SPECIFICATION (CONSTRUCTION OF)-continued. 66 66 66 you must then construe the Specification with reference to that, "disregarding issues of novelty or subject-matter which may arise in "the particular case, and you then have to consider whether or not the infringement comes within the fair meaning of the claims-not anything else, but the claims read in the light of the previous state "of knowledge, and without altering their words unduly in favour of "the Patentee or the infringer. I will say one word more with regard "to the law; that in my judgment, be it a combination claim or be it not, you are only allowed to follow the words of the claim, but you are not to permit mere mechanical equivalents or mere colourable "alterations to prevent a thing being an infringement, having regard "to what the meaning of the claim is." Per ALVERSTONE, L.C.J. PRESTO GEAR CASE AND COMPONENTS CO., LD. v. ORME, EVANS, & Co., LD., p. 17. 66 66 STAY OF EXECUTION. Delivery up stayed, but not injunction. PARKER & SMITH v. SATCHWELL & Co., LD., p. 299. SUBJECT-MATTER. 1. Patent for Shore Groynes held bad for want of subject-matter. -Action for infringement.-Novelty.-Subject-matter.-Utility.Public knowledge. Letters Patent were granted in 1896 to E. C. for an "Improved construction or arrangement of shore groynes." The Clacton-on-Sea Commissioners entered into negotiations with him for the construction of shore groynes under his Patent. The negotiations fell through, as the parties were unable to come to terms. The Commissioners then erected groynes, which the Patentee alleged to be an infringement of his Patent. In October 1898 he issued a writ against T. A. C. as Clerk of and representing the Commissioners, claiming an injunction and damages. The Commissioners denied infringement, and attacked his Patent on the grounds of want of novelty, subject-matter, and utility.-Held, at the trial, that the Patent was bad for want of subject-matter, and the action was dismissed with costs. The Plaintiff appealed. The appeal was dismissed with costs. CASE v. CRESSY, p. 417. 2. Where not raised on Particulars of Objections. ELECTROLYTIC PLATING APPARATUS Co., LD. v. HOLLAND, p. 521. THREATS (ACTION TO RESTRAIN). 1. Motion for interim injunction. Action by Patentees before threat dismissed on Plaintiffs' default. Action by Patentees commenced directly after threat. Motion in threats action a fortnight after threat. Motion refused. Costs reserved. Patents, &c., Act, 1883, section 32. The J. Co. commenced an action against W. & S. for infringement of Patent, and also actions against four of their customers, which were to abide the result of the principal action. The action against W. & S. was dismissed on account of the default of the J. Co. The J. Co. then, on the 26th of July 1900, issued a threatening circular. On the 31st of July W. & S. commenced an action to restrain the THREATS (ACTION TO RESTRAIN)-continued. J. Co. from threatening, and on the same day gave notice of motion for an interlocutory injunction, which came on for hearing on August 8th. In the meantime the J. Co. issued and served a writ in an infringement action against a customer of W. & S.-Held, that, there being no evidence that the last-mentioned action was not being prosecuted with due diligence, no Order would be made on the motion, except that the costs be reserved. WAITE & SAVILLE, LD. v. JOHNSON DIE PRESS CO., LD., p. 1. 2. Motion for interlocutory injunction. Whether infringement action prosecuted with due diligence. Patents, &c. Act, 1888, section 32. Interim injunction refused, the Court being of opinion that, though there had been delay on the part of the Plaintiffs in the infringement action, such delay did not amount to a want of "due "diligence" in "prosecuting that action. VOELKER INCANDES CENT MANTLE, LD. v. WELSBACH INCANDESCENT GAS LIGHT CO., TITLE TO PATENT. "True and first Inventor." Communication from Abroad. PIL. KINGTON v. YEAKLEY VACUUM HAMMER Co., p. 459. UNDERTAKING. Motion to commit for breach of undertaking not to infringe. SCHERMULY v. PAIN, p. 529. USER. 1. License to use. Defendant the purchaser of article taken under distress by landlord of licensee. Right to use patented article whether a chose in action. Judgment for Plaintiffs. The owners of a Patent for an invention relating to mutoscopes granted a license to use and license others to use for exhibition purposes the patented invention, and the licensees delivered mutoscopes to M. on certain conditions, under which the machines were to remain the property of the licensees and to be removable by them on notice. M.'s landlord distrained on the premises where M. exhibited the machines and seized the machines, and H. at the sale that followed purchased one of them with notice of the terms on which M. held it. The owners of the Patent commenced an action to restrain H. from using or dealing with the machine in infringement of the Patent, and moved for an interlocutory injunction, and by agreement the hearing of the motion was treated as the trial of the action.