- mer parts or articles cannot be excused. Even if the improvement of a manufacture be so great and important that the substratum is insignificant in comparison with it, still no claim can be laid to the whole. The addition may be made and vended by itself. (/) IT. Remedy at Common Law. It is a wise maxim in our law that there is not an injury without its concomitant remedy. Formerly, patent-rights were investigated in the Star Chamber : (g) but, by the statute of Mono- tially different, and yet producing a result equally, if not more beneficial, will constitute an infringemeut of the pa- tent. It is scarcely necessary here to observe, tliat a tilight departure from the specification for the purpose of invasion only would of course be a fraud upon the patent ; and there- fore the ([uestion will be, whether the mode of working by the defendants has or has not been essentially or substan- tially different. (e) Ante 116. It has been doubted whether the inser- tio[i of imperfect articles ought not to invalidale the grant. See ante. (/) 1 Ves. & Beam, 67. and see ante 72 and 126. (g) 3 Inst. 183. 176 Patents for Inventions. polie9,(A) it was enacted "that monopolies, letters patent, &c., and their force and validity, ought to be, and shall be, examined, heard, tried, and determined, by and accordingto the common laws of this realm, and not otherwise." Hence the remedies for this injury are An action at law for damages ; or Proceedings in Equity for an injunc- tion and account. When the king has granted a patent for the sole use of any invention, the common law gives a right of action against every person who in- fringes it. {i) It is in form an action on the case, (j) Although the patentee has been defeated in one action, still he may maintain fresh suits against other persons: as was done by Mr. Arkwright (k) and by Mr. Watt. For actions (A) 21 Jac. I. c. 3. s. 2. (0 Buller, N. P. 76. 0') 1 Chit. Pi. 142. (k) Arkwright v. Nightingale, Day. Pat. Cas. 55. Lord Loughborough. It has been said that many persons haye acted upon an idea that Mr. Arkwright had no right, he hav- ing failed to establish it when this cause underwent an ex- amination in another place, in which the event was unfavour- able to him. If the question at present were what damages Mr. Arkwright should have received for the invading that right, I would have allowed the parties to have gone into evidence to shew to what extent persons had acted upon the faith of the former verdict : but the question now is upon the mere right; and if the result of this case is in favour of the plaintiff, the verdict will be with one shilling damages. A future invasion of this right would entitle Mr. Arkwriglit to an action for damages : but in the present case they are not asked. Remedies for an Infringement. 177 on the case will lie, notwithstanding the patent is really void, until it has been cancelled. (/) If the patent has been assigned, the assignee i. The , , . . . . pleadings. may sue alone, or he and the patentee may join The par- in the action, (m) ^^^^' When a ffrant by letters patent is pleaded, it The de- , . 1 , ... , X claratioii. ought to be shewn under wn,ats,ea\ it is made ;(n) and therefore, in the declaration for an infringe- ment, the patent must be stated to be under the great seal, (o) A profert is made of the letters patent, which are recited : but oyer of them is never allow- ed, (p) because they are matters of record. The venue in this action must always be laid Venue. in the county of Middlesex. In Cameron v. Gray, (q) a motion was made to change the ve- nue from Middlesex to Northampton. The rule was refused, because the patent, which is the sub- stratum of the action, is tested at Westminster. ^' The usual plea is not guilty ; which, putting Plea, &c. 'in issue the whole of the declaration, forces the plaintiff to support the grant in all its parts, and gives to the defendant the greatest latitude for evidence, (r) (0 2 Ventr. 344. Dav. Pat. Cas. 55. {m) 2 Wils. 423, 2 Saund. 11 5, G. a. (n) 2Tnst. 555, 1 Vent. 222. 9^o. Rep. 18. (o) For precedents of declarations sec the record at full length in King v. Arkwright, printed case. And seeBoulton t>. Bull, 2 Hen. Bla. 463. Dav. Pat. Cas. 162. 2 Chit. PI. 355. 8 Went. PI. 431. (p) Rex V. Amery, 1 T. R. 149. 1 oaund.Oe.a. 1. (r/) 6 T. R. 363. and see Rex v. Haine, 2 Cox 235. (r) If the patent be void in itself, it is saidi\i 178 Patents for Inventions. Dr.ninrer- The defendant, for any thing on the face of the declaration, by which it clearly appears that the patent is void, may demur generally ; as if the grant be of a thing for which a patent ought not to have been obtained. 9. Evi- By the common law (t) a constat or inspeximns ilence. By plain- of the king's letters patent could not be shewn forth port Hu"'' ^'^ court, but the letters patent themselves must patent. j^^^^^, been produced: but by statute 3 and 4 Ed. VI. c. 4., explained by stat. 13 Eliz. c. 6., '' pa- tentees, and persons claiming under them, may make title in pleading, by shewing forth an ex- emplification of the letters patent, as if the letters patent themselves were pleaded and shewn forth ;" and now they are to be given in evidence in the same manner as if they were pleaded. It is necessary in this, as in every other case, that the plaintiff should be prepared to prove the material allegations in his declaration ; — that the invention in all the parts to which the pa- tent applies is new and useful ;(u) — that he is the inventor, and that the specification is suffi- cient in law. '' I do not agree," said Mr. Jus- tice Buller, (x) '' with the counsel who have cessit may be pleaded to it without a scire facias to repeal it. 2 Roll. Abr. 191, (s.) pi. 2. 2 W. Saunders, 72. q. (0 Olive V. Gwyn, Hardr. 119. Phil, on Evid. 498. and see 5 Co. 53. Bro. Surrender 51. Co. Lit. 225, b. Dyer 167- 179. Att. Gen. v. Taylor, Prec. Ch. 59. (w) Boville V. Moore, Day. Pat. Cas. 399. Manton v. Manton, id. 348, 9. {x) Turner v. Winter, 1 T. R. 60G, 7. and see 2 B. Moore, 250. Remedies for an Infringement. 179 arg'ued against the rule, in saying that it was not necessary for the plaintiff to give any evi- dence to shew what the invention was, and that the proof, that the specification, was improper, lay on the defendant ; for I hold that a plaintiff must give some evidence to shew what his inven- tion was, unless the other side admit that it has been tried and succeeds. But wherever the pa- tentee brings an action on his patent, if the novelty or effect of the invention be disputed, he must shew in what his invention consists, and that he produced the effect proposed by the pa- tent in the manner specified. Slight evidence of this on his part is sufficient, and it is then in- cumbent on the defendant to falsify the specifi- cation." It is good prima facie evidence that experi- enced and intelligent men, versed in the art or mystery in which the invention has been made, have never before heard of it ; [y) yet the novelty of the invention cannot be thus proved if one witness is produced who states that he has used it. {z) After the plaintiff has thus supported his pa- Evidence ^ , of the la- tent, he is required to prove that the deiendant fvinge- has infringed it, to whom it will be open to shew ™^" * that he has not worked according to the specifi- cation, (a) What amounts to an infringement has been (^) Manton v. Manton, Dav. Pat. Cas. 350. (*) Ante, p. 62. ; and sec King v. Arkwrlght, Printed Case, 183. Dav. Pat. Cas. 135. (a) Hill V. Thompson, 2 B. Moore, 447, and ante, 174. n' 180 Patents for Inventions. considered, (6) from which it is easy to deter- mine what evidence is necessary in each parti- cular case. Proof by In several instances it has been very difficult inspection , . - • • n i ofraanii- to provc the Hirringement, especially where it actures. j^ ^^ j^g ascertained by the examination of the manufactures. It is possible that two persons might make articles equally good and cheap 1)y machines constructed upon different princi- ples : but it is hardly probable that the manufac- tures would agree in all their parts. It was observed to the jury by Lord Ellen- borough, in Huddart V, Grimshaw, (c) after it was proved that the defendant would not allow his ma- nufactory to be inspected to furnish evidence for the cause, — '' When one sees the rope of the de- fendant agree in all its qualities with a rope ac- tually made upon the plaintiff's plan, it is prima /«cie€vidence, till the contrary is shewn, that it was made upon his method ; and therefore, as ag-ainst him it should seem, supposing the patent in full force and a valid one, it is reasonable fair evi- dence, in the absence of contrary evidence, to presume that it was made in that way. There is certainly great weight in the observation of the counsel, — Am I to come forward and divulge my mode of making rope, and from which I reap a great advantage ? Whether it was neces- sary to have gone that length in proof does not appear. Persons might have been called upon (6) Ante, 173. (c) Dav. Pat. Cas. 288, 289. Ramedksfor an Infringement. 581 who might not be privy to the making of strands in the small room : however, whether it puts him to inconvenience or not, the question is, whether it is prima facie probable presumptive evidence, in the absence of evidence on the other side ; and it is a competent ground for you, if you think the facts bear you out, to form that conclusion upon." When the plaintiff has closed his case, the Evidence defendant may give any evidence which will feUMt/ shew that the grant is invalid, as that the pa- tentee was not the inventor, or that the subject is not a proper object for a patent, or that the specification is incorrect. Or he may otherwise shew that the plaintiff has no right to sue. The question generally arises on the specifi- inienUoa cation. It is often attempted to be shewn that Le^tocon it was the intention of the patentee, at the time veniion he made the specification, to conceal the inven- tion. It was proved that Mr. Arkwright said, that his description would operate as a specification, but that he had made it as obscure as the nature of tlie subject would allow ; (d) and also that he had, in a petition to the House of Commons, adnutted that he had not properly specified how the ma- chine was to be made, on purpose that foreigners might not use it. (e) A witness may be asked whether the invention might not with ease have been clearly described, (d) King V. Arkwright, Printed Case, 173. Dav. Pat. Cas. 108. (c) Id. Piiuted CabC, 176. Day. Vat. Cas. U5, 116. 183 Patents for Inventions. and whether he does not think that the descrip- tion is very obscure. (/) To prevent the miscarriage, which will almost always take place, in the endeavour to prove an infringement by comparison of the manufactures, it is prudent first to apply to a court of equity to appoint persons to inspect the manufactories, as was done in several cases, (g*) Trial by The validity of the patent may, however, be corapar- . . . i t r ingspeci- questioned upon the puttmg m and reading ot TdUi'pa- the specification. If they do not support each *^*' other : if the description in the latter be pal- pably at variance with the title of the thing claimed by the former instrument, the plaintiff must fail. In the King i?. Wheeler (^) Abbott^ C. J., did not leave any point to the jury, because he conceived that on the face of the record it was clear that the patent was void, whatever evidence might be produced. New trial T^g patentee must be very careful in collect- iD law. *■ ^ "^ , ing his evidence ; for, after a verdict has once been given, the Court is very anxious not to put the parties to further expense by sending them back to a new trial. A rule nisi for a new trial was refused to Mr. Arkwright, (i) although he stated in his affidavits that he did not expect the originality of his invention to be attacked ; that he was taken by surprise ; and that on a future occasion he (/) Id. Printed Case, QQ. (g-) Remedies in Equity, p. 187. Q) 2 Barn, and Aid. 345. (0 Page 188 of the Printed Case. Dav. Pat. Cas. 142. Remedies for an Infringement. 183 would adduce evidence to contradict or explain the evidence given against liim. That he did not conceive that the pointy that some of the ar- ticles were immaterial, and inserted only for the purpose of causing misconceptions, would have been litigated. If judgment be given for the patentee, he may Judgment; of course bring other actions against every per- son who has infringed his right. If it be against him, still he may proceed in fresh suits, for no one is at liberty to use and vend the manufacture without subjecting himself to be sued, until the Jetters patent have been cancelled, {j) III. Remedy in Equity. The jurisdiction exercised by the Court of j Theju. Chancery over patents for inventions is merely "f a'court in aid of the common law ; from which, by the of chan- delay sometmies arising in its proceedings, some injury might be felt by the patentee. This in- terference is made between the parties in order to give full effect to the provisions of the statute of James ; and is never allowed to be called for, but upon the supposition, that the property in the patent, generally inferred from his possession of it, belongs to the applicant, and that he has been fraudulently dealt with by the defendant. (A:) The great advantage gained by commencing {j) 2 Vcntr. 344. See Arkwright v. Nightingale, Dav. Pat. Cas. 55. (A) JSoultou V, Hull, 3 Ves. 140; and see 14 Ves. 132. 6 Ves. 607. 1 Maddux. Ciian. p. 113. and post. JBuuk III. c. 8, 184 Patents for Inventions. proceedings in equity (/) for an infringement^ before recourse is had to the common law courts, arises from the power of that court immediately to restrain the party from any further use of the patent-right, and to order him to give an account of his profits. The '' The principle," said Lord Eldon, (m) " upon grounds i • . • on which which the Court acts in cases of this description, tionsare 's the following! — whcrc a patent has been granted, granted, and an exclusive possession of some duration under it, the Court will interpose its in- junction without putting the party previously to establish the validity of his patent by an action at law. But where the patent is but of yester- day, and upon an application being made for an injunction it is endeavoured to be shewn, in opposition to it, that there is no good specifica- tion, or otherwise that the patent ought not to have been granted, the Court will not, from its own notions respecting the matter in dispute, act upon the presumed validity or invalidity of the patent, without the right having been ascer- tained by a previous trial ; but will send the patentee to law, and oblige him to establish the validity of his patent in a court of law. It will, however, in the mean time, grant him the benefit of an injunction." Although possession has been distinctly proved ; yet, if there be a strong doubt whether the speci- (0 Mitford's Chanc. Plead. 124. (jni) Hill V. Thompson, 3 Meriv. 624. and see Prodgers v. Phrazier, 1 Vera. 137. 2 Atk. 286. 391. 485. 1 Vern. 120. id. 275. Amb. 406. Remedies for an Infringement. 185 fication is not bad in law, the court will brevi manu interfere, and put an end to the injunction (n). Of the manner of filing the bill for relief, 2. The which in general prays for an injunction and an p-fin^J.*^^' account, with the method of issuing the subpoena, ^^"• ts service, &c. reference must be made gene- lally to the books of practice (0), observing that for each distinct invasion of the patent there must be separate bills filed (p). The remedy sought in equity is for instant re- Aninjunc- LiEF(g). It is usual to move for the injunction upon filing the bill before the answer is put in. It is generally granted upon the exparfe affidavits. The defendant is commanded either to refrain in future from using or vending the manufacture, or to keep an account of the proceeds, until it can be determined whether the patent is valid, and whether it has been infringed by the defendant. In Hill V. Thompson (r), Lord Eldon said, Theaffida '' he doubted whether the injunction ought to ^'**' have been granted in the first instance, unless the affidavits had stated more particularly in what the alleged infringement of the patent con- sisted ; and that it should have been shewn to be, by working in the precise proportions men- (n) Harmer v. Playne, 14 Ves. 132. Grierson v. Eyre, 9 Ves. 341. (0) 2Mad(lox.Chan.ch.7. and Edenon InjunctlouSj ch. 13. (p) Diily V. Doig, 2 Ves. jun. 486. (7) See ex parte O'Reilly, 1 Ves. jun. 112., and see 1 Ves. jun. 430. 2 Ves. jun. 486. 3 Ves. 141. 6 Ves. 689. 14 Ves. 130. 1 Ves. and Beam. 67. (r) 3 Mcriv. 624. And see Hill r. VVilkinsou, Rep. of Arts, Vol. XXX. p. 382. P Clients for Inventions. lioned in the specification, as being of the cs^ sence of the invention. That when, in future, an injunction is apphed for ex parte, on the ground of a violation of a right to an invention, secured by patent, it must be understood, that it is incumbent on the party making the apphca- tion to swear, at the time of making it, as to h's belief that he is the original inventor ; for d- though, when he obtained his patent, he might very honestly have sworn as to his belief of sucli being the fact, yet circumstances may have sub- sequently intervened, or information been com- municated, sufficient to convince hi7n that it was not his own original invention, and that he wa& under a mistake when he made his previous de- claration to that effect." In the usual time the defendant must bring in his answer to the bill, which generally contains a statement of facts, verified by affidavit, that shevv, either that the patent is not a good one, or that the defendant has not infringed it. The defendant may plead any matters, as in other cases in equity, or he may demur. A de- murrer, alleging that the right to the patent had not been previously established at law, was imme- diately overruled (s). When the answer is read, the plaintiff may move to make the injunction perpetual, if one has previously been obtained ; or, on the other hand, the defendant may move to have it dis- solved, {t) But if, when the bill was filed, an in- (s) Hicks y. Raincock, 2 Dick. 647. (0 See Gibbs v. Cole, 3 P. W. 355. Remedies for an Infringement. 187 junction was denied, it may now be moved for (ii). The court will exercise its own discretion, and, in continuing it, will perhaps direct an issue at law to try the validity of the patent; or, in dis- solving it, will leave the party to bring an action for the supposed infringement. In the latter in- stance the court will, in general, order that the party against whom the application is made shall still keep an account pending the litigation {v) : but sometimes, when the affidavits are very contradictory, it will dismiss the suit altoge- ther. It is unnecessary to go into the manner of 5. Feigned making the record of o. feigned issue directed by jaw.^'^ the Court of Chancery {w). The evidence to be given at the trial is nearly Evidence. the same as if the suit had been originally com- menced at the common law court (x). The Lord Chancellor will place the parties under such conditions as will meet the equity of the case. He will order admissions to be made of facts, which, though true, could not easily be proved. If the infringement is done secretly, he will order the manufactory to he inspected {y). When a verdict has been given, and the plain- New trial. tiff moves to revive or to make an injunction per- (m) 1 Ves. jun.430. (z)) 3 Meriv. 628. And see 1 Stark. N. P. C. 205. Wood V. Cockerell, Aug. 1819. Rep. of Arts, N. S. Vol. XXXV. p. 254. (za) See Tidd's Practice, p. 750. (x) Ante, 178—182. {y) See Huddart v. Grimshaw, Dav. Tat. Cas. 265. and Boviile V, Moore, id. 361. and see ante, 182. 1 188 Patents for Inventions. p7;tual; or the defendant having been successful moves to dissolve it, either motion may be op- posed on the ground that the verdict is bad, and that it is his intention to move for a new trial. If the Lord Chancellor thinks that, in point of law, he is not so well satisfied with the patent as to take it for granted that no argument can pre- vail upon a court of law to let the question be reconsidered in a new trial, then he will not re- vive the injunction, but direct the account to be kept until that motion has been made. But if he is convinced that a court of law must and will consider the verdict of the jury as final and conclusive, then he will revive the injunction, and make it perpetual, (a) In one instance (6) in which the judges of the court of common law were equally divided in opinion as to the validity of the grant, the Court of Chancery directed a new trial to be had, but would not impose any terms on the patentee, nor dissolve the injunction in the mean time. Costs. At the same time the party that is successful may move for the costs and expenses which he has sustained by an allegation of right which could not be supported, (c) General observa- Thus it appears that, before a suit is com- tions. menced at law, it is often preferable to take proceedings in equity. If the patent is really good, the injunction prevents any further in- (a) 3 Meriv. 631. (6) Boullon V. Bull, 3 Ves. 141. (c) 3 Meiiv. 629. and see Tidd's Prac. 1001. when void, how cancelled. 189 fringcment; and, if it be a tloubtrul one, the de- fendant will be restrained from using it until its validity has been examined. The order for an account puts the patentee in a better situation than if he had to depend upon a jury for da- maf^es; and, if he wants any indulgence, any al- leviation from the strict rules of 'aw as to evi- dence, &c. it becomes absolutely necessary to sue first in chancery. CHAP. IX. Of Letters Patent when void, and the man- ner OF having them Cancelled. Although the infringement of an invalid grant may, by shewing its defects, be justified in an ac- tion at law, or in an answer to a bill in equity; and the Courts may declare, that, in their opi- nion, the patent is voidable ; yet, until it is ac- tually cancelled, the patentee may go on against different parties, maintaining proceedings upon jt in law and equity, (a) although the jury, under such circumstances, would of course give their ver- dict for the defendant. And the reason assigned is, that the patent must for the honour of the grantor,— the King,— be protected; until it is found by inquisition at law, that the grant cither ought (a) Ante, 177. 2 Vcntr. 344. and see Attorney-General V. Vernon, 1 Vern. 277. 370. 2 Chan. Rep. 353. 190 Patents for Inventions. not to have been made, or cannot with propriety be enforced. It is, therefore, necessary that tlie pubhc should be provided with means of destroy- ing' a bad patent. This object is effected by a writ of scire facias. All the instances in which patents are con- sidered as void will first be enumerated, and then those things will be stated which do not vitiate patents ; and afterwards the proceedings by scire facias will be investigated, {b) 1. What makes all kinds of patents void. 2. Patent for inven- tion void generally under the statute. J. What renders a Patent Void. The construction, which in law is put upon royal gTants in general, was considered in a former Chapter. And it was there pointed out, as far as the law of patents in general was ne- cessary to elucidate that of patents for inven- tions, how all kinds of grants were rendered void for uncertainty, misrecitals, and false sugges- tions, (c) A patent may be void, altliough the invention be new, either altogether, or for something- in particular. It is expressly provided by the statute of Mo- nopolies, {d) that letters patent shall be void al- together, or generally, if they are — 1. Contrary to law ; or 2. Mischievous to the state. (6) See George v. B. Wackerback and Another, Reper- tory of Arts, N. S. Vol. XXVII. p. 252. (c) Ante, Chap. VI. and see Chit. jun. Prerog. of Crown, 391—399. ((/) 21 Jac. I. c. 3. s. 6. When void, how cancelled. 191 The mischief contemplated may, it appears, be done, 1. By their raising the price of com- modities at home. 2. Or being hurtful of trade. 3. Or being generally inconvenient. If an inventor obtain a patent for a proper Contrary object, and give a correct specification, and it be *" '^^• otherwise valid ; yet, if it produce the baneful ef- fects by which Lord Coke distinguishes mono- polies, as described in Book I. of this Treatise, it will be contrary to law. (e) It will then be void for being a monopoly. It is almost impos- sible, that, at the present day, a patent, professing to be for a new invention, (which would be invalid on the grounds that grants were formerly declared to be monopolies,) could be obtained ; and there- fore it is unnecessary to add more on that sub- ject. It has been shewn that by the common law, Mischiev- and the statute of James, all monopolies are il- ""^ to the state, &c. legal. (/) According to the letter of the statute, the exception of patents for inventions, from the consequences attendant on monopolies, goes only to the sole worfdng and making ; the sole buying, selling, and using, continue under the general prohibition: and with apparent good reason, -for the exclusive privilege of buying, selling, and using, could hardly be brou«-ht (e) 3 Inst. ch. 85. and see the case of Darcy i>. Allen 44 Eliz. 1 1 Co. Rep. 85. Noy. Rep. \7'J. (/) Ante, p. 12. 192 Patents for Inventions. within the qualification of not being contrary (o law, and mischievous to the state, (g*) Raising That injurious effect of monopolies in general, of com- of raising the price of commodities at home, will "rhome. seldom be produced by the limited monopolies of grants for inventions ; for one of the objects of almost every patent is to diminish the price of the manufacture ; or, by furnishing a better ar- ticle, to render it, at the same nominal price, of more intrinsic value. Being Onc of the issucs (/i) to be tried on the scire hurtful of trade. (g) 2 Hen. Bla. 492. by Eyre, C. J. (A) K. V. Arkwright, Printed Case, p. 30. Mr. Justice BuUer. — Mr. Bearcroft^ what do you understand to be the meaniitg of the first issue? Mr. Bearcroft. — The evidence on our side will be to shew that the grant Is prejudicial and inconvenient to his majesty's subjects in general. I mean to say, there is great danger from such a grant as this, that it will go into foreign countries, if the monopoly is permitted. Your lordship will permit me to state it. I mean to say, it is of such a sort that it may be taken into other countries with- out all doubt ; and if you can only work it here, loaded with a monopoly, and in another country it may be worked with- out, it will be a great danger to the whole trade, as applied to all the cotton manufacturers. Mr. Justice Buller. — I dont see, with respect to that issue, you can be permitted to give any evidence at all: it is merely a consequential issue; it is a question of law, whether it is prejudicial or not? When the facts are stated, therefore, if you thought it neces- sary to attack the patent upon those general words of the Act of Parliament, you should have stated it in what respect it was so then, — the fact would be put in issue. This is such a surprise upon the party, he can never come prepared to an- swer it. Mr. Lee. — It strikes me the prejudice must be, in the nature of it, a matter of fact; and your lordship sees it is a condition annexed to every patent by the terms of the Act When void, hoio cancelled. 193 facias to repeal Mr. Arkwright's patent was, whether the grant was not prejudicial and in- convenient to the king's subjects in general. It appeared, from the opening speech of the coun- of Parliament. Now there is no making any sense, use, or application of that, but upon some idea the patent is to stand or fall upon the ascertainment of that fact. My lord, if the patent is to be void, if proved prejudicial to the public; and good, if no such prejudice arises from it, in the nature of it; then ex vitermini there must be some mode of ascertaining it. Mr. Justice Buller. — That is no answer to my question, Mr. Lee } my idea is, if the patent is void as a question of law, if prejudicial or hurtful to the country, you can only take issue upon some fact that makes it so; therefore your issue should not be in general terras prejudicial to the country: but you should slate how, and then the party comes prepared to answer it. Mr. Bearcroft. — Then, according to your lord- ship's observation, it is an Immaterial issue ; and we should state the fact, in order to give notice to the party. Mr. Jus- tice Buller. — Upon that issue, upon this record I must take it thus : — the other three are precise pointed issues ; but the first is of consequence to stand or fail as they are proved. Mr. Lee. — Suppose this principle is assumed, and I conceive it may be fairly assumed, there is no one thing of equal im- portance in any country to the employing of the inhabitants that compose it. I will suppose any invention, and you have a right to put the most extravagant supposition upon earth. I will conceive all that manufactory which has been for ages carried on by men, women, and children, and the sustenance of them all, to be performed by an invention that does not admit of any human hands at all. It is possible, in the na- ture of the thing, ail those spindles might, for aught I know, be worked by a turnspit dog, and nfford no subsistence at all to any human being. I should conceive such a thing upon proof would be directly a public inconvenience, and de- strnctive of the happiness of mankind. And yet it would not be necessary to shew that was the nature of it : but ouly O 194 Patents for Inventions. sel, that he intended to give evidence to shew that the patent would be hurtful to trade by loading- the cotton manufactories of this country with a monopoly. Mr. Justice BuUer would not allow him to call any witnesses to prove it, upon the ground that it was merely a consequential issue^ and that it was a question of law, whether the patent was or was not prejudicial to the community. The observations of that very learned judge were founded on the circumstance, that no facts shewing the inconvenience were stated in the re- cord to be proved. The defendant was not able to learn by the pleadings from whence the supposed inconvenience arose. Such an inves- tigation would be a surprise upon him. He could not possibly come prepared with evidence to rebut an undefined accusation. Generally ^ question of inconvenience arose in an early incon- -^ yenient. case, (k) whether Mr. Arkwright should obtain to state that. Mr. Justice Biiller. — Then you should state the fact upon record. Then he knows what he comes to an- swer. Whether you attack it upon one ground or the other, as to the inconvenience to thep ublic, it is impossible for a man to come to answer that. (k) Arkwright v. Nightingale, Dav. Pat. Cas. 55. Lord Loughborough. — It is said, it is highly expedient for the pub- lic that this patent, having been so^long in public use after Mr. Arkwright had failed in that trial, should continue to be open : but nothing could be more essentially mischievous than that a question of property between A. and B. should ever be permitted to be decided upon considerations of public convenience or expediency. The only question that can be agitated in Westminster Hall is, which of the two parties in law or justice ought to recover. When void, how cancelled. 195 a verdict after having' submitted upwards of three years to a nonsuit on a former trial, inas- much as many persons had_, in consequence of his apparent abandonment of the patent, laid out great sums of money in constructing- his machine. Such submission merely prevented him from ob- taining damages, because the patent still re- njained uncancelled. Hence it is evident, that if an issue were joined on certain facts stated in the record of scire facias, which shewed that the patent had a tendency to produce any of the bad effects, of being contrary to law, hurtful to trade, or gene- rally inconvenient, such issue would be capable of trial ; and the patent might on that account be declared to be void. That the grant is invalid when the patentee is Grantvoid . . * inparticu- not the inventor, (/) when its object is not a ma- lar under nufacture, (m) and when the specification is not tute^ ^ sufficiently correct, (n) has already been shewn. If the patent has not been obtained {o) in the usual mode, or will not bear the construction (p) that must necessarily be put upon it, it is also void. Any one of these circumstances appearing in evi- dence will be the means of destroying the patent; and it is not necessary to prove more than one objection or cause for cancelling the grant, (q) Lord ThurlozD declared that letters patent, even if they were granted in fee, could not stand half an hour, if abused, 1 Ves. jun. 118. (0 Chap. If. ante, p. 52. (in) Chap. HI. ante, p. 57. (n) Chap. IV. ante, p. 100. (o) Chap. V. ante, p. 136. (/)) Chap. VI. ante, p. 153. (5) K.u.Arkwright, Printed Case 187. DaT.Pat.Cas.141. O 2 196 Patents for Inventions. II. What things do not vitiate Patents ge- nerally. There are some instances in which mistakes do not vitiate a grant, (r) 1. Every false recital in a thing not material will not vitiate the grant, if the king's intention is manifest and apparent. 2. If the king is not deceived in his grant by the false suggestion of the party, but from his own mistake, upon the surmise and informa- tion of the party, it will not vitiate or avoid the grant. 3. Although the king is mistaken in point of law, or of matter of fact, if that is not part of the consideration of the grant, it will not avoid it. III. Proceedings by scire facias to Repeal a Patent. Upon these grounds letters patent are void- able in themselves, but cannot be treated as of no effect in law until they are cancelled by the legal process of a writ of scire facias ; in the investigation of which it will be necessary to consider 1. By whom it may be obtained. 2. The necessary instruments. 3. The surrender of the patent. (r) Bull. N. P. 75. and see as to construction, ante, p. 153. When void, how cancelled. 1 9t If a patent be void for any of the reasons *• By which have been assigned as sufficient to in- taiaed. validate the grant, the king, jwe regio, for the advancement of justice and right, may have a scire facias to repeal his own grant, (s) A Subject also, who is prejudiced by a grant, n»ay of right petition the king to use his name for its repeal. All persons are injured by the existence of an illegal patent for an invention, and every one is therefore at liberty to petition for a scire facias to have it cancelled, (l) But between subject and subject, if the king has granted a patent to each of them for the same thing, then generally the frst patentee may have a scire facias to repeal the second pa- tent: (w) but the second patentee cannot bring a scire facias to repeal the first patent, though the better right should be in him.(x) In the case of two patents for the same invention, sup- posing the object to have been simultaneously discovered by the patentees^ the second grant would necessarily be bad, even if the first were for some informality rendered invalid. (?/) The scire facias for repeal in": letters patent 2. Thene- .... cessary in- is an original writ, and must be founded on strumenu. some matter of record, (z) A patent for an in- (5) 4 Inst. 88. For the law and practice of repealing let- ters patent hy scire facias ^ see Tidd. Prac. 7th edit. 1123. 2 Wms. Saund. 72. p. q. Com. Dig. Patent F. 6. id. Pleader. (0 Dyer 27G. b. 2 Ventr. 344. 3 Ley. 220. S. C. 6 Mod. 229. (m) 4 Inst. 88. Dy. l'J7. b. 198. a. (jc) Dy. 276. b. 277. a. {y) Ante, p. 61, 2. (S()4Inst. 88. 3 Lev. 223. 198 Patents for Inventions. vention is a record iu Chancery, and therefore the writ must issue out of that court. It is directed to the sheriff of Middlesex, and made returnable in the petty bag office, {y) The re- cord of the proceedings upon the writ is made up in that court, and sent into one of the courts of common law, to be tried. {%) Memorial. The first step to be taken is to present a pe- tition or memorial {a) to the crown for a scire facias. The next is to obtain the king's war- rant to sue ; (6) which is directed to the Attorney General, who thereupon grants \us Jiat. (c) Summons. A summons is then sent to the defendant ; which informs him that this writ has been issued against him, and warns him to appear to it. (rf) The scire facias in form recites the patent, and states the grounds upon which it is meant to be impeached ; as that the patentee was not the first and true inventor, but that it had been pre- viously invented or used by others, (e) &c. Plea. After the defendant has appeared, he may plead either in abatement or in bar. The most usual defence is the general issue to force the prosecutor to prove all the allegations in the writ. Demurrer If the matter be insufficient in law, upon the (i/) Rex V. Haine, 2 Cox 235. and see 3 Lev. 223. 6 Mod. 229. and ante p. 177. (2) See 21 Jac. 1. c. 3. s. 6. (a) 2 Rich. Prac. C. P. 391. (b) Id. 392. . (c) Id. 395. (d) See Tidd's Pract. 1158-1172. (e) For precedents, see the printed account of Mr. Ark- wright's patent, where the whole record is set out ; and Tidd's Pract. Appendix, chap. XU. § 6. Lii. Entr. 411. 2 Rich. Pr. C. P. 395. When void, how cancelled. 199 face of the proceedings, to support the writ, the defendant may demur, (/) If there be a demurrer to part and issue on the residue, the whole record is sent by the Lord Chancellor to the court of common law ; and judgment is given there upon the demurrer as well as upon the issue, (g) After the defendant has been warned, and Judgment by default. nihil twice returned, judgment for annulling the patent may be taken by default, (h) It is obtained by confession, if no defence is made after the appearance, (i) The record is delivered to the court of com- mon law by the clerk of the petty bag : (A:) and it is not necessray that the issue should be tried at bar ; it may be at nisi prius. (/) And the court will not now grant trials at bar, unless some particular reasons are assigned. The evidence is similar to that which must be Evidence. produced upon the trial for an infringement ; (m) except that the patentee being here the defend- ant, he does not want any prima facie evi- dence of the novelty of the invention, and the sufficiency of the specification ; but he must be prepared strongly to rebut every allegation in the writ. If the patentee can, on an application to the New trial. court, shew any thing to induce them to believe (/) 3 Lev. 221. is) Latch. 3. 1 Eq. Cas. Abr. 128. (Tt) Dyer 198. (0 Dyer 197. b. (A;) 1 Eq. Cab. Abr. 128,9. 2 Wms. Saund. 6. (1.) (0 Cro. Car. 313. (w) Ante. 200 Patents for Inventions. that his case has not undergone the fullest fn- vestigation, they will grant a new trial : (w) but otherwise they will deny it. Judgracat It is said that after trial the record is to be remanded into chancery, and judgment to be there given ; yet the practice has been to give the judgment in common law courts. If the verdict be for the King, the court ad- judges that the letters patent be revoked^, and the inrolment be cancelled ; if it be for the f/e- Jendant, then the judgment will be that the letters patent are valid. This judgment is final. No writ of error, no appeal to another tribunal, can be made. The very nature of the proceedings precludes it. Costs. Although the statute 8 and 9 Will. III. c. 11. gives costs in suits upon writs of scire facias; yet inasmuch, as this proceeding is criminal, in its nature, that statute does not extend to it ; and therefore costs are not payable to the crown, prosecutor, or defendant, on this scire facias, (o) s.Surren- When the patent has thus been adjudged to feuers pa- ^® ^^^^' ^^ "^"^^ ^^ delivered up to be cancelled. tent. Pqy until there is an actual surrendering, can- patent. celling, or vacatur, entered on the enrolment of the patent, it is not sufficiently cancelled as to be of no effect in law. If a patent be granted to two persons jointly for a simultaneous invention, and the Lord Chancellor, making a duplicate, deliver the ori- (n) Ante. (o) The Kiog v. Miles, 7 T. Rep. 367. When void, how cancelled. 201 ginal to one and the duplicate to the other ; if a surrender of the original patent be made, the grant is vacated, although the duplicate be not surrendered or cancelled ; for the duplicate is made by the Chancellor without warrant. The surrender must be enrolled ; for it is Enrol- raeut. then only that the patent is vacated. A certificate should be obtained of the vaca- The ccr- tur having been entered on the roll. 20^ BOOK III. ON COPYRIGHT, CHAP. I. INTRODUCTION. OF COPYRIGHT IN GENERAL. THE history of that right by which authors have an exclusive power over the productions of their minds may be given in a few words ; for it would be foreign to the plan of this work to enter into a discussion to shew whether that right existed at common law ; upon which topic the most learned men have held different opi- nions. It may suffice to say, that it was formerly sup- posed that the author of a book had^^at common law an unrestricted right to dispose, even after publication, of such productions in any manner he pleased; and that the statute 8 Ann. c. 19. was passed merely to protect that right, by sub- jecting those who encroached upon such literary property to severe penalties. This doctrine was questioned ; and underwent a learned discussion in the court of Common Pleas, in the case of Tonson v. Collins : (a) but the point was not determined. It was after- Co) 1 Bla. Rtp. 301, 321. *^* On Copi^right wards agitated in the court of King's Bench, (A) where three judges, among whom was Lord Mansfield, delivered very elaborate opinions to prove the existence of the right. But Mr. Jus- tice Yates, in a most profound and eloquent opinion, declared that an author had not such a common law right. The same question arose for consideration in the case of Beckett v. Donaldson, (c) when it was decided without dis- (6) Millar v. Taylor, 4 Burr. 2303. (and see 1 Bla. Rep. 675.) This was an action of trespass in the case. The plaintiff stated in his declaration that he was the true and only proprietor of the copy of a book of poems intituled the Seasons, by James Thomson ; and whilst he was sole pro- prietor of the said copy, caused 2000 books of it to be printed for sale at his own expense, and had a great number of the said 2000 books remaining in his hands for sale. That the defendant Taylor published and exposed for sale, several other books of the like copy, and bearing the same title ; which latter books had been injuriously printed by some person or persons without the licence or consent of the plaintiff Miller ; the defendant knowing that they had been so injuriously printed by some person or persons, without such licence or consent ; by means whereof the plaintiff was deprived of the profit and benefit of the said copy and book, and of the books, printed at his expense as aforesaid, and then remaining in his hands unsold. Not guilty was plead- ed, and the jury found a special verdict. The question was " whether after a voluntary and general publication of an author's work by himself, or by his au- thority, such author had a sole and perpetual property in that work, so as io give him a right to confine every subsequent publication to himself and his assigns for ever." Lord Mansfieldy C. J. Willes, 3. Aston, J. were of opinion that an author had such right. VuteSf J. contra. (c) 2 Bro. P. C. 145. and 4 Burr. 2408. In this case, in general. S05 cussion in favour of the right, in order that it might immediately be carried by writ of Error into the House of Lords : where it was settled that if the right contended for did ever exist, it had been abrogated by the statute of 8 Anne ; and that all remedies for any violation of it which came before the House of Lords, by appeal from the Court of Chancery, the judges were directed to deliver their opinions on the following points. 1. Whether, at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale ; and might bring an action against any person who printed, published, and sold the same without his consent ? Upon this question, the judges Nares, Ashhurst, Black- stone, Wiiles, Aston, Perrot,and Adams ; and Smythe, C. B. and De Grey, C. J. of the Common Pleas ; delivered sepa- rately their opinions against Baron Eyre, that, at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent. 2. If the author had such right originally, — did the law take it away upon his printing and publishing such a book or lite- rary composition ? and might any person afterwards reprint and sell for his own benefit such book or literary composi- tion against the will of the author? Upon this question, the judges Nares, Ashhurst, Black- stone, Wiiles, and Aston, and Smythe, C. B., were of opinion against Eyre, Perrot, Adams, and De Grey, C. J. of the Common Pleas, that the law did not lake away his right upon printing and publishing such book or literary composition ; and that no person might afterwards reprint and sell for his own benefit such book or literary composi- tion against the will of the author. S. If such an action would have lain at common law — is it taken away by the statute of 8 Aun. c. 19. (See this act). 20G On Copyright cease at the expiration of the terms therein mentioned. Supposing- then that no rigiit existed at com- mon law^ by the exercise of which an author might prevent others from multiplying the copies of his work, after he had published it: it follows therefore that when a person prints a literary composition — when he publishes a book — he has And is an author by the said statute precluded from every remedy, except on the foundation of the said statute, and the terms and conditions prescribed thereby : Upon this third question the judgps Eyre, Nares, Perrot, Gould, and Adams, and De Grfy, C. J. C. P. delivered their opinions against Ashhurst, Blackstone, Willes, Aston, and Smythe, C. B., that such action at law is taken away by the statute 8 Anne ; and that an author by the statute is precluded from every remedy, except on the foundation of the said statute, and the terms and conditions prescribed thereby. 4. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity by the common law ? The judges Nares, Ashhurst, Blackstone, Willes, Aston, and Gould, and Smythe, C. B. delivered their opinions (con- tra Eyre, Perrot, Adams, and De Grey, C. J.) that the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law. 5. Whether this right is any way impeached, restrained, or taken away, by the stat. of 8 Anne ? The judges Eyre, Nares, Perrot, Gould, and Adams, and De Grey, C. J. C. P. delivered their opinions upon this fifth question against Ashhurst, Blackstone, Willes, and Aston, and Smythe, C. B., that this right is impeached, restrained, and taken away, by the stat. 8 Anne. The Lord Chancellor (Lord Apsley) seconded Lord Cam- den's motion to reverse ; and the decree of the court of Chancery was reversed accordingly. in general. ^07 now no other property in it than that which is recognized or vested in him by legislative enact- ments. The rights conferred by the statute of copy- right, 8 Ann.c. 19, have, at different times, been altered and enlarged, by the 41 Geo. III. c. 107. and by the 54 Geo. III. c. 156. There is other property of a literary kind, differing: in some de";ree from that claimed under the copyright acts, given by several sta- tutes ; as in prints and engravings, models and statues. Hence all literary property or copyright is either founded by construction on the statute of 8 Anne, or given by the positive provisions of other acts of parliament. This chapter being devoted to general mat- ters, I shall proceed to state 1. The enactments of the several acts of parliament. 2. The construction which they general- ly have received. 3. The effect of any obscenity, libels, or immorality, contained in a work. 4. What in general amounts to a piracy. The excellent statute of 8 Anne (c/) gave to >• statute Law, the author or proprietor of a book, then (10th sAnn. April 1710) already printed, the sole right of *^" printing it for twenty years. And to the author and his assignee of a work then already com- (£/) 8 Anne, c. 19- § 1- ^''"^ ^ ' vn /;,>< , air ^'^ I 208 On Copyright. posed but not published, or of one that should thereafter be composed and published, the sole liberty to print and reprint it for the term of fourteen years ; to commence from the day of first publishing it, and no longer. It was further provided that if the author should be living at the expiration of that term, then the sole right of disposing of the copies of the work should continue in him for another term of fourteen years, (e) 16 Geo. Next in chronological order comes the act of •^'^^- parliament (/) giving to each of the Univer- sities a perpetual right over the literary property that had been, or might thereafter be, bequeath- ed to them. This statute will be more particu- larly noticed under the head of Universities. 41 Geo. Immediately after the union with Ireland, an lii.c. lOT. ^^^ ^p parliament (g-) was passed to make the law of copyright in every respect the same all over the united kingdom. In it were introduced provisions, extending the benefits arising from literary property to authors in Ireland, which are similar to those contained in the statutes of 8 Anne, and 15 Geo. III. 54 Geo. The most important act of parliament on co- iii.c. 156. pyrightwas passed on the 29th July, 1814, in / 4 2 'L which all the provisions of the former statutes A'' /K, were consolidated, and at the same time consi- derable alterations were made in the law. Thetimeof „ , , - ,• • i /• . . copyright. By that act the time limited tor enjoying tn« (e) 8 Ann. c. 19. ^1* (/) 13 Geo. III. c. 50. and see post, Chap, VII. (ff) 41 Geo. III. c. 107. 1 in general. 