DIGEST OF THE PATENT, TRADE MARK, AND CASES REPORTED IN VOL. XVIII. OF THE REPORTS OF PATENT, &c. CASES. COMPILED BY ERNEST GREENWOOD, BARRISTER-AT-LAW. DIGEST OF PATENT CASES. ACTION FOR INFRINGEMENT. See INFRINGEMENT; INJUNCTION; SUBJECT-MATTER; SPECIFICATION (CONSTRUCTION OF); USER.. ACTION TO RESTRAIN THREATS. See THREATS (ACTION TO RESTRAIN). AMENDMENT OF SPECIFICATION. See also DAMAGES. 1. Opposition to grant of Patent on the ground that the invention had been already patented on an application of prior date.-Application to amend at a hearing before the Comptroller.-The Comptroller refused leave to amend, and refused to seal a Patent.-Held, on appeal, by the Law Officer, (affirming the Comptroller-General's decision), that as the Specification stood the Applicant's process was anticipated, and that the amendments asked for ought not to be allowed. An Applicant whose claim as originally drawn is anticipated by the Patent relied on by the Opponent, but whose Specification contains something that may distinguish his alleged invention from such Patent, will not be allowed to amend his claim by substituting such distinctive matter. MILLS' APPLICATION, p. 322. AMENDMENT OF SPECIFICATION—continued. 2. Amendment without terms.-Application for leave to amend pending an Action for infringement and Petition for revocation, liberty to apply having been obtained from the Court. Opposition to application.-The Comptroller-General was asked to impose certain terms.-Amendment was allowed by the Comptroller-General without the imposition of terms.-Appeal by Opponents.-Held, on appeal, by the Law Officer, that amendment should be allowed without the imposition of terms. Decision of the Comptroller-General upheld. Conditions as to the imposition of terms considered. PITT'S PATENT, p. 478. ANTICIPATION. See INFRINGEMENT; SUBJECT-MATTER; USER. ASSIGNMENT. See PROLONGATION, No. 2. AUSTRALIAN LAW. Western Australia. See FOREIGN LAW, No. 3. BURDEN OF PROOF. See PRACTICE, No. 1. CERTIFICATE AS TO PARTICULARS OF OBJECTIONS. Certificate granted on further cross examination of Plaintiff's witness recalled for that purpose by leave of the Judge, the Plaintiff's case as to validity having been abandoned. The owners of a Patent for "Improvements in the treatment of paper, "linen, and other textile fabrics," sued the Defendants for infringement. The Defendants alleged that the Patent was invalid, and cited in their Particulars of Objections a number of Specifications. -Held, that the Patent was invalid by reason of anticipation. The action was dismissed with costs. A Certificate that the Particulars of Objections were reasonable and proper was granted on the evidence of Plaintiff's witness, who was recalled for further cross-examination. PEGAMOID LD. v. BRITISH LEATHER CLOTH Manufacturing Co., LD., p. 317. CERTIFICATE OF VALIDITY OF PATENT HAVING COME IN QUESTION. See also INFRINGEMENT, No. 17. 1. Defendant not appearing at the trial. In 1886 a Patent was granted to I. for "Improvements in illuminant appliances for "burners"; and in 1893 a further Patent was granted to I. for "An "improvement in incandescent gas burners." These two Patents became vested in the Plaintiff Company, who brought an action against the Defendant for infringement. The 1886 Patent was subsisting at the date of the writ, but had lapsed before judgment. The Defendant raised the question of the validity of the 1893 Patent in his Defence, but did not appear at the trial.-Held, that the Defendant had infringed the Patent of 1893, and an injunction and a Certificate that the validity of the Patent had come in question were granted. WELSBACH INCANDESCENT GAS LIGHT Co., LD. v. KRUMM, p. 211. CERTIFICATE OF VALIDITY OF PATENT HAVING COME IN QUESTION-continued. 2. Granted after expiration of Patent. KANE & PATTISON v. J. BOYLE & Co., p. 325. 3. Granted in an action where Defendants retired at the trial. WELSBACH INCANDESCENT GAS LIGHT Co. v. M'GRADY & CO., p. 513. CLAIM. See SPECIFICATION (CONSTRUCTION OF). COMMITTAL. Undertaking not to infringe.-Motion to commit.-Construction of Specification. Motion dismissed on the ground of non-infringement. SCHERMULY v. PAIN, p. 529. COMMUNICATION FROM ABROAD. Action for infringement. Title. True and first inventor.-Prior publication.-Injunction granted.-Stay refused. On the 9th of August, 1894, Letters Patent (No. 15,212 of 1894) were granted to T. J. for "Improvements in atmospheric or power hammers," on a communication from abroad by R. M. R., of the United States of America. The proprietor of the Patent brought an action for infringement against the Y. V. H. Co., who admitted infringement, but attacked the validity of the Patent on the ground of prior publication, and alleged that the invention was not communicated to T. J. from abroad by R. M. R.-Held, that the Plaintiff was entitled to succeed, and a stay of the injunction was refused. Marsden v. Saville Street Foundry Company (L.R. 3 Exch, D. 203) distinguished. The Defendants applied to the Court of Appeal for a stay of execution. On the Plaintiff undertaking not to destroy the infringing machines pending the appeal the application was refused with costs. PILKINGTON v. YEAKLEY VACUUM HAMMER Co., p. 459. COMPANY. 