-Held, that although the machine passed to H., in the events which had happened he had no license to use it. An injunction to restrain infringement was granted with costs. BRITISH MUTOSCOPE AND BIOGRAPH CO., LD. v. HOMER, p. 177. 2. Exhibition of infringing articles without sale or intention of sale held to amount to user within the terms of grant of letters patent. DUNLOP PNEUMATIC TYRE CO., LD. AND OTHERS v. BRITISH AND COLONIAL MOTOR CAR CO., LD. DUNLOP PNEUMATIC TYRE Co., LD., AND OTHERS v. DE BREYNE, p. 313. USER-continued. 3. "If a person uses an invention to present his goods for sale, and "intending the thing exhibited to represent what he is going to sell, "and if part of that thing is an article which is an infringement and is "serving a useful purpose during that time by being exhibited as part "of the machine, I think it is a user of the invention." Per LORD ALVERSTONE, C.J., S.C., p. 315. UTILITY. Essential Utility. See per BUCKLEY, J. CASTNER KELLNER, p. 295. ATKINS & APPLEGARTH v. VALIDITY OF PATENT (WARRANTY OF). See RES JUDICATA. VARIANCE. See INFRINGEMENT. DIGEST OF TRADE MARK CASES. AGENT. See also COMPANY, No. 1. Sale of goods by. PARKER MANUFACTURING CO., LD. v. COOPER, p. 319. One sale by Defendant's former agent held not to entitle Plaintiff to relief. RUTTER & Co. v. SMITH, p. 49. ALTERATION OF TRADE MARK. Application for leave to alter. Leave granted subject to ."Limited " being printed at full length. The registered proprietors of three Trade Marks, on which the words "Holbrook & "Co." appeared in ordinary type, applied to alter those words to "Holbrooks, Ld.," the name of the then proprietors of the marks. Leave was granted to alter, subject to "Limited " being used in full instead of abbreviated. HOLBROOKS, LD.'S TRADE MARKS, p. 447. AMENDMENT. See REGISTRATION, No. 1. COSTS, No. 2. APPLICATION FOR REGISTRATION. See REGISTRATION. COLOURABLE IMITATION. See INFRINGEMENT. COMMITTAL. Breach by Agent of Injunction against principal, without his knowledge.-Action to restrain passing-off and infringement of Trade Marks.-Order made by consent for injunction to restrain passing-off and infringement.-Motion to commit for breach of this Order.-Advertisement.-Sale of goods during Defendant's absence and without his knowledge.-No order on motion.-No costs given to Defendant. PARKER MANUFACTURING CO., LD. v. COOPER, P. 319 COMPANIES ACT, 1862. Section 20. DAIMLER MOTOR CAR Co., LD. v. BRITISH MOTOR Section 41. PEARKS, GUNSTON, & TEE, LD. v. THOMPSON, TALMEY, COMPANY. See also TRADE NAME, Nos. 2, 4, and 7. 1. A limited Company held to be responsible for the misrepresentations of its servants, though they were acting contrary to orders. GRIERSON, OLDHAM, & Co., LD. v. BIRMINGHAM HOTEL AND RESTAURANT Co., LD., p. 158. 2. Injunction granted against the signatories of the Memorandum of Association of a Limited Company to restrain them from allowing the Company to remain registered under its present name. LA SOCIÉTÉ ANONYME DES ANCIENS ÉTABLISSEMENTS PANHARD ET LEVASSOR v. PANHARD-LEVASSOR MOTOR CO., LD. AND OTHERS and LA SOCIÉTÉ ANONYME DES ANCIENS ETABLISSEMENTS PANHARD ET LEVASSOR v. PANHARD Co., LD., AND OTHERS, p. 405. 3. Action to restrain registration of a Company with a name so nearly resembling that of an existing Company as to cause confusion. DAIMLER MOTOR CAR CO., LD. v. BRITISH MOTOR TRACTION CO., LD., p. 465. CONFLICTING MARKS. Probability of deception. POMRIL, LD.'S., APPLICATION, p. 181. COSTS. 1. Action to restrain passing-off and infringement of Trade Mark. Defendants submitting and agreeing to minutes of Order. Order whether to be obtained in Court or in Chambers. Costs. The Plaintiffs having commenced an action to restrain the Defendants from using the name "Gandy" and from infringing their registered Trade Marks, the Defendants agreed to submit and to pay the costs, including the costs of obtaining an Order of the Court in the cheapest possible manner, namely, by summons. Minutes of an Order having been agreed upon, the Plaintiffs served notice of motion for injunction, and the action came on in Court as a short cause. The Defendants raised the point that the Plaintiffs were only entitled to the costs which would have been incurred if the Order had been obtained in Chambers.-Held, without laying down any general rule on the subject, that the Plaintiffs were entitled to bring on the matter in Court and to the costs of the action.-GANDY BELT MANUFACTURING Co., LD. v. FLEMING, BIRKBY, & GOODALL, p. 276. 2. Amendment at trial.-Application for interlocutory injunction treated as trial.-Notice of motion claiming relief not asked by writ as to advertisements.-Failure of Plaintiffs as to relief asked by writ.Offer by Defendants.-Action dismissed, Defendants ordered to pay the costs down to and including writ, the Plaintiffs to pay the subsequent costs with a set-off. CLARKE v. HUDSON'S EXECUTORS, p. 310. CUSTOMERS. Who are the customers to be considered. See ALASKA PACKERS ASSOCIA- |