209 fruits of the copyright of a work, then not pub- lished, was extended from fourteen to twenty- eight years ; {h) with a further provision, that if the author should be living at the end of that period, then that he should receive the profits accruing from it for the residue of his life. (J) For the benefit of the families of those au- thors who were alive at the time the act passed^ but who might die before the first fourteen years, from the day of publishing their works, had expired, a further term of fourteen years was given to ihoiv personal representatives, with- out prejudice to the assignees of all or any part of the former term, (k) The places of protection for copyright, named Places of in that statute, are the United Kingdoms of Great P'"*^^*^'*"- Britain and Ireland, the Isles of Man, Jersey, and Guernsey, and every other part of the Bri- tish dominions. (/) Such are the acts of the Legislature by which the copyright in books is vested in authors and their assigns. * Before entering into the discussion of the law, 2. Con- as it respects each species of literary composition^ of the the matter of this Third Book will be rendered ^^^"t^^- more intelligible by first shewing in what man- ner these statutes, which, in the opinion of Lord Hardwicke, (m) are far from creating a monopoly* have generally been construed, and what things affect the property in all kinds of literary works. (A) 54 Geo. III. c. 156. % 4. (0 Id. § 9. (/c) Id. § 8. and see post, Assignee, Chap. VII. (0 Id. § 4. (m) 2 Atk. 143, P 210 On Copyright Duration All authoi', wlio sells his work in general terms, and result- ' ... ing terra, witliout making any limitations, has no resulting right against his own assignee after the first term, formerly of fourteen, but now of twenty- eight years, is expired. Thus a book of roads, printed in letter press, was at the expiration of the first fourteen years sold again by its author to a person who published the high roads upon copper plates, and the cross roads in letter press. An injunction was granted to restrain the second publication of the letter press : but it did not ex- tend to the delineations on copper plates, which were considered as forming a new work, (p) It was ruled in the case of Brooke v. Clarke,(9) that if a work has been published more than twenty-eight years before the time of passing the stat. 54 Geo. III. c. 156. the author is not enti- tled to the copyright in it for the remainder of his lifetime ; for that act was made to extend the rights then existing, and not to re-create any expired right. It was in that case admitted that if any persons had published the work after the expiration of the twenty-eight years, and before the act of 54 Geo. III. had passed, the author could not have interfered with them ; and cer- tainly, whether the public had or had not actually exercised that right, no difference could exist without some express words in the statute for that purpose. General The distinction between the point decided in assign- * "'^"^- (p) Carnan v. Bowles, Trin. T. 26 Geo. III. 2 Bro. C. C. 80. and 1 Cox. 283. Rennett v. Thompson, Id. (5) 1 Barn, and Aid. 396. in general. SI I the case of Carnan v. Bowles, (r) and the eighth clause of the 54 Geo. III. c. 156. by which a second term of fourteen years, (when the author dies within fourteen years from the pubhcation of a book pubhshed before the passing of that act,) is given to the personal representative, without prejudice to the assignee of the former term, must be carefully noticed. The distinction appears to be this : — if an au- thor, who has assigned away his right generally, under the act of 8 Anne, outlive the first four- teen years ; or, according to the time now al- lowed, if he survive twenty-eight years, then his assignee by the general assignment will have the benefit of the resulting terms — fourteen years — or for the remainder of the life of the author. But if an author, who has assigned his right for four- teen years only, die after the enactment of 54 Geo. III., but within that term, then his assignee will enjoy the copyright for the first fourteen years only, and the personal representatives of the de- ceased will have the benefit of a further term of fourteen years without prejudice to the sale of the books printed by the assignee within the first term. An entiy of the title page of each book, (for Entry at certain purposes which will hereafter be ex- Hafr^^*^^ plained,) must be made at Stationers' Hall, un- der penalties for every neglect. (s) It is not, how- ever, absolutely necessary that it should be done to give a property in the work, and to sustain an action at law. In fact, any one who first (/•) Ante, 210. (s) 54 Geo. III. c. 156. § 5. and post, Chap. VIL P 2 212 On Copyright publishes a book^ may bring an action for an infringement, although he may not be the real author of it. (<) 3. Obsccn- The courts of common law, and of equity, ra'litv"™" strive to protect the morals of the public. It is libels, &c. g^ principle on which this part of the law rests, that there cannot be a copyright in any work, the tendency of which is obscene or immoral. And whether the offensive matter be represented in prints (m) or pictures, (x) or expressed in a book, it makes no difference. Bad pub- And if a work be of such a libellous or mis- ency. chievous nature as to affect the public morals, so that the author cannot maintain an action at law {y) upon it, a court of equity will not inter- pose with an injunction, to protect that which by the policy of the law cannot be called property, not even upon a submission in the answer to a bill. Not only will the Court not interfere when it plainly sees that the work is obscene or im- moral : but even^ if there be a doubt as to its (t) 4Esp. N. p. C. 169. Vide post, Chap. VIII. (u) Fores v. Johnes, Esq. 4 Esp. N. P, C. 97. Lawrence^ J. For prints, whose objects are general satire, or ridicule of prevailing fashions or manners, I think the plaintiff may recover : but I cannot permit him to do so for such whose tendency is immoral or obscene ; nor for such as are libels on individuals, and for which the plaintiff might have beea rendered criminally answerable for a libel. («) 2 Camp. 511. iy) Hime v. Dale, 2 Camp. 27. n. See 2Meriv. 427. where it is said that evidence of Priestley's MSS., which were burnt in the Birmingham riots, being libels on government, would have been admitted by Eyre, C.J. and see 60 Geo. III. c. 9, in general. — Immorality, S^c. 213 evil tendency, the Lord Chancellor will not be prevailed on to grant an injunction, (s) And protection has been denied to a translation of an immoral work. («) It seems that neither the courts of equity nor Libels on • I private in- of law will support a copyright in any work dividuah, which is a libel on an individual, and for which the author might have been rendered civilly or criminally answerable. In an action for destroy- ing a picture, from the exhibition of which great profits were derived. Lord Ellenborough ob- served, (6) that the only plea on the record being the general issue of not guilty, it was unneces- sary to consider whether the destruction of the picture might or might not have been justified- The material question was, as to the value to be set upon the article destroyed. If it were a libel upon the persons introduced into it, the law could not consider it valuable as a picture. He directed the jury, in assessing damages, not to consider it as a work of art, but merely to give the value of the canvass and paint. The principle of law, that no action can be maintained for pirating a work calculated to do injury to the public, and that no injunction will be granted to protect the author, although his character as an individual may suffer by the pub- («) Walcot V. Walker, 7 Ves. 1. Southey u. Sherwood, 2 Meriv. 438. Murray v. Benbow, MSS. Lawrence v. Smith, MSS. And see an article in Quarterly Review for April, 1822, p. 123., and Blackwood's Mag. for July 1822. (a) Burnet v. Chetwood, 2 Meriv. 441. n. post. 241. (6) Du Bost V. Bercsford, 2 Campb. N. P. C. 511. and see 4 Esp. N. P. C. 97. 214 On Copyright lication, was fully recognized in Southey v. Sher- wood, (c) In that case. Lord Eldon observed, ''^It is very true, that in some cases it may ope- rate so as to multiply copies of mischievous pub- lications, by the refusal of the Court to interfere by restraining- them : but to this my answer is, sitting here as a judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the par- ties, except as it relates to their civil interests. If the publication be mischievous, either on the part of the author, or of the bookseller, it is not my business to interfere with it/' And so strong is this objection that Lord EI- lenborough has held an apprehension of a prose- cution for the immorality or illegality of a work, proved to be well founded by the production of the part printed, would justify a person for re- fusing to supply a bookseller with the remainder of the manuscript agreeable to a contract, {d) But there seems to be an exception to the general rule, that equity will not interfere io protect a book of had tendency, when the author repents of his work, and wishes to suppress it. In that case Lord Eldon has intimated that he might grant an injunction, (e) 4. What Having thus shewn the protection to which amounts ^, ,i • ,• i i •. • to a the author is entitled, it is necessary to enquire P""*<^y* what are the acts of other persons which are considered as causing an injury to him. (c) Southey w.Sherwoodj2 Meriv. 438. see ante, 213. u.(s.) (rf) Gale and another u.Leckie, 2Stark. 107. postjCh.VII. (e) Southey v. Sherwood, 2 Meriv. 438. in general. — Piracy. 215 The identity of any literary works consists entirely in the sentiments and language. The same conceptions, clothed in the same words, must necessarily be the same composition ; and whatever method is taken of exhibiting that com- position, to the ear or to the eye, by recital ov by writing, or hy printing, in any number of copies, or at any period of time, the property of another person has been violated ; for the new book is still the identical work of the real author. ( /) Thus, therefore, a transcript of nearly all the sentiments and language of a book is a glaring piracy. To copy part of a work, either by tak- ing a few pages verbatim, where the sentiments are not new, (g-) or by imitation of the princi- pal ideas, although the treatises in other respects are different, is also considered to be illegal. Although it was held (h) by Ellenborough,C. J. (/) 2 Bla. Com. 406. (g) Trusler v. Murray, 1 East. 363. n. This was an ac- tion for pirating a book of chronology. It was proved by the plaintiff that some parts of the defendant's work were different ; yet in general it was the same, and particularly from page 20 to 34, it was a literal copy. Kenijon, C. J. was of opinion that if such were the fact, the plaintiff must recover, though other parts of the work were original. lie said Lord Bathurst had been of that opi- nion ; and he thought rightly with respect to an abridg- ment of Cook's voyages round the world. The main ques- tion here was, whether in substance the one work is a copy and imitation of the other; for undoubtedly, in a chronologi- cal work, the same facts must be related. The books were then referred to an arbitrator to be compared. Mich. Term, 1789. and see Pinoock v. Rose, cov. Sir J. Leach, V. C. 2 Bro. C. C. 85. n. Belt. Ed. {h) In Gary v. Kearsley, 4 Esp. N. P. C. 169. 216 On Copyright that a variance in form and manner is a va- riance in substance, and that any material al- teration which is a melioration cannot be con- sidered as a piracy; yet a piracy is committed, whether tlie author attempt an orig-inal work, or call his book an abridgment; if the principal parts of a book are servilely copied, or unfairly varied. But if the main design be not copied, the cir- cumstance that part of the composition of one au- thor is found in another is not of itself piracy suf- ficient to support an action. A man may fairly adopt part of the work of another ; he may so make use of another's labours for the promotion of science, and the benefit of the public: but hav- ing done so, the question will be — Was the matter so taken used fairly with that view, and without what may be termed the animus fur andi ? (i) Quota- In judging of a quotation, whether it is fair and candid, or whether the person who quotes it has been swayed by the animus furandi ; the quantity taken, and the fnanner in which it is adopted, of course must be considered. If the work complained of is in substance a copy, then it is not necessary to shew the inten- tion to pirate ; for the greater part of the matter of the book having been purloined, the intention is apparent, and other proof is superfluous. A piracy has undoubtedly been committed. But if only a small portion of the work is quoted, then it becomes necessary to prove that it was done animo furandi ; with the intention of depriving the author of his just reward, by (0 Roworth V. Wilkes, 1 Campb. 97. and see 17 Ves. 424. in general Piracy. 217 giving his work to the public in a cheaper form. And then the mode of doing it becomes a subject of inquiry. For it is not sufficient to constitute a piracy, that part of one author's book is found in that of another, unless it be nearly the whole ; or so r>uch as will shew, (being a question of fact for the jury,) that it was done with a bad intent, and that the matter which accompanies it has been colourahly introduced. This view of the law on copyright, as it re- spects quotations, reconciles the opinions of Lord Ellenborough in Cary v. Kearsley, {k) and Ro- worth V. Wilkes, (/) which at first sight appear to be incongruous, {m) It is my intention to state and illustrate the principles of the law on copyright, as it now stands, in the following order — 1. By describing the different kinds of ^ /j literary property. 2. By inquiring into the rights of persons who are interested in them. 3. And concluding with an investigation of the means of protecting that property, and the remedies for violating it. (Jt) 4 Esp. N. P. C. 170. (0 1 Campb. N. P. C. 97. (m) See Eden on Injunctions, 281. n. 218 CHAP. II. Of the Different Kinds of Literary Pro- perty. — Of original Compositions. In the endeavour to treat with perspicuity of the different kinds of literary property, I have ar- ranged them in such order, that those which are similar in their nature, or depend upon the same principles, may be found together in the same part of the work. Thus in one chapter are given original compositions, whether printed in a book, or preserved in manuscript ; in another, particular treatises on general subjects, whether compilations, books.of calculations, abridgments, translations, or notes and additions. The laws on periodical publications, as reviews, magazines, newspapers, or pamphlets ; and theatrical com- positions, as music or plays, will be found in other chapters distinctly apart by themselves. And then will follow a concise statement of the several acts of parliament which give a property of a literary nature in works arising from the exertions of genius in the Jine arts, as in en- gravings and prints ; in models and sculptures. This Chapter is set apart for compositions, which, in the common and strict sense of the word, are called original, whether printed or in manuscript. And, therefore, it will be occupied Original Compositions. 219 by an investigation of the laws relating to books on common topics, as contra-distinguished from those works, which, according to their peculiar contents, are subjected to different laws. I shall afterwards explain the reasons why manuscripts come within the meaning of the several acts of parliament on copyright thus — 1. Of a book generally. 2. Of works in manuscript. I. A Book Generally. Thoush it was for a Ions: time doubted, yet it Defmitioa ^ * / of a book. is now clearly settled, that a literary production, to be entitled to the protection of the statutes on copyright, and to come within the words men- tioned in the recital of the statute of 8 Anne, " Books and other writings/' need not be a book in the common and ordinary acceptation of that word ; — a volume made up of several sheets bound together. It may be printed only on one sheet, as the words of a song, {a) or the music accompanying it. (a) Hime (or Hine) v. Dale, Sittings after M. T. 1803, 2 Camp. 27. n. and in 11 East. 244. n. S. C. (see Amb. Rep. 404.) This was an action for pirating the words of a song called *' Abraham Newland," published on a single sheet of paper. Erskine, contending that this was a book, said, If a different construction were to be put upon the act, many pro- ductions of the greatest geuius, both in prose and verse, would be excluded from its benefits. But, might the papers of the Spectator, or Gray's Elegy in a country church-yard, have been pirated as soon as thoy were published, because they were first given to the world on single sheets ? Tiie 220 On Copyright. Every distinct and independent part of a work, is also a book within the meaning of the statute, as one tale or piece of music printed and bound up with other tales or pieces of music, (6) auSr* It will be shewn hereafter that the name of name. voluminous extent of a production cannot, in an enlightened country, be the sole title to the guardianship the author re- ceives from the law. Every man knows that the mathemati- cal and astronomical calculations, which will inclose the student during a long life in his cabinet, are frequently re- duced to the compass of a few lines. And is all this pro- fundity of mental abstraction in which the security and hap- piness of the species in every part of the globe depend, to be excluded from the protection of British jurisprudence ? But there is nothing in the word book, to require that it shall consist of several sheets bound in leather, or stitched in a marble cover. Book is evidently the Saxon boc ; and the latter term is from the beech-tree, the rind of which supplied the place of paper to our German ancestors. The Latin word liber is of similar etymology ; meaning originally only the bark of a tree. Book may, therefore, be applied to any writing : and it has often been so used in the English language. Sometimes the most humble and familiar illustra- tion is the most fortunate. The horn-book., so formidable to infant years, consists of one small page, protected by an ani- mal preparation; and in this state it has universally received the appellation of a book. So, in legal proceedings, the copy of the pleadings after issue joined, whether it be long or short, is called the paper book, or the demurrer book. In the Court of Exchequer a roll was anciently denominated a book, and so continues in some instances to this day. An oath as old as the time of Edw. I. runs in this form, " And you shall deliver into the Court of Exchequer a book fair- ly written," &c. : but the book delivered into Court in ful- filment of this oath has always been a roll of parchment. (6) Id. and White v, Gerock, 2 Barn. & Aid. 298. 1 Chit. Rep. 24. S. C. Manuscripts. 221 the printer and publisher must be printed on every book, (c) But it is not necessary that the author's name should appear lo secure any right given by the statutes passed for the protection of hterary property. (c/) If the author's name were omitted in the title pag-e, says Yates, J., he mig'ht equally insist on his claim; for if the pro- perty be absolutely his own, he has no occasion to add his name to it. (e) Cut in the case of Hogg V. Kirby, in which it was endeavoured to be shewn that a new magazine was a fraudulent continuation of a similar work, the Lord Chan- cellor expressed a doubt whether he ought to in- terfere, because the latter book bore a ^citows name, (f) By several acts of parliament it is enacted that the name of the publisher, and the time of pub- lication, must be marked on pieces of music, (g-) and engravings. (^) The property in a book generally will be in- vestigated under the title Author and his As- signee, (i) II. Works in Manuscript. As a literary work or treatise must necessarily exist in manuscript before it is printed, it ap- 21. The King v. E. Toi)liam, 4T.R. 127. (b) 5 Burr. 26G7. Newspapers. 253 pUes a criminal intent in the proprietor, although it clearly appear that the offensive paragraph Avas not written by him. A Newspaper must not be conducted or made sending use of, to the advantage of the enemies of this y^^ycr^ country. If any one shall presume to send a =^'""=i''- Newspaper to a foreign country, not at amity Avith England, he subjects himself to a penalty of £00/. A person, on suspicion of having done so, may be taken before a justice of the peace; and if he does not answer all lawful questions, he will be liable to forfeit 500/, (c) Nor can any seditious matter be published in any Newspaper, wider colour of its having been printed in a foreign paper, (d) The proof that it has been so previously printed lies on the de- fendant. When that circumstance has been es- tablished, tlie matter is left cognizable by the law, as though that clause had never been en- acted, (e) In the newspapers are given, by the suffer- R. port^. ance of parliament, the speeches that are made in the House of Lords and in tlie Commons, and also all copies of documents printed at the command of eitlier of them, althougli they may contain reflections on individuals. (g) But if a (c) 5oGeo, III. C.185. which repeals 38Geo. 111. c. 78.§ 22. ((/) 38 Geo. III. c. 78. § 21. (e) /(/. § 25. (if) Rex V. Wright, 8 T. R. 203. It was contended that, although the report of the House of Commons could not it- self be considered as a libt I, the editor not acting under the authority of the House might be indicted for publishing with a view to £rpn?ral circuhition . 3 254 071 Copyright. member publish his speech himself in a news- paper, and it contain slanderous charges, an in- Ibniuition for a libel may be supported against him, (//) as well as against the editor. A correct statement of what passes in a court of justiee (?) may be published in a newspaper, unless tiie Court intimate that it is their desire tiiat no report should, as yet, be sent forth to the world, (/t) for fear of prejudicing some of the {h) K. V. Lord Abingdon, 1 Esp. N. P. C- 226. and see R. r. Creevy, 1 M. and S. 273. Rex v. Bate, Dougl. 3S7. (0 Curry v. Walter, 1 Esp. N. P. C.457. and 1 Bos. and Pul. 525. S. C. and see 5 Esp.N.P.C. 123. 2 Campb. 563. (A) Rex V. Wright. 8 T. R. 293. (and see R. v. Clement, 4 Barn. & Aid. 218. Post, Chap. VII.) Lawrence, J.— The proceedings of courts of justice are daily published, some of Avhich highly reflect on individuals: but I do not know that an information was ever granted against the publishers of Ihem. Many of these proceedings contain no point of law; and are not published under the authority of the sanction of the Courts, but they are printed for the information of the public. Not many years ago an action was brought \n the Court of Common Pleas by Mr. Currie D.Walter, proprietor of •' The Times," for publishing a libel in the paper of "The Times," wfiich supposed libel consisted in merely stating a speech made by a counsel in this Court on a motion for leave to file a criminal information against Mr. Currie. Lord Chief Justice Eyre, who tried the cause, ruled that this was not a libel, nor the subject of an action, it being a true ac- count of what had passed in this Court; and in this opinion the Couit of Common Pleas afterwards, on a motion for a new trial, all concurred, though some of the judges doubted whether or not the defendant could avail himself of that de- fence on the general issue. Though the publication of such procet dings may be to the disadvantage of the particular in- dividual concerned, yet it is of vast importance to the public that the proceedings of courts of justice slsould be universally Newspapers. 255 parties to the suit. And in an action for a libel it must be proved that the account given in the newspaper contains in substance precisely what Avas delivered by the Court. An information will lie for publishing- an in- vective statement, unconnected with argument, against a judge or jury, for any thing done in their respective capacities, under pretence of its being a report of legal proceedings. (/) And no person will be allowed to mix his own observations with what has passed in the Court, (m) known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may l)e the subject of such proceedings. The same reasons also apply to the proceedings in parliament : it is of advantage to the public, and even to the legislative bodies, that true ac- counts of their proceedings should be generally circulated ; and they would be deprived of that advantage, if no person could publish their i)roceedings without being punished as a libeller. Though, therefore, the defendant was not autho- rized by the House of Commons to publish the report in question; yet, as he only published a true copy of it, I am of opinion that the rule ought to be discharged. Rule dis- charged. (/) Rex V. AVhito, 1 Camp!). N. P. C. 359. n and see Rex V. Watson, '2 T. R. 199. (m) Carr v. Jones, 3 Smith 491, 503. S. C under the names of Styles v. Nukes, in 7 l^ast. 49.^. 503. Lord FMe?!- borough and Grose, J. oli-orved, that it must not be taken for granted that the publication of every matter which passes in a court of justice, however truly represented, is, under all circumstances, and with whatever motive published, justifiable : but that doctrine must bo taken with grains of allowance. It often happens, said Lord EKcfiborough, that circumstances necessary for the sake of public justice to b(* disclosed by a witness in a judicial inquiry, are very distress- in. ' to (lie feeiiii.;s rf iiulividunls on whom they rcllect. And OllfS. 256 On Copyright. It seems that editors of newspapers may abuse each otluMMvith impunity. But it is actionable to declare tliat any newspaper is loic In cii dilation , ai\d to insinuate thatadvertisers should avoid it. {n) Advcrtiso- The editor of a newspaper cannot, in answer to an indictment, say that the objectionable part is the advertisement of another person, and that he has no interest in it; and, therefore, that he ought not to be accountable for it, if he give up the real author, (o) Libellous But somc udvertisetnents which appear to re- flect on individuals, may be inserted. Thus an advertisement in a newspaper, whereby a per- son requested to be informed whether another had been guilty of a transaction which amounted to a felony, was held not to be a libel, because the advertiser, or his employer, was interested in the discovery; and the enquiry was not made with any intention of wounding his feeling-s. (p) if such circumstances were afterwards wantonly published, I should hesitate to say that such unnecessary publication was not libellous, merely because the matter had been given in evidence in a Court of justice. (?0 Heriot V. Stuart, 1 Esp. N. P. C. 437. and see Stuart V. Lovell, 1 Stark. 93. (u) Lewis V. Walter, 4 l]arn. & Aid. 605. Brown v. Crooiiie, 2 Stark. 297. 301. (p) Delanyu. Jones, 4 F.sp. N. P.C.I 91. Ellenborough.C. J. This paper is relied upon as necessarily carrying with it the imputation that the plaintiff was guilty of bigamy. You must be of opinion that it does carry such imputation before you can find a verdict for the plaintiff, as that meaning is ne- cessary to make the paper a libel at all. The plaintiff's counsel contend that you are to take into your consider- ation only, whether the advertisement conveys a libellous charge against the plaintiff or not? I am of a different J^ewspapers. 257 Many statutes have passed to restrain the pub- illegal ad- , . . . r> 1 • vertise- Jication of certain description or advertisements, ments. Under stat. 9 Ann, c, 6. s. 5. and 10 Ann. c. 26. s. 109. a penalty of 100/. is imposed on all per- sons^ (the latter particularly mentioning" printers and publishers,) for advertising the keeping of any office for illegal insurarices on marriage, or offices under pretence of improving small sums. By several statutes the publishing proposals for gaming in the lotteries has been restrained. By 22 Geo. III. c. 47. (ry) it was enacted " that, in order to prevent all adventuring with lottery tickets, other than such as arise from the real and actual sale of tickets, and of such shares as are thereby permitted, it is enacted that it shall not be lawful for any person to sell the chance of any ticket, &c. or insure for or against the drawing of any ticket, or to publish any pro- posal for any of the purposes aforesaid," under the penalty of 50/. for every offence. One Smith was held to have incurred the penalty, because he had published a proposal in the usual way in his newspaper. (/') Lord Kenyon wislicd it to be understood that the distributor of hand bills of a similar description would be equally criminal. It appeared in 1793 that many printers had opinion : I conceive tlie law to be, that tliougli that wliicii is spoken or written may be injurious to the character of the party ; yet, if done bona fide as with a view of investigating a fact, in whicii the pai (y making it is interested, it is not libellous. (q) 8 Geo. r. c. 2. 9 Geo. 1. c. 19. GCJeo. II. c. 30. 19Geo. III. c. 21. s. 7.aud22Gpo. Ml. c. 47. s. 13. (r) King V. Smith, 4 T. II. 414. 258 On Copyright. incurred penalties under the lottery acts for publishing illegal schemes ; and, therefore, an act of parliament (s) was passed to indernnijij them against the consequences. And any person publicly advertising a reward, holding out a promise that no question should be asked, for the return of things stolen or lost, &c. and any person printing or publishing such ad- vertisement, will be liable respectively to forfeit the sum of 50/. {t) For advertising, or printing an advertisement, for a public debate on any subject upon the Lord's day, a person subjects himself to a for- feiture of 50/. (m) The action to be brought within six months. 3. In what A common newspaper is made legal evidence noticed by l^y scvcral acts of parliament, for particular pur- the law. poses, as of meetings to petition parliament, of notice of moving for a private bill, &c. {x) But the newspaper of which the law takes the most notice is one published by authority, the London Gazette ; (i/) in which it is necessary to insert all dissolutions of partnership ; (z) for (s) The 32 Geo. III. c. 61. indemnifies against the penal- ties incurred under 8 Geo. 1. c. 2. 12 Geo. II. c. 28. 22 Geo. III. c. 47. 27 Geo. III. c. 1. (0 25 Geo. II. c. 36. (u) 21 Geo. III. c. 49. s. 5. (x) 36 Geo. III. c. 8. s. 1. and see Boydell v. Drummond, 2Campb. N. P. C. 157. and Lord Gallway v. Matthews, 10 East. 264. Jenkins v. Blizard, 1 Stark.,418. (t/) First published in 1642. There is also a Dublin Gazette published by authority. (z) Graham and another v. Thompson and another, Peak. Rep. 42. Graham v. Hope, Peake Rep. 134. and see 1 Sid. J^ewspapers. 259 there is a strong- presumption that every body reads the Gazette, though it is not always held to be sufficient, without notice to each cus- tomer, unless it can be shewn that it is probable that the defendant saw it. Although the instruc- tions for the dissolution of a partnership cannot be read without an agreement stamp ; (a) yet the Gazette may, for it is only a mere recital that the partnership has been dissolved, {b) Bv several acts of parliament a notice pub- Notices in '' * _ gazette. lished in the London Gazette is deemed to be good and sufficient notice to all his majesty's subjects. Several instances are given in the note, (c) Rep. 127. Godfrey v. Turnbull and another, 1 Esp. Rep. 371. Peak. Rep. 155. n. S. C. Leeson v. Holt, 1 Stark. N. P. C. 186. Newsome v. Coles, 2 Campb. 617. (a) May v. Smith, I Esp. N. P. C. 283. (b) Jenkins v. Blizard, 1 Stark. N. P. C. 418. (c) An alehouse keeper is not liable to the penalty for en- tertaining persons against whom process has issued for offences against the laws of the customs or assize, after notice has been given in the Gazette of the offenders having absconded, 9 Geo. II. c. 33. s. 30. and s. 31. Annuities granted on the duty ou plate are to cease on notice in the Gazette, and payment of principal, 6 Geo. I. c. 1 1, s. 28. s. 38. Notice in the London Gazette of certain transactions at the JJauk of England, 7 Ann. c. 27. s. 72. 3 Geo, \. c. 8. s. 38. and also of the meetings of commissioners of l)ankrupt, 5 Creo. H. c. 30. s. 2. is in each case deemed good and sufficient notice. The same rule applies to the proclamations for smugglers, 19 Geo. II. c. 34. s. 2. or felons, 9 Geo. I. c. 22. s. 4. to surrender themselves. And when a parly has been robbed, and intends to sue the hundred on 27 Eliz. c. 13. 8 Geo. II. c. 16., he must give notice to that effect in the London Gazette, 38 Geo. III. c. 76. &c. &c. S 2 2(>0 On Copi/right, 111. Pamphlets. Definition of a pam- phlet. 1. Larger pamphlets. 2. Smaller pamphlets. Literary ones. Political ones. A Pamphlet is defined to be a book consisting- of one sheets and not exceeding eight sheets in octavo, or any other lesser page ; or not exceeding twelve sheets in quarto, or twenty sheets in folio, (rf) Pamphlets must now be distinguished into those that contain more, and those that contain two sheets, or less than two sheets. The former, for sake of distinction, may be denominated the larger ones ; the latter, the smaller ones. The larger pamphlets differ from other books only, by the mode of frequent or continuing pub- lication ; by the stamp duty; and by the necessity of an entry of them at the stamp office, to collect the duties on the advertisements which appear on the covers or wrappers. Of the smaller pamphlets the laws vary ac- cording as the matter or contents of them are of a literary or political character. Literary pamphlets of the smaller kind, like all the" larger ones, are only distinguishable from other books by the stamp duty that is imposed on them, and the manner of publication. But the smaller political pamphlets have of late been assimilated to newspapers : and are described in the statute 60 Geo. III. c. 9. to be, all pamphlets and papers containing public (t/) All the parts or numbers of any book or literary work, published in sizes answering to this description, are deemed pamphlets. 60 Geo. III. c. 9. s. 27. Pamphlets. 26 1 news, intelligence, or occurrences, or remarks thereon, or in any matter in church or state, printed in the united kingdom for sale, and published periodically, or in parts, or numbers, at intervals not exceeding- twenty-six days; where any of them respectively shall not exceed two sheets, (e) (being not less than twenty-one inches in length, and seventeen inches in breadth, {f) of which the cover forms no part,) (g) or shall be published for sale for less than sixpence, exclusive of the duty imposed by that act. Such papers are to be deemed to be within the 38 Geo. III. c. 78. {h) and 55 Geo. III. c. SO. 56 Geo. 111. c. 56. and 55 Geo. III. c. 185. (^) and all other acts of parliament re- lating to new^spapers. It will be necessary to examine these political smaller pamphlets, as to 1. The mode of publication. 2. Their contents. No person, {k) after thirty days from the 5\)th i. ivrode Dec. 1819, is to be allowed to publish a news- lication. paper or any such pamphlets described above as ' the smaller ones, until he has entered into a recognizance before a Baron of the Exchequer; or has executed and delivered to some neigh- bouring justice of the peace, a bond to the King- with two or three sureties in tiirec hundred pounds, if such newspaper, &c. is printed in (e) CO Geo. III. c. 0.\ 1. (/) /(/. ^ 2. (g) Id. § 3. (h) Ante, p. 25U, 1. (0 Pobtj I). '205. (/u) fiO Geo. III. c, y. § S. ties. 262 On Copi/right. London, or within twenty miles ; and in two hundred pounds, if printed elsewhere, and his sureties in a like sum in the whole ; conditioned for the payment of such penalty as may be im- posed on publishing any blasphemous or sedi- tious libel, under a penalty of twenty pounds. The sure- If a surety (n) has paid the whole or part of the penalty in the recognizance or bond, or has be- come bankrupt, or has been discharged as an in- solvent debtor, the person for whom he was bound must not publish any newspaper, &c. until he has (on being required so to do by the commis- sioners of stamps) entered into a new recog- nizance or bond, with sureties, in the same man- ner, and to the same amount as before, under a penalty of twenty pounds. But a surety (o) may withdraw himself on giv- ing twenty days' notice in writing to the commis- sioners of stamps, and to the persons for whom he is surety ; and at the expiration of such notice he will only be liable for penalties previously in- curred. The person for whom such surety was bound must not publish any newspaper, &c. un- til he has entered into a new recognizance or bond, under a penalty of twenty pounds. This bond is not subject to any stamp duty, (p) A list of the recognizances is sent four times a year, and the bonds are transmitted by the justice within ten days from the time they re- ceive them, to the commissioners of stamps, (q) (n) 60 Geo. III. c. 9. s. 9. (o) Id. s. 10. (p) Id.s. 11. (q) Id.s. 12. Pamphkts. 2Qf3 A pamphlet, the day on which it is pubHshed, Delivery • I Til ^^ pani- or within six days, must be dehvercd to the com- phiet to missioners of stamps, (?-) signed by the printer sioncry. or pubHsher, with his name and place of abode, (which is to be kept and paid for by the commis- sioners) under a penalty of one hundred pounds. If commissioners, &c. (s) refuse to receive or pay for any copy of such pamphlet, &c. on ac- count of the same not appearing to be within the meaning of the act, they must, if required, de- liver to the printer or publislier a certificate that a copy of such pamphlet, &c. has been by him duly offered to be delivered, and the printer, &c. will thereupon be exempt from all penalties. Upon every such pamphlet, &c. must be The day printed the price at which it is published for Xoha^'^^ sale, and the day on which it is first published. Panted on which must be on the first day of every month, or within two days before or after it, under a penalty of 20Z. And the publisher, or any per- son who, within two months after the day of pub- lication printed thereon, sells any such pam- phlets, &c. on which the price printed shall be six- pence, or above that sum,yb?' a less price than sixpence, he will forfeit 20/.; but this rule does not Retail extend to the allowance made by the publisher to dealers. a distributor by retail. (/) If the contents of the smaller pamphlets are of 2.Coiiients a literary nature, quite distinct from any thing pamphlets, political or blasphemous, then the authors are subject only to the laws that ullect the contents (r) 60 Geo. III. c. 9. s. 13. (*) Id. s. 14. (0 Id. a. 4. and a. 5. 264f On Copyright. of the larger pamphlets, or (except the stamp duty) to the law of periodical publications in ge- neral, (u) But the author of smaller pamphlets, which contain any seditious libels, or blasphemy, are punished in a peculiar manner, which will be explained, {v) IV. Stamp Duties. Stamp duties differing in amount are imposed on advertisements whether they are published on the wrappers of periodical publications, or in the gazette and newspapers, and also on the news- paper itself, and on pamphlets. The duty on the pamphlet varies according' to its size, and the na- ture of its contents. i.Duiy A review or magazine in general exceeding" on reviews . ' . .ind advcr- eight shccts, IS cxcmpt from the duties on pam- lisements. , , . phlets. For every advertisement contained in or pub- lished on the wrapper of any periodical publica- tion, or with any part or number of any book, or literary work published in parts or numbers, a duty of three shillings and sixpence is imposed; and no stamps are to be delivered out for pam- phlets until security has first been given for pay- ment of the duty of the advertisement, {x) Hence it is required, whenever a work is pub- lished in parts, although it may be too large to be deemed a pamphlet, that the first number must be entered at the stamp office that the duties may be collected. (//) An(e, 260. and post^ 2G6. (v) Post, 271. (x) b Geo. III. c. 4G. s. 8. and 65 Geo. III. c. 185. bcli. 3 Periodical Publications. — Stamp Duties. 265 A stamp duty vvas first put on a newspaper in 2. Duty on ' "^ * ^ '■ ^ Ncwspa- the reign of Queen Anne.(j/) It has been in- pers. creased at different times by many acts of par- liament, (z) That duty is now four pence on every news- Discount. paper : (a) but a discount (b) of 20/. per cent, is allowed for prompt payment of any sum of 10/. or upwards, when the price of the paper does not exceed sevenpence; and 4/. per cent, to those who sell for a hij^her price than sevenpence. The newspaper must be marked to shew that the discount is allowed, and the price of it must be printed on it. A penalty of 201. is inflicted on those who sell it for more than the printed price. No persons but commissioners of stamps or their oflncer can supply paper stamped for print- ing- newspapers, until the person so supplying has given security to deliver once in six weeks an account of the quantities and kind sold, under a penalty of 100/. (c) If the papers are not duly rnstamp- stampcd, the publishers stand indebted to the papers, king in the sum that would have accrued if they (y) 10 Ann. c. 19. s. 101. (s) 11 Geo. I. c. 8. s. 14. 30 Geo. II. c. 19. s. 1. 13 Geo. III. c. 63. 16 Geo. III. c. 34. s. 7. Tlie 55 Geo. III. c. 78. (sell. pt. 4.) and 55 Geo. III. c. 80. imi)Ose and regulate the duties on pamplilcts, almanacks, and newspapers, in Ireland. (rt) 5b Geo. III. c. 185. repealinj,' 37 Geo. III. c. 90. s. 22. (6) Id. s. 9. This discount was first given by 29 Geo. III. c. 50. s. 8. instead of allowances on the cancelling of news- papers remaining unsold, which was extended by 37 Geo. III. c. 90. .s. 22. and also by 41 Geo. III. c. 10. 42 Geo. III. c. 99. 44 Geo. III. c. 98. sch. C. and 49 Geo. HI. c, 5U. (c) 38 Geo. III. c. 78. s. 20. 266 On Copyright. had ])cen properly stamped, {d) There are se- veral penalties respecting Mwsiflm/jerf newspapers: 20Z. for printing and publishing, (e) or for hav- ing possession of them^ and lOOZ. for sending them out of the kingdom. (/) And whoever sells newspapers or pamphlets unstamped may be sent to the House of Correction for any time not exceeding three months, whilst the informer is entitled to a reward of ^Os. {g) On the A duty of 3s. 6d. is imposed on every adver- jiilvcrtise- mcnts in tiscmcut in the London Gazette or other news- papers. {Ii) These duties (i) are under the government of the commissioners of stamps. The duties {k) are to be paid into tlie ex- chequer, and carried to the account of the con- solidated fund ; and the allowances and discounts thereon are to be made in the same manner as those on newspapers. It is felony, without be- nefit of clergy, to counterfeit the dye, or forge the stamp of newspapers, &c. 3. Duty on Qn every sheet of any kind of paper con- lets. The taincd in one copy of a pamphlet of the larger kind, and of the literary smaller ones, a duty of three shillings is imposed. (/) One printed copy of every such pamphlet must be sent within six days after publication to the (d) 38 Geo. in. c. 78. s. 27. (e) /(/. s. 18, 19, 20. (/) Id. s. 21, 22. (g) 16 Geo. II. c. 26. s. 5. (/i) 55 Geo. III. c. 185. sch. repealing 20 Geo. III. c. 28. s. 1. and 37 Geo. III. c. 90. (0 60 Geo. III. c. 9. s. 23. (/O Id. s. 24. (0 33 Geo. III. c. 185. Ante, 260. larger Periodical Publications. — Stamp Duties. 267 officeof stamps, if it be published in London; if in the country, then it must be taken to a collector of stamps within fourteen days, (m) or all persons concerned with it will be liable to forfeit 20/, and all costs of each suit; (ii) and a like penalty will be inflicted upon every person who sells it with- out the name and place of abode of the publisher being printed upon it. (o) The smaller political pamphlets are subject- ed {])) to the same stamp duties as on newspapers^ with the same allowances and discounts, and sub- ject to all rules and regulations respecting news- papers. But they are to be free from the duties — on the old or large pamphlets, {(f) and any per- son selling such pamphlet unstamped is rendered liable to a penalty of 20/. (r) The works exempted from the duties on 4- Exemp- / \ 1 1 II 1 tions. newspapers (s) and the pamphlets made news- papers (/) are, — acts of parliament, proclama- tions, orders of council, forms of prayer and thanksgiving, and acts of state, ordered to be printed by his Majesty ; printed votes or other matters, by order of either House of Parliament ; books commonly used in the schools of Great Britain ; books containing only matters of de- votion or piety ; any paper containing a single advertisement printed and dispersed separately ; (m) 10 Ann. c. 19. s. 111. to which s. 4. of 55 Geo. III. c. 185. refers. (n) 10 Ann. c. 19. s. 112. (o) Id. s. 113. (p) 60 Geo. 111. c. 9. s. 1. and s. 24. (r/) Id. s. 7. (r) Id.s. 15. (y) 55 Geo. 111. c. 185. (0 60 Geo. HI. c. 9. %. 26. On Copyright daily accounts or bills of o;oods imported and exported, and the weekly bills of mortality, pro- vided such bills or accounts do not contain any other matter than what hath been usually com- l)rizcd therein. And also any work reprinted and republished in parts or numbers, whether wholly reprinted or abridged ; provided the work was first printed and published two years before the reprinting and republication, and was not first published in parts or numbers. (m) V. The Property in Periodical Publications. The property in periodical publications is si- milar to that which has been shewfi to exist ge- nerally in a book. (?;) There are some pecu- liarities which must be here noticed, arising from their contents, and the manner in which they are sold. The matter of one number sel- dom having any reference to other parts of the work, it would be an easy task to obtrude a spurious publication of the same nature upon the public. Hence, although generally two books may bear the same title, yet there is a property in the name given to a periodical publication. It has been de- cided that the title, form, and mode of publication of a magazine {w) cannot be imitated in such a {u) 60 Geo. III. c. 9, s. 27. (a) Ante, 219. Post Chap. VIL (to) Hogg V. Kirby, S Ves. 215. And see Sedon v. Ser- rate, cited 2 Ves. and lieam. 220. Hogg published a work under the title of the IVvmlerfid Magazine, by Wil- liam Grar.ger, V'sij., a fictitious name. Kirby agreed to sell Periodical Puhlicalions — Property in. ^69 manner as would necessarily mislead the public, and induce them to purchase the latter work in- stead of the continuing' parts of the former one. It isj however, lawful for any person to pub- lish a mag-azine under a simiiar though not the it. After five numbers had appeared Kirby published a work under a similar title, described as the neix! series im- proved. In Kirby's first number •vvas contained an index to the contents of the five numbers already published. One article, not finished in the fifth number, was continued in Kirby's, by commencing with the word at the bottom of the last page. Eldon, C. In this case, protesting against the argument that a man is not at liberty to do any thing which can afi'ect the sale of another work of this kind, and that because the sale is afi'ected, therefore there is an inquiry; (for if there is a fair competition by another original work really new, be the loss what it may, there is no damage or inquiry). I shall state the question to be, not whether this work is the same, but in a question between the-;e parties whether the defendant has not represented it to be the same, and whether the injury to the plaintiff is not as great. And the loss accruing ought not to be regarded in equity upon the same principles between them, as it was in fact the same work. Upon the point wliether the Mork was in fact meant to be represented to the public as the same, I do not say, that is not a question for a jury. But I must act upon the inference from the circumstances ; and it is impossible not to say, till this is better explained, an intention does appear both upon the transaction as to the fifth number and the other circumstances ; in some degree upon the appearance of the outside, in a great degree upon the first page, the index, and the promised contents, to state this as a continuation of the former work, in a new series indeed. I am not here to speculate upon the probable consequences of such conduct ; for I have the actual consequences as far as fair reasoning can determine, that out of 2,000 purchasers 1,800 have bought this, a part of the old work. The point whether lie, On Copyright same title, nnd of the like nature, if the latter be distinctly/ different from the former, and nothing- has been done to injure the sale of the former work, (x) The communications from correspondents to the editors or proprietors of periodical publica- tions are of course the property of the person to whom they are directed ; and cannot be published by any other person, who by chance may have obtained possession of them. (i/) The property in a pamphlet is exactly the same as that in a common book. The property in a newspaper is personal, and may be dealt with like all other personalty. It may, however, be useful to collect the cases that relate particularly to them. It may be devised. The printer of a newspaper who carries his work into the world as that of another per- son shall not as between them be considered as publishing that work, if the consequences are the same, is new ; and therefore fit to be discussed elsewhere as well as here. I must incur the hazard of occasioning finally some injurious consequence to one party or the other. The proper course will be to alter the terms of this injunction so as to make it clear, that is, to operate upon nothing but the publication handed out to the world as thecontinuation of the plain- tiff's work, and to direct that as to these numbers that are handed out as such continuation the plaintiff shall bring an action, the defendant to plead without delay, that it may be tried with all due speed ; then they who apply to dissolve the injunction shall imply, that reviews, magazines, and other works of this species may not be multiplied, and therefore shall alter the injunction myself. (ar) 8 Ves. 222, 3. (3/) 8 Ves. 215. Periodical Publications^Legal Proceedings, 271 (the Bath Chronicle), (s) bequeathed to his widow the benefit of that trade, subject to the trust of maintaining and educating her family. The fore- man, by her assistance in giving him the use of the letter press, &c. on the premises, set up a paper bearing the same name. An injunction was granted, at the request of the executors, to restrain him from carrying it on. The interest in a newspaper, although of a Bank- • , . ., • c ruptcy of fluctuatmg nature, comes withui the meaning oi propn- " ffoods and chattels " in the bankrupt statutes ; ^ "'" and therefore passes by the assignment of the commissioners, if the proprietor become a bank- rupt, {a) And if the printer and publisher of a newspaper assisrn his interest in it to a creditor as a se- curity, but continues to print and publish as before, and no affidavit of the change of interest has been delivered to the commissioners of stamps, and he become bankrupt, the right to the paper will pass to his assignees, {h) VI. Legal Proceedings peculiar to Periodi- cal Publications. The legal proceedings in respect of periodical publications, independent of those which may be taken to protect the copyright in them, take place {z) Keene v. Harris, cited in 17 Ves. 338. and see Crutt- well V. Lye, 17 Ves. 333. and 8 Ves. 217. (a) Longman v. Tripp and another, 2 New Rep. 67. See as to bankrupt patentee of an invention, ante, 166, (6) 2 New Rep. 67. On Copyright. by summons before justices of the peace, or by indictment or action in the courts of law. The manner in which the copyright in general to a book is protected will be investigated hereafter : but, inasmuch as the present Chapter is devoted to publications that appear periodically, this place seems most proper for introducing the practical part of the law peculiar to them. The power given to justices of the peace over newspapers \s, very great. Two of them may hear and determine offences against the lOAnn. ((/) in relation to pamphlets and newspapers, on complaint made within three months, and on conviction, either on view or information, they may issue warrants for levying the penalties on the goods of the offender, and cause sale to be made if they are not redeemed in six days ; and, in de- fault of goods, they may commit the offender to prison. An appeal is given to justices at sessions, \\\\o are finally to determine the same; and, in case of conviction, issue warrants. The justices may mitigate the penalty, so that they do not reduce it lower than one-fourth part above the costs. It may be made (e) a part of the condition of the recognizance of a person, held to bail for publishing a libel, that he shall be of good be- haviour during the continuance of the recog- nizance. All penalties (/) imposed by 60 Geo. III. c. 9. are to be recovered before any two justices of the (rf) lOAnn. c. 19. s. 120. (e) 60 Geo. 111. c. 9. s. 16. {J) Id. s. 17. Periodical publications — Legal proceedings. 