1. Company in liquidation, appeal by, against interlocutory injunction in infringement action dismissed. WELSBACH INCANDESCENT GAS LIGHT CO., LD. v. VULCAN INCANDESCENT LIGHT SYNDICATE, LD., p. 279. 2. Directors of, not necessary parties to action for infringement. LEEDS FORGE CO. v. DEIGHTON'S PATENT FLUE &c. Co., p. 240. CONTRACT. 66 Interpretation of contract depending on Specification of Patent.Flexifort Patent Cloth."-Action dismissed. The Defendants in an action, who were the owners of a Patent for "Improvements "in card foundations," in the Specification of which was described a special fabric containing one or more layers of yarn or threads laid in straight lines in the direction of the length of the foundation, entered into an agreement with the Plaintiffs by which, after reciting that the Defendants were the owners of the Patent for a certain character or description of cloth called the "Flexifort Patent CONTRACT-continued. "Cloth," provided that the Defendants should make the "Flexifort "Patent Cloth for tyre covers for the Plaintiffs only, and should not supply the same to others without the written consent of the Plaintiffs. The Plaintiffs brought an action to restrain the Defendants from selling to others in breach of the agreement a cloth which they called "string cloth," which "string cloth" was known before the date of the agreement.-Held, that the "string "cloth" was not "Flexifort Patent Cloth" within the meaning of the agreement, and the action was dismissed with costs. DUNLOP PNEUMATIC TYRE CO., LD. v. MOSELEY, p. 411. COSTS. 1. No costs given of a successful appeal by an opponent from a decision of the Comptroller, the Law Officer being of opinion that it was a fair case to try. BRIDGES' APPLICATION, p. 257. 2. Higher scale costs refused. BRADFORD DYERS' ASSOCIATION v. BURY, p. 161. BRADFORD DYERS' ASSOCIATION v. WILLIAMS, p. 229. 3. Petition for Prolongation. One set of costs allowed to two objectors. HENDERSON'S PATENT, p. 449. DAMAGES. Damages in an infringement action not given prior to the amendment of the Specification. KANE & PATTISON v. J. BOYLE & Co., p. 325. DELIVERY UP. Stay of delivery up but not of injunction. PARKER & SMITH v. SATCHWELL & CO., LD., p. 299. DIRECTORS. See COMPANY. DISCONFORMITY. See INFRINGEMENT, No. 14. DISTRESS. See also USER. Patented article seized under a distress. No right of user. BRITISH MUTOSCOPE AND BIOGRAPH Co., LD. v. HOMER, p. 177. DRAWINGS IN SPECIFICATION. Held not to restrict a claim. BRITISH MOTOR TRACTION CO., LD. v. FRISWELL, p. 497. "True and First Inventor."-Burden of proof on the Defendants. WARD v. HILL, p. 481. EXHIBITION. Exhibition of infringing articles without sale or intention of sale.— Injunction granted.-Nominal damages. DUNLOP PNEUMATIC TYRE CO., LD., AND PNEUMATIC TYRE CO., LD. v. BRITISH AND COLONIAL MOTOR CAR Co., LD.; DUNLOP PNEUMATIC TYRE Co., LD. AND PNEUMATIC TYRE Co., LD. v. DE BREYNE, p. 313. EXPERIMENTAL USER. See ELECTROLYTIC PLATING APPARATUS Co., LD. v. HOLLAND, p. 521. FOREIGN LAW. See also EVIDENCE. 1. The judgment of a German Court held to be at least prima facie evidence of the German Law. ACTIEN GESELLSCHAFT FÜR CARTONNAGEN INDUSTRIE v. TEMLER & SEEMAN, p. 6. 2. The Statutes of Incorporation of a Germany Company must be construed by the German Law. ACTIEN GESELLSCHAFT FÜR Cartonnagen INDUSTRIE v. TEMLER & SEEMAN, p. 6. 3. Letters of Registration in Western Australia. Common knowledge, prior user, and prior publication inside the colony subsequent to the date of original Patent, but prior to date of Letters of Registration. Common knowledge, prior user, and prior publication outside colony (a) prior to date of original Patent; (b) subsequent to date of original Patent, but prior to date of Letters of Registration.-Patent Act (Western Australia), 1888 (52 Vict., No. 5), sections 23, 26, and 49. All the provisions of the Patent Act (Western Australia), 1888, apply to Letters of Registration, mutatis mutandis, as fully as to Letters Patent, therefore any objection to a Patent which would have been a ground for the revocation of a Patent by scire facias can be raised as a defence to an action for infringement of Letters of Registration. Common knowledge, prior user, and prior publication in the colony subsequent to the date of the Patent on which the Letters of Registration are based, and prior to the date of the Letters of Registration, can be relied on as a defence. Common knowledge, prior user, and prior publication outside the colony cannot be relied on as a defence except so far as they may be grounds of objection applicable to the original Patent on which the Letters of Registration are based (Patent Act (Western Australia), 1888, section 49). The fee of 157., payable on the grant of Letters of Registration, in pursuance of section 49, is a final fee, and no renewal fees are payable in respect of Letters of Registration (Patent Act (Western Australia), 1888, section 49). The provisions of the Act referring to the amendment of Letters Patent apply equally to the amendment of Letters of Registration (Patent Act (Western Australia), 1888, sections 23 and 26). AUSTRALIAN GOLD RECOVERY CO. v. LAKE VIEW CONSOLS, LD., p. 105. GRANT OF PATENT (OPPOSITION TO). The 1. Combination of old parts.-No invention.-Patent refused. B. applied |