273 peace of the county, &c. where the offence is com- mitted : but no larger amount in the whole than one hundred pounds can be recovered before jus- tices of peace, for penalties incurred in one day. Two justices, (g) in all cases in which they are authorized to determine offences against that act, upon complaint made within three months after the offence, may summon the party accused, and the witnesses; and, upon appearance or contempt of the party in notappearing,they may examine the witnesses on oath, and give judgment for the pe- nalties incurred; and, in case the penalties are not immediately paid, may commit the offender for a time not exceeding six months, unless such penal- ties are sooner paid. The party convicted may, on giving security, to the amount of the penalties ad- judged together with such costs as may be awarded in case judgment is affirmed, appeal to the next quarter or general sessions, which court may summon witnesses, and hear and determine the same; and, on judgment being affirmed, they may award such costs against the appellant, as they may think proper. They may mitigate the penalties and at the same time allow the costs of the officers or informers above such mitigation, if it is done so as not to reduce the penalty below one fourth of its original amount over and above the costs. Witnesses (/i) summoned to attend before the Witnesses, justices, either for the prosecutor or the person accused, neglecting lo attend, or appearing and refusing to give evidence, without a reasonable excuse, are liable to forfeit twenty pounds. (g) CO Geo. III. c. 9. s. 18. (/t) Id. s. 19. T 274 On Copyright No ro- ]Vo order (i) or conviction, made under the taiise. acts respectin*;- newspapers by any justices of peace, can be removed by any writ. It is enacted that no person (/t) shall commence any action or information in any of his majesty's courts, or before any justices of peace, for any penalty under those acts, unless in the name of the Attorney-General in England or Ireland, or the Lord Advocate in Scotland, or in the name of the solicitor or some other officers of the stamp duties in England, Scotland, or Ireland. All other ac- tions, &c. are declared to be void. 2. The i!i- Lc^al proccedino-s may be maintained ao^ainst the authors and publishers of periodical works for misconduct, in the same manner as against other publisliers, by indictment or information ;(/) except as to the evidence of publication, which will be detailed in this chapter, (m) 3. Actions The penalties inflicted by the different statutes at law. ' -^ may also be recovered in any of the courts of common law. All actions to recover penalties on the news- paper acts must be brought within six calendar months ; and if the defendant should recover, he vviil be entitled to treble costs, {n) Actions on news ance. If a party declare in tort, as the proprietor, \'f!'7^"- editor, and publisher of a newspaper, and it ap- tiou, vari- f{^ 38 Geo. III. c. 78. s. 20. and 60 Geo. III. c. 9. s. 20, 2U (/c) Id. s. 2^2. (0 See post Chap. VII 1. (m) See post from p. 275. to p. 279. («) By 37 Geo. III. c. 90. s. 38., the provisions of which appear to be extended to 53 Geo. III. c. 1S3. by s. 4. and see CO Geo. III. c. 9. s. 17. Periodical publications — Legal proceedings. 275 pear in ovidence that another person is the editor, but that it is conducted under the in- spection of the plaintiff, the averment is entire ; and he cannot recover as proprietor, (o) not even for distinct injuries committed against him in his separate rights of proprietor and publisher. The manner in which newspapers must be Evidence published, and also the mode, pointed out by the papTrT^' 38 Geo, III. c. 78, of producing them in evidence against the proprietors, has been stated, (p) The construction which has been put upon the clauses of that statute, now require attention. It has been decided that the affidavit left at the stamp office, and a newspaper answering the whole description contained in that affidavit, pro- duced by a person from the stamp office, is evi- dence, not only of the publication of the paper, but that it took place in the county in which it is described as having been printed ; and that the provisions in the 11th section, which make it unnecessary to prove that the newspaper to which the trial relates was purchased at any house, apply to plaintiffs in civil suits, and pro- secutors in criminal ojica, as well as to persons seeking to recover penalties, (q) (o) Ileriot v. Stuart, 1 I'^p. N. P. C. 438. (/j) 38 Geo. III. c. 78. s. 10. ante 251. (q) The King TJ. Hart and another, 10 East. 9 1. Bayletj . 3 . As to the evidence of publication, the statute was passed, as the title of it states, for the purpose of " preventing the mis- chiefs arising from printing and publishing newspapers by persons unknown ;" and it was meant to facilitate the pro- ceedings, either civilly or criminally, against the several per- sons concerned in such publications. For this purpose the T 2 270 On Cop2/right. And the certified copy of the affidavit sworn to by the defendants at the stamp-office, and a newspaper corresponding- with the title of the act requires an alTidavit to be made by the printers, publishers, and proprietors, specifying thoir names and places of abode, a true description of the house where the paper is to be print- ed, and the title of the paper. And such affidavit is made conclusive of the several facts stated in it, as against the per- sons signing it, unless they shew that they ceased to be the printers before the period of the particular publication com- plained of. Now, suppose the act had stopped there, and it had been proved, as in this case, that a paper, such as is de- scribed in the affidavit made and signed by these defendants, had been published, the affidavit is made conclusive evidence against them that one of the defendants was the printer, and the other the proprietor of a paper so entitled, and that it was printed at the place therein described, which is within the city of London, that would have been prima fade evidence that the paper produced, tallying with that description, was published by them there, and could have called upon them to prove that it was a fabrication ; and, if it were, there could have been no difficulty in making that proof. But the act goes further; and by the 11th section expressly enacts, that after such affidavits shall be produced in evidence against the persons signing the same, &c. and after a newspaper shall be produced in evidence entitled in the same manner as the newspaper mentioned in such affidavit, and wherein the name of the printer and publisher, and place of printing, shall be the same, it shall not be necessary for the plaintiflT, informant, or prosecutor, or person seeking to recover any of the penalties given by this act, to prove that the newspaper to which such (rial relates was purchased at any house, &c. belonging to or occupied by the defendants, or their servants, &c. or where they usually carry on the business of printing or publishing such paper, or where the same is usually sold. And I cannot consider, as the objection supposes, that all these descriptions of persons, namely, plaintiff, informant, or prosecutor, or person seeking, &c. apply to the same person Periodical publications — Legal proceedings. 211 newspaper described in the affidavit, were held to be sufficient evidence to support a count in an information charginj^ the defendants with com- posing, printing-, and pubhshing- a libel, (r) With respect to the certificate, (s) if it does not appear in the jurat, that the person, before whom it was made, had authority to take it, proof must be adduced that he had such power, {t) However, when the plaintiif is otherwise at a Evidence ■' ^ at corn- fault, he may have recourse to common law, at mon law. which it is sufficient evidence of publication, to give the original affidavit signed by the defend- ant, stating-, that the party is the sole proprietor of the newspaper in question, and also naming the place where it is to be published, accompanied by a newspaper of a corresponding title, (con- taining the alleged Iii)el,) which had been pur- chased at the place described in the affidavit, (u) seeking to recover penalties given by the act : but I take these words to apply to a plaintiff seeking to recover damages in an action for the civil injury sustained by him from the publication of a libel ; to the informant by an information granted by this Court, or exhibited by the Attorney-General for the same ; to a prosecutor prosecuting by indictment for the libel ; or, lastly, to any person seeking to recover penal- ties under the act. Therefore, independent of the Ilth sec- tion, I should have thought that the evidence oflercd was prima facie evidence of the publication of tlie paper by the defendants in London. Hut, taking that section in aid, whicii is not confined to suits for recovering penalties, there can be no doubt that the necessily of further proof was superseded. Rule refused. (r) Rex y. Hunt and another, 2 Can.pb. N. P. C. 583. (x) Phil, on Evidence, p. 213. (0 Rex V. W!iili>, 3 Campb. N. P. C. 90. (n) Id. 100. 3 278 On Copyright. Evidence. Before the passing of 38 Geo. III. other modes had been resorted to in order to connect persons with the publication of newspapers. Thus it was considered sufficient evidence that a person was the pubhsher of a newspaper, when it was proved, that it was sold at his office, and that he, as proprietor of the paper, had given a bond to the stamp-office pursuant to the 29 Geo. 111. c. oO. s, 10. for securing the duties on the ad- vertisements, and that he had occasionally ap- plied there respecting the duties on it. {x) And the publication of a newspaper was sufficiently proved by the evidence of t!ie printer, who said that it was published in tlie usual way. {y) Though a publisher is liable to a penalty for not having his newspaper stamped; yet, thus un- stam'ped, it may be ^;iven in evidence ; for this case is not like that of deeds and agreements, where the acts of pa»liament expressly declare that no such instrument shall be read in evi- dence until it is stamped. (:;) To explain the libel, and to mitigate the da- mages, the defendant has a right to have read in evidence extracts from a different part of the (x) The King v. Topham, 4 T. R. 126. (3/) Peake N. p. C. 70. In the case of the King «. Weaver, Jan. 1821, K. B. MSS. it appeared that the place of pub- liccilion, mentioned in the affidavit, and the one printed oa the paper, were not the same. It was held not to be suffi- cient evidence of publication that the names ou the paper were the saaie as those ou the door of the house where the paper produced was bought. (z) The King v. Pearce, Peake N. P. C. 75. and see 38 G'eo. III. c. 78. s. 18, 10 and 20. Periodical publications — Legal proceedings. 279 same newspaper, connected with the subject of the libellous passage. («) The publicatioa of a weekly paper called Cob- bett's Political Register, containing a libel on Mr. Plunkett, was substantiated by proof of a copy having been bought at his shop, (b) For the purpose of shewing that the first paper was circulated regularly and deliberately, the Avit- ness was asked, whether he had since purchased other papers of the same title at the same office. But if a person has been libelled in a news- Bill iu 1 i 1 1.1 • Chancery paper, and suspects the author to be a proprietor to dis- not named in the affidavit, he may file a bill in Chancery for a discovery of the names of any persons concerned in it. The defendants are not allowed to plead or demur, but must make the discovery required. Such information, when obtained, cannot however be used in any other proceeding, except in that for which the dis- covery is made, (c) (o) R. V. Lambert, 2 Campb. N. P. C. 400. ami see Tabart V. Tipper, 1 Campb. N.P. C. 350. (6) Plunketty. Cobl)ett, 5 Ksp. N. P.C. 136. (c) 38 Geo. HI. c. 78. s. 28. cover names. 280 CHAP. V. Of Musical and Dramatic Compositions. The laws respecting the copyright in musical and dramatic works are very similar; and it therefore seems proper to place them together in the same chapter. 1. Musical Compositions. The decisions on this branch of the law with of!" regard to music will lead to the consideration 1. Whether a musical composition is protected by the copyright acts. 2. What property the composer has in it. 3. The manner of assigning it. 4. Piracy by taking it down at Theatre. Musical compositions are books to be protected by the statute of 8 Anne, and those acts of par- liament which have enlarged the benefits to be derived from it. (a) (a) Bach v. Longman, Cowp. 623. This was a case sent from the Court of Chancery for the opinion of the Court of Law, whether a musical composition, a Sonata for the harp- sichord, was within the statute of 8 Anne, c. 19. Musical Compositions. 281 We have seen what kind of pubhcations are considered as books within the meaning of the words of that statute '' books and other writings." Whence it appears that the protection is extended to a piece of music pubhshed on a sitigle sheet of paper, (b) And that it is not material whether the matter pirated be a whole book of music, or some one tune of a particular name in a work bearing- a ditferent title, (c) The pi'opertt/ in a piece of music is exactly 2. Pro- the same as that in a book. And therefore upon ^^^^^ '"' Lord Mansfield. The words of the act of parliament are very large : — " Books and other writings." It is not con- fined to language or letters. Music is a science : it may be xsritten ; and the mode of conveying the ideas is by signs and marks. A person may use the copyright by plajing it : but he has no right to rob the author of the profit, by mul- tiplying copies, and disposing of them to his own use. If the narrow interpretation contended for in the argument were to hold, it would equally apply to algebra, mathematics, arith- metic, hieroglyphics. All these are conveyed by signs and figures. There is no colour for saying that music is not within the act. (6) Cleraenti v. Golding (or Goulding) 11 East. 244. 2Campb. N.P.C. 25. S.C. (c) Whiter. Geroch, 1 Chit. Rep. 26. (S. C. in 2 Barn, and Aid. 298. ante p. 220.) Abbott, C J. 1 am of opinion that the words of this act of parliament (54 Geo. III. c. 15G) mean all original compositions, whether they are large or small ; and are consequently entitled to the protection in- tended by the legislature. It has been held that a musical composition is a book ; and th;it an action is maintainable for pirating a single sheet of music. The only distinction liere is, that this piece of music is found in company with others instead of being printed by itself; and it seems to me that that does not make any dilferencc in the principle of the question. Many dillVrcnl books or bubjccts may be 3. Assij^n- niciit of. 282 On Co'pi/right. a person provin;^ that he was the composer of a musical air^ although the piracy was endeavour- ed to be justified, by shewing- that the son^ was composed to be sung at the Italian Opera House, and that all songs brought out there belonged to the establishment. Lord Kenyon held, that such defence could not be supported ; that the statute vests the property in the author ; and that no such private regulation could be al- lowed to interfere with the public right, {d) The assignment of the copyright of music must be in writing, (e) Even where a composer had acquiesced for six years in the publication of a piece of music, and had given a receipt for the price of it, the court did not consider that he had transferred his interest in the copyright. (/) But if he has given leave to several persons to copy his book, or has not asserted his right, against violations by many persons, for several years, (g) the Lord Chancellor will not grant an injunction to restrain any one from pirating the work, until the author's right at common law is first established. found in one: but that is no reason why each should not have the protection of the statute. Rule for a new trial refused. {(I) Storace v. Longman, 2 Camp. N. P. C. 27 n. : and see Wyatt V. Barnard, 3 V. & B. 77. (e) See Power o. Walker, 4 Camp. N. P. C. 8. 3 M. & S. 7. S. C. and see Morris o. Kelly, 1 Jac. & Walk. 481. and post, Chap. VI [. " Author and his Assignee.^'' (/) Latour V. Bland, 2 Stark. N. P. C. 382. and see Moore V. Walker, 4 Camp. N.P. C. 9. n. (S") Piatt r. Button, Coop. 303. S. C. 19 Ves. 447. Dramatic Compositions. 283 On the same principles by which persons are 4. Piracy not allowed to take down a play in short hand at a "„g ^^ "" Theatre, and publish it, they, who can write mu- ;'»^^J^^^' sic as thoy hear it publicly rehearsed, may be prevented by injunction from violating the pro- perty of the composer by publishing it. (h) It may be observed that as the copyright in music is founded on the statute of 8 Anne, c. 19. all the reasoning respecting books in general applies to musical works. (^) II. Dramatic Compositions. The laws respecting dramatic compositions will perhaps be best explained by a considera- tion of plays, 1. Whenever they are printed. 2. Whilst they continue in manuscript. 3. Whenever they have been publicly represented. Plays or dramatic pieces of every description, 1. Priuicd when printed and published, are books within the meaning of the statute of 8 Anne, c, 19.; and no one with impunity can multiply copies of them, (/v) The protection of the law is also extended to 2.M:uui- , ., . . . script a dramatic composition, wlulst it is yet in manu- pinys. (h) Post p. 284. (i) See ante p. 218, and Rennet v. Thompson cited in 2 Bro. C. C. 80. as to (lie resulting term. (k) See ante p. 214, as to piracy in general. Observations on performances at a tlieatre are not libellous, unless it appear that they aie malevolent, Dibdin v. Svvann, 1 Esp. N. P. C, 28. Ashley v. Harrison, Peake Rep. 194. and sec Clifford y. Jirandoii, 2 Ciiuii)b. 358. also ante 217. 284 On Copyright. script, and has not been publicly icprcscnledj in the same manner as to manuscripts in general. (/) There is not any case in the courts o^ common law, in which it is determined whether the repre- sentation of ii dramatic composition, that has not been printed but of which a copy has been ob- tained, is a piracy : but it would appear, from the decision in Coleman v. Walthen, (m) that it is not. However, injunctions are always granted to re- strain persons from acting and also from printing plays which have not been published: thus, where a farce had not been published by its author, and a person was employed to take it down from the mouth of the performers, an injunction was granted, after some part of it had appeared in a magazine, to prevent the insertion of the re- mainder, {n) 3 riibli- Much doubt formerly existed, whether the talioii by acsiiig mere acting of a play, which had been printed and published, constituted a piracy, or an infringe- ment of the copyright. In the common law courts it has been decided, tliat proof, that the defendant acted a piece on the stage of which the plaintiff had bought the copyright, was not evidence of a publication, (o) (/) See ante p. 221. (»0 5T. 11. 245. (n) Macklin v. Richardson, Amb. 691. (o) Coleman v. Walthen, 5 T. R. 245. This was an ac- tion on the statute of Anne for publishing an entertainment called The Agreeable Surprize. The plaiiitilT had purchased the copyright from O'Keeffe, the author ; and the only evi- dence of the publication by the defendant was the repre- sentaiiou of this piece upon his stage at Richmond. them. Dramatic Co77ipositions. 285 And an action cannot be maintained against a person, who at his theatre publicly represents for profit an entertainment, which is an abridg- meiit or alteration of a play printed and pub- lislied by its author, (p) But in equity injunctions have been and con- tinue to be granted, to stop the performance of printed dramatic pieces at the instance or request of the author or proprietors of them. {c[) The transition from plays to players (r) is so riayers. easy and natural, that the wish to make this Treatise full and satisfactory to every class of Lord Keni/on, C. J.— The statute for the protection of copyright only extends to prohibit the publication of the book itself by any other than the author. It was so held in the great copyright case by the House of Lords. But here was no publication. Buller, J. — Reporting any thing from memory can never be a publication within the meaning of the statute. The mere act of repeating such a performance cannot be left as evidence to the jury that the defendant had pirated the work itself. (/;) Murray v. Elliston, 5 Barn, and Aid, 657. and S. C. 1 Dowl. and llyl. 299. As to abridgments in general, see ante p. 238. (q) Morris v. Harris, 1814, MSS. Morris tj. Kelly, 1 Jac. and Walk. 481. (r) A forfeiture of one hundred marks is iiicurrod I)y re- presenting a play derogatory of the book of commun prayer. 3 Jac. I. c. 21.; and ten pounds for jesting of the holy name of God, or of Jesus Christ, or of the Holy (ihost or Trinity, 1 Car. I. c. 1. And also three shillings and sixpence for act- ing on a Sunday, 1 Eliz. c. 2. s. 9. Unlicensed players are rogues and vagabonds, 10 Geo. IT. c, 28. 25 Geo. II. c. 36. 28 Geo. II. c. 19. 3 Geo. IV. c.40. And see Skinner. Rep. 625 to 630. King -o. Bellerton, 5 Mod. 142. Skin. 625. S. C Rex v. Handy, 6T. R. 2S6. Jacob Hall's case, 1 Mud. Rep. 76. 1 Ventr. 169. S. C. 286 On Copyright. readers who m;iy consult it, induces me briefly to state the law as it respects players. The principal part of it will be found in the note. Ashley V. Harrison, Peak. 194. 1 E^p. 48. S. C. and Taylor V. Neri, 1 Esj). N. P. C. 38G. Respecting country theatres, see 10 Geo. II. c. 28. s. 6. and 16 Geo. III. c. 13. For the authority of the Lord Chamberlain, see 10 Geo. TI. c. 28. By the third section it is enacted, that no person shall, for hire, gain, or reward, act, or cause to be acted, any new play, or any part therein, or any new part added to an old play, or any new prologue or epilogue, unless a true copy thereof be sent to the Lord Chamberlain fourteen days before the acting, together with an account when and where it is intended to be acted, signed by one of the managers. The Lord Chamberlain may prohibit the same as he thinks fit ; and if any such person shall for hire, Sec. act or cause to be acted, without s^uch copy being sent, or against such pro- hibition, he shall forfeit fifty pounds, and the licence of the playhouse shall be void. For the power of the Universities over players see 10 Geo. 11. c. 19. s. 1. By 16 Geo. III. c. 31. and 28 Geo. III. c. 30. certain funds for charitable purposes are secured to Druiy Lane and Covent Garden. As to the interference of the Court of Chancery in the af- fairs of a theatre, see 7 Ves. 617. A place kept for public dancing, music, or other public enter- tainment of the like kind, must be licensedhy the magistrates, 25 Geo. 11. c. 36. s. 2. madepcrprtual by 28Geo. 11. c. 19. A theatre without its licencp, Gallini v. Laborie, 5 T. R. 242. 6 T. R. 28(5 ; private houses in which persons are indiscrimi- nately admitted to dance, whether money is paid for admission, Clarke D. Searle, lEsp. 25.; or not, Archeru. Willingrice,4Esp. 186.; are within the statutes : but neither a dancing master's room, Bellis v. Burghall, 2 Esp. 722., nor one used on a par- ticular festival, Shutt v. Lewis, 5 Esp. 128., comes within its intention. A public room at a tea garden, with an organ in it, must be licensed, Bellis v. lieal, 2 E>p. 592. 287 CHAP. VI. Of the Fine Arts. UPON the same principles^ and for the same reasons, that the legislature have protected the Scholar in the enjoyment of the fruits of his knowledge and industry ; so it has provided that the Artist shall not exert his skill and ingenuity without a hope of reward from a limited mono- poly in the result of his labours. This Chapter, for convenience and distinct- ness, will be divided into three parts : — I. Engravings or prints. II. Patlernsfor linen. III. Sculptures, models, S^c. I. Engravings or Prints. It will be necessary to consider the law on engravings or prints in almost all the dilFcrent ways in which the law respecting- a book has been examined. By statin*^ the statutes on which the right to a limited monopoly in them is found- ed, and the construction which they have re- ceived ; by enumerating the dilferent kinds of engravings, as prints in general, prints accom- panying- letter press, and charts or maps; by 288 On Copi/rl^ht. shewing how far the subject of an engraving* is an original compilation, or an abridgment or re- duction ; by investigating the nature of the sub- ject^ whether it be seditious or libellous, the property in prints, and the manner of making an assignment of them; and by examining, how far publications may be similar without a piracy having been committed, with the peculiar reme- dies which the statutes have provided for any in- juries sustained by the artist. The matter of this section will, therefore, be best elucidated by considering — 1. The statutes giving the right. 2. The construction as to the date, &c. S. Prints accompanying letter press. 4. JMaps, cliarts, &c. 5. The subject of an engraving. 6. Seditious or libellous prints. 7. The properli/m, and assign ment of, prints. 8. What amounts to a piracy. 9. The remedies for an infringment. 1. Thesta- A property in prints is secured to the inventors and engravers by three acts of parliament. By the first (tt) it is enacted, "That from and after the 24th day of June, 17o5, every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro oscuro, oy from his own works and inventions shall cause to be designed and engraved, etched, or worked in mezzotinto or chiaro oscuro, any historical or other print or prints ; shall have the sole right and liberty of («) 8 Geo. II. c. 13. tutes. Engravings or Printfi. 2g() printing" and reprinting the same for the term of fourteen years, to commence from the day of first publishing thereof^ which shall be truly en- g-raved^ with the name of the proprietor, on each plate, and printed on every such print or prints." (b) Thus it appears that the property in historical and other prints was by the first act vested in the engravers, who took them from their own de- signs. This privilege was extended by the second statute ; (c) and made to exist in the prints of any portrait, conversation, landscape, or architecture, 7nap, chart, or plan, or any other prints whatsoever, vvhether they were taken from the artist's own original designs, or from any picture, drawing, model, or sculpture, either an- cient or modern, (d) The term for enjoying that right was en- larged from fourteen to twenty-eight years, (e) It has been shewn that by the 8 Geo. II. (/) 2. The the day of publication, and the name of the pre- dliy of prietor, must be truly engraved on each plate uon.'*^*' and print. No doubt can be entertained that the directions of the act must be strictly followed ; (b) The fifth clause of 8 Geo. If. c. 13. secures the pro- perty to John Pine in his prints of the Spanish iiiviisinn, al- though not taken from designs of his own invention, but from the tapestry in the House of Lords, &c. (c) 7 Geo. III. c. 38. s. 1. (d) Id. s. 2. (e) Id. s. 7. By this act the sole right of publishing Ho- garth's prints was vested in his widow for twenty years. (/) c. 13. s. 1. The acts respecting printers do not ex- tend to engravers, 39 Geo. III. c. 79. s. 31. U 290 On Copyright. thot the day and name must appear, to entitle the party to the pcnaltiei^ imposed by it. (g-) But a question has arisen whether it be absolutely necessary to comply with the enactment to sup- port an action at law, or a bill in equity for an injunction and an account. Lord Hardwicke (/i) and Lord Ellenboroug^h (i) have at different times held that the clause was only directori/, and that the property was at once absolutely vested in the engraver : but Lord Alvanley, (/) and Lord Kenyon, and Buller, J., entertained the opposite opinion. (A) The latter judge, after observing- that he differed from Lord Hardwicke, said that he believed the insertion of the name and date to be essential to the inventor's right. This contrariety of opinions in such eminent and learned judges renders it necessary to in- vestigate this point with attention ; which task will be best accomplished by collecting the rea- sons that have at different times been urged in support of either side of the question. Tlie day and name ought, it is contended, both to be engraved on the plate, because the words of the act requiring it are in the same section with those which vest the right; and the liberty of printing and reprinting is given of those prints which, ^c. are so marked^ and therefore (g) Sayer v. Dicey, 3 Wilson 60. (h) Blackwell v. Harper, 2 Atk. 95. Barn. Chan. Rep. 210. S. C. (0 Roworth V. Wilkes, 1 Campb. N. P. C. 97. (j) Harrison v. Hogg, 1 Ves. jun. 323. (k) Thompson v. Symonds, 5 T. R. 41. Engravings or Prints. 291 on(i/ to them. And also because the date is of importance, that the piibhc may know the period of the monopoly; and the name of the proprietor should appear in order that those persons, who wish to copy the print, may know to whom to apply for their consent. The reasons g-iven for maintaining the other side of this question are — that the interest being- once vested by the statute, the common law gives the remedy ; — that this clause is similar to the one in the stat. of 8 Ann. requiring an entry at Stationers' Hall, which is there in the same sec- tion with the words that give the property ; and yet upon that act it has been decided, that an en- try is not necessary in order to maintain an action for damages. (/) That the copyright in a work which has been sold in manuscript is protected by the stat, of 8 Ann. from the day of the first sale; and yet, when it is printed, that day does not appear. And moreover that the property in a book is not lost, because it has been published without the author's name being affixed to it. And, lastly, it may be observed that in the stat. 17 Geo. 111. c. .57., by which the special ac- tion on the case and double costs are given, not a word is mentioned about the date and name. The prints that ornament and illustrate works 3. Pnnis are as fully protected by these statutes as those Jompany letter (0 Beckford v. Hood, 7 T. R. 620. and see ante, p. 223. ^^^'^^^' As to the implied warranty, in putting the name of an art- ist as the painter of any piclure in a catalogue, that it is really the work of that artist : see Jendwine t'. Slacje, 2 Esp. N. P. C. 572. U 2 S93 On Copyright. which are published alone. They are not, as it has been contended, merely accessary to the letter press, like the diagrams of Euclid ; and, there- fore, to be copied and published by any one who purchases the work, (m) But if a person should bona fide make drawings from a perusal of the text, although there might, as of necessity there would be, a great similarity between them, yet he would acquire a copyright in the engraving which he had thus made. («) 4. Maps, It has been observed that Lord Mansfield held, c arts, c. ^i^^j, i^^pg came within the spirit and meaning of the copyright acts, (o) To remove all doubt, maps, charts, and plans, are enumerated among the different kinds of prints; and the same pro- tection is afforded to their proprietor as to other artists, (p) 5. The Prints, like books, may be the offspring of the subject of , . . „ ^ , . ^ , , f, anenj;rav- imagination 01 the artist, or may be taken irom objects that have actual existence. When an engraving is made of an object in nature, as of a particular flower or plant, the artist cannot restrain any one from executing a similar print of the same flower or plant: but no one is allowed to copy from the work of another {m) Roworth v. Wilkes, 1 Campb. N. P. C. 97. and see Wilkins v. Aikin, 17 Ves. 422. In which case Lord Eldon decided whether a work on architecture was original, with the fair use of another work composed of plates and letter press, by quotation and compilation. (w) By Lord Ellenborough, 1 Campb. N. P. C. 99. (o) 1 East. 361. n. (p) 7 Geo. HI. c. .38. s. 1. and 17 Geo. III. c. 57. insr. Engravings or Prints. 293 person ; each must draw from nature. When it was contended before Lord Hardwicke (q) that some engraving's of plants could not be protected, because every herbal-book had prints of those plants in them,, he observed, ''The defendant, to make out the case he aims at, must shew me that these prints of medicinal plants are in any book or herbal whatsoever, in the saine manner and form as they are represented here ; for they are repre- sented in all their several gradations, the flower, the flower cup, the seed vessel, and the seed," The subjects of engravings are almost always general ones,and cannot be monopolized. Each particular print is protected by the statutes : but the subject is open to every artist, Tlie prohi- bition extends only to the piracy of the parti- cular prints ; no exclusive right is created over the picture or common design, (r) The subject of a map or chart is also a gene- ral one, on which every person may exert his skill and ingenuity. An artist had, with th.e assistance of many ma- nuscript journals and printed books, made four maps of a particular district from all tiie charts and maps extant. Another person, making a chart of the same place, actually employed an engraver to take a draft of some parts of those maps; yet, inas- much as he had combined the four maps toge- ther upon a more correct and useful j)rinciplc, it (ry) Blackwell v. Harper, 2 Atk, 94, Barn. 210, S, C. (r) See Compilations, ante, p, 'l^m^ \). and 2 Stark. N, P. C. 54S. 294 On Copyright. was considered that no piracy had been com- mitted. (. mary way to enforce the payment of a penalty not exceeding the sum of 20/. ; and, if it is not forthwith paid, may levy the same by distress and sale of the ofiender's goods ; and if there iu not sufficient under the distress, they may commit the offender to the House of Correction, for a term not exceeding six, nor less than three, calendar months, (/t) All prosecutions for penalties are to be com- rimiia- tioii, (g) Blake V. Nicholson, 3 M. and S. 1G7, (/;) 39 Gpo. 11 r. c. 7'J. s. 30, (i) 51 Geo. 111. c. 66. 8.2. (;■) 3y Geo. I[[. c. 79. s. 33. (k) III. s. 33. &CSS10U9. ^'^^ On Copyright. nienced within three months after the penalty is incurred ; (/) one moiety of which is forfeited to the king-, whilst the other is given to the in- former, (m) i\i)pcal to Any person, a'rgrieved by a determination of a justice of the peace, may appeal to the Quarter Sessions next after the expiration of twenty days from the making thereof, first giving six days' notice of appeal to the person prosecuting for such penalty, and the court may dispose of the matter with the costs, in any manner they may think reasonable. (77) But any penalty mentioned in 39 Geo. III. c. 79., an act of the legislature to suppress unlawful assemblies, as well as to regulate the manner of printing, exceeding 20/., may be re- covered by action of debt, in any court of record at NYestminster : and the plaintiff, if he recovers, will be entitled to full costs. Not one of the pe- nalties imposed by that statute, as far as it re- lates to printing, exceeds 20/. ; and conse- quently all offences under it, of that descrip- tion, must be determined by justices of the peace. An attempt was made to sue in the King's Bench, for 60/., or three penalties : but, after verdict for the plaintiff, the judg^ ment was arrested (0). (/) 39 Geo. III. c. 79. s. 34. (///) Id. s. 36. («) 51 Geo. III. c. 65. s. 4. . (0) Fleming qui tam v. Bailey, 5 East. 313. Lord Ellens borough. — A common informer can have no right to sue for any penalty, but where power is given to him for that 351 VII. Bookseller? RS, All booksellers are much interested in the laws that protect literary property ; and yet the laws rcspectin*^- them, merely as sellers of books, are very few in number. When they assume the characters of publishers, they are in fact as- signees of the authors, of whom much has al- ready been said (p). It will be proper to exa- mine, 1. The statutes respecting buying and sell- ing and importing books. 2. How far booksellers are affected by the matter of a work. 3. Their legal liabilities. The vendor of a pirated work destroys literary i. Buyins property as much as a publisher; and, therefore, allu'^ili,'"^ not only are penalties inflicted on those who i'*""''"s: '' '■ books, print and import books protected by the statutes purpose by the statute. Now the statute in question only says that a common informer may sue in any couit of rocnrtl for any pecuniary penalty imposed by the act ex- ceeding 201. The penalty given for this offence, each of which must be taken by itself, and cannot be reckoned accumulatively, does not exceed 20/.; and therefore it is not within the provisions of the 33th clause, which give an action. And the sense of that clause requires that the form of the declaration there afterwards given should be read the same as if the sum to be recovered were left in blank ;— for how otherwise can the penalty of 100/. given by the 1.0th section be recovered ? (/;) Ante [k 315. 352 On Copi/right. of copyright; but they, who, knowing them to be so printed without the consent of the proprietor^, will venture to sell them, are made liable to the same penalties mentioned in 8 Ann. c. 19. (q). But it was further provided that nothing in that act should extend to prohibit the importing, vending or selling of any books in the Greek, Latin, or any other foreign language, printed beyond the seas (?-). By the 12 Geo II. c. 36. the importation of books reprinted abroad, and first composed or written and printed in Great Britain, is pro-^ liibited under a forfeiture, of the books to be des- troyed, with a penalty of five pounds, and double the value of the books: but it does not prevent the importation of any book inserted among other books or tracts, to be sold therewith, in any collection where the greatest part of such collec- tion shall have been first composed or written and printed abroad, (s) To the same purpose is the 57th section of the statute 34r Geo. 111. c. '^0., which increases the penalty from five to ten pounds, and allows the (r/) The price of books was formerly regulated, see 25 Hen. VIII. c. 16. s. 5. 8 Ann. c. 19. s. 4. and 12 Geo. II. C. 36. s. 3. (y) Sect. 7. The acts of Parliament respecting the sell- ing and importing books that have become obsolete are nume- rous. 1 Rich. III. c. 9. s. 12. 25 Hen. Vill. c. 15. 7 Ann, c. 14. s. 10. 12 Ann. st. 2. c. 5. Duties are imposed on pictuies imported, 8 Geo. I. c. 20. 11 Geo. I. c. 7. and on the canvass used to paint on. Tlie Attorney-general y. Biandon, 3 Price, 360. {s) See 11 Geo. III. c. 107, s. 7. and 51 Geo. III. c. 136, Booksellers. 353 commissioners of customs and excise to reward officers for seizing such books ; in it is another exception on the restraint of importation, that it shall not extend to any books that shall not have been printed in this kingdom, within twenty years before the same shall have been so printed abroad. By the wording of these statutes it seems im- material whether the author's copyright is ex- tinct or not, if the book has not been reprinted in England within twenty years, (t) Printers and booksellers may however, with the exceptions above mentioned, export books upon condition that all the duties upon the paper and bindings have been paid, (m) pro- vided that if books are written in the Latin, Greek, oriental or northern languages, then that they have not been printed at the press of either of the Universities in Great Britain. A drawback is allowed of the duty on the paper. On the stat. 12 Geo. II. c. 36., it has been de- cided that two penalties might be incurred in the same day. A sale by the defendant in the morn- ing, and another by his wife in the afternoon of the same day, were considered by the court to be two distinct acts of sale, for which two penal- ties might be recovered {v). (/) 2 Bla. Com. 407. n. Ed. Christian. (m) The Acts of Parliament respecting tiie duties on paper Brevery numerous. (v) Brooke v. Mil liken, 3 T. R. 509. 2a 354; On Copyright. 2. How far Booksellers have always been made answer- BookscU- ers arc able for the contents of the works which they aflfecied ^^^^ ^gj] \^ y^^^ formerly a i^rievous offence by the -^ . contents to sel), or import for sale^ any work which was of a book. • 1 / \ considered heretical, {iv) The laws respecting- libels very materially affect Booksellers ; for it has been decided that the circumstance of buying a libel in the shop of a known Bookseller is sufficient prima facie evidence to convict him of the publica- tion, (x) There is a duty payable on the importa- tion of books. It varies according as the works are in sheets or bound up ; and its amount has been altered by many acts of par- liament, 3. Their rjij^^ liabilities to which Booksellers arc pc- legal lia- bilities, culiarly subjected are not very numerous. Not only can a Bookseller in general be made a bankrupt, but it was adjudged that a person who was daily accustomed to buy the whole impression of a newspaper from the proprietor. (to) See 3 and 4 Edw. VI. c. 10. 1 Mar. s. 2. c. 2. 1 Jac. I. c. 25. 3 Jac. I. c. 5, &c. (x) Rex V. Almon, 5 Burr. 2686. (y) The trade of a bookbinder v/as known in England previous to 5 EHz. c. 4., and -was within that statute; and consequently before the repeal of that statute, to employ a' journeyman who had not served an apprenticeship in any substantive part of that business was a violation of it. Pratt V. Eraser, 3 Campb. N.P.C. 14. and see Martins r. Galloway, 3 Campb. N.P.C, 121. Booksellers. 355 and to resell it at a profit bearing the loss arising from the copies unsold might become a bankrupt. CHAP. VIII. Of the Remedies for an Infringement of A Copyright. Having described the different kinds of lite- rary and scientific works, stated the nature of the property which exists in them, and given an account of the several persons peculiarly inter- ested in publications, it becomes necessary to proceed, lastly, to point out the several remedies that may be pursued for injuries done to literary property. As the property in the productions of the Fine Arts, is not vested in the inventors by the statutes which relate to the copyright in books, I have for the sake of perspicuity, and in order to make each Chapter as complete in itself as the nature of the subject would admit, already given state- ments of the penalties by which the property in en- gravings or prints is guarded; («) and described the actions that may be maintained for piracies (2) Gillingham v. Lang, G Taunt. 532. 2 Marsh. 236. (fl) Ante, p. 299. 2a2 356 On Copyright. of patterns for linen {h), and of sculptures (c) or models. It is now therefore proper to investigate the remedies for an infringement of the copyright of a book, which may be I. By a suit for penalties. II. By an action on the case for damages. III. By proceedings in equity. I. The Suit for Penalties. A piracy. What conduct amounts to a piracy of a book either generally, {d) or of the different kinds of literary works in particular, as of books on ge- neral subjects, (e) abridgments, (/) musical com- positions, {g) and dramatic pieces, {h) has been fully described. uiir^^ The penalties given by the stat. of Anne against piracy are, that every offender shall forfeit the book, and every sheet, being part of it, to the proprietor of the copy of it, who shall forthwith damask, and make waste paper of them ; (i) and further that every such offender shall forfeit one (ft) Ante, p. 304. (c) Ante, p. 306. (d) Ante, p. 214 io 217. (e) Ante, p. 237. (/) Ante, p. 239. ig) Ante, p. 283. {h) Ante, p. 284. .^ (J.) To be done on motion to the court. 41 Geo, HI. c. 107. s. 1. The suit for PinaJlks. 357 penny (now three pence) {k) for every sheet which shall be found in his possession, either printed or printing, pubhshed or exposed to sale; one moiety to the Queen, the other to the in- former. (0 That no person however may through igno- rance offend against that act, none of its pe- nalties can be imposed on any one, unless the title of the book before its publication be en- tered in the register book of the Company of Stationers. The consent to publish, — that is, every assignment of the copyright, — must also be entered. If, on the other hand, any person be prose- cuted for violating the statute of 8 Anne, he may plead the general issue, and under it give any special matter in evidence. If he obtain a verdict, or the plaintiff be nonsuited, or dis- contiuue his action, then he is to have his full costs. Any proprietor, bookseller, or printer, or the warehouse-keeper of the Stationers' company, not observing the directions of the act respect- ing delivering the copies to the libraries, and making default therein, is liable to forfeit Jive pounds for every copy not delivered, besides the value of the printed copies not so delivered, to be recovered with full costs. Independent of the remedies at law necessary ) Bailer v. Walker, see Blackwell u. Harper, 2 Atk. 04- {q) Beckford v. Hood, 7 T. K. G20. see 2 Wils. 145. This was an action on the c;i'^e for. publishing without the consent of the plaintiflf', his book called "Thoughts upon Hunting." Neither of its editions had been entered at Stationers' Hall, Bj/ the Court.— The question is "Whether the right of property being vested in authors for cert;iin periods, the com- moa law remedy for a violation of it does not attach within the times limited by the Act of Parliament. Within those pe- riods the act says, that the author shall have the sole right and liberty of printing, kc; that tiie statute having vested this right in the author, the common law gives the remedy by action on the case, for the violation of it. Of this no iloubt could have been made, had the statute stopped there : b^ut it has been argued, that as the statute in the same clause that creates the right, has prescribed a particular remedy, that remedy and no other can be resorted to. But the mean- ing of the legislature in creating the penalties in the latter part of the clause was to give an accumulative remedy. Nothing could be more incomplete as a remedy than penalties alone; for witiiout dwelling upon tlie incompetency of the s«m, the right of action is not given to the party aggrieved, but to any common informer. Now the action for the pe- oalties giveu to a coraraon iafonr.er can only be consid»ei€e or belief. Your petitioner, therefore, humbly prays that your IMaJesty will be graciously pleased to grant unto him, his executors, athiiinistrators, and assigns, your royal letters patent, under the great seal of Great Britain, for tlie sole working, constructing, making, selling, using-, and exercising, of his said invention, and all other benefit and advantage thereof, within that part of your IMajcbty's United Kingdom of Great Britain and Ireland called England, jour dominion of Wales, and town of Ber- wick-upon-Tweed, [and also in all your IVIa- jesty's colonies and plantations abroadj for the term of fourteen years, according to the Ptatute in that case made and provided. And ^our petitioner shall ever pray, &c. 370 Appendix. The Affidamt to support the Petition. of [&c.] maketh oath and saith that, after considerable application and expense, he hath invented, or found out [Jiere comes in the title of the invention as described in the petition^ which invention, he believes, will be of general benefit and advantage; and this de- ponent further saith that he is the true and first in- ventor thereof, and that the ?arne hath not been made or used by any other person or persons whomsoever, to his knowledge or belief. Sworn at the Public Office in South- ampton-buildings, London, the day of before me. No. II. The Form of a Patent. [Page 48, and page 141.] George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, to all to whom these presents shall come, greeting. Whereas A. B. of hath, by his peti- tion, humbly represented unto us, that («) The petitioner, therefore, most humbly prayed we would be graciously pleased to grant (&) And we, being willing to give encouragement to all arts and inventions which may be for the public good, are graciously pleased to condescend to the petitioner's request. Know ye, therefore, that we, of our special grace, certain knowledge, and mere motion, have given and granted, and by these presents, for us, our heirs, and successors, do give and grant, unto the said A. B., his executors, administrators, and assigns, our special licence, full power, sole privilege, and authority, that he, the said A. B., his executors, administrators, and assigns, and every of them, by himself and themselves, or by his and their deputy and deputies, servants or agents, or such others as he, the said A. B., his exe- cutors, administrators, or assigns, shall at any time agree with, and no others, from time to time, and at all times hereafter, during the term of years herein expressed, shall and lawfully may make, use, exer- (fl) For the allegations of the petition. {h) For the prayer of the petition. Appendix. 371 cise, and vend his said invenlion, ivithin that part of our United Kingdom of Great Britain and Ireland called Enifland, our dominion of Wales, and town of Berwick-upon-Tueed,(r) in such manner as to him, the said A, B., his executors, adsninistra- tors, and assigns, or any of them, shall, in Ids or their discretions seem meet. And that he the said A. B., his executors, administrators, and assigns, shall ijindlawl'uliy may have and enjoy, the whole profit, benefit, commodi- ty, and advantage, from time to time, coming, growing, accruing, and arising, by reason of the said invention, for and during the term of years herein-mentioued, to have, hold, receive, and enjoy, the said licence, powers, privileges, and advantages, hereinbefore granted, or mentioned to be granted, unto the said A. B , his executors, administrators, and assigns, for and during, and unto the full end and term of fourteen years, from the date of these presents next and imme- diately ensuing, and fully to be complete and ended, according to the statute in that case made and pro- vided. And to the end that the said A. B., his exe- cutors, administrators, and assigns, and every of them, may have and enjoy the full benefit, and the sole use and exercise of the said invention, according to our gracious intention hereinbefore declared, we do, by these presents, for us, our heirs, and successors, re- quire and strictly command all and every person and persons, bodies politic and corporate, a5)cl all our sub- jects whatsoever, of what estate, quality, degree, name, or condition soever they be, within tlsat said part of the United Kingdom of Great Britain and Ireland, called England, our dominion of Wales, and town of Ber- wick-tipon-Tweed, (c) aforesaid, that neither they, nor any of them, at any time, during the conti- nuance ofthe said term of fourteen years hereby granted, either directly or indirectly, do make, use, or put in practice the said invention, or any p;ular the justices of the peace, mayors, sheriflTs, bail ids, constables, headborouohs, and all otlier officers and ministers whatsoever of us, our heirs, and successors, for the time beinj;;-, that they or any of them do not nor shall at any time hereafter, durinc^ the said term hereby t^ranted, in any wise mo- lest, trouble, or hinder the said A. B., his executors, administrators, or assigns, or any of them, or his or their deputies, servants, or asjents, in or about the due and lawful use or exercise of tiie aforesaid invention, or any thing- relating thereto. Provided always, and these our letters patent are and shall be upon this condition, that if at any time during the said term hereby granted it shall be made ap- pear to us, our heirs or successors, or any six or more of our or their privy council, tiiat this our grant is con- trary to law, or prejudicial or inconvenient to our sub- jects in general, or that the said invention is not a new invention, as to the puidic use and exercise thereof, in that said part of our United Kingdom of Great Britain and Ireland called England, our dominion of Wales, and town of Berwick-upon-Tweed, aforesaid, or not invented or found out by the said A. B. as aforesaid; then upon signification thereof, to be made by us, our heirs or successors, under our or their signet or privy seal, or by the lords of our or their privy council, or any six or more of them, under their hands, these our letters patent shall forthwith cease, de- termine, and be utterly void, to all intents and purposes. Provided also that these our letters patent and any thing hereinbefore contained, shall not extend, or be construed to extend, to give privilege unto the said A.B , his executors, administrators, or assigns, or any of them, to use or imitate any invention or work ■whatsoever which hath heretofore been invented or found out by any other of our subjects whatsoever, and publicly used and exercised in that said part of our United Kingdom of Great Britain and Ireland called England, our dominion of Wales, and town of Berwick upon Tweed , unto whom our like letters pa- tent or privileges have been already grunted, for the Appendix. 373 sole use, exercise, and benefit thereof; it bein"^ our will and pleasure tl)at the said A. B., his executors, administrators, and assig^ns, and all and every other person and persons to whom like letters patent or pri- viJeires have been already jfranted as aforesaid, shall di-;tinctly use and practise their several inventions, by them invented or found out, accordinc^ to the true in- tent and nieaninj^ of the said respective letters patent, and of these presents. Provided likewise nevertheless, and these our letters pafpnt are upon this express condition, that if the said A. B., his executors, andadministrators, or anyperson or persons which shall or njay, at any time or times here- after, during- tiie continuear of his reign, for the term of fouitesn years from the date of the said last-mentioned letters patent, and for the ex- clusive right to use, exercise, and vend which im- provements and additions, wiJhin Ireland, he the said also obtained his Majesty's letters patent, bearing date the day of in the year of his reign, for the term of fotir- teen years from the date of the said last-mentioned letters patent : and for the exclusive right to niake, use, and vend which improvements and additions, within that part of t!ie United Kingdom of Great Britain and Ireland, called Scotland, he the said likevviss obtained his Majesty's letters pa- tent bearing date the day of in the year of his reign, for the term of fourteen years, from the date of the said last- men- tioned letters patent. Signed by the agent for the above-named, and No. V. A Form of PclUion to Parliament. [Piige 148.] To the honourable the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled, The humble petition and Sheweth, THAT your petitioner, after con- siderable aj)plicatiuii and expense, invented or found 378 Appendix. out a nmrliine, for \d(scrihivs^ the invention^ as in the patent \ That his Majcslv, hy letters patent, dated the day of in the year of his reifjn, «jrantod to your potitioner his executors, administrators, andassiojns, the sole use and exercise of his said invention, within tliat part of the United Kinj^dom of Great Britain and Ireland, called England, tjie dominion of Wales, and Town of Ber- wick-upon-l\veed, for the term of fourteen years from the date of (he said Idtters patent : That his Majesty, by letters patent, dated the day of in the year of his reij»n, also granted to your petitioner, his executors, administrators, and assigns, the sole use and exercise of his said invention, within Ireland, for the term of fourteen years from the date of the said last-mentioned letters patent: That his Majesty, by letters patent, dated the day of in the year of his reign, likewise granted to your petitioner, his executors, administrators, and assigns, the sole use and exercise of his said invention, within that part of the United Kingdom of Great Britain and Ireland called Scotland, for the term of fourteen years from the date of the said last-mentioned letter patent : That his Majesty, by letters patent, dated tl.e day of in the year of his reign, granted to your petitioner his executors, adniinistrators, and assigns, the sole use and exercise of certain improvements on, and additions to, his said machine, within that part of th.e United Kingdom of Great Britain and Ireland called England, the domi- nion of Wales, and town of Berwick-upon-Tweed, and also in all his Majesty's colonies and plantations abroad, for the term of fourteen years, from the date of the said last mentioned letters patent. That his Majesty, by letters patent dated the day of in the year of his reign, also granted to your petitioner, his executors, administra- tors, and assigns, the sole use and exercise of his said improvements and additions, within Ireland, for the term of fourteen years, from the date of the said last mentioned letters patent. That his Majesty by letters patent, dated the day of , in the year of his reign, likewise granted to your petitioner, liis executors, administrators, and assigns, the sole use and exercise of his said improvements and additions, within that part of the United Kingdom of Great Britain and Ireland called Scotland, for the 3 Appendix. 379 term of fourtoon years from the date of the said last uiontionod letters patent. That [here coynes in the special circ{n7istaf]ces /^ Your petitioners, therefore, humbly pray that leave may be given to bring in a bill, to pro- lontj the several terms g;ranted by the afore- said letters patent, to your petitioner, and by him assigned to your peti- tioner, , and to vest in your petitioners, their executors, administrators, and assigns, tlie sole privilege, right, and authority, of making, using, and vending, the aforesaid machine, with the said improve- ments and additions, for sucii term of years, in sucli manner, and under such regulations, as to this honourable house shall seem meet. No. VJ, 21 James I. c. 3. — Jn Act concerning 3Ionopo/ies and Dispensations zsitli Penal Laws, and the For- feitures thereof. * Forasmuch as your most excellent Majesty, in ah monn- your royal judgment, and of your blessed disposition p<»i'<'s.''^c- to the weal and quiet of your subjects, did i!i the year vo?d. ^^ of our Lord God One thousand six hundred and ten, publish in print to the whole reahii, and to all pos- terity, that all grants and monopolies, and of the benefit of any penal laws, or of power to dispense with the law, or to compound for the forfeiture, are con- trary to your Majesty's laws, which your Majesty's declaration is truly consonant and agreeable to the ancient and fundamental laws of this your realm : And whereas your Majesty was further graciously pleased expressly to command, that no suitor should presume to move your Majesty ibr matters of that nature ; yet nevertheless upon misinformations, and untrue pretences of public good, many such grants have been unduly obtained, and unlawfully put in exe- cution, to the great grievance and inconvenience of your Majesty's subjects, contrary (o the laws of (his your realm, and contrary to your IVfajesty's most royal atid blessed intention, so publislied as aforesaid:' For 380 Appendix, avoidliifj wheroof, and prevontinp: of tlie like in time to come, may it please your excellent Mfijesty, at the luimhle suit of the Lords Spiritual and Temporal, and the Commons, in this present Parliament as-emhied, That it may be declared and enacted; and be it de- clared and enacted by authority of this present Par- liament, That all monopolies, and all commissions, ffrants, licences, charters, and letters patent heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politic or corporate whatsoever, of or for the sole biiyinfj, sell ins:, niakin":, workinsr, or using: of any thing within this realm, or the dominion of Wales, or of any other monopolies, or of power, liberty, or faculty, to dispense with any others, or to give licence or toleration to do, use, or exercise any thing against the tenor or purport of any law or statute ; or to give or make any warrant for any such dispejisation, licence, or toleration to be had or made; or to agree or compound with any others for any penalty or forfeitures limited by any statute; or of any grant or promise of the benefit, profit, or com- modity of any forfeiture, penalty, or sum of money, that is or shall be due by any statute, before judgment thereupon had ; and all proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things whatsoever, any way tending to the institut- ing, erecting, strengthening, furthering, or countenanc- ing of the same or any of them ; are altogether con- trary to the laws of this realm, and so are and shall be utterly void and of none effect, and in no wise to be put in ure or execution. Monopo- ]j ^,jj [)e it further declared and enacted by the shall be" authority aforesaid. That all monopolies, and all such tried by the commission's, grants, licences, charters, letters patents, kws°of"this proclamations, inhil>iiions, restraints, warrants of as- ' realm. sistance, and all other matters and things tending as aforesaid, and t!ie force and validity of them, and of every of them, ought to be and shall be for ever here- aiter examined, heard, tried, and determined, by and according to the common laws of this realm, and not otlierwise. All persons ijf ^jj^] \^q jt further enacted by the authority v'e^mono-" aforesaid, That all person and persons, bodies politic polies, &c. and corporate whatsoever, which now are or hereafter shall be, shall stand and be disabled and uncapable to have, use, exercise, or put in ure any monopoly, or any such commission, grant, licence, charter, letters patents, proclarnation, inhibition, restraint, warrant of assisti- Appendix. 08 1 ance, or other matter or thing- tenditijj as aforesaid, or any liberty, power, or faculty, grounded or pretended to be grounded upon them, or any of them. IV. And be it further enacted by the authority Theparfy aforesaid. That if any person or persons at any time pretexu'Pa after the end of forty (lays next after the end of this monopoly, present session of Parliament, shall be hindered, J^cover'tre- grieved, disturbed, or disquieted, or his or their goods hiedamages or chattels any way seized, attached, distrained, !?"'! ''""'''® .1 . , ■' I • 1 1 • cobts. taken, carried away or detamed, by occasion or pretext of any monopoly, or of any such commission, grant, licence, power, liberty, faculty, letters patents, pro- clamation, inhibition, restraint, warrant of assistance, or other matter or thing tending- as aforesaid, and will sue to be relieved in or for any of the premises; that then and in every such case, the same person and per- sons shall and may have his and their remedy for the same at the common law, by any action or actions to be fi^rounded upon this statute; the same action and ac- tions to be heard and determined in the courts of King's Bench, Common Pleas, and Exchequer, or in any of them, ag^ainst him or them by whom lie or they shall be so hindered, grieved, disturbed, or dis^quieted, or against him or them by whom his or their goods or chattels shall be so seized, attached, distrained, taken, carried away, or detained ; wherein all and every such person and persons which shall be so hindered, grieved, disturbed, or disquieted, or whose goods or chattels shall be so seized, attaclied, distrained, taken, carried away, or detained, shall recover three times so much as the damages which he or they sustained by means or occasion of being so hindered, grieved, disturbed, or disquieted, or by means of having his or their goods or chattels seized, attached, distrained, taken, carried away, or detained, and double costs; and in such suits, or for the staying- or delaying thereofj no essoin, pro- tection,, warier of law, aici, prayer, privilege, injunc- tion, or order of restraint, shall be in any wise prayed, granted, admitted, or alUnved, nor any more than one imparlance: And if any person or persons shall, after Hedintdc- notice given, that the action depending- is grounded '■'.v'-ihan ~ ' ~ .~ action upon this statute, cause or procure any action at the f,n„iin therein contained shall not in any wise extend or be tiouv'itvcd. prejudicial unto the city of London, or to any city, borough, or town corporate within this realm, for or concerning any grants, charters, or letters patents, to them or any of them made or granted, or for or con- cerning any custom or customs used by or within them or any of them; or unto any corporations, com- panies or fellowships of any art, trade, occupation or mystery, or to any companies or societies of mer- chants within this realm, erected for the maintenance, enlargement, or ordering of any trade of merciiandize; but that the same charters, customs, corporations, companies, fellowships and societies, and their liber- ties, privileges, powers, and immunities, shall be and continue of such force and effect as they were before the making of this Act, and of none other; any thing before in this Act contained to the contrary in any wise notwithstanding. X. Provided also, and be it enacted, That tliis Act, LcKrrs pa- or any declaration, provision, disablement, penalty, *«""' t'>:ii forfeiture, or other thing before-mentioned, sliall not pri"i?iu", extend to any letters patents or grants of privilege ^ii'ipf^i't", heretofore made, or hereafter to be made, of, tor, or dcr.''^'reat concerning printing, nor to any commission, grant or ordnance, letters patents, heretol'cre made, or hereafter to be furl'^llveci*^' made, of, for, or concerning the digging, muking, or 384 Appendix. This Act shall not extend to commis- sions for ailum utiues. comji()ini(]in«; of saltpetre or puripowdor, or llio casting or makini^' of ordnance, or shot for ordnance, nor lo any j^rant or letters patents heretofore made, or here- after to be made, of any cilice or ofiices heretofore erected, made or ordained, and now in beinjy;, and put in execution, other than such ofiices as have been decried by any his Majesty's proclamation or pro- clamations: but that all and every the same fj;ruiits, commissions, and letters patents, and all other niatters and things tendinj; to the maintainini>-, strenj»;thenin^, and furtherance of the same, or any of them, shall be and remain of the like force and effect, and no other, and as free from the declarations, provisions, penalties, and forfeitures contained in this Act, as if this Act had never been had nor made, and not otherwise. XI. Provided also, and be it enacted. That this Act, or any declaration, provision, disablement, penalty, forfeiture, or other thinjj^ before mentioned, shall not extend to any commission, ^i^rant, letters patents or privilege heretofore made, or hereafter to be made, of, for or concerning the dis:ging, compounding, or niaking of alum or alum mines, l)ut that all and every th(i same commissions, grants, letters patents and privi- leges, shall be and remain of the like force and effect, and no other, and as free from the declarations, provi- sions, penalties, and forfeitures contained in this Act, as if this Act had never been had nor made, and not otherwise. XII. [Nor to tlie liberties of Newcastle-upon-Tyne, nor to licences of keeping taverns.] XIII. ("Nor to letters patents granted to Sir Robert Mansel, Knt.,orto James Maxwell, Esq.] XIV. [Nor to those granted to Abraham Baker, ot* L,ord Dudley.] No. VII. 8 Anne, c. 19. — An Act for tlie Encouragnncnt of Learning, bj/ vesting the Copies of printed Books in the Authors or Purchasers of such Copies ^ during the Times therein mentioned. ' Whereas printers, booksellers, and other persons Slave of late frequently taken the liberty of printing, i-<.>|)rinting and publishing, or causing to be printed, Appendix, 385 i*feprinted, and published, books and other writing^, without the consent of the authors or proprietors of such books and writinojs, to their very great detriment, and too often to the ruin of them and their families:"' for preventing thereforesuch practices for the future, and for tlie encouragement of learned men to compose and write useful books; May it please your Majesty, that it may be enacted, and be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this j)resent pariioment assembled, and by the authority of the same, that from and after the tenth day o^ April, one thousand seven hundred and ten, the author of any book or books already printed, v.ho hath not trans- ferred to any other the copy or copies of such book or books, share or shares thereof, or the bookseller of boo ksell ers, prin^r or pnnters, or other perso n or persons, who hath or have purchased or acquired Jhe copy or copies of any book or books, inorder to print or reprinj, the sanj^e, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer; and that the author of any book or books already c ompo sed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, sliail have the soIe~liberty of printing and reprinting such book and books for the term of Iburteen years, to conin)ence from the day of the first publishing the same, and no longer; and that if any other bookseller, printer, or other person whatsoever, from and after the tenth day o^ April, One thousand seven hundred and ten, within the times granted and limited by this Act as aforesaid, shall print, reprint, or import, or cause to be printed, reprinted, or imported, any such book or books, with- out the consent of the proprietor or proprietors thereof first had and obtained in writing, signed in the pre- sence of two or more credible witnesses; or knowing the same to be so printed or reprinted, without the consent of the proprietors, shall sell, publish, or expose to sale, or cause to be sold, publislunl, or exposed to sale, any such book or books, without such consent first had and obtained as aforesaid : then such ofliendcr or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask and make waste paper of them; and further, that every such oftender 2c After 10 April, 1710^ the authors of books already printed, who liave not trans- ferred their rights, and the book- sellers, &Ci who have purchased copieb,sliall have the sole right of printing them for the term of 2 i years. And the authors of hooks not printed, to have the sole right of printing foV fourteen years. Punish- ment of book-cller, &c. |)rint- ing without consent of the j)ro- prit;lor. 386 Appendix, Copies of books to be entered be- fore publi- cation in the register book of the company of Stationers; which may be inspected at any time without fee. Penalty of the clerk refusing so to do. or offenders shall forfeit one penn}? for every sheet which shall be found in hi?, her, or their custody, either printed or printing, published, or exposed to sale, contrary to the true intent and meaning of this Act; the one moiety thereof to the' Queen's most ex- cellent Majesty, her heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of her Majesty's courts of record at Westminster^ by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, or protection, or more than one imparlance shall be allowed. * II. And whereas many persons may through igno- rance offend against this Act, unless some provision be made, whereby the property in every such book, as is intended by this Act to be secured to the proprietor or proprietors thereof, may be ascertained, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known ;' be it therefore further enacted by the authority aforesaid, that nothing in this Act contained shall be construed to extend to subject any bookseller, printer, or other person whatsoever, to the forfeitures or penalties therein mentioned, for or by reason of the printing or reprinting of any book or books without such consent as aforesaid, unless the title to the copy of such book or books hereafter pub- lished shall, before such publication, be entered in the register book of the company of Stationers, in such manner as hath been usual, which register book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or pro- prietors be in like manner entered as aforesaid, for every of which several entries sixpence shall be paid, and no more ; which said register book may, at all seasonable and convenient times, be resorted to, and inspected by any bookseller, printer, or other person, for the purposes before-mentioned, without any fee or reward ; and the clerk of the said company of sta- tioners shall, when and as often as thereunto required, give a certificate under his hand of such entry or entries, and for every such certificate may take a fee not exceeding sixpence. III. Provided nevertheless, that if the clerk of the said company of Stationers for the time being shall refuse or neglect to register, or make such entry or entries, or to give such certificate, being thereunto required by the author or proprietor of such copy or Appendix. 387 copies, in the presence of two or more credible wit- nesses, that then such person and persons so refusing-, notice being first duly g^iven of such refusal, by an advertisement in the Gazette, shall have the like benefit, as if such entry or entries, certificate or cer- tificates had been duly made and given ; and that the clerks so refusing shall, for any such offence, forfeit to the proprietor of such copy or copies the sum of twenty pounds, to be recovered in any of her Pvlajesty's courts of record at Westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, or protection, or more than one imparlance, shall be allowed. IV. Provided nevertheless, and it is hereby further After25 enacted by the authority aforesaid, That if any book- aJchwJhop seller or booksellers, printer or printers, shall, after ofCanter- the said five and twentieth day o^ March One thousand Jog^tUe'^tiio seven hundred and ten, set a price upon, or sell, or prices of expose to sale, any book or books at such a price or books, upon r ,11, •^•11 ^ ^ complaint rate as shall be conceived by any person or persons to made that be too hiffh and unreasonable; it shall and may be they are ua- lawful for any person or persons to make complaint thereof to the Lord Archbishop of Canterbury, for the time being, the Lord Chancellor or Lord Keeper of the Great Seal oi Great Britain for the time being, the Lord Bishop of London for the time being, the Lord Chief Justice of the Court of Queen's Bench, the Lord Chief Justice of the Court o^ Common Pleas, the Lord Chief Baron of the Court of Exchequer for the time being, the Vice-Chancellors of the two Uni- versities for the time being, in that part of Great Britain called England; the Lord President of the Sessions for the time being, the Lord Justice General for the time being, the Lord Chief Baron of the Exchequer for the time being, the Rector of the College of Edinburgh for the time being, in that part of Great Britain called Scotland; who, or any one of them, shall and have hereby full power and authority, from time to time, to send for, summon, or call before him or thein such bookseller or booksellers, printer or printers, and to examine and enquire of the reason of the dearncss and inhancement of the price or value of such book or books by him or them so sold or exposed to sale; and if upon such enquiry and examination it shall be found, that the price of such book or books is enhanced, or any wise too hif;li or unreasonable, thou and in such case the said Archbishop of Canterburij, Lord Chancellor or Lord Keeper, Bishop oi London ^ 2 c2 38S Appendix. and if filter- ed from the price the bookseller set, may or- der him to pay costs to the party complain- ing. Penalty on booksellers selling at higher rates. This clause repealed by 15 Geo. II. c. 3d. two Chief Jiistioee, Chief Baron, Vice-chancellors of the Universities, in that part of Great Britain called England, and the said Lord President of the Sessions, l^rd Justice General, Lord Chief Baron, and Rector of the College of Edinburgh, in that part of Great Britain called Scotlatid, or any one or more of them, so enquiring and examining, have hereby full power iuid authority to reform and redress the same, and to limit and settle the price of every such printed book and books, from time to time, according to the best of their judgments, and as to them shall seem just and reasonable; and in case of alteration of the rate or price from what was set or demanded by such book- seller or booksellers, printer or printers, to award and order such bookseller and booksellers, printer and printers, to pay all the costs and charges that the person or persons so complaining shall be put unto, by reason of such complaint, and of the causing such rate or price to be so limited and settled; all which shall be done by the said Archbishop of Canterbury, Lord Chancellor or Lord Keeper, Bishop of London, two Chief Justices, Chief Baron, Vice Chancellors of the two Universities, in that part of Great Britain called England, and the said Lord President of the Sessions, Lord Justice General, Lord Chief Baron, and Rector of the college of Edinburgh, in that part of Great Britain called Scotland, or any one of them, by writing under their hands and seals, and thereof public notice shall be forthwith given by the said bookseller or booksellers, printer or printers, by an advertisement in the Gazette ; and if any bookseller or booksellers, printer or printers, shall, after such settle- ment made of the said rate and price, sell or expose to sale any book or books, at a higher or greater price than what shall have been so limited and settled as aforesaid, then and in every such case such bookseller and booksellers, printer and printers, shall forfeit the sum of five pounds for every such book so by him, her, or them sold or exposed to sale; one moiety thereof to the Queen's most excellent Majesty, her heirs and successors, and the other moiety to any person or persons that shall sue for the same, to be recovered with costs of suit, in any of her Majesty's courts of record at Westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, or protection, or more than one imparlance, shall be allowed. .Appendix. 389 V. Provided always, and it is hereby enacted, That After lo nine copies of each book or books, upon the best paper, M^^'^h nine that from and after the said tenth day of April, one each book thousand seven hundred and ten shall be printed and s.ii:iii he de- published as aforesaid, or reprinted and published with Ih^ware- additions, shall, by the printer and printers thereof, be house delivered to the warehouse-keeper of the said Company JhTcom.*^ of Stationers for the time bein^, at the hall of the said panyofsta- company, before such publication made for the use of {h"e"use of"^ the Royal Library, the libraries of the Universities of theuniver- Oxford and Cambridge, the libraries of the four Uni- f-e^'j^'c^' verfiities in Scotland, the Library of Sion College in ' London, and the library commonly called the Library belonging to the Faculty of Advocates at Edinburgh respectively; which said warehouse keeper is hereby warehouse required, within ten days after demand by the keepers keeper to of the respective libraries, or any person or persons by boo'ks^ten^ them or any of them authorized to demand the said ^^y^ after copy to deliver the same for the use of the aforesaid '^*^'"''^"'*- libraries; and if any proprietor, bookseller, or printer, p^n^i^ , f or the warehouse-keeper of the said Company of Sta- proprietor, tioners, shall not observe the direction of this act '**"•""'?''" therein, that then he and they so making default in not directions delivering the said printed copies as aforesaid, shall of t'li^Act, forfeit, besides the value of the said printed copies, the sum of five pounds for every copy not so delivered, as also the value of the said printed copy not so delivered ; the same to be recovered by the Queen's Majesty, her heirs and successors, and by the chancellor, masters, and scholars of any of the said Universities, and by the pre- sident and fellows of Sion College, and the said faculty of advocates at Edinburgh, with their full costs re- spectively. VL Provided always, and be it further enacted, Penaitiesin That if any person or persons incur the penalties con- Scotland tained in this act, in that part of Great Britain called verable'*" Scotland, they shall be recoverable by any action before the court of session there. VII. Provided, that nothing in this act contained do Thisactnot extend, or shall be construed to extend, to prohibit the foiiinderthe importation vending or selling of any books in Greek, Latin, or any other language printed beyond the seas ; any tiling in this act contained to the contrary not- withstanding. VIII. And be it further enacted by the authority aforesaid, that if any action or suit shall be commenced or brought against any person or persons whatsoever, for .doing or causing to be done any thing in pursuance of importa- tion, 8ic. of books in Greek, ^c. printed be- Youd sea, kc. General i^biie. 390 jippendix. This Act not to prejudice the rigflit of the univer- sities. Actions for offences agaiDst this Act, to be brought in tliree months. After the fourteen years, the right of printing, &c. to re- turn to the author for other four- teen years. this act, the defendants in such action may plead the general issue, and give the special matter in evidence ; and if upon such action a verdict be given for the de- fendant, or the plaintiff become nonsuited or discon- tinue his action, then the defendant shall have and recover his full costs, for which he shall have the same remedy as a defendant in any case by law hath. IX. Provided, that nothing in this act contained shall extend, or be construed to extend, either to pre- judice or confirm any right that the said Universities, or any of them, or any person or persons have, or claim to have, to the printing or reprinting any book or copy already printed, or hereafter to be printed. X. Provided nevertheless, that all actions, suits, bills, indictments, or informations for any offence that shall be committed against this Act,, shall be brought, sued, and commenced within three months next after such offence committed, or else the same shall be void and of none etfect. XI. Provided always, that after the expiration of the said term of fourteen years, the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years. No. VIII. 8 George II. c. 13. — An Act for the Encouragement of the Arts of Designing, Engraving and Etching, His- iorical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the Time therein mentioned. * Whereas divers persons have by their own genius, industry, pains and expense, invented and engraved, or worked in tnezzotinto or chiaro oscuro, sets of histo- rical and other prints, in hopes to have reaped the sole benefit of their labours : and whereas printsellers and other persons have of late, without the consent of the inventors, designers and proprietors of such prints, frequently taken the liberty of copying, engraving and publishing, or causing to be copied, engraved and published, base copies of such works, designs and prints, to the very great prejudice and detriment of the inventors, designers and proprietors thereof;' Fw Appendix. 391 remedy thereof, and for preventing such practices for the future, may it please your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that from and after the twenty-fourth day ,^,'i"V^'"'y ''f n -r 1 • 1 1 II 1 • I n w i f^ piintsvested ot t/z^we which shall be in the year ot our Lord Une mthein- thousand seven hundred and thirty-five, every person fyy^^""^*^"*" who shall invent and design, engrave, etch or work in years. mezzolinto or ckiaro oscuro, or from his own works and inventions shall cause to be designed and engraved, etched or worked in mezzotinfo or ckiaro oscuro, any historical or other print or prints, shall have the sole right and liberty of printing and reprinting the same Propiie- for the term of fourteen years, to commence from the to'beaffixed day of the first publishing thereof, which shall be truly to each engraved with the name of the proprietor on each P"°*" plate, and printed on every such print or prints; and ^r^n^gj*! "" that if any printseller or other person whatsoever, from or others and after the said twenty-fourth day of June One P""atingthe thousand seven hundred and thirty-five, within the time limited by this Act, shall engrave, etch or work as aforesaid, or in any other manner copy and sell, or cause to be engraved, etched or copied and sold, in the whole or in part, by varying, adding to or diminishing from the main design, or shall print, reprint or import for sale, or cause to be printed, reprinted or imported for sale, any such print or prints, or any parts thereof, without the consent of the proprietor or proprietors thereof first had and obtained in writing, signed by him or them respectively in the presence of t\\o or more credible witnesses, or knowing the same to be so printed or reprinted witliout the consent of the pro- prietor or proprietors, shall publish, sell or expose to sale, or otherwise, or in any other manner dispose of, or cause to be published, sold or exposed to sale, or otherwise, or in any other manner disposed of, any such print or prints, without such consent first had and obtained as aforesaid, then such offender or offend- ers shall forfeit the plate or plates on wiiich such print or prints are or shall be copied, and all and every sheet or sheets (being part of, or whereon sucli print or prints are or shall be so copied and printed) to the proprietor or proprietors of such original print or prints, who shall forthwith destroy and damask the same ; and furtlicr, that every such olfender or offenders shall forfeit five shillings for every print which shall be 392 Appendix. found in his, her, or their custody, either printed or published, and exposed to sale, or otherwise disposed of, contrary to the true intent and meaning of this act ; the one moiety thereof to the King's most excel- lent Majesty, his heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of his Majesty's Courts of Hecord at Westminster^ by action of debt, bill, plaint or information, in which no wager of law, essoin, privilege or protection, or more than one im- parlance, shall be allowed. Not to ex- II- Provided nevertheless, That it shall and may tend to pur. ^e lawful for any person or persons, who shall here- piafJs'from ''^fter purchase any plate or plates for printing, from the original the origiiial proprietors (hereof, to print and reprint proprietors. ^^^^^ ^j^^ g^^jj pj^tes, w jthout incurring any of the pe- nalties in this act mentioned. ^. .... III. A nd be it further enacted by the authority afore- Limitation . , _,, ,._ ^. -.inu j of actions. Said, That if any action or suit shall be commenced or brought against any person or persons whatsoever for doing or causing to be done any thing in pursuance of this act, the same shall be brought within the space of three months after so doing ; and the defendant and de- fendants in such action or suit shall or may plead the General general issue, and give the special matter in evidence; Issue. ji,^{i if upon such action or suit a verdict shall be given for the defendant or defendants, or if the plaintiff or plaintiffs become nonsuited or discontinue his, her, or their action or actions, then the defendant or defend- ants shall have and recover full costs, for the recovery whereof he shall have the same remedy as any other defendant or defendants in any other case hath or have by law. IV. Provided always, and be it further enacted by the authority aforesaid. That if any action or suit shall be commenced or brought against any person or per- sons for any offence committed against this act, the same shall be brought within the space of three months after the discovery of every such offence, and not after- wards ; any thing in this act contained to the contrary notwithstanding. ^ V. And whereas John Pine of London, engraver, ' doth propose to engrave and publish a set of prints, ' copied from several pieces of tapestry in the house ' of Lords, and his Majesty's wardrobe, and other ' drawings relating to the Spanish invasion, in the year ' of our Lord one thousand five hundred and eighty.. 5 eight j' Be it further enacted by the authority afore* Appendix. 393 said, That the said John Pine shall be entitled to the f^'^^'fj^^}^ benefit of this act, to all intents and purposes what- Pine! soever, in the same manner as if the said John Pine had been the inventor and designer of the said prints. VI. And be it further enacted by the authority aforesaid, That this act shall be deemed, adjudged and taken to be a public act, and be judicially taken notice Public act. of as such by all Judges, Justices and other persons whatsoever, without specially pleading the same. No. IX. 12 George II. c. 36. — An Act for prohibiting the Im- portation of Books reprinted Abroad, and first com- posed or written, and printed in Great Britain ; and for repealing so much of an Act made in the Eighth Year of the Reig?i of her late Majesty Queen Anne, as impoxoers the limiting the Prices of Boohs. ' Whereas the duties payable upon paper imported preamble. ' into this kingdom, to be made use of in printing, ' greatly exceed the duties payable upon the importa- * tion of printed books, whereby foreigners and others ' are encouraged to bring in great numbers of books ' originally printed and published in this kingdom and ' reprinted abroad, to the diminution of his Majesty's ' revenue, and the discouragement of the trade and ' manufacture of this kingdom ;' For the preventing thereof for the future, may it please your most excel- lent Majesty that it may be enacted ; and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and tem- poral, and commons, in this present parliament as- sembled, and by the authority of the same, that from and after the twenty-ninth day of September one thou- sand seven hundred and thirty-nine, it shall not be lawful for any person or persons whatsoever, to import or bring into this kingdom for sale, any book or books first composed or written, and printed and published in this kingdom, and reprinted in any other place or country whatsoever; and if any person or persons shall import or bring into this kingdom for sale, any printed book or books, so first composed or written, and printed in this kingdom, and reprinted in any other «594; Jppcndix. place or country as aforesaid ; or knowings the same to be so reprinted or imported, contrary to the true in- tent and meaning of this act, shall sell, publish, or expose to sale any such book or books ; then every such person or persons so doinaj or offendinff, shall forfeit the said book or books, and all and every sheet or sheets thereof; and the same shall be forthwith damasked, and made waste paper; and further, that every such offender or offenders shall forfeit the sum of five pounds, and double the value of every book which he or they shall so import or brinsj into this kins^dom, or shall knowingly sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, con- trary to the true intent and meaning of this act; the one moiety thereof to the King's most excellent Ma- jesty, his heirs and successors, and the other moiety to any person or persons that shall sue for the same ; to be recovered with costs of suit in any of his Ma- jesty's Courts of Record at Westminster by action of debt, bill, plaint or information: in which no wager of law, essoin, or protection, or more than one impar- lance shall be allowed ; and if the offence be committed in Scotland, to be recovered before the Court of Ses- sion there, by summary action : provided that this act shall not extend to any book that has not been printed or reprinted in this kingdom within twenty years be- fore the same shall be imported. II. Provided always, That nothing in this act con- tained shall extend to prevent or hinder the importa- tion of any book first composed or written, and printed in this kingdom, which shall or may be reprinted abroad, and inserted among other books or tracts, to be sold therewith, in any collection, where the greatest part of such collection shall have been first composed or written, and printed abroad ; any thing in this act contained to the contrary notwithstanding. III. And be it further enacted by the authority aforesaid. That so much of an act made in the eighth ci us • 8 ^^^^ of the reign of her late majesty Queen Anne, in- Anne,c.i9, tituled, An Act for the Encouragement of Learning, hy repealed, testing the Copies of printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, whereby it was provided and enacted. That if any bookseller or booksellers, printer or printers shall, after the said five and twentieth day of iV/i'/rcA one thousand seven hundred and ten, set a price upon, or sell, or expose to sale any book or books, at such a price or rate as shall be conceived by any person or Appendix. 395 persons to be high and unreasonable ; it shall and may be lawful for any person or persons to make complaint thereof to the Lord Archbishop ol Canterbury for the time being, the Lord Chancellor, or Lord Keeper of the Great Seal of Great Britain for the time bein^, the Lord Bishop of London for the time being, the Lord Chief Justice of the Court of Queen's Bench, the Lord Chief Justice of the Court of Common Pleas, the Lord Chief Baron of the Court of Exchequer for the time being, the Vice-Chancellors of the two Universities for the time being, in that part of Great Britain called England, the Lord President of the Sessions for the time being, the Lord Justice General for the time being, the Lord Chief Baron of the Exchequer for the time being, the Rector of the College of Edinburgh for the time being, in that part of Great Britain called Scotland, who, or any one of them, shall, and have hereby full power and authority from time to time, to send for, summon, or call before him or them, such bookseller or booksellers, printer or printers, and to examine and enquire of the reason of the dearness and enhancement of the price or value of such book or books by him or them so sold, or exposed to sale; and if, upon such enquiry and examination, it shall be found that the price of such book or books is enhanced, or any ways too high and unreasonable, then, and in such case, the said Archbishop of Canter bur i/^ Lord Chancel- lor, or Lord Keeper, Bishop of London, two Chief Justices, Chief Baron, Vice-Chancellors of the Univer- sities in that part of Great Britain called England^ and the said Lord President of the Sessions, Lord Justice General, Lord Chief Baron, and Rector of the College of Edinburgh in that part of Great Britain called Scotland, or any one or more of them, so enquir- ing and examining, have hereby full power and au- thority to reform and redress the same, and to limit and settle the price of every such printed book and books, from time to time, according to the best of their judgments, and as to them shall seem just and reason- able ; and in case of alteration of the rate or price from what was set or demanded by such bookseller or booksellers, printer and printers, to pay all the costs and charges that the person or persons so complain- ing shall be put unto by reason of such complaint, and of the causing such rate or price to be so limited and settled; all M'hich shall be done by the said Archbishop of Canterbury, Lord Chancellor, or Lord Keeper, Bishop of London^ two Chief Justices, Chief Baron, 396 Appendix. Vice-Cbancellors of the two Universities in that part of Great Britain called England, and the said Lord President of the Sessions, Lord Justice General, Lord Chief Baron, and Rector of the Collepje o( Edinburgh, in that part of Great Britain called Scotland, or any one of them by writing under their hands and seals, and thereof public notice shall be forthwith given by the said bookseller or booksellers, printer or printers, by an advertisement in the Gazette; and if any book- seller or booksellers, printer or printers, shall, after such settlement made of the said rate and price, sell, or expose to sale, any book or books at a higher or greater price than what eball have been so limited and settled as aforesaid; then, and in every such case, such book- seller or booksellers, printer or printers, shall forfeit the sum of five pounds for every such book so by him, her, or them, sold or exposed to sale, one moiety thereof to the Queen's most excellent Majesty, her heirs and successors, and the other moiety to any person or per- sons that shall sue for the same, to be recovered with costs of suit, in any of her Majesty's Courts of Record at Westminster, by action of debt, bill, plaint or in- formation, in which no wager of law, essoin, privilege or protection, or more than one imparlance, shall be allowed ; and every part of the said clause shall be and the same is hereby repealed. Farther IV. And be it further enacted, That this act (except contiiiued ^^ niuch thereof as repeals the beforementioned clause li c. iSr in the said act of the eighth year of the reign of the and 33 Geo. \^^q Queen Anne^ relating to the prices of books) shall ' ^' ' continue and be in force from the said twenty-ninth day of September one thousand seven hundred and thirty-nine, for and during the space of seven years, and from thence to the end of the then next session of Parliament, and no longer. Appendix. 397 No. X. 7 Geo. III. c. 38. — An Act to amend and render more effectual an Act made in the Eis;hth Year of the Reign of King George the Second, for Encourage- ment of the Arts of Designing, JEngraiing, and Etching Historical and other Prints ; and for vesting in, and securing to Jane Hogarth, Widow, the pro- perty in certain Prints. * Whereas an act of Parliament passed in the eighth 7 Geo. llT. * vear ofthe rei^n of his late Majesty Kin^ George g^^'^ u. * the Second, intituled, An Act for the Encourage- c. 13. ' ment of the Arts of Designing, Engraving, and ' Etching, Historical and other Prints, hrj vesting the ' Properties thereof in the Inventors, and Engravers, ' during the Ti?ne therein mentioned, has been found ' ineffectual for the purposes thereby intended ;' be it enacted by the King's most excellent IMaJesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the auihority ofthe same. That from Original and after the first day o^ January, One thousand seven ^^®"['"'''' hundred and sixty-seven, all and every person and prints,&c. persons who shall invent or desjgp, engrave, etch, or yvovk \\\ 7nczzotinlo or chiaro oscuro, or, from his pvvn work, design, or invention, shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro, any historical print or prints, or any print or prints, of any portrait, conversation, landscape, or architectiire, map, chart, or plan, or any other print or prints whatsoever, shall have, and are hereby declared to have, the benefit and protection ofthe said act and this act, under the restrictions and limitations hereinaller nn iitioned. II. And be it further enacted by the authority intitied to aforesaid, That from and after the said first day of "^^^ Januarf/,One thousand seven hundred and sixty-seven, and prosent all and every person and persons who shall engrave, ac'> --^c- etch, or work in mezzolirtio or chiaro oscuro, or cause to be engraved, etched, or worked, any orint, taken from any picture, drawing, model, or sculpture, either aiicient or modern, shall have, and are hereby declared to have, tlie_i2enelit and protection of the sajd^act, and this act, for the term hereinlifter mentioned, in like 398 Appendix. The right intended, vested in the pro- prietors for 28 years. Lnnitation of actions. manner ae if eucli print had been graved or drawn from the original design of such eraver, etcher, or drafts- man ; and if any person shall engrave, print, and pub- lish, or import for sale, any copy of any such print, contrary to the true intent and meaning of this and the said former act, every such person shall be liable to tlie penalties contained in the said act, to be recovered as therein and hereinafter is mentioned. " The sole right of printing and reprinting the late " f'F. HogartJi's prints, vested in his widow and exe- " cutrix ibr twenty years. Penalty of copying, &c. any " of them, before expiration of the term ; such copies " excepted as were made and exposed to sale after the " term of fourteen years, for which the said works were " first licensed, &c." V. And be it further enacted by the authority afore- said, That all and every the penalties and penalty in- flicted by the said act, and extended and meant to be extended, to the several cases comprised in this act, shall and may be sued for and recovered in like man- ner, and under the like restrictions and limitations, as in and by the said act is declared and appointed ; and the plaintiff or common informer, in every such action (in case such plaintiff or common informer shall re- cover any of the penalties incurred by this or the said former act), shall recover the same, together with his full costs of suit. VI. Provided also, That the party prosecuting shall commence his prosecution within the space of six ca- lendar months after the offence committed. VII. And be it further enacted by the authority aforesaid. That the sole right and liberty of printing and reprinting intended to be secured and protected by the said foriner act and this act, shall be extended, continued, and be vested in the respective proprietors, for the space of twenty-eight years, to commence from the day of the first publishing of any of the works re- spectively hereinbefore and in the said former act mentioned. VIII. And be it further enacted by the authority aforesaid, That if any action or suit shall be com- menced or brought against any person or persons whatsoever, for doing, or causing to be done, any thing in pursuance of this act, the same shall be brought within the space of six calendar months after the tact committed ; and the defendant or defendants in any such action or suit shall or may plead the general issue, and give the special matter in evidence; and if 2 Appe7idix. 399 upon such action or suit, a verdict shall be given for the defendant or defendants, or if the plaintiff or plain- tiflfs become nonsuited, or discontinue his, her, or their action or actions, then the defendant or defendants shall have and recover full costs; for the recovery Full costs, v/hereof he shall have tlie same remedy as any other defendant or defendants in any other case hath or have by law. No. XI. 15 George 111. c. 53.— An Act for enahling the two Universities in England, the four Universities in Scotland, and the several Colleges o/Eton, West- minster, and Winchester, to hold in perpetuiti/ their Copyright in Books, given or bequeathed to the said Universities and Colleges for the Advancement oftise- fid Learnings and other purposes of Education ,• and for amending so much of an Act of the eighth year of the Reign of Queen Anne, as relates to the Delivery of Books to the Warehouse-keeper of the Stationers'' Company, for the use of the several Libraries therein mentioned. ' Whereas authors have heretofore bequeathed or ijGeo.iii. ' o-iven, and may hereafter bequeath or ^ive the copies '"•^^• ' of books composed by them, to or in trust for one of ' the two universities in that part of Great Britain « called England, or to or in trust for some of the ' colleges cr houses of learning within the same, or to < or in trust for the several colleges of Eton, West' ' minister, and Winchester, and in and by their several ' wills or otijer instrmnents of donation, have di- « rected or may direct, that the profits arising from the ' printing and reprinting such books s!mU be applied ' or appropriated as a fund for the advancement of < learning, and other beneficial purposes of education, ' within the said universities and colleges aforesaid : ' And whereas such useful purposes will frequently bo « frustrated, unless the sole printing and reprinting ' of such books, the copies of which have been or shall ' be so bequeathed or given as aforesaid, be preserved 400 Appendix. * and secured to the said universities, colleges, and ' houses of learninjj respectively, in perpetuity :' May it therefore please your Alajesty that it may be enacted ; and be it enacted l)y the King's most Excellent Ma- jesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Univorsi- parliament assembled, and by the authority of the ties, .S(c. to gji,„e, That the said universities and colleges respect- ever,'ihe ively shall, at (heir respective presses, have, for ever, sole light ^|,g gole liberty of printing and reprinting all such of^pimtiug, ^^^^^ gg gjj^u jjj a,^y tj„,Q hereafter have been, or (having not been heretofore published or assigned) shall at any time hereafter be bequeathed, or other- wise given by the author or authors of the same respectively, or the representatives of such author or authors, to or in trust for the said universities, or to or in trust for any college or house of learning within the same, or to or in trust for the said four universities in Scotland, or to or in trust for the said colleges of Eton, Westminster, and Winchester, or any of them, for the purposes aforesaid, unless the same shall have been bequeathed or given, or shall hereafter be bequeathed or given, for any term of years, or other limited term ; any law or usage to the contrary hereof in any wise notwithstanding. Persons H, And it is hereby further enacted, That if any Fe^n-fuch bookseller, printer, or other person whatsoever, from book",shaii and after the twenty-fourth day of Jwwe, One thousand forfeit^^the g^^.gjj hundred and seventy-five, shall print, reprint, or ITsTij. for import, or cause to be printed, reprinted, or imported, everysheei; ^^^^ g^pj^ book or books ; or, knowing the same to be so printed or reprinted, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such book or books ; then such offender or offenders shall forfeit such book or books; and all and every sheet or sheets, being part of such book or books, to the university, college or house of learn- ing respectively, to whom the copy of such book or books shall have been bequeathed or given as afore- said, who shall forthwith damask and make waste paper of them ; and further, that such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her, or their custody, either printed or printing, published or exposed to sale, con- one moiety trary to the true intent and meaning of this act; one to his Ma-^ moiety thereof to the King's most excellent Majesty, the o'thcrlo his heirs and successors, and the other moiety thereof the prose- (^ ^^v pcrsous who shall sue for the same ; to be re- cutor. • * Appendix. 401 covered in any of his Majesty's Courts of Record at II eshnitistcr, or in the Court of Session in Scotland^ by action of debt, bill, plairjt, or inforsiiation, in which no \va«i;er of law, essoin, privilege, or protection, or more than one imparlance, shall be allowed. III. Provided nevertheless, That nothinfj in this act extend to grant any exclusive right, otherwise than so long as the booivs or copies belonging- to the said uni- versities or colleges are printed only at their own printing presses within the said universities or colleges respectively, and for their sole benefit and advantage ; and that if any university or college shall delegate, grant, lease, or sell their copyrights, or exclusive rights of printing tj)e books hereby granted or any part thereof, or shall allow, permit, or authorize anv person or persons, or bodies corporate, to print or re- print the same, that then the privileges hereby granted are to become void and of no effect, in the san>e man- ner as if this act had not been made ; but the said universities and colleges, as aforesaid, shall neverthe- less have a right to sell such copies so bequeathed or given as aforesaid, in like n)anner as any author or authors now may do under the provisions of the statute of the eighth year of her Majesty Queen Anne. ' IV. And whereas many persons may through ig-- ' norance offend against this act, unless some provision ' be made, whereby the property of every such ' book as is intended by this act to be secured to * the said universisities, colleges, and houses of learn > ' ing within the same, and to the said universities ' in Scotland^ and to the respective colleges of ' EtoUy Westminster^ and IVinchester^ may be ascer- ' tained and known ;' Be it therefore enacted by the No person authority aforesaid, That nothing in this act con- *".''J,'T'J" tained shall be construed to extend to subject any uu'iess'en- bookseller, printer, or other person whatsoever, to the ^''■^''^*'- forfeitures or penalties herein mentioned, for or by jj,„)'k*s nmst reason of the printing or reprinting, importing or '»; pntin^l exposing to sale, any book or books, unless the title to ,m,,','t'h.afiV>' the copy of such book or books, which has or have been bc((iicst, already bequeathed or given to any of the said univer" sities or colleges aforesaid, be entered in the register book of the Company of Stationers, kept for that pur- pose, in such manner as hath been usu;il, on or before the twenty-lourth day of Jinic^ One tliou^and sevni hundretl and seventy five ; and of all and every such book or hooks as niay or shall In'realter be bequeathed or given as aforesaid, beentcred in such register, wilhiji 2 W 409 Appendix. the space of two tsionflis after any euch bequest or oifTt slmll have come to the knowledge of the vice-chaii- collors of ear6. of any animal ; or shall make or cause to be made any new model, copy, or cast from such new model, in alto or basso relievo, or any work in which the repre- sentation of any human figure or figures, or the repre- sentation of any animal or animals shall be intro- duced, or shall make or cause to be made any new cast from nature of any part or parts of the human figure, or of any part or parts of any animal, shall have the sole right and property in every such new model, copy, or cast, and also in every such new model, copy, or cast in alto or basso relievo, or any v.ork as aforesaid, and also in every such new cast fioni nature as aforesaid, for and during the term of fourteen years from the time of first publishing the same: Provided always, that every person who shall make or cause to be made any such new model, copy, Appendix. 4 1 1 or cast, or any such new model, copy, or cast in alto or basso relievo, or any work as aforesaid, or any new ca.^t from nature as aforesaid, shall cause iiis or her ranie to he put tliereon. with the date of the publica- tion, before the same sluiU be published and exposed to sale. II. And be it further enacted, that if any person P«"fson' shall, within the said term of fourteen years, nidke or pVesofliiiy cause to b^ made any copy or cast of any such new model or model, copy, or cast, or any such mode!, copy, or cast oMtthe'^' in alto or basso relievo, or any such work as aforesaid, written or any such new cast frt)m nature as aforesaid, either [hrpo-**^ by adding to or din^inisliing from any such new model, prietur, copy, or cast, or adding- to or diminishing from any ^i!j[t^,^j^f[,'il" such new model, copy, or cast in alto or bas^o relievo, damages, or any such work as aforesaid, or adding to or dimi- •>yf»special nishing Irom any such new cast or nature, or snail tiiccasc. cause or procure the same to be done, or shall import any copy or cast of such new model, copy, or cast, or copy or cast of such new model, copy, or cast in alto or basso relievo, or any such work aforesaid, or any copy or cast of any such new cast from nature as aforesaid, for sale, or shall sell or otherwise dispose of, or cause or procure to be sold or exposed to sale, or otherwise disposed of, any copy or cast of any such new model, copy, or cast, or any copy or cast of such new model, copy, or cast in aito or basso relievo, or any such work as aforesaid, or any coj)y or cast of any such new cast from nature as aforesaid, without the express consent of the proprietor or proprietors thereof drst had and obtained, in writing signed by him, her, or them respectively, with his, her, or their hand or hands, in the presence of and attested by two or more credible witnesses, then and in all or any of the cases aforesaid, every proprietor or proprietors of any such original model, copy, or cast, and every pro- prietor or proprietors of any such original model, or copy or cast in alto or basso relievo, or any such work as aforesaid, or the proprietor or proprietors of any such new cast from natnre as aforesaid respeclivdy, .shall and mav, l)y and in a special action upon the case, to be brought against the person or persons so olFending, recover such damages as a jury on the trial of such action, or on the execution of a writ of en(|uiry thereon, shall give or assess, together with full costs of suit. 11!. Provided nevertheless, that no person who J"'^T''l'* shall hereafter purchase tha right, either in any such s"|,Jwiio 412 Appendix. shall piT. nioflol, copy, or cast, or in any such model, copy, or riiasp the pj^gj. j|„ jj|{j^ ^,. 1j.|>.so relievo, or any sisch work as f.imr of the „ ., , ii^i. c i\ • ri-inai aforesaid, or any such new cast trom nature, or tlie imiixieior. original proprietor or proprietors thei-eof, shall be subject to any action for vendini^ or sellino- any cast or copy from the same; any thin^j contained in this Act to the contrary hereof notwithstandino-. Limitation IV. Provided also, that all actions to be brought as aforesaid, ai;ainst any person or persons for any offence committed against this Act, shall be com- menced within six calendar months next after the discovery of every such offence, and not afterwards. of actiou^ No. XVI. 41 George 111. c. 107.— Jn Act for the furlhtr En- cmfragc7}ir!/t of Lenriiins;, in the United Kingdom of Great Britain and Ireland, by securing the Copies and Copyright of printed Books., to the Authors of such Books, or their Assigns for the Time herein ?nentioned. — [2c? July, ISOl.j Authors of 'Whereas it is expedient that further protection iwoksai-^^ should be afforded to the authors of books, and the [mted.an'd purchasers of the copies and copyright of the same, not p'iniid in the United Kingdom of Great Britain and Ireland;' ed,'^aM*d'o'f may it therefore please your Majesty that it may be books to be enacted ; and be it enacted by the King's most excel- comitoscd, lent Majesty, by and with the advice and consent of End tiirir the Lords Spiritual and Temporal, and Commons, in, ^u.'ii'h:I\e this present Parliament assembled, and by the autho- tiif sole rity of the same, that the autiior of any book or books pfi'iuiMff already composed, and not pi inted or published, and them for the author of any book or books which shall hereafter fourtccu |jg composed, and the assignee or assigns of such authors respectively, shall have the sole liberty of printing and reprinting of such book and books, for the term of fourteen years, to commence from the day r.ook'^ci- of first publishing the same, and no longer ; and that jears. Iv rs&c. ill if any other bookseller, printer, or other person who- ny part of »' . , ,^ , i • i i t -^ i i^* i any i theUiiiicd soever, in any part of the said United Kingdom, or in King.iotn, any part of the British dominions in Europe, shall, ]''iiro'|'e:in from and alter the passing of this Act, print, reprint, dominions, or intport, or shall cause to be printed, reprinted, or iiriatfre-' imported, any such book or books, without the couseiit Afpendlx. 413 of the proprietor or proprietors of the copyri2[ht of print, or . • ' 'i I 1 I I I' X i_ 1 J iV< • " J • import, SiC and 111 such book or books hrst had and obtained m anv smV. writing-, signed in the presence of two or more credible book wiih- witnesses, or, knowing the same to be so printed, of'i'|?j!r^!' reprinted, or imported, without such consent of such priotor, proprietor or proprietors, shall sell, publish, or expose illi^DJ^*;, ^„ to sale, or cause to be sold, published, or exposed to action t. r sale, or shall have in his or their possession for sale, ^|^^''J|^;7,' any such book or books, without such consent first also fortVit had and obtained as aforesaid, then such offender or Jj'„''"'^';',_ offenders shall be liable to a special action on the p,ie'tor,;ia.i case, at the suit of the proprietor or proprietors of Jf^/^-^o'lh?''* the copyright of such book or books so unlawfully k.ns, and printed, reprinted, or imported, or published or ex- I'^^'jI^j^.J^"^';'*'^ posed to sale, or being in the possession of such offender or offenders for sale as aforesaid, contrary to the true intent and meaning of this Aq\; and every such proprietor and proprietors shall and may, by and in such special action upon the case to be so brought against such offender or offenders in any court of record in that part of the said United Kingdom, or of the British dominions in Europe^ in which the offence shall be committed, recover such damages as the jury on the trial of such action, or on the execution of a writ of enquiry thereon, shall give or assess, together with double costs of suit; in which action no wager of law, essoign, privilege, or protection, nor more than one imparlance, shall be allowed ; and all and every such offender or offenders shall also forfeit such book or books, and all and every sheet and sheets being part of such book or books, and shall deliver the same to the proprietor or proprietors of the copyright of such book or i)ooks, upon order of any court of record in which any action or suit, in law or equity, shall be commenced or pro'-ecuted by such proprietor or pro- prietors, to be made on motion or petition to the said court; and the said proprietor or proprietors shall forthwith damask or make wa4e paper of tlie said book or books, and sheet or sheets respectively; and all and every such offender or offenders shall also forfeit the sum of threepence for every sheet which shall be found in his or their custody, either printed or printing, or published or exposed to sale contrary to the true intent and meaning of this Act, the ono moiety thereof to the King's moht excellent Majesty,^ his heirs and successors, and the other moiety thereof to any person or persons who shall sue (or the saino in any such court of record, by action of debt, bill, 414 Appendix. AiiUiors liavp a se- cond 14 yciirs'term, if Jivinjr. Act shall not extend to books ready pub- lished, nor indem- nify ai^ainst jienaliics under for- mer Acts in force at (he Union of Great Bri- tain and Ireland, 39 & 40 G. 3. c. 67. TrinityCol- lege, Dub- lin, shall for ever have the sole right of printing book^ given orbequeath- ed to them, unless they are given, &c. for a limited time oidy. plaint, or information, in which no wager of law, espoig'n, privil('j;e, or protection, nor more than one imparhsnce, sl.all be ailoned : provided always, that after the expiration of the said term of fourteen years, the right of printinij; or disposing- of copies shall retntn to the authors tliercof, if they are then living', for another term of font teen years. II, Provided also, and bo it further enacted, that nothing in this Act contained shall extend, or be construed to extend, to any book or books heretofore composed, and printed or published in any part of the said United Kingdom, nor to exempt or indemnify any person or persons whomsoever, from or against any penalties or actions, to which he, she, or they shall or may have become, or shall or may hereafter be liable for or on account of tlie unlawful printing-, reprinting-, or importing- such book or books, or the selling, publishing, or exposing the same to sale, or the having; the same in his or their possession for sale, contrary to the lav»'s and statutes in force respect- ing the same, at the time of the passing- an Act in the Session of Parliament of the thirty-ninth and fortieth years of the reign of his present Majesty, intituled, .An Act for the Union of Great Britain and Ireland. III. ' And -whereas authors have heretofore be- queathed, given, or assigned, and may hereafter bequeath, give, or assign, the copies or copyrights of and in books composed by them, to or in trust for the college of the Holy ^Tv'm'xiy oi Duhlin ; and, in and by their several wills or other instruments, have directed or may direct, that the proiits arising from the printing or reprinting such books, shall be ap- plied or appropriated as a fund for the advancement of learning, and other beneficial purposes of educa- tion, within the college aforesaid : and whereas such useful purposes will frequently be frustrated, unless the sole right of printing and reprinting of such books the copies of which shall have been or shall be so bequeathed, given, or assigned as aforesaid, be preserved and secured to the said college in per- petuity,' be it therefore further enacted, that the said college shall, at their own printing press, within the said college, have for ever the sole liberty of printing and reprinting- all such books as shall at any time hereafter have been, or (not having beeu heretofore {jublished or assigned) shall at any time hereaiter be )eqwcathcd, or otherwise given or assigned by the author or authors of the same respectively, or the Appendix. 415 roprecentafivos of such author or authors, to or in trust for the said coilege for the purposes aforesaid, unless the same shall have been bequeathed, given or assigned, or shall hereafter be bequeathed, given, or assigned for any term of years, or any other limited term; any law or us;ige to the contrary thereof in anywise notwithstanding; and that if any printer, renaityon bookseller, or oilier person whosoever, shall, from r*;)''"."' and after the passing of this Act, unlawfully print, s'll/h hwks reprint, or import, or cause to be printed, reprinted, ''lesameas or imported, or knowing the same to be so unlawfully "" ^"^^ ' printed, reprinted, or imported, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, or have in ids or their possession for sale, any such last mentioned book or books, such offender or offenders shall be subject and liable to the like actions, penalties, and forfeitures as are hereinbefore mentioned and contained with respect to offenders against the copyrights of authors and their assigns : provided nevertheless, that nothing in this To extend Act shall extend to grant any exclusive right to the {'"'T'" . said college of the Holy Trinity of Di/hlin, otiierwise ed'atthe" " than so long as the books or copies belonging to the c'j"'>if?rl- no bookseller, printer, or other person whosoever, shall notbe shall be liable to the f.aid penalty of threepence per liuhieiotia? sheet, for or by reason of the printing, reprinting, ini- §^'^^^.','^1,,?^,^ porting, or selling of any such book or books, or the unic-^s the hiiving the same in his or their custody for sale, with- lypvJi'u-hr out the consent of the proprietor or proprietors of hcenioied the copyright thereof as aforesaid, unless before the p-^jglj,'].''^"' time of the publication of such book or books by the at stution-' 416 Appendix. ers' Hall, London ; nor if the consent of tlie i)ro- prietor he so entered. Clerk of the company shall give certificates of entries, and make n half-yearly list of the books so entered for the use of Trinity College. If the clerk refuses to make en- tries, &c. parties niny give notice in the Loit. proprietor or proprietors thereof (other than the said colleo-e) the right and title of such proprietor or pro- prietors shall be duly entered in tlie register book of the Company of Stationers in London, in such manner as hath been usually heretofore done by the proprie- tors of copies and copyrights in Great Britain ; nor if the consent of such proprietor or proprietors for the printing, reprinting, importing, or selling such book or books, shall be in like manner entered; nor unless the right and title of the said college to the copyright of such book or books as has or have been already be- queathed, given, or assigned to the said college, be entered in the said register book before the twenty- ninth day of September, One thousand eight hundred and one, and of all and every such book or books as may or shall hereafter be bequeathed, given or assigned as aforesaid, be entered in the said register book within the space of two months after any such bequest, gift, or assignment shall have come to the knowledge of the provost of the said college; for every of which several entries sixpence shall be paid, and no more ; which said register book shall at all times be kept at the hall of the said company, and shall and may at all seasonable and convenient times be resorted to and inspected by any bookseller, printer, or other person, for the purposes before mentioned, without any fee or reward ; and the clerk of the said Company of Stationers shall, when and as often as thereto required, give a certificate under his hand of such entry or entries, and for every such certificate may take a fee not exceeding sixpence ; and the said clerk shall also, without fee or reward, within fifteen days next after the thirty-first day of Dccanber and the thirtieth day June in each and every year, make or cause to be made, for the use of the said college, a list of the titles of all such books, the copyright to which shall have been so entered in the course of the half year inimediately preceding the said thirty-first day of Deccjnber and the thirtieth day o^ June respec- tively, and shall upon demand deliver the said lists or cause the same to be delivered to any person or per- sons duly authorized to receive the same for and on behalf of the said college. V. Provided also, and be it further enacted, that if the clerk of the said Company of Stationers for the time being shall refuse or neglect to register or make such entry or entries, or to give such certificate or certificates, being thereunto respectively required by Appendix. 41T the author or authors, proprietor or proprietoi^ of such don Ga- copies or copyrights, or by the person or persons to ^^^"^,^^51* whom such consent shall be given, or by some person on shall forfeit his or their behalf, in the presence of two or more credi- 20/. ble witnesses, then such party or parties so refused, no- tice being first duly given by advertisement in the Lo7i- don Gazelle, shall "have the like benefit as if such en- try or entries, certificate or certificates, had been duly made and given ; and the clerk so refusing shall, for any such oftence, forfeit to the author or proprietor of such copy or copies, or to the person or persons to whom such consent shall be given, the sum of twenty pounds ; or if the said clerk shall refuse or neglect to make the list aforesaid, or to deliver the same to any person duly authorized to demand the same on behalf of the said college, the said clerk shall also forfeit to the said college the like sum of twenty pounds ; which said respective penalties shall and may be recovered in any of his Majesty's courts of record in the said United Kingdom, by action of debt, bill, plaint, or in- formation, in which no wager of law, essoin, privi- lege, or protection, nor more than one imparlance, shall be allowed. VI. Provided also, and be it further enacted. That Twoaddi- .^ 1 • r..i- 1- J i-x* i tional co- from and after the passing of this act, in addition to ,„esof the nine conies now required by Iuav to be delivered ^»^^j «"- to the warehouse keeper ot the said Company ot hta- stationers' tioners, of each and every book and books which shall Hail, shall ',. , .,•', , f.,1 .J bedelivered be entered in the register book ot the said company, thereforthe one other copy shalt be in like manner delivered for use of the the use of the library of the said college of the Holy ^^'^Zly Trinity of Dublin, and also one other copv for College, the use of the library of the Society of the King's ^^i^l^inn,, Inns Dublin, by the printer or printers of all and Dublin. every such book and books as shall hereafter be printed and published, and the title to the copyright whereof shall be entered in the said register book of the said company; and that the said college and the said society shall have the like remedies for enforcing the delivery of the said copies, and that all proprie- tors, booksellers, and printers, and the warehouse- keeper of the said company, shall be liable to the like penalties for making default in delivering the said copies for the use of the said college and the said so- ciety, as are now in force with respect lo the deliver- ing or making default in delivering the nine copies now required by law to be delivered in manner afore- said. 2s 418 Appendix. No person shall import into any part of the United Kintjdom, forsale,any book first composed, Sic. within the United Kingdom, and reprint- ed else- where. Penalty on importing, selling, or keeping for eale, any such books, forfeiture thereof,and also IQl. and double the value. Books may be seized by officers of customs or excise, who shall be rewarded. Exceptions as to books not having been print- ed in the United Kingdom for20 years, &c. VII. And be it further enacted that, from and after the passing of this act, it shall not be lawful for any person or persons whomsoever to import or bring into any part of the said United Kingdom of Great Britain and Ireland^ for sale, any printed book or books, first composed, written, or printed, and published in any part of the said United Kngdom, and reprinted in any other country or place whatsoever ; and if any person or persons shall import or bring, or cause to be imported or brought for sale, any such printed book or books into any part of the said United Kingdom, contrary to the true intent and meaning of this act, or shall knowingly sell, publish, or expose to sale, or have in his or their possession for sale, any such book or books, then every such book or books shall be for- feited, and shall and may be seized by any officer or officers of customs or excise, and the same shall be forthwith made waste paper ; and all and every per- son and persons so offending, being duly convicted thereof, shall also, for every such offence, forfeit the sum of ten pounds, and double the value of each and every copy of such book or books which he, she or they shall so import or bring, or cause to be imported or brought into any part of the said United King- dom, or shall knowingly sell, publish, or expose to sale, or shall cause to be sold, published, or exposed to sale, or shall have in his or their possession for sale, contrary to the true intent and meaning of this act; and the commissioners of customs in England^ Scotland, and Ireland respectively (in case the same shall be seized by any officer or officers of customs) and the commissioners of excise in England, Scotland, and Ireland respectively (in case the same shall be seized by any officer or officers of excise) shall also reward the officer or officers who shall seize any books which shall be so made waste paper of, with such sura or sums of money as they the said respec- tive commissioners shall think fit, not exceeding the value of such books ; such reward respectively to be paid by the said respective commissioners out of any money in their hands respectively arising from the duties of customs and excise: provided that no per- son or persons shall be liable to any of the last men- tioned penalties or forfeitures, for or by reason or means of the importation of any book or books which has not been printed or reprinted in some part of the said United Kingdom, within twenty years next before the same shall be imported, or of any book or Appendix. 419 books reprinted abroad, and inserted among other books or tracts to be sold therewith in any collection, where the greatest part of such collection shall have been first composed or written abroad. VIII. And be it further enacted, that if any action General or suit shall be commenced or brought against any person or persons whomsoever, for doing or causing to be done any thing in pursuance of this act, the de- fendants in such action may plead the general issue, and give the special matter in evidence ; and if upon such action a verdict shall be given for the defendant, or the plaintiff become nonsuited, or discontinue his action, then the defendant shall have and recover his full costs, for which he shall have the same re- medy as a defendant in any case by law hath ; and that all actions, suits, bills, indictments, or informa- tions, for any offence that shall be committed against Liraitatiou this act, shall be brought, sued, and commenced under'thu within six months next after such offence committed, Act six or else the same shall be void and of none effect. months. No. XVII. 54 George III. c. 56. — y^w Act to amend and render more ^ectual an Act of his present Majesty^ for en- couraging the Art of jjiaking nezo Models and Casts of Busts, and other Things therein mentioned ; and for giving further Encouragement to such Arts. — XmhMay, 1814.] * Whereas by an act passed in the thirty-eighth year of the reign of his present Majesty, intituled An aSGeo.lli, Act for encouraging the Art ofmaldng new Models and ^'^- S ^• Casts of Busts, and other things therein mentioned; the sole right and property thereof were vested in the ori"-inal proprietors, for a time therein specified : and whereas the provisions of the said act having been found ineffectual for the purposes thereby intended, it is expedient to amend the same, and to make other provisions and regulations for the encouragement of artists, and to secure to them the profits of and in their works, and for the advancement of the said arts:' May it therefore please your Majesty that it may be enacted ; and be it enacted by the King's most excel- lent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the autho- 2e^^ 420 Appendix. Sole right and pro- perty of all iievv and original sculpture, mofiels, co- pies, and casts.vcsted in proprie- tors for 14 years. Name and date affix- ed. Works pub- lishedunder Act, vested in proprie- tors for fourteen years. rity of the same, that, from and after the passing of this act, every person or persons who shall make or cause to be made any new and original sculpture, or model, or copy, or cast of the human figure or human figures, or of any bust or busts, or of any part or parts of the human figure, clothed in drapery or other- wise, or of any animal or animals, or of any part or parts of any animal combined with the human figure or otherwise, or of any subject being matter of inven- tion in sculpture, or of any alto or basso-relievo repre- senting any of the matters or things hereinbefore men- tioned, or any cast from nature of the human figure, or of any part or parts of the human figure, or of any cast from nature of any animal, or of any part or parts of any animal, or of any such subject containing or re- presenting any of the matters and things hereinbefore mentioned, whether separate or combined, shall have the sole right and property of all and in every such new and original sculpture, model, copy, and cast of the hu- man figure and human figures, and of all and in every such bust or busts, and of all and in every such part or parts of the human figure, clothed in drapery or other- \vise,and of all and in every such new and original sculp- ture, model, copy and cast, representing any animal or animals, and of all and in every such work repre- senting any part or parts of any animal combined with the human figure or otherwise, and of all and in every such new and original sculpture, model, copy and cast of any subject, being matter of invention in sculpture, and of all and in every new and original sculpture, model, copy and cast in alto or basso- relievo, representing any of the matters or things hereinbefore mentioned, and of every such cast from nature, for the term of fourteen years from first put- ting forth or publishing the same; provided, in all and everycase the proprietor or proprietors do cause his, her or their name or names, with the date, to be put on all and every such new and original sculpture, mo- del, copy or cast, and on every such cast from nature, before the same shall be put forth or published. II. And be it further enacted, that the sole right and property of all works, which have been put forth or published under the protection of the said recited act, shall be extended, continued to and vested in the respective proprietors thereof, for the term of four- teen years, to commence from the date when such last mentioned works respectively were put forth or pub- lished. Appendix. , 421 III. And be it further enacted, that if any person Putting or persons shall, within such term of fourteen years, ^"',^'' i"."- make or import, or cause to be made or imported, or orpirai'e^d exposed to sale, or otherwise disposed of any pirated casts pro- copy or pirated cast of any such new and original sculpture, or model, or copy, or cast of the human figure or human figures, or of any such bust or busts, or of any such part or parts of the human figure, clothed in drapery or otherwise, or of any such work of any animal or animals, or of any such part or parts of any animal or animals combined with the human figure or otherwise, or of any such subject being mat- ter of invention in sculpture, or of any such alto or basso-relievo representing any of the matters or things hereinbefore mentioned, or of any such cast from na- ture as aforesaid, whether such pirated copy or pi- rated cast be produced by moulding or copying from, or imitating in any way, any of the matters or things put forth or published under the protection of this act, or of any works which have been put forth or published under the protection of the said recited act, the right and property whereof is and are secured, extended and protected by this act, in any of the cases as aforesaid, to the detriment, damage or loss of the original or respective proprietor or proprietors of any such works so pirated ; then and in all such cases the said proprietor or proprietors or their assignee or as- signees, shall and may, by and in a special action upon the case to be brought against the person or persons so offending, receive such damages as a jury on a trial of Oamageu such action shall give or assess, together with double Double costs of suit. *^°'"''- IV. Provided nevertheless, that no person or per- Purchaser! sons who shall or may hereafter purchase the right or «/ copy- property of any new and original sculpture or niodel, redinTam'e- or copy or cast, or of any cast from nature, or of any of the matters and things pul)lished under or pro- tected by virtue of this act, of the proprietor or pro- prietors, expressed in a deed in writing signed by liim, her or them respectively, with his, her or their own hand or hands, in the presence of and attested by two or more credible witnesses, shall be subject to any action for copying or casting, or vending the same; any thing contained in this act to the contrary not- withstanding. V. Provided always, and bo it further enacted, that Limitation all actions to be brought as aforesaid, against any per- "factions. son or persons for any olfcnre committed against this act, shall be commenced within six calendar months 422 Additional term of fourteen years, in case maker of original sculpture, &c. shall be living. Appendix. next after the discovery of every such offence, and not afterwards. VI. Provided always, and be it further enacted, that, from and immediately after the expiration of the said term of fourteen years, the sole right of making and disposing of such new and original sculpture, or model, or copy or cast of any of the matters or things hereinbefore mentioned, shall return to the person or persons who originally made or caused to be made the same, if he or they shall be then living, for the further term of fourteen years, excepting in the case or cases where such person or persons shall by sale or otherwise have divested himself, herself or themselves, of such right of making or disposing of any new and original sculpture, or model, or copy, or cast of any of the matters or things hereinbefore mentioned, previous to the passing of this act. 8 Anne, e..l9. S 5. No. XVIII. 54 George III. c. 156. — An Act to amend the several Acts for the encouragement of Learnings hy securing the Copies and Copyright of printed Books, to the Authors of such Books, or their Assigns. — 29th July, 1814. * Whereas by an act, made in the eighth year of the reign of her late Majesty Queen Anne, intituled An Act for the encouragement of Learning, by vesting the Copies of printed Books in Authors or Purchasers of such Copies, during the Times therein mentioned, it was among other things provided and enacted, that nine copies of each book or books, upon the best paper, that from and after the tenth day of April one thou- sand seven hundred and ten should be printed and published as in the said act mentioned, or reprinted and published with additions, should, by the printer and printers thereof, be delivered to the warehouse- keeper of the Company of Stationers for the time being, at the hall of the said company, before such publication made, for the use of the Royal Library, the libraries of the Universities of Oxford and Cam- bridge, the libraries of the four Universities in Scot- land, the library of Sion College in London, and the library of the Faculty of Advocates at Edinburgh; which said warehousekeeperisby the said act required to deliver such copies for the use of the said libraries ; Appendix. 423 and that if any proprietor, bookseller or printer, or the said warehousekeeper, should not observe the directions of the said act therein, that then he or they so making default in not delivering the said printed copies, should forfeit, besides the value of the said printed copies, the sum of five pounds for every copy not so delivered : and whereas by an act made in the forty-first year of the reign of his present Majesty, 41 a, m, intituled An Act for the further encouragement of (tT.K.\c. Learning in the United Kingdom (/Great Britain and ^^^' ^ '^' Ireland, h?/ securing the Copies and Copyright of printed Books to the Authors of such Books or their Assigns, for the Time herein mentioned^ it is amongst other things provided and enacted, that in addition to the nine copies required by law to be delivered to the warehousekeeper of the said Company of Stationers, of each and every book and books which shall be entered in the register books of the said company, two other copies shall in like manner be delivered for the use of the library of the College of the Holij Trinity, and the library of the Society of the King's Inns in Duh- lin, by the printer and printers of all and every such book and books as should thereafter be printed and published, and the title of the copyright whereof should be entered in the said Register Book of the said Company: and whereas it is expedient that copies of books hereafter printed or published should be delivered to the libraries hereinafter mentioned, Avith the modifications that shall be provided by this act ;' May it therefore please your Majesty that it may be enacted ; and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That so much of the said several recited acts of the eighth year of Queen ' Anne, and of the forty-first year of his present Ma- jesty, as requires that any copy or copies of any book or books which shall be printed or published, or re- printed and published with additions, shall be deli- vered by the printer or printers thereof, to the ware- housekeeper of the said Company of Stationers, for the use of any of the libraries in the said act mentioned, and as requires the delivery of the said copies by the said warehousekeeper, for the use of the said libraries, and as imposes any penalty on such printer or ware- housekeeper for not delivering the said copies, shall be, and the same is, hereby repealed. repealed. 424 Appendix. Eleven printrd co- pics (ieli- vered oa demuiiH, witliin 12 montlis after publi- cation, f()r use of pub- lic libra- ries. Publishers, &r. neg- lecting. Penalty. II. And be it further enacted, That eleven printed copies of the whole of every book, and of every volume thereof, upon the paper upon which the largest number or impression of such book shall be printed for sale, together with maps and prints be- longing thereto, which, from and after the passing of this act, shall be printed and published, on demand thereof being made in writing to, or left at the place of abode of the publisher or publishers thereof, at any time within twelve months next after the publica- tion thereof, under the hand of the warehousekeeper of the Company of Stationers, or the librarian, or other person thereto authorized by the persons or body politic and corporate, proprietors or managers of the libraries following; videlicet, the British Mu- seum, Sion College, the Bodleian Library at Oxford, the Public library at Cambridge, the Library of the Faculty of Advocates at Edinburgh, the Libraries of the four Universities of Scotland, Trinity College Library, and the King^s Inns Library at Dublin, or so many of such eleven copies as shall be respec- tively demanded on behalf of such libraries re- spectively, shall be delivered by the publisher or publishers thereof respectively, within one month after demand made thereof in writing as aforesaid, to the warehousekeeper of the said Company of Sta- tioners for the time being ; which copies the said warehousekeeper shall and he is hereby required to receive at the hall of the said company, for the use of the library for which such demand shall be made, within such twelve months as aforesaid ; and the said warehousekeeper is hereby required, within one month after any such book or volume shall be so de- livered to him as aforesaid, to deliver the same for the use of such library : and if any publisher, or the warehousekeeper of the said Company of Stationers, shall not observe the directions of this act therein, that then he and they so making default in not deli- vering or receiving the said eleven printed copies as aforesaid, shall forfeit, besides the value of the said printed copies, the sum of five pounds for each copy not so delivered or received, together with the full costs of suit ; the same to be recovered by the person or persons, or body politic or corporate, proprietors or managers of the library for the use whereof such copy or copies ought to have been delivered or re- ceived; for which penalties and value such person or persons, body politic or corporate, ii or are novr Appendix. 425 hereby authorized to sue by action of debt or other E roper action, in any Court of Record in the United Linjfdom. III. Provided always, and be it further enacted, No copies That no such printed copy or copies shall be de- ^/''^j"*^' manded by or delivered to or for the use of any of the tion,wHh- libraries hereinbefore mentioned, of the second edi- {'".^ifr'^^'i. tion, or of any subsequent edition of any book or teVaUonV books so demanded and delivered as aforesaid, unless demanded. the same shall contain additions or alterations : and Additions in case any edition after the first, of any book so de- l^^^^^^i] manded and delivered as aforesaid, shall contain any vered se'pa- addition or alteration, no printed copy or copies '■^*^* thereof shall be demanded or delivered as aforesaid, if a printed copy of such additions or alterations only, printed in an uniform manner with the former edition of such book, be delivered to each of the libraries aforesaid, for whose use a copy of the former edition shall have been demanded and delivered as afore- said : Provided also, that the copy of every book Proviso for that shall be demanded by the British Museum, shall fj^'i^^'" be delivered of the best paper on which such work shall be printed. IV. And whereas by the said recited acts of the 8 Anne, eio^hth year of Queen Anne, and the forty-first year 41 g.s. * of his present Majesty's reign, it is enacted, that the (U- K.) author of any book or books, and the assignee or '^•^^'•*'^* assigns of such author respectively, should have the sole liberty of printing and reprinting such book or books for the term of fourteen years, to commence from the day of first publishing the same, and no longer; and it was provided, that after the ex- piration of the said term of fourteen years, the right of printing or disposing of copies should return to the authors thereof, if they were then living, for another terra of fourteen years : And whereas it will afford further encouragement to literature, if the duration of such copyright were extended in manner hereinafter mentioned; Be it further enacted, instead of That from and after the passing of this act, fJSeen the author of any book or books composed and not years, and priced and published, or which shall hereafter be [y^dr^our- composed, and be printed and published, and his as- teen more, sio^n^e^or s^si^na, shall have the sole liberty of print- ^il^^'niw^'^* ing and reprinting such book or books for the full 28 year's term of twenty-eight years, to commence from the day p^pyrght of first publishing the same ; and also, if the author and for re- shall be living at the end of that period, for the resi- sidueofiife. 426 Appendix. Booksell- ers, &c. fn any part of United Kingdom, or British dominions, •who shall print, &c. any book, without consent of proprietor, liable to action for damages. Penalty. due of his natural life ; and that if any bookseller or printer, or other person whatsoever, in any part of the United Kingdom of Great Britain and Ireland, in the isles of 3Ian, Jersey, or Guernsey, or in any other part of the British dominions, shall, from and after the passing of this act, within the terms and times granted and limited by this act as aforesaid, print, reprint, or import, or shall cause to be printed, re- printed, or imported, any such book or books, without theconsentofthe author or authors, or other proprietor or proprietors of the copyright of and in such book and books, first had and obtained in writing ; or, knowing the same to be so printed, reprinted, or imported, without such consent of such author or authors, or other proprietor or proprietors, shall sell, publish, or expose to sale, or cause to be sold, published, or ex- posed to sale, or shall have in his or their possession for sale, any such book or books, without such con- sent first had and obtained as aforesaid, then such offender or offenders shall be liable to a special action on the case, at the suit of the author or authors, or other proprietor or proprietors of the copyright of every such book or books so unlawfully printed, re- printed, or imported, or published or exposed to sale, or being in the possession of such offender or offenders for sale as aforesaid, contrary to the true intent and meaning of this act. And every such author or authors, or other proprietor or proprietors, shall and may by and in such special action upon the case, to be so brought against such offender or offenders, in any Court of Record in that part of the said United Kingdom, or of the British dominions, in which the offence shall be committed, recover such damages as the jury on the trial of such action, or on the execution of a writ of enquiry thereon, shall give or assess, together with double costs of suit; in which action no wager of law, essoin, privilege, or protection, nor more than one imparlance, shall be allowed ; and all and every such offender and offenders shall also forfeit such book or books, and all and every sheet, being part of such book or books, and shall deliver the same to the author or authors, or other proprietor or proprietors of the copyright of such book or books, upon order of any Court of Record, in which any action or suit in law or equity shall be commenced or prosecuted by such author or authors, or other proprietor or proprietors, to be made on motion or petition to the said Court ; and the said author or authors, or other proprietor or Appendix. 427 proprietors shall forthwith damask or make waste paper of the said book or books and sheet or sheets ; and all and every such offender and offenders shall also forfeit the sum of three-pence for every sheet P^i>al'y- thereof, either printed or printing, or published or ex- posed to sale, contrary to the true intent and meanin;^ of this act ; the one moiety thereof to the King's most excellent Majesty, his heirs and successors, and the other moiety thereof to any person or persons who shall sue for the same in any such Court of Re- cord, by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, or protec- tion, nor more than one imparlance, shall be allowed : Provided always, that in Scotland such offender or Offenders offenders shall be liable to an action of damages in »" Scotland. the Court of Session in Scotland, which shall and may be brought and prosecuted in the same manner in which any other action of damages to the like amount may be brought and prosecuted there ; and in such action, where damages shall be awarded, double costs of suit, or expenses of process, shall be allowed. V. And, in order to ascertain what books shall be Within from time to time published, be it enacted. That the J^ljeof""® publisher or publishers of any and every book de- books en- raandable under this act which shall be published at ^"^^ ^^ , any time after the passing of this act, shall within Hail. one calendar month after the day on which any such book or books respectively shall be first sold, published, advertised, or offered for sale, within the bills of mortality, or within three calendar months, if the said book shall be sold, published or advertised in any other part of the United Kingdom, enter the title to the copy of every such book, and the name or names, and place of abode of the publisher or pub- lishers thereof, in the Register Book of the Company of Stationers in London, in such manner as hath been usual with respect to books, the title whereof hath heretofore been entered in such Register Book, and deliver one copy, on the best paper as aforesaid, for the use of the British Museum/ which Register Book ^''Py|'<»'' shall at all times be kept at the Hall of the said Cora- Museuin. pany ; for every of which several entries the sum of two shillings shall be paid, and no more : which said Register Book may at all seasonable and convenient inspection times be resorted to and inspected by any person ; ^*^/'o"*'" for which inspection the sum of one shilling shall be paid to the warcliousekeeper of the said Company of Stationers, and such warehousekeepcr shall, when 428 appendix. Certifi cate Title of book not entered. Penalty. Proviso for Magazines, &c. Proviso. Ware- housekeep- er of Sta- tioners' Hall to transmit to librarians lists of books en- tered ; and call on pub- lisher for copies. Publishers to deliver hooks at library. and as often as thereto required, give a certificate under his hand of every or any such entry, and for every such certificate the sum of one shilling shall be paid ; and in case such entry of the title of any such Ijook or books shall not be duly made by the pub- lisher or publishers of any such book or books, within the said calendar month, or three months, as the case may be, then the publisher or publishers of such book or books shall forfeit the sum of five pounds, together with eleven times the price at which such book shall be sold or advertised, to be recovered, together with full costs of suit, by the person or persons, body politic or corporate, authorized to sue, and who shall first sue for the same, in any Court of Record in the United Kingdom, by action of debt, bill, plaint, or information, in which no w ager of law, essoin, privi- lege, or protection, nor more than one imparlance, shall be allowed : Provided always, that in the case of Magazines, Reviews, or other periodical publica- tions, it shall be sufficient to make such entry in the Register Book of the said Company, within one month next after the publication of the first number or volume of such Magazine, Review, or other periodi- cal publication : Provided always, that no failure in making any such entry shall in any manner affect any copyright, but shall only subject the person making default to the penalty aforesaid, under this act. VI. And be it further enacted, That the said ware- housekeeper of the Company of Stationers shall from time to time and at all times, without any greater interval than three months, transmit to the librarian or other person authorized on behalf of the libraries before-mentioned, correct lists of all books entered in the books of the said Company, and not contained in former lists; and that, on being re- quired so to do by the said librarians, or other author- ized person, or either of them, he shall call on the publisher or publishers of such books for as many of the said copies as may have been demanded of them. VII. Provided always, and be it further enacted, That if any publisher shall be desirous of delivering the copy of such book or volume as aforesaid, as shall be demanded on behalf of any of the said libraries, at such library, it shall and may be lawful for him to deliver the same at such library, to the librarian, or other person authorized to receive the same, (who is hereby required to receive and to give a receipt in writing for the same); and such delivery shall, Appendix. 429 to all intents and purposes of this act, be held as what equivalent to a delivery to the said warehouse- deemed de- keeper. i^^T- VIII. And whereas it is reasonable that authors Authors of of books already published, and who are now living-, ii°h^d ^ow should also have the benefit of the extension of copy- living;' to right; be it further enacted, That if the author of Srof Set- any book or books, which shall not have been pub- sion of lished fourteen years at the time of passing this act copj^'ght. shall be living at the said time, and if such author shall afterwards die before the expiration of the said fourteen years, then the personal representative of the said author, and the assignees or assigns of such personal representative, shall have the sole right of printing and publishing the said book or books, for the further term of fourteen years after the expiration of the first fourteen years: Provided that nothing Proviso, in this act contained shall affect the right ot* the assignee or assigns of such author to sell any copies of the said book or books, which shall have been printed by such assignee or assigns, within the first fourteen years, or the terms of any contract between such author and such assignee or assigns. IX. And be it also further enacted. That if the y^^^T't author of any book or books which have been already end of 28 published, shall be living at the end of twenty-eight ye'^^'Sole years after the first publication of the said book or publication books, he or she shall for the remainder of his or her fur life. life have the sole right of printing and publishing the same : Provided that this shall not aftect the right of the assignee or assigns of such author, to sell any copies of the said book or books, which shall have been printed by such assignee or assigns within the said twenty-eight years, or the terms of any contract between such author and such assignee or assigns. X. Provided nevertheless, and be it further enacted, Limitation That all actions, suits, bills, indictments, or informa- " '^^''*'"^' lions for any offence that shall be committed against this act, shall be brought, sued, and commenced, within twelve months next after such offence com- mitted, or else the same shall be void and of no effect. END OF THE APPENDIX. SUPPLEMENT TO PATENTS. Chap. I. Introductiox (rt). Several important decisions have of late been made in our courts of law respecting letters patent for in- ventions. The object of this publication is to explain the law in its present state, in a concise and intelligible manner. It was imagined that object would be most readily accomplished by a Supplement to each Chapter. The reader will therefore find under the proper divisions all the new cases which relate to the matter contained in them. If the inquirer have the original Treatise before him at the time that he peruses the Supplement, he will clearly see the application of the later authorities ; and it would be convenient if he refresh his memory with the rules laid down in each Chapter of the Treatise before he reads the Supple- ment to it. Inventors are much indebted to the learned judges of the present day for the liberal and enlightened con- struction which they have put upon the letters patent and upon the words of the specification. They will («) Sec p. 1 .'J of the Practical Treatise. 2 Supplement to Patents. notice the importance of the rules established in Blo.vam v. Elsce, that an inventor may be assisted by an engineer to complete the mechanical means for carry- ing his intentions into effect ; in Lewis v. Marling and Jones V. Pearce, that the prior use of a thing by which an inventor will lose his patent fif the subject has been used before) must be a public use ; in Lewis v. Davis, that a very small combination of mechanical in- struments may be the subject of a patent ; in the cases of Crosley v. Beverley, Lewis v. Marling, and Jones V. Pearce, that great latitude is now allowed in constructing the meaning of the words used and the description of the invention given in the specification. In the Supplement to each Chapter the inventor will also find observations respecting the improve- ments which might be advantageously introduced into our laws respecting the subject discussed in that Chapter. The Inventor Chap. II. Of the Inventor («), It was observed {b) that no person, who has not, without assistance, formed the original idea of the subject in his mind, will be enabled to keep any- patent which he may have obtained ; and in the case of Hill v. Thompson (c) it was laid down, that if a servant make an improvement, his master is not entitled to take out a patent for it; but it appears from the case of Blod-am v. Elsee (d) that an important qualification has been made, which esta- blishes, that if the inventor employ a skilful person for the express purpose of assisting him in completing the mechanical contrivances, the additions made by that person will belong to his employer, who may include them in the specification to his patent as a part of his own invention. It was objected in that case, that parts of the im- provements in Foudriniers' paper machine were the inventions of Mr, Donkin, who proved that when he made those improvements he was employed as an engineer for the purpose of bringing the machine to perfection, and was paid for so doing, and that he was acting as the servant of the inventor of the machine for the purpose of suggesting those improvements. He did not discover the principle of the machine, nor {a) See page .52 of the Practical Treatise. (b) Ibid. p. 53. (c) 8 Taunt. 39.5. S. C. 2 B. Moore, 4,5f). (r/) 1 Car. & P. 558. B 2 4 Suppkment to Patents. invent the important movements of it. The patent was not disturbed on that ground. The rule of law respecting the assistance from ser- vants may thus be stated. If the servant make a new discovery by himself, such invention becomes his pro- perty ; but if the master plans, and the servant only executes with alterations of his own, then the master is the true inventor of the machine. Letters-patent are often taken out in the joint names of two or three persons. If the secret should be dis- covered that one or two of those persons bore no part in the invention of the machines, the patents would be void. In those cases {a) in which the patentees have had to contend against the charge that their machines were not new, because similar machines had been invented by others, although not brought into public use, it is necessary that the patentees should be clear from all suspicion of having seen the machines in an imperfect state, or whilst they were partially concealed. It is not sufficient that they bring the machines first into public use. They must also be original inventors of them without any assistance from inspection or knowledge of the other machines. Introducer of a Foreign Invention (Jb). — It is now the common practice when the invention has been ob- tained from a foreigner, to state in the title of the patent, that the patentee has received the communica- tion from a person residing abroad, but that fact need (a) Zrawv. Marling, 10 B. & C. 22. And S. C. 4 Car. & P. 52 ; Jones V. Pearce, MS. and see post, (h) Page 56. ' Tin' Inventor. 5 not be set forth. It has been doubted whether the patent can be supported if the inventor, the foreigner, retaining any interest in the patent, be an alien enemy {a). Observatiotis. — The law respecting the person to be considered ihe first inventor (h) does not require much alteration. If a communication be made from a foreigner residing abroad to a person in this country, that person can have a patent as being the original (a) Bloxam v. Elsee, 1 Car. & P. 558. (b) Inventors have been thus described by a writer in the London Journal of Arts and Sciences for 1831. •' Useful inventors are of three classes ; the first are men of genius, capable of producing im- portant inventions that involve the entire projecting of new machines, or remodelling of existing ones, and the organization of new or com- plicated processes and systems of working. These are very few. " The second are men who have not so extensive a scope of ima- gination and intellect as to project new systems or great changes, and to organize the means of effecting tliem, but who are capable of making marked improvements upon existing systems and machinery. Or partial changes in them. This class is considerable. " The third class is made up of men of small imagination, who are not capable of any great originality of thouglit, but who have a certain ingenuity which they can apply to the things that come within the range of their observation, and possess a tact for correctly and accu- rately executing that which they conceive. " Their province is to improve in detail, to give a finish to the detached parts of the extensive combinations formed by superior minds, and to fill up the chasms that occur frequently in the plans of the greatest inventors. Happily this class is immense, being spread thickly over the whole body of mechanics, from the manufacturer and engineer down to the lowest workman. Such men constitute expert mechani- cians, who are never at a loss for expedients for overcoming the practical difficulties of detail, that occur in their business, and are perpetually making trifling inventions which they require for immediate applica- tion." 6 Supplement to Patents. inventor. Why not permit a foreigner in this country to give the information ? And if a foreigner, w^hy not an Englishman ? It might be advantageously enacted that the in- ventor might assign his right to a patent, so that the assignee should have the patent in his own name. Chap. III. Of a new Manufacture, or the Subject of a Patent {a). A long experience has not suggested a better analysis of the different things which may be the sub- jects of letters patents for inventions than that already given at page 58 of the treatise. The manuj'acture must not have been used ih). — It is necessary to keep in mind the words of the statute of James, in which it is enacted that the manufacture must be such " which others, at the time of making such letters patent and grants, shall not use." The case of Lewis v. Alarimg (c) decided that the use must have been a public use, unless it could be shown affirmatively that the patentee had a knowledge of the subject in its imperfect state from the invention of another person. The patent was granted in 1818 to the plaintiffs for improvements on shearing machines, (rt) Page 57 of the Practical Treatise. (6) Id. p. 62. S. P. in K. v. Daniel, in July, 1827, MS. (c) 10 Barn, cv Cress. 22. See the same case at Nisi Prius, C. & P. p. 52; and London Journal of Arts and Sciences for December, 1829. The jManufacturer. 7 for shearing or cropping woollen and other cloths. They claimed as their invention four things: — 1st. The application of the flat spring for directing and pressing the cloth to the cutting edges. 2d. The application of the triangular steel wire on the cylinder. 3d. The appli- cation of a proper substance fixed on or in the cylin- der A. to brush the surface of the cloth to be shorn; and, 4thly. *' The described method of shearing cloth from list to list by a rotatory cutter." As to the fourth thing claimed, the defendant con- tended that it was not new, and he proved that a similar machine was in use at New York twenty years ago, and that a specification of it was sent over in 1811 to one Thompson residing at Leeds, who employed two engineers to manufacture a machine from it; but it was never finished, in consequence of the disturbances made by the Luddites. This specification was shown to several persons, but the machine was never brought into use. It appeared also that in 1816 a model for a machine to shear from list to list by means of a rota- tory cutter was brought over from America by one Smith, and he showed it to three or four persons in his manufactory, but no machine was ever made from it, nor was it publicly known to exist; and Smith always used machines manufactured by the plaintiffs. It appeared also that many years ago one Cotou had made a machine to shear from list to list, which was tried by a person called on behalf of the defendant, (^/j but he did not think it answered, and soon discon- tinued the use of it. For the defendant it was contended that this evi- (a) It was proved at the trial that he used it nearly six months. MSS. 8 Supplement to Patents. dence deprived the plaintiffs of the right to a patent, as their invention was not new. Lord Tenterden observed at the trial, that as the in- vention of the machine for shearing from list to list by a rotatory cutter had not been generally used or known in this country, the plaintiffs might be considered the inventors within the meaning of the statute 21 Jac. 1, c. 3, s. 6, notwithstanding the specification and the model which had been brought over from America, and the making of a machine to work in that manner by Coxon, and his Lordship left to the Jury the ques- tions, whether it had been generally known, and whether the patent had been infringed by the defend- ant. The jury found a verdict for the plaintiffs. A rule was afterwards moved for, that there should be a new trial, on the ground (among others) (a) that the question of novelty and prior use had not been properly left to the jury by the learned judge. Lord Tenterden said, to impugn the novelty of the invention, evidence was given that one Coxon had previously made a machine for shearing from list to list, but it was not approved of, and never came into use. Another piece of evidence was, that a model had been sent over from America and exhibited to a few persons, but no machine was made from it, and the very persons who had the model, bought and used machines manufactured by the plaintiffs. It was also proved that a specification had been brought over from America and two persons employed to make a machine from it. But that was never completed, so that until the plaintiff's invention came out, no machine was publiely known or used here for shearing from list (a) See post. 'llic jManufcicturcr. 9 to list. I told the jury, that if it could be shown that the plaintiffs had seen the model or specification, that might answer the claim of invention; but there was no evidence of that kind, and I left it to them to say whether it had been in public use and operation before the granting of the patent. They found that it had not, and 1 think that there is no reason to disturb their verdict. Mr. Justice Bayley observed, if the model brought from America had been seen by the plaintiff, he could not afterwards have claimed to be the inventor. But if I discover a certain thing for myself, it is no objec- tion to my claim to a patent that another also has made the discovery, provided I first introduce it into public use. Here there was no ground to doubt that the plaintiffs were the inventors of the machine, and first introduced it into public use. Mr. Justice Parke — There was no evidence in this case to show that the plaintiffs were not the inventors of this machine, in this country at least, but the statute further requires that it shall not have been used by others, and it is said that the latter part of the condi- tion has not been satisfied. But there was no evi- dence of the use of such a machine before the grant of the patent, and there is no case in which a patentee has been deprived of the benefit of his invention be- cause another also had invented it, unless he had also brought it into use. Before this decision was made, it was tiie generally received opinion in Westminster Hall, {a) thataknow- (rt) When that model was jirocUiced, to four counsel in consuhation, (of whom one is now a judge and two are King's counsel,) one of tl)e counsel exclaimed " there is an end of the patent — the production of the model will l)r sufficient, res ipsa Io((in'tin. " 1 Supplcmvnt to Patents. ledge of an invention much less strong than those facts disclose would have made a patent invalid. That case has however been followed by another, Jones V. Pearce,{(i) in which the words — public use — have been more fully explained. Jones had a patent granted to him in 1826 for a new and improved description of carriage wheels, which were made entirely of iron. They were formed on the piineiplc of suspension, that is, by suspending the weight on the circumference of the wheel instead of its being borne on the nave. In ordinary carriage wheels the weight is supported by the spoke or spokes which happen to be immediately under the box or nave of the wheel, while the spokes above the nave support no part of the weight. In Jones's wheels the weight, by means of iron rods, was suspended from the upper part of the wheel. That desirable effect was produced by the rods or spokes passing into the nave without being blocked in it, but were permitted to play a little into the nave as the spokes approached and came in contact with the ground. On behalf of the defendant it was proved that Mr. H. Strutt, ('^)of Belper, near Derby, had discovered the principle of suspension wheels for carriages from an observation on his water wheels, which were founded on the principle of suspending the water, and that he made, about 17 or 18 years ago, a wheel-barrow, a strong cart, and a small cart, composed of wood and iron, upon that principle. The strong cart had been (a) MS. and see London Journal of Arts and Sciences for July, 1832. (6) A gentleman of great genius for mechanical discoveries, who died in early life much lamented. The Manufacturer. 1 1 used in a stone quarry about two miles from Belper, and the milk cart upon the farm. Neither of them had been sold or taken out of the neighbourhood of Belper. In consequence of Mr. Strutt's death the invention was not pursued. The carts after frequent repairs were thrown aside. There was not any evidence to show that Jones had ever seen or heard of the wheels made by Strutt. Mr. Justice Pattesou, who tried the cause, thus ad- dressed the jury {a). Gentlemen — If on the whole of this evidence either on the one side or the other, it appeared that this wheel, constructed by Mr. Strutt's order in 1814, was a wheel on the same principles and in substance the same wheel as the other for which the plaintiff has taken out his patent, and that it was used oipenly in public, so that every body might see it, and had continued to use the same thing up to the time of taking out the patent, undoubtedly then that would be a ground to say that the plaintiff's invention is not new, and if it is not new, of course his patent is bad, and he cannot recover in this action; but if, on the other hand, you are of opinion that Mr. Strutt's is an experiment, and that he found it did not answer, and ceased to use it altogether, and abandoned it as use- less, and nobody else followed it up, and that the plaintiff's invention which came afterwards was his own invention, and remedied the defect, (if I may so say,) although he knew nothing of Mr. Strutt's wheel, he remedied the defects of Mr. Strutt's wheel, then there is no reason for saying the plaintiff's patent is not good; it depends entirely upon what is your opi- (a) London Journal of Arts and Sciences for August, 1832. 1 2 Suppkvn')d to Patents. nion upon the evidence with respect to that, because, supposing you are of opinion that it is a new invention of the plaintiff's, the patent is then good. Then the only remaining question would be, whe- ther the defendant has or has not infringed the patent. Now, asl have told you before, it seems the defendant has constructed a wheel whose construction is on the suspension principle, — that alone would not make it an infringement of the plaintiff's patent, because the suspension principle might be applied in various ways; but if you think it is applied in the same way, as ac- cording to the plaintiff's patent it is applied, then the want of two or three circumstances in the defendant's wheel, which is contained in the plaintiff's specifica- tion, would not prevent the plaintiff recovering in this action for an infringement of his patent. It would be quite a different thing if it was shown that the defendant had had communication long before with Mr. Strutt, and had taken up Mr. Strutt's in- vention in Derbyshire, and had constructed something like Mr. Strutt's, without any knowledge of the plain- tiff's patent, and had actually borrowed it from Mr. Strutt's, which was good for nothing. It would be the hardest possible thing to say that this was an in- fringement of the plaintiff's patent, but it merely comes to this by reason of the variance between the defendant's and the plaintiff's ; it is only less useful and less desirable, but is in effect the same thing; then the two points for your consideration clearly are these— whether the plaintiff's invention is new, and if new, whether the defendant has so constructed his wheel as that it is an imitation of the plaintiff's patent; if you are of opinion for the plaintiff, on The Manufacturer. 13 both those points, your verdict will be for the plaintiff —but if you are of opinion on either of these two points against the plaintiff, then your verdict will be for the defendant. The jury found for the plaintiff. The Manufacture must not have been used by the Pa- tentee {a). The words of the statute of monopolies have been shown to apply as well to the public use of an invention before the date of the patent by the patentee himself, as by the community. That doctrine is very well illustrated in the case of Pennock and Sellers v. Dialogue, in the Supreme Court of the United States of .America (Z>). The patentees made their invention complete in 1811, and commis- sioned a person to sell the invented article for them, until the year 1818, when they applied for and obtained letters patent. The Court, in delivering their judgment, made (among others) the following observations. " It is ob- vious that many of the provisions of our patent act are derived from the principles and practice which have prevailed in the construction of the law of Eng- land in relation to patents. The true meaning of the words of the patent law, " not known, or used before the application,"' is, not known, or used by the public before the application. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention : if he should for a long period of years re- (a) p. 64 of the Practical Treatise. (6) See vol. ii, p. 1, of Reports " by Richard Peters, Counsellor at Law and Reporter of the decisions of the Supreme Court of the United States," which are given with great ability and knowledge of the sub- ject under discussion. 1 4 Supplemcul to Patents. tain the monopoly, and make and sell his invention publicly, and thus gather the whole profits of it, rely- ing upon his superior skill and knowledge of the structure, and then, and then only, when the danger of competition should force him to procure the exclu- sive right, he shoidd be allowed to take out a patent, and thus exclude the patent from any further use than what would be derived under it during his fourteen years, it would materially retard the progress of sci- ence and the useful arts, and give a premium to those who should be least prompt to communicate their dis- coveries." The Manufacture must he material and useful {a). — In the case of Blojcam v. Elsee{b) the Chief Justice left the question to the jury, (on contradictory evidence,) whether the machine for which the first patent was granted was capable of producing useful paper; and directed them to find for the plaintiffs, if they were of opinion that it was, otherwise for the defendant, and the jury found a verdict for the plaintiff. A Combination or Arrangement of things already KNOWN (c). The case of Lewis v. Davis {d) is very important in showing what " Combination or arrangement of things already known" may be the subject of a grant. A patent had been granted in 1815 to Lewis for a machine for shearing cloths. Another patent was granted in 1818 to Lewis and («) See page 66 of the Practical Treatise. S. P. Webster v. Uther, MS. (6) 6 Barn. & Cress. 173. (c) See p. 75 of the Practical Treatise. {d) 3 Car. & Pay. 502. The JMiniufaclurcr. 15 another person, entitled " Improvements of a machine for shearing and cropping- woollen cloths, the same being improvements in a machine for which John Lewis had obtained a patent on the 27th July, 1815. The specification of the patent granted in 1815, M'as given in evidence, from which it appeared that it was granted for a machine with rotatory cutters, which were to shear the c\oih. from end to end. In the specification to the patent granted in 1818 one of the things claimed was *' To shear with rota- tory cutters y)w/i list to list, in the manner specified." It appeared in evidence that the first method of shearing cloth was by the use of common shears in men's hands, which operation was performed from list to list: that machine was invented in 1788, which carried the shears from list to list — that the next im- provement was disclosed in the patent of 1815, by which the rotatory cutter passed //w« end to end. The question therefore arose whether these plaintiffs could have a grant for cutting cloth with a rotatory CMtiQX from list to list. It was proved that some alteration in the machine for cutting from end to end was necessary, and had been made by the plaintiffs before it could be applied to cut from list to list. Those alterations or improve- ments were all useful. The defendant had not taken into his machine any of those alterations or improve- ments, being ^/2ree mechanical contrivances {a), claimed by the plaintiff, but had combined the rotatory cut- ter, which was old, with other mechanical contriv- ances. {(i) Ante, p. 7. In \\. v. I'u.sstll, the patent was held by TentenJen, C. J., to be voif], because the only alteration was using steam instead of hoi water. MS. 1 G Supplement to Patents. The Lord Chief Justice said, It appears that a rota- tory cutter to shear from end to end was known, and that cutting from list to list by means of shears was also known. However, if before the plaintiffs' patent, the cutting from list to list, and the doing that by means of rotatory cutters luei^e 7iot combined, I am of opinion that this is such an invention as will entitle them to maintain the present action. A Principle, Method, or Process carried into Practice by tangible Means, {a) Some careful enactment is much wanted which should clearly define this rule of law. A large mass of evidence upon it was presented to the Committee of the House of Commons. Sometimes an accident discovers a principle, which, being known, may be applied in a thousand ways to different manufactures, and sometimes it is a discovery resulting from labori- ous investigation and ingenious deductions. The decisions made by the judges are carefully collected and commented upon in the Practical Treatise at a great length. In that part of the specification to Jones's {b) patent for carriage wheels in which the claim is stated, the words would indicate that he claimed the suspension principle, but the learned judge who tried the cause said he should construe the words to mean that the patentee claimed the principle of suspension only, as carried into effect by the mechanical means before described. (a) See p. 78. (ft) Jones V. Pearce, tried before Mr. Justice I'atteEon, MS. The Manufacture. 17 The opinion of the Court of King's Bench, in Hulktt V. Hague (a), is very important to inventors. It illustrates the position of law, that several persons may have several patents, founded on the same princi- ple, if they use different mechanical contrivances. The object to be obtained by two patents, was the evaporation of fluids at comparatively low tempera- tures: each party effected that object by the introduc- tion of heated air into the fluid ; but they both did it by different mechanical means, and were therefore enti- tled to hold their patents. The case cannot be understood without a statement of the specifications. Hullett was the assignee of Kneller of a patent granted for " certain improvements in eva- porating sugar" (which improvements were also appli- cable to other purposes). The specification was as follows. " I W. G. Kneller do declare that my invention consists in a method or process, and certain apparatus as hereinafter described, by which I am enabled to eva- porate liquids and solutions at a low temperature, and thereby to avoid the injury to which certain sub- stances, which require a nice and delicate applica- tion of heat, such as sugar, for instance, are liable by being exposed to too high a temperature: and I do further declare that my said invention and improve- ment consists in forcing, by means of bellows or any other blowing apparatus, atmospheric or any other air, either in a hot or cold state, through the liquid or solution subjected to evaporation, and this 1 do by means of pipes, whose extremities reach nearly (or within such distance as may be found suitable under (ff) '.' n.irii. X- Ad. .'^70. c 1 8 Supplement to Patents. peculiar circumstances), to the upper part or interior area of the bottom of the pan or boiler containing such liquid or solution, the other extremities of such pipes being- connected with larger pipes, which com- municate with the bellows, or other blowing apparatus' which forces the air into them. The pan or boiler may be of any shape or dimensions, but I prefer it with a flat level bottom, and I introduce the liquid or solu- tion to the depth of from four to six inches. The heat may be applied to the lower or exterior area of the bottom of such pan or boiler, by naked fire, steam, or hot air, in the usual manner, and by means well under- stood ; the air then forced into the heated Uquid or solution keeps it in a constant agitation, abstracts its heat, and carries off the steam or vapour, which is to be expelled by raising the degree of heat under the pan or boiler, and increasing the quantity and velocity of the air injected into the liquid or solution; or, on the contrary, by lowering the heat and moderating the injection of air, the evaporation is retarded at the pleasure of the operator." The specification then, after describing at what degree of temperature this might be done, proceeded as follows: — " And I further declare that this, my invention, may be applied to the evaporation of other liquids as well as sugar, and that the form or construction of the apparatus, which I use to produce the above effect, may be varied according to circumstances, and the form or position of the pan to which it is to be applied : but two things are essen- tial in its construction; the first of which is, that however numerous the blowing pipes may be, their lower orifices should be distributed as evenly and equally over the whole surface of the bottom of the The Manufacture. 19 pan as possible; and secondly, that a stream of air should issue from the lower end of every one of them at the same time. To ensure this latter object it is immaterial whether the bottom of the pan or boiler be perfectly level, but it is quite necessary that all the lower ends of the blowing tubes should be on a level and parallel to the surface of the fluid to be evaporated, in order that there may not be a higher column of fluid in one tube than in another. The mode of construc- tion necessary to produce these objects may be various, but in order the more distinctly to explain my mean- ing and my mode of operating, I hereunto subjoin a drawing of the apparatus which I have used, and find to answer the purpose." (The drawing was annexed to the specification.; " The form of this apparatus may be varied, provided its essential properties of the air blowiuir throuoh all the de.scendui^- tubes, and these being so disposed as to produce greatly divided and equally distributed currents of air over the whole bottom of the vessel at once, are maintained ; because my invention consists in producing rapid evaporation at lower temperature than usual by the means herein- before described." This specification having been read on the part of the plaintiff", the defendant put in another patent, under which he acted, granted to Richard Knight and Rupert Kirk on the 9th of May, 1822, entitled " a patent for the invention of a process for the more rapid crystallization and for the evaporation of fluids at comparatively low temperatures, by a peculiar mechanical application of air;" and the specification was as follows:—" We, the said Richard Knight and Rupert Kirk, do by these presents particularly dc- c2 20 Supplemoil to Paknts. scribe and ascertain the nature of our said invention, and in what manner the same is to be performed, as follows; that is to say," (They then stated the incon- veniences resulting from the common process of boil- ing fluids by the too rapid access of heat, and proceeded as follows :) "To obviate this and similar dif- ficulties, and also for the purpose of facilitating the process of evaporation of fluids in general, we declare this our invention to be peculiarly adapted, and we do hereby set forth and describe the means by which we effect the same; that is to say, we propel a quantity of heated air into the lower part of the vessel contain- ing the liquor, syrup, or fluid, whether in a cold or heated state, and cause such heated air to pass through the whole body of the liquor, in finely divided streams. The means used by us for heating and applying the air to the fluid are as follows: that is to say, a quan- tity of air is propelled (by means of a blowing engine, bellows, or other machine used for propelling air,) through a pipe or pipes (made of lead, copper, iron, or other fit material,) into the lower part of the cop- per, pan or vessel containing the heated syrrup, liquid, fluid, or other matter to be operated on, coiled or otherwise shaped and accommodated to the nature or form of the vessel ; the said coil of pipe within and lying at the bottom of the said vessel being perforated with a number of small holes; the heated air being thus forcibly driven out in minutely divided currents passes rapidly through the liquid, and according to the quantity and temperature of the air so passing through the liquid, a greater or a less quantity of the liquid will be converted into vapour and carried off with the air. In lieu of the perforated pipe, a shallow The Manufacliire. 21 metallic vessel, of the nature of a cullendar, within the boiler, may be connected with the air pipe; and the cullendar being perforated with small holes, the heated air may be driven through this perforated cul- lendar, or any similar contrivance that may best suit the form of the vessel, or the nature of the fluid or material to be acted upon." The specification then described how the heat might be applied, and proceeded thus: — "We further de- clare, that our invention consists In the applicatioti of currents of heated air, v/hen forced or made to pass through the body of any fluid for the purpose of pro- ducing or facilitating evaporation; and we also declare, that the same may be advantageously applied to pro- cesses dependent upon the disengagement of aqueous vapour during the evaporation, concentration, and crystallization of various substances when dissolved in fluids, as in the manufacture of sugar, glue, salt, alum, soap, tallow, and similar processes." It was con- tended by the defendant's counsel that the patent assigned to the plaintifl* was void; first, because the assignor claimed, according to his specification, the merits of the same invention for which Knight and Kirk had obtained a patent several years before; the object of both patents being the same, viz. the causing of evaporation by means of streams of atmospheric air introduced in any vessel near the bottom of the liquid; and the means also the same, viz. forcing the air through the liquid by bellows or otlicr blowing machines. Secondly, supposing that the process de- scribed in the plaintifl"s patent was an improvement on that pointed out in Knight and Kirk's specification, it was said that Kneller should have confined his pa- 22 Supplement to Patetits. tent to that improvement only. Lord Tcriterden was of opinion that although the object to be effected by the two patents was the same, the means of efiecting it were different; and that the patent granted to Knel- ler must be considered as one granted for effecting that object by the particular method described in the specification. A verdict was found for the plaintiff, but liberty reserved to the defendant to move to enter a nonsuit. A motion was made to enter a nonsuit but it was refused : and in delivering the opinion of the Court, Lord Tenterden said, that Knight and Kirk's was, in substance, an invention of a process for the more rapid crystallization and for the evaporation of fluids at comparatively low temperatures; this ob- ject being effected by means of a coil of pipes lying at the bottom of the vessel, perforated with small holes, and thus operating on the liquid, or by a shal- low cuilendar placed at the bottom of the vessel. It was proved, that a pipe employed and acted upon in the manner described in the specification, viz. by forcing the air at the end of it, would accomplish that object. *'The patent on which the plaintiff relied, and for the infringennent of which this action was brought, was for certain improvements in evaporating sugar, which improvements were also applicable to other purposes. By the specification Kneller declares that his invention consists in a method or process, and certain apparatus as thereinafter described. He does not claim as his invention the principle, but the apparatus, by which the principle of causing evaporation is to be carried into effect; for he states that, by his apparatus, he is llie JSIanufacturc. 23 enabled to evaporate liquids and solutions at a low temperature. It is evident that the object of the two patents is the same. But the mode of effecting that object is different. The specification continues, " and I further declare that my said invention and improve- ment consists in forcing, by means of bellows or any other blowing apparatus, atmospheric or any other air, either in a hot or cold state, through the liquid or solution subjected to evaporation." Now it was said, that the words which immediately follow, " and this I do by means of pipes,"' constituted a separate and dis- tinct sentence from those which immediately pre- ceded them, and that the patentee had stated his invention in the preceding sentence, and had claimed the same invention as that described by Knight and Kirk in their specification. But we think that the words '* and this I do by means of pipes," &:c., must in conjunction with those which immediately precede them, be taken to form one entire sentence, and that they amount altogether to an allegation on the part of the patentee, that his invention consisted of the me- thod or process of forcing, by means of bellows or any other blowing apparatus, hot or cold air through the liquid subjected to evaporation, this being effected by means of pipes placed as described in the specifica- tion. Now the method described in Knight and Kirk's patent appears to us to be perfectly different. It is either to have a pipe, accommodated to the form of the vessel, or a cullendar, ylaccd at the hoUom of the vessel. The method described in the plaintiff's speci- fication is to have a large horizontal tube {ucar the surface of the liquid), into which there arc introduced a number of small perpendicular tubes, descending 24 Supplement to Patents. through the hquid to the bottom of the vessel, and having their lower ends exactly on a level, and paral- lel to the surface of the fluid. The air is then forced by the blowing apparatus from the open end of the large tubes to the other end, which is closed, and as soon as the large tube is filled the air descends through the smaller tubes to the bottom of the vessel, and bubbles up through the liquid, and the evaporation is thereby kept up constantly and equally in all parts. It appears to us that this is a method or apparatus perfectly distinct from the other, and for that method and apparatus the patent was taken out." Observations. Great care will be required in framing a new act to give a proper definition to the subject of a patent, particularly as to first principles and chemi- cal discoveries («). There should be a body of law made expressly for the discoveries in chemistry, because the rules which apply to the inventor of a machine do not adapt them- selves to the discoverer of a chemical truth. How far the first discoverer of a principle should be protected in a monopoly of the principle, and not be confined to the means by which he brings it into use, is a question of great dificulty; but it seems to be very dangerous to give a monopoly of the principle. What shall be the extent of an alteration or improve- ment which shall support a patent, is also a question of great difficulty, but it might be removed by a good legislative definition of an improvement (/;). («) See page 96 of the Practical Treatise. (6) On this matter, tliere are some good observations in the London Journal of Arts and Sciences for 1832. " As for instance, A. invents a The Alaniifacture. 25 But it is worthy of observation by inventors, that a slight combination of mechanical means, which form an instrument that is new and useful, will support a patent. Chap. IV. Of the Specification (. C'') 10 l^arn. & Cress. 22. 38 Supplement to Patents. be void ; but it would be very hard to say that this patent should be void, because the plaintiffs claim to be the inventors of a certain part of the machine not described as essential, and which turns out not to be useful. Several of the cases already decided have borne hardly on patentees, but no case has hitherto o-one the length of decidino- that such a claim renders a patent void, nor am I disposed to make such a pre- cedent." Mr. Justice Bay ley said, " I am of the same opinion. To support a patent, it is necessary that the specifica- tion should make a full and fair disclosure to the public of all that is known to the patentee respecting his invention. If it does not, the consideration on which he obtains his patent fails. If he represents several things as competent to produce a specific effect, when only one will answer, that is bad; or if he suppresses any thing which he knows will answer, that also is bad. But it is objected here, that the plaintiff's described the application of the brush as parcel of their discovery. At the time when the patent was obtained a brush was used, and there is no reason to doubt that the plaintiff's at that time thought it necessary." Mr. Justice Park. — " The objection to the patent as explained by the specification may be thus stated : the patent is for several things, one of which being supposed to be useful is now found not to be so ; but there is no case deciding that a patent is on that ground void, although cases have gone the length of de- ciding, that if a patent be granted for three things, and one of them is not new, it fails in toto. The preroga- tive of the crown as to granting patents was restrained The Specification. 39 by the statute 21 Jac. 1, c. 3, s. 6. to cases of grants, * to the true and first mventors of manufactures, which others at the time of granting the patent shall not use.' The conditions, therefore, is, that the thing shall be new, not that it shall be useful; and although the question of its utility has been sometimes left to a jury, I think the condition imposed by the statute has been complied with, when it has been proved to be new." The things described are not the best known to the Pa- tentee (a). — Another important rule of law was esta- blished in the case of Crosley v. Beverley (b). Mr. Clegg, the patentee, had a grant for an improved gas apparatus, and he claimed a gas meter (or part of it), as described in the specification. It appeared on the examination of Mr. Clegg himself, that he had in- vented the method of making the gas meter, as described in the specification, in the time betiveen the dates of the patent and the specification. Before he took out the patent he had completed the design of the meter, but he had not actually made one, and he found several improvements upon it before he sent in his specification, in which he described the meter so im- proved as the invention claimed by him. The Court were clearly of opinion the patent was valid in law, and Lord Tenterden observed, that he was at a loss to know upon and for what reason a patentee is allowed time to disclose his invention, unless it be for the pur- pose of enabling him to bring it to perfection. If, added his Lordship, in the intermediate time another person were to discover the improvements for so much of the (a) See p. 121. (/-') 9 liarn. & Cress. (J3. 40 Supplement to Patents. machine the patent would not be available. And Mr. Justice Bayley said, — It is the duty of a person taking out a patent to communicate to the public any improve- ment that he may make upon his invention before the specification has been enrolled. Chap. V. Of the Practice of obtaining Letters Patent for Inventions («). There has not been any important new decision respecting the method of obtaining the letters patent: but the practice requires much alteration, and obser- vations will be made upon the different steps which the inventor is obliged to take before he obtains posses- sion of his patent. He is required to attend at several offices under government; which is a course that necessarily in- creases the price paid for the grant. The question, whether the price of a patent ought or ought not to be high, has been much debated. There are advocates who strenuously contend on each side(^) of that important question. It is quite clear (a) See p. 137 of the Practical Treatise. (6) In the London Journal of Arts and Sciences for June, 1830, it is observed by a writer, " After all, the advocates of cheap patents make a much more mighty stumbling block of this first cost of a patent than it really is, and they seem to consider it as the great impediment to invention; which being removed, invention would flourish with a Practice of obtainmg them. 41 that the present amount of fees is very heavy, but it is very doubtful whether patentees in general would be benefited by the grant of the right being made nearly gratuitously to every person who applied for it. The conclusion to which the majority of persons have arrived is, that the price of the patent should be about one half of its present amount. If it were reduced to that sum, and the inventor could obtain his patent by paying (at one place for all the offices) one half of the money, on presenting his petition, and the other half on its completion, a large saving would also be made in his time, and a great reduction in the necessary professional assistance. The amount of fees might also vary according to the length of time for which the privilege was granted. The following sums of money are paid for letters patent for an invention, as appeared by several returns made to the House of Commons in the year 1826. 1. Return from the office of Secretary of State for the Home Department, England. Reference to the Attorney or Solicitor General £l 2 G Royal Warrant 7 13 G luxuriance hitherto unseen. Now the real cause which, under the present law, represses invention and makes capitalists loth to speculate in inventions, is the uncertainty which reigns through every stage of a patent, from the beginning to the end ; uncertainty, first, whether the invention will answer ; and secondly, whether the patent will stand the brunt of an action at law, through which ordeal it will surely have to pass, so soon as it has become profitable to the inventor. Both of these points can only be settled at great expense, and it is the fear of that expense, and not the first costs of a patent, which deters men from taking up the inventions of others, .-ind ought to deter all prudent men of small means from attempting to take out patents and work them at their own risk." 42 Supplement to Patents. With an addition of 1/. 7s. Qd. if the pa- tent of invention extends to His Majesty's Colonies and Phintations abroad ; and if the patent is granted to more than one person an additional fee upon the royal warrant of 1/. 7s. (^d. for each additional person. King's Bill o£'7 13 6 With an addition of l/. Is. tid. if the patent extends to the Colonies; and if granted to more than one person an additional fee upon the King's Bill of 1/. 7s. 6d. for each additional person. 2. From the office of the Secretary of State for the Home Department, Scotland. Reference to the Lord Advocate . . £Q> 2 6 Royal Warrant and Stamp . . . . l6 17 And if granted to more than one person, an additional fee of 0,1. los. for each additional person. 3. From the office of the Secretary of State for the Home Department, Ireland. Reference to the Lord Lieutenant . . £0 2 6 Warrant and Stamp . . . . . .936 And if granted to more than one person an additional fee of ll. 7s. Od. for each additional person. Signed by Geo. R. Dawson. Whitehall, 6th April, 1826. 4. Return from the Attorney or Solicitor General's offices of the expenses incurred there for taking out a patent for England. To the Attorney General for his report . £o 3 To the Clerk 110 Practice of obtaining them. 43 If a caveat be entered the Clerk receives . . ^£0 3 To the Attorney General for his approving, set- tling and signing the bill . . . .500 If the patent is opposed (which sometimes happens) the following fees are charged: To the Clerk for every summons summoning the parties to attend before the Attorney General o To the Attorney General for the hearing of the parties by themselves or their agents and wit- nesses; each party . . . • . 2 12 6 To the Clerk 12 6 The same fees are paid whether the patent passes the office of the Attorney or Solicitor General. Signed by II. Haines and H. Owens, lOth April, 1826. Clerks to the Attorney and Solicitor General. 5. Return from the Patent Office of the Attorney General of the expenses incurred there for taking out a patent for England. Stamp duty on the warrant from the King to pre- pare a bill for His Majesty's signature to pass the great seal . . . • • i!"! 10 To the Clerk of the Patents for preparing the bill and docquet, and his fee . • • . 5 10 o Stamp duty on the bill 1 10 Ingrossing Clerk . . • • • .110 To the Clerk of the Patents for preparing and en- grossing two transcripts of the bill to be passed through the signet and privy seal offices, parch- ment for such transcripts, and transmitting the same to those offices; each transcript l3.s.'X 1 7 C) Stamp duty on each transcript 1/. 10s. . .300 Signed by M. Poole, lOM April, 182(). <^''<^'-^ "» '^'^' ^"''"^ ^^'^■^- 44 Supplement to Patents. 6. Return from the Signet Office, of the fees payable there for a common patent for an invention for England, and also for Ireland. For England For Ireland Signet Office, \Ot/i April, 1826. i:4 7 O 3 3 Signed Thos. Venables, Deputy Clerk of the Signet attending. 7. Return from the Privy Seal Office, of the ordi- nary expenses payable there for a grant of a patent for an invention passing the Privy Seal for England. Office Fees i'4 Stamp 2 4 2 Privi/ Seal Office, April, 1826. John Thomas Fane, Clerk of the Privy Seal in attendance. 8. Return from the Lord Chancellor's Patent Office, of the fees payable there on a patent for an invention for England passing under the great seal. Patent Office ^"5 17 8 Stamps Boxes Deputy Hanaper Deputy Recipe Sealers 30 2 9 6 2 2 7 13 6 10 6 1 11 6 10 G i:48 17 2 Every additional name pays an additional fee to the Hanaper of %l. \Ss. 6d. Patent Office, A dclphi, Signed, James Seton, \7th April, \826. D. C. Patents. Practice of obtaining them. 45 In Chap. X. will be given the different amounts of fees paid in several countries, from which it will ap- pear that the price paid for the English patent is very great in proportion to that paid for foreign grants to secure inventions. A perusal of this list of fees must convince every impartial inquirer, that the mode of granting a patent for an invention is very dilatory and too expensive. The charges of additional fees for additional names, and further fees if the grant is extended to the colonies, appear to be illegal {ci). (a) In the London Journal of Arts and Sciences for February 1 820, there is a very able letter on the subject of these fees, signed Vindicator, from which the following extract is made: — " We will refer to the several stages of the petition and subsequent documents, as described by Mr. Abbott, a gentleman in the Petty Bag Office (Report, p. 47, et seq.) Mr. Attorney General's classic production, called the * Bill,' changes its cognomen for the purpose of showing its activity ,in collecting the fees, as fantastically as harlequin does his dress. It is ' Mr. Attorney General's Bill,' as the pioper father — then ' The King's Bill,' by adoption — then the ' Signet Bill,' by grace — then tlie 'Privy Seal Bill,' without grace; but now comes the legerdemain par excellence ; it is not converted into * My Lord Chancellor's Bill,' yet the fees to the Old Hanaper and to Mr. Deputy Hanaper, its trusty custos, are converted out of the patentee's pocket to the amount of ^8 As., although there is not a single official act done, no, not even a scratch of the pen, for the extravagant charge: nor does Mr. Deputy even make his appearance on behalf of himself and the ' Hanaper.' How tlien is the business managed? Mr. Abbot explains it. He says (p. 49,) ' The Bill originally used to pass another stage which is now dispensed with, it used to go to the Hanaper— to pay the Hanaper fees on it,' (an important public object, no doubt) ; ' it is not now taken to the Hanaper Office.' " The reader's unmystified intellect will naturally draw the inference, that as the bill was formerly taken to the Hanaper to pay the Hanaper fees on it, and that as this stage of the business is now dispensed with, the fees arc necessarily dispensed with. A conclusion iVoni sound 46 Supplement to Patents. Several of the numerous instruments which the inventor is obhged to make may be dispensed with. The inventor might present a petition with a notice (not an affidavit) that he intends to procure patents for Ireland and Scotland, and take it to the office of the Secretary of State for the Home Department. The affidavit, that the petitioner is the inventor, is an unnecessary oath. It leads to perjury, and is not any premises may be very logical where fees do not form the corollary ; e. g. ' but the Lord Chancellor's oflicer, the Clerk of the Patents at the Great Seal, receives the Hanaper fees and pays them over.' So that even the formal ceremonial of the old Hanaper's state is dispensed with, the Majesty of the Great Seal is proved by its own officers to consist in receiving fees, and the intellect and labour of the community are to be taxed for keeping up this pretty farce ! If this be not unblushing charlatanism, I do not know what is. I believe that upon further in- vestigation the whole family of ' State and Chancery recipes' will be found as unessential to the actual security of an invention, and the ordinary business of life, as is this admirable instance of additional pro- tection given to a patent by its not passing to the Hanaper, in order to pay the Hanaper fees. " An extension of the patent to the colonies * is attended with no extra trouble, nor is there any separate document,' only an addition to the prayer of the petition of the words, ' and all your Majesty's plantations and colonies abroad.' For this heavy duty, the copying of eight words — nearly £6 are charged at the Secretary of State's and other offices ! ! " The courtly minuet dances performed by the petition, warrants, report, &c. for an Irish patent, between London and Dublin, occupying with their eccentric fantasias nearly six months (even sometimes twelve months,) ' to the imminent danger, and in some instances the utter destruction of the Irish patentee's right,' are strongly and correctly described by Mr. Abbott. He says (p. 51), with the proper feelings of a man intent upon the interests of his employers, ' I have often had occasion to remonstrate on the danger likely to arise from that delay, and I have pressed it in every way I could, but I could never get a patent (Irish) in less than five or six months there*." Practice of obtaining them. 47 safeguard. It is, however, required to be made in almost every country. Tiie affidavit is sometimes made by two or three persons swearing that they are the joint inventors, whereas one of them is perhaps only the inventor of the means of raising the money requi- site to carry on the business. When the law is en- acted that an inventor may assign his invention, so that the assignee may take out the patent in his own name, then it is quite clear that this affidavit would become quite unnecessary. This petition and notice should then be carried, with a reference of it to the Attorney General, to the office for patents for invention, and not to the private office of the Attorney or Solicitor General. At that office and at that time the deposit of half the amount of the fees should be made. The titles of the intended patents should be inserted in the Gazette, from which they would be published all over the kingdom. The office for patents for inventions should be re- modelled. The Attorney General of the day should be at the head of it, with power to appoint a sufficient number of officers to do the work {a), and all questions respecting priority of invention could be decided by him. A large penalty or imprisonment should be awarded to an officer who became an agent for taking out patents. One month should be allowed to enable persons to lay their complaints before the Attorney General, but the date of the petition should be made the date of the letters patent. (a) One of them would most probably be a l)arristcr of scieiitilic attainments, who would decide the law and fact at that early stage with expedition. 48 Supplement to Patents. The Kings Signature, which is now required at two separate times, should be rendered unnecessary. It is quite an idle waste of time that an inventor should go twice to the Secretary of State for the sign manual of his Majesty. In former times, when letters patent related to grants of land, and to monopolies from which the king was to derive a profit either directly or indirectly, it might have been prudent, but at the present time it is a custom worse than useless. The signet and the privy seal may be passed over, and the instrument might be carried at once from the office of patents to the Lord High Chancellor, for the great seal. As to Ireland and Scotland ; when the letters patent have been first taken out in England and passed the great seal, then the office for patents for inventions in England, upon receipt of half the amount of fees for Scotland and Ireland, should communicate direct to the offices in Scotland and Ireland, that the letters patent had passed the great seal, and there- upon letters patent in those countries should be made out for them, without any further trouble on the part of the inventor. The same time . (a month) should be allowed to persons in Ireland to go before the Irish Attorney General, or in Scotland to go before the Lord Advocate : and the titles should for that purpose be published in the Dubhn and Edinburgh government papers. The Specification (a). — Many alterations might be (a) See p. 141. Practice of obtaining them. 49 made in the manner of framing the specification : but the principal improvement would arise from per- mitting a model to be deposited in some public building, and enacting that all the immaterial parts in the description might be altered by the judges. When the patent has once passed the great seal, it cannot be altered ; but if a clerical error should creep into the enrolment of the specification, then the Court will interfere on motion, and order the enrolment to be amended {a). The time allowed for making and enrolling the specification should in all cases be the same. Six months is a period much too long. It enables parties to commit many frauds, and might be reduced to one month for each kingdom, and two months for the United Kingdom of Great Britain and Ireland. The acknowledgment of the specification is required to be made in person. No injury could arise from its being done by a power of attorney in cases in which the parties happened to be abroad, or unwell. Some provision should also be made for those cases in which the party becomes very ill, or dies between the date of the patent and the acknowledgment of the specification. His representative might have the power to put in the specification. If it were imper- fect it would be open to any person to repeal it. The Caveat. --T\\\'A instrument, which has (in its present form) illegally crej^t into the system, is the grand source of all the frauds which torment real (o) In re Kcdmund, 5 Russ. Rep. II. E 50 Supplement to Patents. real inventors, it is the means by whieh dealers in patents (possessed of money, but deficient in brains,) rob the poor inventors. It is impossible to describe the system of fraud and vexation which has arisen from the permission to enter caveats. If all the cases which have come to the knowledge of professional men were set forth, this little book would, on the principle that " the greater the truth the greater the libel," (rt) contain many libels. There is but one remedy — the sj^stem must be abolished altogether. Whep a title appears in the Gazette, all parties must take notice of it, and apply to the Attorney General at the Patent Office, within one month, for redress of any supposed injury. The Acts of' Parliament to increase the benefits to (rt) The following anecdotes are quoted from the London Journal of Arts and Sciences, for June 1829. A writer says, " an inventor has within a few days informed me, that in support of an invention which was recently announced in your Journal, he had to appear by his solicitor to no less than eighteen oppositions, at an expense of nearly 100^. to himself. Upon eighteen attendances, fees to Mr. Attorney General, at 31. \Qs. each, amount to &Sl. for the inventor; and eighteen at Si. 5s. each, are 58^. 10s. for the contrary side, besides their other expenses ; consequently upon this single affair, Messrs. the Attorney and Solicitor General, who divide the fees, received one hundred and twenty-one pounds and ten shillings. " Connected with the subject of oppositions and hearings before Mr. Attorney General, a curious piece of information has been lately given me. I am told that a gentleman connected with the office undertakes, upon payment of 10/. by the inventor, to carry him through all hearings and oppositions. If this be so, and the proposal was generally understood and acted upon by inventors, a subtraction from their pockets to the amount of 1,. 500/. to 1,G00/. per annum would be effected for this article of service ; it is undoubtedly better to pay ten pounds to a certainty, than to run the chance of paying sixty to one hundred pounds." Practice of obtaining them. 51 patents, would be so rare under better laws, that the }3resent rules respecting them need not be altered, except that harsh rule that no assignee of a patent right shall have it extended for his benefit, and that the application must be made only within two years of the expiration of the patent right («). Chap. VI. Of the Construction of Letters Patent (A) , Some cases have come before the Court respecting the kind of construction to be put upon instruments made to protect inventions. It is provided in the letters patent (c) that they shall be taken, construed, and adjudged in the most favourable and beneficial sense, for the best advantage of the patentee and his assigns, as well in all the courts of record as elsewhere, notwithstanding the not full and certain describing the nature and quality of the invention, or of the ma- terials thereto conducing and belonging. Yet the judges {(l) informer times did not hesitate to put the most unfavourable construction on all the words which the inventor used in the title to his patent, and in his specification. It is worthy of observation that the tide has turned {a) Standing order of House of Lords, 28th March 1808. See Dwarris on Statutes, Vol. I. p- 358. {h) See p. 153 of the Practical Treatise, (c) Sec Appendix, p. 374. ((/) See p. 157 of the Treatise. e2 52 Supplement to Patents. in favour of patentees, and that the judges of the pre- sent dill) make every reasonable intendment in favour of the patentee. It w^ould be well if the Courts of Law had the power to correct all unintentional errors and matters of form. And in a new act of parliament it should be expressly enacted, that the construction most in favour of the patentee should be always put upon the words in the description of the invention, lest other judges should arise who might think that patents for inventions are odious monopolies, and return back to the old method of rigid construction. The Construction of Acts of Parliament passed to enlarge Patent Rights (a). — It was formerly held that a judge could not look into the act of parliament for any ex- planation of the contents of the patent or specification. In a late case (6) that doctrine was confirmed. It may be useful to state the facts at length, for there were two patents in it. By letters patent of the date of the 20th April, 1801, reciting, amongst other things, that one Gamble had by his petition represented to the King, that he was in possession of a machine for making paper in single sheets without seam or joining, from one to twelve feet and upwards wide, and from one to forty-five feet and upwards in length, the method of making which machine had been communicated to him by a certain foreigner with whom he was connected, and that he con- ceived the same would be of great public utility, and that the same was new in the kingdom, and had not been practised therein by any other person whomsoever, to («) See p. 158 of the Practical Treatise. (/;) Bloxam v. Elsee, G B. & C. 171. The Construction of them. 53 the best of his knowledge or belief — his late Majesty granted to Gamble, his executors, administrators, and assigns, the sole privilege " of making, using, exer- cising, and vending the said invention, for fourteen years." By other letters patent of the 1th June, 1801, reciting, amongst other things, that Gamble had, by his peti- tion, represented to the King, that he, in consequence of a further communication made to him by a certain foreigner residing abroad, with whom he was con- nected, was in the possession of certain improvements on and additions to a machine for making paper in single sheets, without seam or joinings, from one to twelve feet and upwards wide, and from one to forty- five feet and upwards in length, being the machine for which he had obtained the letters patent bearing date the 20th April, 1801; that such improvements and additions would not only make the said machine more perfect and complete, but by far more useful to the public than it was in its then present state ; that the same so improved was new in this kingdom, and had not, with such additions and improvements, been practised therein by any person, to the best of his (^Gamble's) knowledge or belief— his late Majesty did, by the last mentioned letters patent, grant to Gamble, his executors, administrators, and assigns, the sole privilege of making, usmg, exercising, and vending his said invention, for the term of fourteen years from the date of the last mentioned letters patent. On the 7th January, 1804, Gamble assigned all his interest in these two patents to 11. Fourdrinier and S. Fourdrinicr, the bankrupts. 54 Supple jnerit to Patents. By an Act of Parliament passed in 1807, reciting that H. Fourdrinier and S. Fourdrinier and Gamble had made, used, and continued to make use of the said improved machine in a very extensive trade, in part whereof H. Fourdrinier and S. Fourdinier and Gam- ble were jointly concerned as copartners, and that they had been put to great expense, &c., it was en- acted, that the sole privilege, right, and authority of making, using and vending the said improved machine within the United Kingdom of Great Britain and Ire- land, and in his late Majesty's colonies and plantations abroad, should, from and after the passing of that act, be, and the same was thereby declared to be vested in H. Fourdrinier, S. Fourdrinier, and Gamble, their exe- cutors, administrators, and assigns, for and during the term of fifteen years from thenceforth next ensuing, being an addition of seven years, or thereabouts, to the term granted by the said letters patent. By the siMh section it was enacted, that every objec- tion which might have been made to the validity of the said letters patent, and to the sufficiency of the speci- fications enrolled as aforesaid, should be of the like force and effect in law in any action or suit brought by virtue of that act, as such objections respectively would have been if that act had not been passed, and if also the specifications to be enrolled, as required by that act, had been enrolled, instead of the former specifi- cations respectively, except only as to the extension of the said privileges for the further term of years thereby granted. Lord Tenterden in his judgment made the following observations : " I think it may be admitted that by sub- sequent, improvements and discoveries, a machine was The Construction of them. 55 obtained capable of making paper of width varying within certain limits, though probably not extending to more than half the width mentioned in the patent. The specification enrolled under the act of parliament appears sufficiently to describe such a machine, and a mode of adjusting it to different degrees of width within the limits of its own breadth. The first spe- cification is evidently confined to one width only. Then can the last specification be taken to furnish an answer to the objection ? Now, supposing the act of parliament so far substitutes the last specification in the place and stead of the former specification, as to remove all formal objections to them, to which the lat- ter is not open, still it cannot so far operate retrospec- tively as to enable the patentee to say that he posses- sed in 1801, or had then discovered or invented a machine which it appears that he did not possess, and had not invented or discovered until a much later date. If the first machine had been capable of working at different degrees of width, though clumsily atul im- perfectly, the latter machine would have been an improvement of it; but as the first, whether consi- dered as existing actually or in theory, was wholly incapable of this, the latter machine does not in this respect furnish an improvement of anything previously existing, but an addition of some new matter not exist- ing or known at the date of the first patent, and which nevertheless is therein represented as existing or known, and which cannot but be considered an imi)ort- ant part of the representation then made, and of the consideration of the grant. If the first grant was void, the subsequent grants by the patent and by the statute must fall to the ground, as having nothing to support 66 Supplemefit to Patents. them. 1 think myself compelled therefore to yield to this objection." When the Court of King's Bench took time to con- sider of their judgment, in the last reported case, Hullett V. Hague (a), Lord Tenterden said — " I cannot forbear saying that 1 think that 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 sus- tain them." Chap. VII. Of the Property in an Invention. There has not been many decisions which illus- trate the nature of the property that an inventor has acquired in his patent {b). Number of Persons interested (c). — Many questions have arisen in practice respecting the power of granting licences {d), which will never be satisfactorily settled until some legislative enactments have been made to regulate them. It would be foreign to the purpose in a legal treatise, to speculate upon the probable opinion of the courts of law upon the questions — whether a patentee can grant licences to companies consisting of more than live persons — whether the licences can be (a) 1 Barn. 8c Ad. 377. In the year 1831. (h) See page IGO of the Practical Treatise. (c) See ibid. p. 161. (d) See ibid. p. 109. The Property in them. 57 granted for particular districts, and whether licences can be regranted by persons to whom the patentees have made licences. Bankruptcy (ci). — It was observed that the letters patent would pass to the assignees of a bankrupt. A doubt was raised in the late case of Bloxam and another (assignees of Fourdrinier) v. El.see(b), whether the assignment was not void if the creditors exceeded five in number. An act of parliament had been passed for enlarging the term granted to the patentee for the enjoyment of the patent by the assignees of the patent granted to Mr. Gamble. It was enacted, that in case the power, privilege, or authority, granted by the letters patent, should at any time become vested in or in trust for more than the number of five persons or their representatives, at any one time, otherwise than by devise or succession (reckoning executors and administrators as and for the single persons they re- present as to such interest as they are or shall be entitled to in right of such their testators or testator), then and in every of the said cases, all liberties, privileges and advantages vested in the patentees, their executors, administrators, and assigns, should cease, determine, and become void. The parties who were interested in the patent under the act of parliament became bankrupt, and creditors exceeding five in number proved under the com- mission. The Court held that the clause applied only to an assignment by act of the party, and not to an assignment by operation of law, and consccjucntly (a) See page 165 of the Practical Treatise. (/;) G IJarn. iSj Cress. 1G9. At nisi prius, 1 Car. cV P. .558. 58 Supplement to Patents. that the interest of the assignees of the bankrupt in the patent had not ceased. By the seventh section of the act of parliament {a), it was provided, that H. Fourdrinier, S. Fourdrinier, and J. Gamble, their executors, &c. or any person or persons who should at any time during the said term of fifteen years have or claim any right, title, or interest in law or equity in or to the power, privilege, or authority of the sole making, using, and vending the said improved machine, should make any transfer or assignment of the said liberty or privilege thereby vested in H. Fourdrinier, S. Fourdrinier, and J. Gamble, their executors, &c. or any share or shares of the benefit or profits thereof, or should declare any trusts thereof to or for any number of persons ex- ceeding the number of five, or should divide the benefit of the liberty or privileges thereby vested in H. F., S. F., and J. G., their executors, administrators and assigns, into any number of shares exceeding the number of five, or should do or procure to be done any act whatsoever, during such time as such person or persons should have any right or title either in law or equity, which should be contrary to the true intent and meaning of an act of the 6 Geo. I. c. 18. s. 18; or in case the said power, privilege or authority should at any time become vested in or in trust for more than the number of five persons or their repre- sentatives at any one time, or otherwise than by devise or succession, (reckoning executors and administrators as and for the single persons they represent as to such interest as they are or shall be entitled to in right of such their testators or testator,) then and in every of (a) See page 169 of Practical Treatise j and ante, p. 54. The Property in them. 59 the said cases, all liberties and advantages whatsoever thereby vested in H. F., S. F., and J. Gamble, their executors, administrators, and assigns, should utterly cease, determine, and become void, any thing therein contained to the contrary thereof notwithstanding. On the 8th of Nov. 1810, a commission issued, under which the Fourdriniers were declared bankrupts, and the plaintiffs were duly chosen assignees, and more than twenty creditors having proved under the commission, it was objected that the property in the patent having become vested in the assignees of the bankrupt in trust for more than five creditors, the interest of the patentees, by the seventh section of the act of parliament, had ceased and determined. The Lord Chief Justice was of opinion that an assignment under a commission of bankrupt was not within the meaning of the act of parliament, and he overruled the objection. After a motion made to the Court, the Lord Chief Justice Abbott said, " Looking at the act of parliament and looking at the usual clause in letters patent, and finding that in each of them there is a reference to the statute 6 Geo. L c. 18, and con- struing the whole clause either in the letters patent or in the act of parliament, with reference to that which appears to my mind to be plainly and mani- festly its object, it is my opinion that the whole clause is confined to assignments by acts of the party, and does not apply to any assignment or transfer by operation of law, and, consequently, that it will not apply to an assignment under a commission of bankrupt. Under the ship register acts there are peculiar clauses re- quiring every assignment to be notified in a particular GO Supplement to Patents. manner, as clear and minute as words can be, without any exception of bankruptcy, or any thing of that kind, and yet it has been held, that the assignees of a bankrupt take the interest in a ship, though there is no registration of the conveyance. Upon that point I think there should be no rule, but some of the other points are well deserving of consideration, and as to them the defendant may take a rule." Mr. Justice Bayley. — " I have no doubt upon the con- struction of this clause. I disclaim all right in the Court to introduce or exclude words from this clause, but I think we are bound to construe the words which the clause contains, and that is all which I desire to do. The words in this clause are, * In case the power, privilege, or authority shall at any time become vested in or in trust for more than the number of five per- sons or their representatives, at any one time, other- wise than by devise or succession (reckoning execu- tors and administrators as and for the single persons they represent).' There are not only the words * the number of five persons,' but there are the words ' or their representatives;' and those words, 'or their representatives,' are entitled to have some meaning, and the words ' otherwise than by devise or succes- sion' will apply to the words ' or their representa- tives' as well as 'the number of five persons.' Now the question in my mind is, what does the act mean by ' their representatives V If the assignees of a bankrupt are the representatives of a bankrupt, this patent is not vested in them, otherwise than this act of parliament says it may be vested ; it was vested in the Fourdriniers, the bankrupts, if they did not exceed the number of five : the bankruptcy, by a statutable The Propertif in them. 61 transfer, has made the assignees of the bankrupt the representatives of the bankrupt, and that is the con- struction which, in my opinion, these words are en- titled to receive." Mr. Justice Holroyd. — " I think that in this case the assignees of the bankrupt are to be considered as the representatives of the bankrupt, and that they had his property as his representatives, and not as the repre- sentatives of the creditors. It is true, they take the property for the purpose of selling and disposing of it; and it is true, that the proceeds from the sale they may hold in trust for the creditors, but they are the representatives of the bankrupt in relation to this pro- perty. They hold it subject to tlie poicer of cunverting it into money, and then that money they will hold in trust. It appears to me that, under the act of parlia- ment, it is not void, though the creditors may amount to more than five." Mortfyao-c and Lien. — From the reasonins^ in the cases of Cartwright v. Amatt{(i) and Blo.vam v. Elseeib) it would seem that the mortgage of a patent to more than five persons would be valid, for neither their in- terest as creditors of the patentee, nor their character as trustees to the patentee, until they were repaid, would cause a forfeiture, because creditors are not entitled to any ipro'portion of the patent right as such, but only to the amount of their debts. In 1812 a case (c)came before the Lord Chancellor, of a bankrupt having a patent for an invention, who, (rt) 2 Bos. & Pul. 43. (b) 2 Ante, p. 52. (c) Evans's Statutes, vol. iv. p. G7, n. Ex parte Granger. 62 Supplement to Patents. after having mortgaged the right, continued in the 7iotorwiis use of the invention until his bankruptcy. The Lord Chancellor was induced to think that the right passed to the assignees under the statute, but directed a case for the Court of King's Bench, which was never argued. A Trust of a Patetit (a). — It has been shown that the invention may be communicated by a foreigner residing abroad, and that a patent may become the subject of a trust for the benefit of British subjects; but it was doubted in the case of Blcvam v. Elsee(b), at Nisi Prius, whether a patent could properly be taken out by a British subject on a secret trust, to be held for the benefit of the real inventor, who was an alien enemy at the time, although it was stated in the patent that the patentee had received the in- vention from a certain foreigner ; and the point has not been solemnly decided. Observations. — The decision that the creditors of a bankrupt may be interested in a patent, although they exceed five in number, is very important; but an im- provement might be made in the law, by permitting an assignment of the letters patent to be made to any number of persons. It is for the benefit of the public that the invention should be largely used, and there is not any force in the observation that a great company may make a monopoly of it. (a) See page 168 of Practical Treatise. (6) 1 Carr. & P. 558. ( C3 ) Chap. VIII. Of the Infringement of a Patent, and the Remedies for that Injury. What amounts to an Infringement {ci) ? — It is a very difficult question, and by some persons (/>) it has been thought that it is a matter beyond the comprehension of the ordinary tribunals ; and they have recom- mended that a Court of Commissioners should be formed. A little reflection would convince any un- prejudiced mind that the same judges and juries who decide causes arising from matters connected with every relation of life, and involving every exertion of men to enrich themselves, might well decide the (a) See p. 173 of the Practical Treatise. (6) See a letter in the London Journal of Arts, in which a writer thus expresses himself: — "How and where can the exact line be drawn of what is and is not a new- invention, and of what is and is not an infringement? What rule — what law — can be laid down to define its exact demarcation, not subject to various interpretations? In my humble opinion none—l think it impossible ; but that some professional men, from their situation in life, endowments by nature, their turn of mind and studies, their education, and from a variety of other circum- stances, are far better able to sit in judgment upon these delicate points than the multitude at large, undiscriminate juries, and even the judges of the land, I firmly believe to be the case. I therefore beg leave to submit to your consideration that a properly constituted court, composed of the kind of men before described, should judge patent causes subject to appeals to other courts, where the setting forth the grounds of their decisions would throw such strong light ui)on tlic merits of the points at issue, as would best enable ordin.iry judges to get clear conceptions of the cases before them." 64 Suppleme7it to Patents. question, whether a person had infringed a patent. The judges possess, as a part of their education, a knowledge of the first principles of every science, and it would be as reasonable to say, that physicians and surgeons should try all cases which require a know- ledge of medicine or surgery to be understood, as that mechanics and chemists should try the validity of claims for patents. In both cases it is more reason- able that physicians, surgeons, mechanics and chemists should be witnesses. The answers to the questions, whether patents are for the same or different things, or whether one patent is an infringement upon another, may be drawn from many circumstances: as the concurring or contradic- tory evidence of persons worthy of credit well ac- quainted with the matter. But the use made of a supposed invention by the public is the best criterion, whether it is an improvement or not. In Webster v. Uther {a) the Lord Chief Justice ob- served, '' I believe I told the jury that it was the smallest matter for which I ever knew a patent taken." The invention was called an improvement on the patent percussion gun lock, and consisted in the addi- tion of a bolt sliding or moving in a groove, by which the roller magazine was then fixed, that had formerly been fastened by a screw and washer; the defendant's lock had a spring in the bolt. The jury (upon the evidence of sportsmen that the lock with a sliding bolt was more readily used in the field, particularly in wet weather, than the screw and washer,) found that the alteration was a material and (a) MSS, Easter Term, 1824, before Lord Tenterden. Remedies for an Infringement. (S^ useful improvement ; and upon evidence by mechanics that a spring- in a bolt was the same thing as a bolt sliding in a groove, they found that the defendant had infringed the patent of the plaintiff. The Court would not grant a new trial. It was contended in that case, Webster v. Uther, that the question, whether the thing was a proper subject for a patent, was one of law and not of fact for the jury. And in Barton v. Hall (a), which was an action for an infringement of Bartons patent for improvements in metallic pistons for steam engines, the judge directed a nonsuit, taking on himself to decide that the pistons, which were alleged to be infringements, were not the same invention as that described in the specification of the plaintiff. In Jofies V. Pearce (b) the jury asked the judge whether it was a necessary part of the infringement that the defendant should have sold or used the car- riage wheels which he had made. Mr. Justice Patte- son said, the evidence is, that the defendant, who was an ironmonger, had made two wheels, one of which was put on a gig and the other was seen near it; and he told the witness that he had made them on a new principle. Now one of the counts of the declaration is for making ; and if he did actually make the wheels, the act of making them would be a sufficient infringe- ment of the patent ; for the terms of the patent are, *' without leave or licence make, &c." The Pleadings — Venue (c). — In Brimton v. Uliile (d) (a) MSS. llth July, 1S27, before Lord Wynfoid. (6) MSS. ante, p. 10. (c) See p. 117 of the Practical Treatise. (d) 7 D. & R. 100. F 66 Supplement to Patents. the venue was laid in London. A motion was made to change the venue to Lancashire. The Court re- fused, on the ground that there was not any precedent for such a motion. This rule of law requires to be altered, because it is very expensive to both the litigating parties that they should be obliged Ho try their cause in the county of Middlesex, when every one of the witnesses (perhaps) live in Gloucestershire. Both parties ought to have the option. The Plea (a) is the general issue. It would be a rule much to the advantage of patentees if a notice of the objections upon which the defendant relies was delivered with the plea. It would save a ; great amount of the expenses. The Evidence —In the case of Leivis v, Davis (b) the patent put in evidence referred in its title to another patent. The plaintiffs claimed a patent for " improvements in a machine for which J. Lewis took out a patent in 1815." It was contended, that the specification to the patent of 1815 ought to be put in evidence. Lord Tenterden held that it was necessary to give both the specifications in evidence, and ob- served, " When the parties applied to the crown in the year 1818, they might have applied for a patent for their invention, without reference to any thing that had gone before. Now that they have not done ; on the con- trary, they profess to have improved a machine already known. That machine may be used by any one after fourteen years from the earlier patent, but any new matter which is included in the present patent is not (rt) .See p. 177 of the Practical Treatise. (h) 3 Car. & P. 502. Remedies for an Iiifrbiganent. 67 open to every body till fourteen years from a later period. It is therefore material to show what are the improvements contained in the plaintiff's patent. Now I cannot say what are improvements upon a given thing, without knowing what that thing was before ; for aught 1 know all the things mentioned in the plaintiff's specification may have been included in the former specification. Sometimes the fact of infringe- ment must be presumed from the acts of the party, as where he sells the same article, and will not show his factory («)." A new Trial at Law (b). — On the motion for a new trial, in Lewis v. Marling (c), affidavits were pro- duced as to the knowledge of that whereof the plaintiffs claimed to be inventors before the patent was granted. Lord Tenterden said, it is contrary to the practice to grant a rule in such a case on affida- vits. If the facts disclosed in them are sufficient to vitiate the patent, it may be repealed by scire facias. Costs (^/).— The costs of an action for the infringement of a patent are guided by the rules respecting other actions in the case. It is often necessary for the par- ties to make many expensive experiments in order to give evidence for or against a patent. The costs of those experiments do not fall on the losing party. In the case o{ Severn y. Olive (e), the Court (after hearing arguments) directed that the Prothonotary should rc- (a) Hall V. Gervas and Boot, MSS. December 1822, in K.15. {h) See page 182 of the Practical Treatise. (c) 10 Barn. & Cres. 2.5. ((/) See page 1 83 of the Practical Treatise. (f) .3 Bred. & Bing. 72. F 2 68 Supplement to Patents. view his taxation, on the ground that no allowance ought to be made for the expense of experiments, nor for the time of scientific witnesses, unless they were medical men. Remedy in Equity. The proceedings in equity are so very expensive, that if they could be dispensed with, a great saving in time and money would arise to patentees. The inventor by taking proceedings in two courts (law and equity), is much distracted. If a power were siven to the common law courts in which actions have been commenced, to restrain the infringer on a tnotion in term, or summons in vacation, made by the patentee, the remedy would be quick in its operation, less expensive, and quite as efficient as an injunction issued from a court of equity. It seldom happens that the Court of Chancery grants a perpetual injunction, but the parties are directed to try the question by a feigned issue, or the patentee is, after much delay and expense, left to his choice of bringing an action at law or not, as he may be advised. The only good that can arise from courts of equity meddling in the patents for inventions, is obtained from the account which the infringer is directed to keep. It could be kept in a common law court quite as well. The practical use of the jurisdiction of the Court of Chancery over patents for inventions, was well illustrated when Forsytlis patent (a) (for giving fire (a) MSS. heard July ISlfi. Remedies fur an Infringement. 69 to artillery and all kinds of fire arms) was before that Court, Forsyth's invention was obtained for the application of percussion powder for priming artillery and fire arms, by introducing it into a hollow cylin- der communicating with the touch-hole, and inserting a movable plug or stopper into the cylinder, so as to inclose the powder between the bottom of the cylinder and the end of the plug. By striking a blow on the plug the powder became ignited and the piece fired off. The Lord Chancellor had doubts as to the novelty of the invention, and he decreed, that the patentee might bring an action at law; and, having succeeded, might move for an injunction. In other words, he found no protection in equity, but brought an action at law, Forsyth v. Revieix («), by which his patent was supported. Chap. IX. Of Letters Patent when void, and the Manner of having them cancelled {b). It was observed, that until the patent is actually cancelled, the patentee may go on against different parties, maintaining legal proceedings ujjon it. The public can find protection only in a scire faeias to repeal the patent. That course is very ve.vatious and attended with great expense. After one trial at law, decided against the patent, there ought to be a [)owcr (a) See page oo of the Practical Treatise. (6) Ibid. p. IS'J. 70 Supplement to Patents. in the common law court to direct that the patent be cancelled. What renders a Patent void (a). — The words of the statute of James, " so as also they be not contrary to the law nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient"— might be repealed, for they are inope- rative, but alarm inventors. Proceedings by Scire Facias to repeal a Patent(^). The process by which patents are declared to be void requires much alteration. It ought to be consi- dered as an action brought by one of the public against the patentee for obtaining an improper patent, and if he fails in establishing the invalidity of the patent, he ought to be mulct in the costs (c). The expense of obtaining a scire facias is great, and there is much delay. By a legislative enactment it might be much improved. The writ cannot be entirely superseded, because there should always remain in the crown a strong power immediately applicable for repealing its own improvident grants. The manner in which patentees may torment each other by writs of scire facias, may be thus illustrated. Hadden obtained a patent in 1818, for an improve- ment in preparing, spinning, and roving wool, which was done by applying heat to the fibres of wool during the operation of spinning, and it was effected by insert- (a) See p. lOO of the Practical Treatise. (c) Ibid. p. 200. {b) Ibid. p. 198. Whe/t void, how cancelled. 71 ing hot iron heaters into hollow rollers, between which the slivers of wool passed. Lister obtained a patent for the same object in 1823, and effected the purpose by applying steam within the hollow rollers, and caus- ing the slivers previously to pass through water to soften them. Then, Hadden, thinking himself aggrieved by the patent of Lister, sued out a writ of scire facias to repeal ii{a), on the ground that the process used by Lister was the same as his own. Lister returned the compliment by suing out another writ against the patent of Had- den, on the ground that the invention was not new. Tliey both (in the same dd.y) succeeded; Hadden in proving that Lister had infringed his neighbour's patent; and Lister in proving that neither of them ought to have had a patent. Another instance occurred (b). Daniell had a patent in 1819 for improvements in dressing woollen cloth. They were thus effected. After the surface of the cloth had been properly dressed, and the nap on the sur- face laid very smooth, the piece was rolled up very smoothly and evenly in a close and compact roll: which piece being immersed in hot water, the fibres of the wool became softened, and acquired a tendency to retain the same direction; and thus the effect of the dressing was rendered permanent. Fussell obtained a patent in 1824 for an improved method of heating woollen cloth for the purpose of giving a lustre in dressing — this process was the same as Daniclfs, (a) The King v, Lislcr, and T/ie King v. Hadden, tried .laiiuary, 1826, in tin- King's Bench. (b) The King v. Fussell, and The King v. Daniell, tried July, 1827, before Lord Tenterden. 72 Supplement to Patents. except that he submitted the roller to steam instead of hot water. Daniell saw, with justice, the repeal of Fussell's patent, on the ground that it was the same as his own, and Fussell had the satisfaction of proving that many years before the date of Daniell's patent, a person had used a similar method. And thus they both succeeded in destroying each other's patents. TIieEvidence{ci). — The case of Rev v. Hadden (b) illus- trates the practice of giving evidence on a scire facias. A witness was called to prove that the invention was not new, because he had made a similar machine for the same object. A drawing, not made by the wit- ness, of the machine, as constructed by him, was put into his hands, and he was asked whether his machine agreed with that drawing. It was ob- jected that inasmuch as the drawing was not made by the witness, he could not be allowed to answer that question, but that he was bound to describe the ma- chine. Mr. Justice Baijley observed, — " I think that the witness may look at the drawing, and you may ask him whether he has such a recollection of the machine he made as to be able to say that that is a correct drawina: of it." •& («) See page 199 of the Practical Treatise. (6) 2 Car. & Paine, 184. ( 73 ) Chap. X. Foreign Laws respecting Inventions (a). In this chapter will be found the laws of those countries respecting inventions, in which British sub- jects are accustomed to secure the privilege of using their inventions. The same analysis will be given (as nearly as possible) as that which was made of the British law. The American Law. The laws of America are contained in two acts of congress. An act passed 21st February, 1793, (re- pealing an act passed 10th April, 1790,) and an act passed 17th April, 1800. The Inveiitor (0). — Any citizen who has invented any new and useful art, machine, manufacture, or composition of matter ; or any new and useful im- provement not known or used (c) before the application, may have letters patent granted to him, his heirs, administrators and assigns, for a term not exceeding fourteen years, for the exclusive right of making, con- structing, using, and vending the invention. (a) See the Appendix to the P;iiliameiitary Kiport, datetl 12lh June, 1829. (6) See ante, chap. ii. (t) Sec the American case ol IVnnock v. Dialogue, 2 Peters' Reports, p. 1 ; ante, p. 13. 74 Supplement to Patents. If an inventor die, a patent may be taken out by his legal representative. Letters patent are given to all aliens who have re- sided two years in America, if the invention has not been published in any foreign country. The Manufacture (a). — The subject of the patent must be some new art, machine, manufacture, or composition of matter. If any person discover an impi^ovement in the prin- ciple of any machine, or in the process of any compo- sition of matter, for which a patent has been granted, he may have a patent for the improvement, but he is not at liberty to make, use, or vend the original dis- covery, and the first inventor is not at liberty to use the improvement {b). It was further declared, that simply changing the form or the proportions of any machine, or compo- sition of matter, in any degree, is not to be deemed a discovery. The Specification (c). — A schedule is appended to the letters patent. It is a written description of the in- vention, and the manner of using, or the process of compounding the same, in such full, clear, and exact terms as to distinguish the same from all other things before known, and to enable any person skilled in the art or science of which it is a branch, or with which (a) See ante, chap. iii. (b) See p. 71 of the Practical Treatise. This enactment appears at first sight unnecessary, but it was wisely introduced, because in England, in BircoVs case, the Court decided that an addition could not support a patent. (r;) See ante, chap. iv. The American Law. 75 it is most nearly connected, to make, compound, and use the same. And in the case of any machine, the inventor must fully explain the principle, and the several modes in which he has contemplated the application of that principle or character, by which it may be dis- tinguished from other inventions ; and he must accom- pany the whole with draw'mgs and written references, where the nature of the case admits of drawings, or with specimens of the ingi^edients and of the compositio?i of the matter, sufficient in quantity for the purpose of experiment, where the invention is a composition of matter. He must also deliver a model of his machine, if the Secretary of State should deem such model to be necessary. The Practice of obtaining the Letters Pateiit (a). — The inventor begins by paying thirty dollars into the treasury/, and taking two receipts. At the Secretary of States Office he deposits one of those receipts and presents a petition, praying that a patent may be granted for his invention, of which it contains a short description (title). He also makes an affidavit or affirmation, that he verily believes that he is the true inventor, and if he is an alien, then he swears that the same has not, to his best knowledge and belief, been before known or used in that or any foreign country, and that he has resided more than two years last past in America. The Secretary causes letters patent to be made out, (fl) See ante, chap. v. 76 Supplement to Patents. bearing test by the President; which are then taken to the Attorney General to be examined, who must within fifteen days certify whether they are conformable to law, and return them to the Secretary, who causes the seal of the United States to be fixed, and records them in a book kept for that purpose. They are then delivered to the patentee or his order. The description (specification) must be signed by the inventor, and attested by two witnesses, and filed in the office of the Secretary. Caveat (a). — In case of inteyfering applications from two persons, the same are submitted to the arbitration of three persons, one of whom is chosen by each of the applicants, and the third by the Secretary of State. If there are more than two applicants, and they do not agree among themselves as to two of the persons, then the Secretary appoints all the three arbitrators. Their award is final. The Acts of the State (b). — The Congress of the United States will sometimes interfere to relieve parties. Mr. Brown, the inventor of the Gas Vacuum Engine, had an act of Congress (c) passed in his favour, enabling him to have letters patent, although he (being an alien) had not resided two years in America, and his invention had been published in a foreign country (England). The Construction of Letters Patent {d). — It appears (a) See p. 144 of the Practical Treatise. (6) Id. p. 148. (c) The act is a specimen of legislative bremtij. (d) See ante, chap. vi. The American Law. 77 from the reports of the decisions in the Supreme Court at Washington, that the Judges incline to put a liberal construction on letters patent. Of the Property in an Invention (a). — The inventor, his executor or administrator, may assign the title and interest in the invention at any time : and the assignees may pass it to other persons to any degree. The assignments must be recorded. Legal Proceedings for an Lifringement (/»). — If any one infringe the patent, he may be sued by the patentee or his assigns for three times the actual damaoe sustained. The defendant may plead the general issue and give any special matter (of which notice shall have been given in writing to the plaintiff or his attorney thirtii days before the trial) in evidence' — as that the specifi- cation does not contain the whole truth, or that it contains more than is necessary to produce the effect, for the purpose of deceiving the public — that it was not original, but had been in use — or that the patentee had surreptitiously obtained a patent for the discovery of another person; in either of which cases judgment is to be given for the defendant, and the patent de- clared to be void. A certified copy of the specification, iiom the Secretary of State's oflice, is made competent evidence in all courts touching the patent right. For all copies of papers, the person obtaining them must pay 20 cents for every sheet of 100 words, and two dollars for every copy of a drawing. (a) Soc ante, clKip. vii. \l>) Sec .iiitc. clijip. viii. 78. Supplement to Patents. Ca?7cellh?g void Patents («).— A motion may be made before the Judges of the district court, that the patent was obtained surreptitiously, or upon false suggestion, ivithin three years after the issuing of the said patent, but not afterwards, who may (for sufficient cause shown) give judgment for the patentee, or for the repeal of the patent, with costs to either party. The Spanish Law. The present laws in force in Spain are given in a decree of King Ferdinand VII. dated the 27th March, 1826. The Inventor (/;). — Any person, of whatever condition or country, who proposes to establish any new in- vention, may have a Royal Patent of Privilege, without previous examination of the novelty or utility of the object ; but without the concession of the grant being considered in any way as a recognition of the novelty or utility of the invention. The Manufacture (c). — The subject of a patent may be any machine, apparatus, instru7nent, or a mechanical or chemical process or operation, which may be wholly or in part new, or which may not have been estab- lished in the same manner and form in the kingdom. If the subject has not been practised in Spain, nor in any foreign country, then the privilege will be given by a Patent of Invention, but if it have been practised abroad, then the party will have a Patent of Introduction. (a) See ante, chap. ix. (c) See ante, chap. iii. (6) See ante, chap. ii. The Spanish Law. 79 The Speeification (rt)._When the petition for a pa- tent is presented it must be accompanied with a plan or model, and a description or explanation of the inven- tion, specifying- what is the peculiar mechanism or process which is presented therein, as not having been hitherto practised ; the whole being stated with the greatest precision and clearness, so that there may be at any time no doubt as to the identity of the inven- tion, and of that peculiarity which is represented as hitherto unpractised in that form. The Praetice ofohtaining the Patented). — The inventor must draw up a memorial (petition) and deliver it to the Intendant of the province in which he resides, or to the Intendant of Madrid. The petition is addressed to the King, and shortly describes the object of the privilege, whether it is the invention of the petitioner or whether it is brought from a foreign country, and also of the time for which the privilege is sought. Not more than one invention can be introduced into the same representation. The plan or model must be delivered in a box or packet closed and scaled, as well as the plans, de- scriptions, and papers of explanation. The Intendant indorses the box or packet and remits it to the Secretary of State, who forwards it to the Supreme Council of State, who open the box or packet, and grant or refuse a patent. Before the patent is issued, the inventor produces (a) See ante, cli. iv. (/>) Sec auto, cli. v. 80 Supplement to Patents. the receipt of the Intendant that he has paid the fol- lowing duties : — Reals Vello7t. For a privilege of 5 years 1000 10 years 3000 15 years 6000 For a privilege of introduction or importation . 3000 and, in addition, 80 reals are paid for the costs of issuing the royal patent. The documents sealed up in the boxes or packets are remitted to the Royal Conservatory of Arts, and they are not opened except in case of litigation, and by virtue of the official order of a competent judge. The titles of the grants are published in the Gazette. A register is kept at the Royal Conservatory of Arts, expressing the dates, the names and residences of the parties interested, the object of the privilege, and the term of its duration; M^hich register is open for in- spection. The P7'operty in an Invention {a). — The possessor of the privilege has the exclusive property in that part of his subject which he has declared to be new, from the day of presentation of his petition to the Intendant ; but the duration of the privilege is reckoned from the date of the patent. The right may be transferred, given, sold or ex- changed, or left by will, like any other pej^sonal property. The transfer must be by ^. pubiie deed, stating whe- ther it is for the use of the invention in the whole or (n) See ante, ch. vii. The Spa)iish Law. 81 only in a part of the kingdom ; whether it is absolute or with a reservation of part ; whether it is with the power of again transferring; and whether any transfer has already been made to any person of a part of it. It must be presented to the Intendant to be registered within thirty days after its execution. Legal Proceedings (^/y.— The possessor of a privilege obtained under any title whatever may cite all persons usurping his right before an Intendant, from whom an appeal lies to the Council of State. The offender may be condemned to the confiscation of all the machines, apparatus, utensils, and works of art made by him; and to the payment (as a fine) of three times the value of the same, for the benefit of the possessor of the privilege. When void and how cancelled (/>). — The patent is de- clared to be void — 1. When the time is elapsed. 2. When the party does not apply for it within three months from the time he presented his petition. 3. When the patent has not been put in force for a year and a day after the date thereof. 4. When the patentee abandons his right by not using it for a year and a day. 5. When the subject has been used in any part of the kingdom, or described in ])rintcd books, or in engravings, pictures, models, plans or descriptions, contained in the Roijal Conservalori) of Arts ; or when the subject has been used in a foreign country and the («) See ante, cli. viii. (/>) See ante, cli. ix. 62 Supplement to Patents. patentee has presented it as new and of his own invention. When the time of the grant has expired, tTie Council of State declare the cessation ; but in all other cases of cessation the competent judge proceeds at the suit of any party to try the fact, and then the sealed boxes or packets are opened, and the facts published in the Gazette. The Austrian Law. The hwentor (a).- — The privilege is granted to a native or foreigner ; and he may also take out a pri- vilege in a foreign country. The Manufacture {b).—k\\ new discoveries, inven- tions, and improvements, in every branch of industry, are entitled to an exclusive privilege in the Austrian monarchy. The following enumeration of subjects for patents is given to prevent disputes : 1. Every new finding out of a process in industry, which, although practised in former times, has been since entirely lost, or which, although still practised in foreign countries, is unknown in the monarchy, shall be held a discovery. 2. Every production of a new object by new means, ^ or of a new object by means already known, or the production of an object already known, by means dif- ferent from those which have hitherto been used for that object, shall be held an invention. 3. Every addition of a preparation, arrangement, or method of working to a process, already known or (fl) See ante, cli. ii. {h) See ante, cli. iii. The Austrian Law. 83 privileged, by which more Qom\Ae\.Q success or greater economy shall be attained in the result of that process, or in its mode of operation and application, shall be held to be an improvement. 4. Every discovery, invention, improvement, or change, shall be held as new, if it is not known in the monarchy, either in practice or by a description of it contained in a work publicly printed. But the no- velty of a discovery, invention, or improvement, shall not be called in question, on account of its being described in a work publicly printed, unless that de- scription is so accurate and clear that any person acquainted with the subject can, by means of that description, manufacture the object, or practise the process, for which the privilege has been granted. The Specification («).— The inventor must send in, at the same time that he presents his petition, a sealed parcel containing an accurate description of his dis- covery, invention, or improvement, in which the fol- lowing qualifications are required: 1. The description must be written in the German language, or in the language used for business in the province from which the petition is presented. 2. It must be drawn up so clearly that every per- son who understands the subject may be able to manufacture the object, by means of the description, without being obliged to supply any further inven- tions, additions, or improvements. 3. That which is new, and which consequently con- stitutes the object of the privilege, must be accurately distinguished and set forth in the description. (a) Sec ante, cli. iv. g2 84 Supplement to Patents. 4. The discovery, invention, or improvement must be clearly and distinctly described, and without any ambiguities that can mislead, or that are contrary to the object stated. 5. Nothing must be kept secret, either in the ma- terials or the method of execution ; therefore more expensive means, or means not producing an entirely similar effect, must not be described; nor must any manipulations which are essential to the success of the operation be concealed. If it is practicable, drawings and models are to be added, for the better understand- ing of the description ; but these are not strictly required, if the object can be made sufficiently clear by the description alone, according to the requisites stated. Practice of obtaining Privilege (a). — A petition is first presented to the direction of the circle in which the inventor resides, wherein he must state the substance of his invention, the number of years for which he de- sires to obtain the privilege, and with it a full descrip- tion of the invention sealed up. He must at the same time deposit one-half of the duty payable for the patent. The direction of the circle will give a receipt for the petition, the money, and the description ; and within three days forward the money and documents (with the seal unbroken) to the government of the province, who will not inquire into the novelty or utility of the invention, but will report within eight days to the Imperial Government whether it is hurtful in any public view, or contrary to the laws of the (fl) See ante, ch. v. The Austrian Law. 85 country, and send the papers to the Imperial Board of Commerce. A representation is made by that board, upon which the patent is made out and delivered to the inventor. The duties upon privileges are to be paid in propor- tion to the time granted for their duration. For each of the first five years the tax is ten florins convention money, for the 6th year fifteen florins, with an increase of five florins upon each year, making for the 15th year the sum of 60 florins, and for the whole of the longest term 425 florins convention money. One half of the duty for the whole term is paid on the receipt of the petition, and the other half is paid at the be- ginning of each year, in as many yearly rates as the years for which the privilege was taken, under pain of its being annulled. Except the above tax, the pa- tentee has not any fees or expenses to pay, but the patent deeds (three in number) are granted ex officio, like all other decrees. The Chief Registrar of the Imperial Board of Com- merce is bound to register all the grants of privileges, and all transfers of them. The Property in an Invention {a). — The priority of the invention takes effect from the hour and day of the receipt of the petition. Although the term of the pri- vilege commences from the date of the patent, yet the inventor is protected from the time of the receipt of his petition. The patentee has the exclusive privilege over the whole monarchy. He may take such partners as he may choose, in order to increase the profits of his in- {(t) Sec ante, cli. vii. 86 Supplement to Patoits. vention to any scale; he may dispose of the privilege, bequeath it, let it out, or assign it away at pleasure. But a patent for an improvement gives only a pro- perty in the improvement itself. To give encouragement for the trial of e.vper'mients, one who has originally taken a privilege for a less term than fifteen years, may, before the expiration of that privilege, obtain a prolongation thereof to a term of fifteen years, on condition of paying for the prolonga- tion of the privilege after the usual rate. Legal Proceedings (a). — Infringements are visited with a penalty of 100 ducats in specie, of which one half goes to the patentee, and the other half to the poor of the place where the judgment is given, besides the confiscation of the objects imitated. When a privileged person believes himself to be aggrieved, he gan require the judge of the place to put a stop to the further imitation of the object of his privilege, and also require the immediate seizure of the articles so imitated, whether they are in the possession of the imitator himself or of a third per- son; or whether they have been brought in from foreign countries. The questions of infringement of compensation for damages — of the application of the legal penalty, &c. rest with the ordinary judges. When void, and how cancelled (J)). — The privilege be- comes void, 1. If the accurate description of the discovery, in- vention, or improvement, for which the privilege was (a) See ante, ch. viii. {b) Sec ante, cIi. ix. The Austrian Law. 87 petitioned, is wanting in the requisites of a new manu- facture above stated, or in only one of those requisites. 2. If any one proves legally, that the privileged dis- covery, invention, or improvement, could not be con- sidered new in the monarchy, previous to the date of the official certificate. 3. If the possessor of a privilege in force for a dis- covery, invention, or improvement, proves that the privilege subsequently granted is identically the same as his own discovery, invention, or improvement, which was regularly described and privileged at an earlier date. 4. If the privileged person has not began to prac- tise his discovery, invention, or improvement, within the term of one year from the delivery of his privi- lege, whether he is a native or foreigner. 5. If he discontinues that practice for the space of a year, during the term of the privilege, without showing sufficient grounds for the same. 6. If. the second half of the tax is not paid in the above stated annual rates. The questions, whether the privilege ought to be annulled on public grounds, or because it has been neglected, or the possessor has not fulfilled the condi- tions of the grant, are decided by the political autho- rities, with the reservation of appeal to the higher authorities. The Belgian Law. Laws were promulgated by the King of the Nether- lands on the 25th .January, 1817, which have some peculiarities about them. S8 Supplement to Patents. The Inventor {(i). — Patents are granted to those who, in the kingdom, make an invention, and also to those who first introduce or practise in the kingdom an in- vention made in foreign parts. The Manufacture {b). — The subject of a patent may- be an invention or essential improvement in any branch of arts or manufactures, domestic ov foreign, provided it has not been put in operation or exercised by ano- ther person in the kingdom before the grant of the patent. But changes of form, or of proportions, or ornaments, are not to be considered as improvements. The possession of the improvement does not give any right to the original manufacturer, nor the owner- ship of the manufacture any power over the improve- ment. The Specification (c^. — The inventor must send with his petition a sealed packet containing an exact and detailed description, signed by himself, of the object or the secret for which the patent is solicited, together with the necessary plans and drawings. If he fraudulent ly omit in the description to mention any part of his secret, or shall state it falsely, or if the object has been already described in any work printed or published, then the patent becomes void. The Practice of obtaining the Patent (d). — A petition to the King must be deposited with the Recoi^der of the States of the province, containing the object of the invention in general terms, with the name and place (rt) See ante, chap. ii. (h) Ibid. chap. iii. (c) Ibid. chap. iv. (u\. « liap. ix. 92 Supplement to Patents. judge. A patentee invalidates his grant if he siibse- quentli) obtains a patent for the same invention in a foreign country. If it should appear that the invention is, in its na- ture or in its application, dangerous to the security of the kingdom or its inhabitants, it may be ordered to be cancelled. At the expiration of the patent, or after it has been declared to be void, the Commissary General of In- struction makes public the discoveries and inventions which have been protected and concealed, unless it be deemed advisable not to do so, for political or com- mercial reasons, and then he reports to the King, who decides as he thinks fit. The French Law. The laws respecting patents for inventions granted in France, were passed on the 7th January, 1791; the 2Gth May, 1791; the 8th October, 1798; the 27th September, 1800; the 25th November, 1806; the 25th January, 1807; and the 13th August, 1810. The Inventor {(i). — The National Assembly stated in their decree, that every new idea, whereof the manifes- tation or the developement may become useful to society, belongs originally to him ivho has conceived it, and that it would be to attack the rights of man in their essence, not to regard a discovery in industry as the property of the author. Patents are granted for five, ten, or fifteen years, according to the choice of the inventor, for any disco- (a) See ante, chap. ii. The French Law. 93 very or new invention in all kinds of industry. The terms of five years and ten years maybe extended by a subsequent patent, but the term of fifteen years can only be prolonged by a decree of the legislative body. Whoever brings into France di foreign discovery be- comes the inventor of it, and may have a patent for one of the terms of years above mentioned. The Manufacture {a). — Every discovery or invention in all kinds of industry, and the means of adding to any fabrication whatsoever a new degree of perfection, is regarded as an invention. But discoveries already pointed out and described in works printed and pub- lished, cannot be the subject of patents. A petition for a patent will not be received if it contain jnore than one principal object, with the details that may relate to it. If an inventor wishes to make any change in the object stated in his first petition, he is permitted to do it ; and any improvement of a manufacture may be the subject of a patent. The Specification (/;). — The patent is forfeited if the inventor conceal his real means of execution ; or if he uses any secret means which were not detailed in his description of the invention. That description must be an exact accoiuit (jf the princij)les and the means and processes which constitute tlic discovery, and must be accompanied with such plans, sections, drawings, and models, which may be required to exj)lain it. When the Legislature decrees that the descrij)ti(>u of the invention shall be kej)t a secret, three Com- (a) See ante, chap. iii. (h) Soi' ante, clia]). iv. 94 Supplement to Patents. missioners are appointed to examine the correctness of the description, after a view of the means and pro- cesses, without the author ceasing on that account to be responsible for the correctness of the specification. TJie Practice of obtaining the Patent (a). — An office is established at Paris, under the name of " The Directory of Patents of Inventions." The expenses of the establishment are taken solely from the tax upon patents for inventions ; and the surplus of the amount beyond those expenses is distributed in rew^ards for national industry. The inventor must apply to the Secretary of the Directory in his department, and there present a petition to the King, declaring in writing if the object that he presents is of a new invention of improve- ment, or only of importation. He must at that time deposit in a sealed packet an exact description of the means which constitute the discovery, together (if necessary) with plans, sections, drawings, and models, in order that the said packet may be opened at the time when the inventor receives his title of his property. The petitioner must make two copies of the list of papers in the sealed packet. He is entitled to have information given to him of all subjects for which patents have been obtained, in order that he may judge whether he will persist in his demand or not. On the back of the cover of this packet is written the date of the deposit of the packet, a receipt for the amount of the tax, or an engagement to pay it ; and the Directories of Departments must forward the (ci) See ante, chap. v. The Frencli Lau\ 95 packets to the Directory of Patents of Inventions during the same week in which they have been presented. The Directory of Patents, after registering the packet, open the seal, and deliver out a patent con- taining the description of the invention under their own seal. At the same time a proclamation by the King, relative to the patent, is addressed to all the tribunals and departments in the kingdom. A prolongation of the term of a patent may be made by the legislature. A register is kept at the directory of each depart- ment, and also at the Directory of Patents for Inven- tions, of the patents granted and the proclamations issued, and the prolongations made of the terms of any patents, and also of all transfers of the right. Any citizen may inspect the catalogue of new inventions at the office of the Secretary of his depart- ment, and any resident citizen is at liberty to examine the specifications of the patents actually in force at the Directory of Patents, unless the legislature has decreed that the discovery shall be kept secret. Commissioners examine the specification, when it is ordered to be concealed ; and if they are satisfied with it, they re-seal the packet. The patentee being at liberty to make changes in the object mentioned in his first petition, he may take out successive patents for those changes, or put them all into one patent. The duties collected from an inventor may be piiid in two sums— one half on presenting his petition, and 96 Supplement to Patents. the remainder within six months. If the latter sum is not paid within that time, the patent becomes void. The following scales exhibit the duties to be paid by patentees. 1. A scale of the taxes to be paid to the Directory for inventions. Tax on a patent for five years Tax on a patent for ten years Tax on a patent for fifteen years Fee for passing the patent Certificate of improvement, change or additioi Tax for the prolongation of a patent Registry of a patent of prolongation Registry of the conveyance of a patent, wholly or in part ...... For the search and communication of a de- scription ....... hivres, 300 800 1500 50 24 GOO 12 18 12 2. A scale of the taxes to be paid to the Secretary of the department. For the attestation of the deposit of a descrip- tion, or of any improvement, change or addition, and of the papers relating thereto, all costs included ..... For the Registry of the Conveyance of a Patent, wholly or in part, all costs included For the communication of the catalogue of inventions, and search fees hivres 12 12 The possessor of a patent for invention must also pay the tax of annual patents levied upon all pro- fessions in the useful arts and trades. The FroicJi Law. 97 The Property in Patents (^/).— The inventor may have a patent for 5, 10, or 15 years, or for siicli longer periods as the legislature may grant ; and the exercise of the right commences from the date of the certificate of the petition. It is personal property. He may form establish- ments through the kingdom, and he may authorise other persons to use his means and processes : and he may form any association he chooses for the exercise of his right, under an order from the government to that effect. He may transfer it either wholly or in part. Legal Proceedings. — The government, in granting a patent, does not guarantee the priority, the merit, or success of the invention. A patentee may proceed against an infringer before a Judge, who will hear the parties and their w^itnesses, and judgment will be executed provisionally, not- withstanding any appeal from it. In a contest between two patentees whose patents are for the same object, if the similarity is declared complete, the patent bearing the earliest date shall alone be valid, but if there is a dissimilarity in some parts, the patent of the latest date may be converted (without any new tax) into a patent for an improve- ment thereof. But theprioritij of invention, in case of a disj)ute be- tween two patentees for the same object, is adjudged for him who first deposited his papers as above stated. When Patent void and how cancelled (h). — The patent (a) See ante, chap. vii. {h) See ante, cliap. ix. H 98 Supplement to Patetits. becomes void if the inventor be convicted of having, in his description, concealed his real 7?ieans of e^-ecution, or of having- used in his manufacture secret means which were not detailed in his description ; and the patent is invalid if the inventor be convicted of having obtained a patent for discoveries already pointed out and described in works printed and pub- lished ; and also if the inventor shall not in the space of two years, reckoning from the date of his patent, have put his discovery in practice, or shall not have given sufficient reasons to justify his inaction. And also if the inventor, having obtained a patent in France, shall be convicted of having taken one for the same object in any foreign country; and as every person acquiring the right of exercising a discovery secured by a patent is subject to the same regulations as the inventor, if he infringe them, the patent is to be revoked, the discovery published, and the use thereof to be open to the whole kingdom. When the term has expired or the patent has be- come void, the Minister for the Interior takes care that it be immediately published. AN INDEX THE PRACTICAL TREATISE, AND Also TO THE SUPPLEMENT. The Arabic figures i-efer to tlie Supplement, thus, sup. 5. A. ACCOUNT directed by Court of Climicery to l)e kept until tlic le^al right settled, page 187. in suits for iufrini!;enient f)f a patent, iil. until a new trial lia'; been liad, 1S8. ACTION for infringing a patent right, ]70. if patentee has been once defeated, id. the pleadings, — Sec Pi-kadings, ACTS OF PARLIAMENT. the mode of obtaining private acts, 148, sup. 50. the notice, id. the petition, 149. the examination of witnesses, l.'>0. tlie reading and engrossing the bill, I '> I . the routine of passing it through the House of Lords, /(/. particular acts respecting patents, MS, sup. ^>i). to prolong the term of a patent, id. the substance of its contents, H8, n. to enable the patentee to assign tonu)rclhaM live persons. 1;V2. ADDITION. — See Improvkmknts, 71. it is a new manufacture, id. the patent must be conlimd lo the a(ldilif>n, id. II 2 100 INDEX. ADDITION, continued. if the grant extend to the whole, it is invalid, 72. nnless in a grant for an improvement in a machine already protected by a patent, 7^>- what things may be taken for the foundation of the additions, 74. addition of new combinations, 7<>. the peculiar qualities of an addition, 74. AFFIDAVIT to support petition for patent, 159. form of. — Sec Appendix. AMERICAN LAW, sup. 73. ARRANGEMENT OF THINGS ALREADY KNOWN.— 5fe Combinations, 75. ASSIGNEE of a patent, may sue alone, or join with the patentee, 1/7. ASSIGNMENT of patent right generally, 162. when the patent is good, id. if the patent be void, id. an action for breach of covenants may be answered by showing that the patent is bad, IG3. but not when the action is against the patentee himself, id. where there is no fraud, the consideration for the sale of a bad patent cannot be returned, 164. unless discovered before the assignee bad made any use of it, 1G5, under a commission of bankrupt, id. sup. .57. effect of a grant obtained by an uncertificated bank- rupt, id. effect of notorious use, sup. 62. AUSTRIAN LAW, sup. 82. B. BANKRUPT, assignment of patent under, 162, sup, 57. BELGIAN LAW, sup. 87. BILL for the patent, 1 40. its contents, id. c. CANCELLING of letters patent, 200, sup. 69. INDEX. 11)1 CAVEAT, 144, sup. 49. against u patent to be left at chambers of attorney-general, 145. or in the chancery office, 146. the nature and meaning of a caveat, id. costs of caveat before the lord chancellor, 146, CERTIFICATE of enrolment of speciBcation, 143. of enrolment of vacation, 199. CHANCERY, COURT OF, the jurisdiction over letters patent, 183, sup. 68. the advantages of suing in equity, id. the grounds on which injunctions are granted, 184. CHEAPER MATERIALS, 123. CHE:MICAL discoveries. — ,Scx MEmoD, Proi Kss. the effects produced may be new manufactures, 96, sup. 24. patent medicines, id. it is a question whether the mere process can be manufactures, 97. COLONIES, patents to be in Ibrce in them, 138. COMBINATION of things already known. — See Arraxgkment. it may be a new manufacture, 7o, 77. of what thing a combination may be formed, 7o, Hip. 14. improvement by new combinations, 7C). the patent must be for the thing thus combined, id. the peculiar (|uality of a combination, 7V:. COMMON LAW as to monopolies, 10. forestalling, &c., 23. CONSTRUCTION of letters patent generally, 1.53, sup. 51. of |)atents for inventions, i.')5. in favour of the inventor by an express clause, 156. doubts as to the strict or liberal construrtion of them, id. 15". ot the acts of parliament to enlarge tliem, 158, sup. 52. not a legislative reading of the patent, id. generally a clause is inserted that every objection in law com- petent against the patent shall still exist, I 70. COSTS of a caveat for a patent, 146. in an action tor infringing a patent, 18,>, sup. 67. „ of proceedings thereon in eciiiity, 188. / ? / > f f ' A. / 2_ /? 3 '^' "^ 'w ^ D. DECLARATION ill an action ff»r infringing 69. GRANTS. —5ee ]Monopolik«, Letters Patent. that were valid at connnon law, 19. if made for a reasonable time of a new and profitable trade, id. of some particular employments, 11. / as printing the bible and books of divine service, id. Sec Prerogative Copies, 316. that were bad at common law, 12. if they prevented the exercise of known trades, id. as the privilege of solely selling sweet wines in London, id. or engrossing wills, Sec, 13. or making playing cards, id. if they were for the sole importation of any merchandize, 1-J. as restrained by statute law 21 .Jac. j., id. the form of grants by the crown, 17. I. .1. IMPROVEMENTS, 7). —Sec Aduitio.xs. INADVERTENCE, no excuse for not describing the best method, i2.>. INFRINCiLMENT of A patent, it is a fpiestion of fact i"or the jury, 17.3. what amounts to it, 173, .S7//). 63. not of mere matters of intention not reduced to practice, l/.>. 104 INDEX. INJUNCTIONS ^^^ (^^A-y. ■^-)'-'^ '- ^ to prevent iutiiugeiueiit on a patent until the bearing, 185. a perpetual injunction, 18(i suj>. 68. the grounds on which injunctions are granted respecting patents, 184. INTENTION, evidence of the intention ot inventor to conceal the discovery, 181. to conceal the best method, 121. matters ot intention only mentioned in a specification, 117- IRELAND, patent for invention in, 138. JUDGMENT in an action for infringing a patent, the effect of, 183, 6«p. fi7. on a scire facias to repeal it, 199. by (kfaidt, id. final judgment. 200. INVALID PATENTS, what circumstances make all kinds of patents void, 153. what those for inventions, 190. by the express clauses of the statute of monopolies, id. as being contrary to law, 191. mischievous to the state, &'c., id. rai'iing the price of commodities at home, 192. being hurtful of trade, id. generally inconvenient, 19-1. when void by the particidar constructions of the statute, 195. as to the inventor, 52, 195. tlie object of tlie patent, 57, 195. the correctne.ss of the .specification, lOG, 195. the mode of obtaining it, l.'3G, 195. what things do not invalidate a patent, 196. INVENTOR, the discoverer of a new thing, 52. not he who has not formed the original idea himself, 53. or taken it from a scientific work, id. or been informed of the secret, id. informed by a servant, sup. 3. the first publisher of the discovery, 54. the introducer of a foreign invention, 56, sup. 4. LETTERS.— 5ce Patents, 44. LICENSES may be granted to use a patent, 169. INDEX. 105 M. MACHINE OR INSTRUMENT, peculiar quality, new machinery, 70. specification of, \2L MEMORIAL to the crown for a scire facias, 198. METHOD. — See Principle. — Process. it is a question whether a mere method or process can be a new manufacture, 79, 82, siqj. 16. method and process are synonymous terms, 84. reasons why a mere method is not a new manufacture, id. when the patent for method, but subject is something material, 88. an account of the case of Watt's patent for the steam engine, 89—95. MODELS, 305. MONOPOLY.— 5Ve Grants and Letters Patent. the natural right to dispose of property in any way, 1. definition of a monopoly, 2. when made by a sovereign, id. when effected by a subject, 2 1 7. monopolies in domestic trade, 16. when made by acts of parliament, 7. an historical sketch of monopolies, 2. among the ancients, id, modern monopolies, id. the progress of them traced, id. the introduction of them in England, J. ])rivileges granted to London and other towns, id. their baneful eflTpcts in the reign of Elizabeth, id. how restrained by the statute of .Tam.es I., 6. and confined to new inventions, id. MORTGAGE OF PATENT, sup. 61. N. NEW INVENTIONS.— .See New Manufactures. NEW MANUFACTURES, definition of a new manufacture, 58. its primary or requisite qualities, id. it must be new, GO. not copied from a scientific book, id. nor suggested by a friend, id. where the thing claimed is not new, but some other part of the manufacture is new, 60, 61. if the thing has been before published, though unre- marked, it is not now, (>!. r u where the things are the same, but the modes of obtam- ing them different, id. 106 INDEX. NEW MANUFACTURES, conUnucd. must not Iiave been used by any one, id. sup, 6, 10. the knowledge of a secret without a publication is not a using, G2. it is published, if one of a few persons has used it, id. or made and sold it, (VJ. must not be used by the inventor before patent obtained, 64, sup. 13. not even for four months, id. doubtful even for experiments, id. it must be vendible matter, 6.5. it must be material and useful, 66, siiji. 14. not a trifling alteration, 67. nor the substitution of one material for another in making it, 68. not a mere curiosity, 69. the utility must appear on experiments being made, id. general observations on new manufactures, 99. NEW TRIAL in an action for infringement of a patent, 182, stqj. 67. in a feigned issue, 187, 188. on the issue of a scire J'aciaa, 199. o. OYER not allowed of letters patent, 177. P. PATENT MEDICINES, 96. PATENTS. — See Letters Patent. create a limited and beneficial monopoly, 43. might be granted at common law for a reasonable time, 44. permitted by 21 Jac. I. to be granted for fourteen years, id. the sixth clause of that act set out, id. it is declaratory of the common law, 45. made for the encouragement of artists, id. the policy of that statute as it affects the public, 45, 46. the construction it ought to receive, id. sup. 1. no right to demand patent, 47. method of obtaining a patent, 141. its contents, 48. the form of one. — ^S'ce Appendix. PETITION, abstract of its contents, 138. form of. — Sec Appendix. dc novo for a patent, 143. PLEAS to an action for infringing a patent, 177, sup. 66. to a bill in equity for same, 186. to a scire facias, 198. INDEX. lot PRACTICE of obtaining patents, \li7, n/p. 10. PRACTICE AT LAW, in an action for infringing a patent, 175. the parties, 177. assignee may sue alone or join in the action, id. the declaration, id. the venue, id. the plea, &c. id. the evidence, 178. — S'cc Evidiince. in a scire facias to repeal a patent. — See Scire Facias. PRACTICE IN EQUITY, in a suit for an infringement of a patent, 18:3. filing the bill, 185. the affidavits in support of it, id. must show that the aj)plicant still believes himself to be the original inventor, id. the motion for an injunction, 185.— See Injunction. the answer, 186. a demurrer in equity, id. the plea to a bill in ecjuity, id. — See Pleas. the hearing, id. a feigned issue, id. the evidence in equity, 187. — Sec Evidence. an order that the manufactories may be inspected to furnish evidence, id. new trial, if a feigned issue, id. the costs in equity, 188. PRINXlPLE.-6Y't' Meiuod. — Process. an abstract principle cannot be a new manufacture, 78, 80, mp. 10. nor the application or practice of a principle, 80, 81. PROCESS, 79, 32.— Sec Method. — Ciivmuai. Process. PROFERT of letters patent, 1 77. PROPERTY in a patent, IGO. in its nature it is personal, id. its duration, Hil. the number of persons that may at once be jnlerestcd iu if, id. sup. oti. executors and admiuistralors are considered as and I'oi the single person whom they rci)resent, id. assignees of bankrupts, sup. .07. its enlargement by act of parliament, 1()I). by extending the term, id. by increasing the number of persons that may be inte- rested in it, id. the reasons for passing those acts, id. 108 INDEX. R. REPORT. — See False Alarms. of attorney-general respecting the petition for a patent, 1;39. its contents, id. his opinion that a ])arlicular description of tlic invention ought to be enrolled in Chancery, /(/. s. SECRET INVENTIONS, inventions not protected by patents, 170. not protected by the law, 171. nnleys fraud used in obtaining the secret, id. effect of representing an article to be the same as one secretly made, 1 72. SCIRE FACIAS to repeal letters patent, lf)G, .sti/i. 70. by whom obtained, 197. by the kinif jure regis, id. by any subject as a right, id. the first of two patentees may have the writ, but the second cannot, id. directed to the sheriff' of Middlesex, and made up in the petty bag office, 198. its contents, id. the necessary proceedings, 198. the memorial, id. the king's warrant to sue, id. the Hat of the attorney-general, id. the summons, id. the i)lea, id. demurrer, id. evidence on a seircjaciaa, 199, .^iip. 72. a new trial, id. the judgment, id. by default, id. by confession, id. final judgment, id. for the king, id. for the defendant, id. no writ of error, 200. the costs, id. sup. 70. SCOTLAND, a patent for exercising invention in, 147. SPANISH LAW, sup. 78. SPECIFICATION, the condition requiring it not by the act, but inserted in the patent, 40. INDEX. 109 SPECIFICATION, conthmcd. definition of it, 46, 47. the form of grants by tlie king, or letters patent, id. the offices for passing patents, 48. a description of the parts of a patent, id. has always been strictly examined, 100. matters which make it void, 49. the general properties of a specification, 100, sup. 28. the invention must be accurately ascertained, id. the connection of the patent and specification, 102, sup. 20. the title of patent must correspond with the description in the specification, id. claiming too much in tlie title, 103. the title should not be very extensive, nor yet very confined, 104. the misuse of words, 105. effect of claiming one thing when another is really meant, 106. the form of the specification, 111. must be under the hands and seal of the inventor, id. the contents of it, id. must be acknowledged by a Master in Chancery, and en- rolled, 142. the time allowed for its enrolment, id. when time for enrolling it has transpired, id. a petition de novo for a patent, 143. certificate of the enrolment, id. inspection of the specification, id. sometimes ordered by act of parliament to be inspected only by the Lord Chancellor, 1 44. of a substance. — See Substance, 107. of a machine. — See Machine, 124. must be such that a common mechanic can make it, 125. without experiments, id. or reference to scientific books, id. must show that all the parts are united, jW. and the union of luo or more machines, id. of improvements or additions. — See Additions, 127, 130. by describing the addition, and how it is applied to the old parts, 128. by describing the whole, and distinguishing the new parts, id. not necessary to describe the old parts, id. the specification of an improved patent article, id. the different ways of specifying an improvement, 130. of a combination. — See Combination, 131. when made of single articles, id. of old combinations, 131. of several old patent subjects, id. of a method carried into practice. — See Method, 134, 135. of a mere princij)Ie, 135. of a mere method, id. of a chemical discovery. — See Chemical Discovery, id, of a foreign invention. — See Foreign Invention, 130. 110 INDEX. SPECIFICATION, conlhmcd. general rules y»r vmkhig specifications, 108, sup, 28. general observations on specifications, ISfi. it is incorrect when the terms of it are ambignous, 109, sup. 29. calling a substance, similar to white lead, white lead, 1 1 0. by mentioning the genus, not the particular species of a thing, id. technical words, 105, 111. necessary descriptions omitted, 111, sup. 29. every material new part must be described, id. and every old part applied in a new manner, id. when the machine is intended for different operations, the parts peculiar to each must be described, 1 12. not to rudiments of a science, id. parts claimed not original, id. sup. 33. must not, even unintentionally, appropriate any part that is old, 113. need not describe things in common use, 114. one of several things specified not new, 115. part or things put in to mislead, IIC, sup. 31. as parts that have never been used by the patentee, id. if a considerable part of the manufacture be unneces- sary, id. although occasionally used, 117. but need not go on using it, id. sup. 35. the drawings incorrect, 118. when not drawn to a scale, id. whether a substitute for a description, 119. one of different ways falls, id. sup. 37. some of several effects specified, not produced, 120, even if one thing not effected, id. thing described not the best, 121, sup. 39. the consequences of making alterations after patent sealed, 122. of using cheaper materials, 1 23. or from inadvertence, 123. effect of its being a subsequent discovery, 124. STATUTES.— 5ee Appendix. statement of clauses of 21 Jac. 1. c. 3. the prerogative in, 325. SUBSEQUENT DISCOVERY may be used with the subject of the patent, 124. between time of patent and specification, sup. .39. SUBSTANCE, OR A THING MADE, is a new manufacture, 58. specification of, 107. SUMMONS to attend the attorney-general on a caveat, 145. to appear to a scire facias, 198. INDEX. Ill SURRENDER of the letters patent to be cancelled, 300. must be enrolled, 201. and a certificate obtained of the vacatur, id. T. TRUST made of a patent right, 168, sup. 62. V. VENUE in action on letters patent 1 77, sup. C,r>. must generally be at Westminster, 177. scire facias is always directed to the sheriff of Middlesex, 198. w. WEST INDIA ISLANDS, act for the sole privilege of using a maniifacture in, 147. LONDON : C. nOWOIlTU AND SONS, Brl.I. YARD, TEMPLE BAR. 1 ^C SOUTHERN REGIONAL LIBRARY FACILITY AA 000 770 679 UCLA LAW LIBRARY .he tot dale stamped below ^^'■i:rre::uc:"3io)82s-39eo