Dunlop Pneumatic Tyre Company, Ld. v. Moseley & Sons. straight threads cemented together, but the special use of it in a card foundation. What we have reserved to ourselves in the agreement is the exclusive use of this fabric for tyre covers. The cloth to which we object is substantially the same, because the threads are substantially straight and not curved by the 5 crossing of the weft, so as to be incapable of elongation by straightening. It is immaterial whether the threads during the process of manufacture are held together by a weak weft as in the "string cloth" or by being caught on a sheet as in the process described in the Specification. 66 or JOYCE, J.-In this case the parties have entered into an agreement, dated the 10 16th of September 1896, which recites that "the firm "--that is the Defendants in this action-" are the owners of British Letters Patent, No. 11,804, dated 11th "of August 1888, for a certain character or description of cloth herein called "the Flexifort Patent Cloth,' and the Company desire to have the exclusive use of such cloth for tyre covers, which the firm have agreed to comply with 15" on the terms and conditions which hereinafter appear." "The firm shall, during the continuance of this agreement, make the Flexifort Patent Cloth "for the tyre covers for the Company only, and shall not make, use, sell, dispose of such Flexifort Patent Cloth' to any other person or persons or "firms," and so on. Now, in this agreement it appears to me that, to some 20 extent at all events, the term "Flexifort Patent Cloth," which is the subject of the agreement, is defined by the parties themselves, and I think that by virtue of this recital and the reference to the Patent-at all events I go so far as to say so-prima facie the "Flexifort Patent Cloth," the subject of this agreement, is cloth which is made under the Patent here referred to; or, in other words, is 25 cloth which, if made by a person not entitled to use the Patent, would be an infringement of the Patent. 66 66 66 This action is an action by the Company against the firm for an injunction "to restrain the firm, their agents and servants, from continuing to make, use, sell, or dispose of a cloth known as Flexifort Patent Cloth' without the 30 "consent of the Plaintiffs, in writing, to persons other than the Plaintiffs." That is founded upon an allegation that the Defendants, that is to say the firm, are selling such cloth to persons other than the Plaintiffs without their consent, it being agreed between the parties that the particular cloth in question, as to which the complaint is made, is the cloth which has been called and referred to 35 as "string cloth." Although it has been referred to as "string cloth," I did not hear that it was called "string cloth" by anyone but the Defendants themselves. However, it is sufficient for the purpose to refer to it in my judgment as the string cloth" mentioned in the evidence. The question is whether that "string cloth" is "Flexifort Patent Cloth" within the meaning of that 40 expression in the agreement. Now there is no doubt whatever as to what the cloth is that has been supplied to the Company by the firm under the terms of the agreement. Specimens of that cloth have been produced and are marked. Still, there may be some other and similar cloths, somewhat different, yet such as may be properly designated "Flexifort Patent Cloth," and within the 45 meaning of that term of the agreement. As I have said before, it goes almost without saying that what the letters contain and what passed during the negotiations between the parties which resulted in the conclusion of this agreement, can have no effect upon the construction of the agreement, and I myself do not attach much or any importance to the fact that the Company rejected, in 50 the way they did reject, the "string cloth," and have had supplied to them the particular cloth of which specimens have been produced. At the same time the correspondence may be referred to, and properly referred to as it seems to me, to show in what way the term "Flexifort " was used and understood between the parties. It is not an ordinary English word; it appears to be a trade desig55 nation. The idea intended to be conveyed by it is obvious enough. I have not had an opportunity of reading through all the shorthand notes, but to my mind Dunlop Pneumatic Tyre Company, Ld. v. Moseley & Sons. there is no very satisfactory evidence as to the exact meaning of the word "Flexifort," and I am disposed to think at present that the " string cloth" which is in question in this case, looking at the way in which the word has been used by the parties, is not "Flexifort," whether it is patent or not. "Patent" is an ordinary English word of which we know the meaning, and in 5 order that the "string cloth" may be properly called "patent" within the meaning of that term in this agreement, putting aside any question of fraud or anything of that kind-I mean a fraudulent evasion of the Patent-it must be something which is made either under the Patent, or at least it must be something which, if inserted as a layer in the card foundation of the Patent, 10 would be an infringement of the Patent. Is the "string cloth" in question "Flexifort Patent Cloth"? The Patent generally is for a special layer or ply, I think somebody called it, of straight threads without weft and not a textile fabric at all; whereas the "string cloth" is a textile fabric. It has warp threads; though I agree the threads in the warp are close and strong and the 15 threads in the weft are few and far between and comparatively weak, still it is a textile fabric, and in my opinion-I may be wrong-it is essentially different from the special layer which is described in the Specification of the Patent. I do not know whether it is seriously suggested that these few threads in the weft have been inserted for the purpose of fraudulently evading this agreement; 20 but, if it be seriously suggested, then I am of opinion that that suggestion is not supported by the facts of the case. The "string cloth" was well known before the agreement, and the conclusion at which I have arrived is that the "string cloth," the subject of the discussion here for the last two days, is not "Flexifort Patent Cloth" within the meaning of that term in the agreement. 25 The consequence is that this action wholly fails, and must be dismissed with costs. Case v. Cressy. IN THE COURT OF APPEAL. Before LORDS JUSTICES RIGBY, COLLINS, and ROMER. June 27th and July 1st, 1901. CASE. CRESSY. 5 Patent.-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 10 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 15 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. Edward Case obtained on the 25th of June 1896 Letters Patent for "Improved 20" construction or arrangement of shore groynes." The Complete Specification and drawings were as follows :— "This invention has for object, constructing shore groynes from a combina"tion of upright or anglewise arranged timbers in couples with lower ends set "in concrete beds preferably from about mean sea level to low water mark and 25 "land-wards from the same point to the shore or sea wall, the spaces between "the upright or angle timbers having horizontal planks let in or slipped down "to form intermediate screens. I have referred to timber but metal uprights "and plates, or a combination of metal and wood may be employed. 66 Case v. Cressy. "To carry my invention into practice and as shown in the annexed drawings, "I prepare a series of baulks or planks A, A, with bolt holes B, B, Figures 1 "and 2, where necessary. Two of such planks A I bolt together at top and at "bottom with distance pieces C, D, between them, one C serving as a foot with "ends projecting, and the other for removal afterwards for reception of ends of 5 "topmost horizontal planks E, Figure 3, which are dropped into position on "edge to fill up the gap between two sets of uprights. For placing these "uprights in position, I dig a hole F in the sand or earth G at intervals starting preferably at mean sea level or low water level or thereabouts and set one or "more of my coupled uprights A in position, at the same time I fill or nearly 10 "fill the hole with cement concrete H which surrounds and imbeds the lower "ends of the uprights. I then cover the concrete with sand or earth to the "ordinary level of the beach G, I repeat this with a second couple of uprights "and concrete at the requisite distance nearer the sea or river wall, and set or slip my horizontal or screen planks E in position and so work up to the wall J 15 "in stages. I purpose cutting a channel between each set of uprights, so that "the bottom horizontal planks of the screens are embedded in the sand. The "horizontal planks need not be in contact along their longitudinal edges but spaces may be left where desired for the water to ooze through, and if necessary the uprights A can be set anglewise to form sloping sides, and any 20 "number of such with the screens can be so arranged that with a broad base "and a narrowed top where they can be bolted they can resist the rolling "action of the waves or swell of the water during rising tides, or from under "currents. 66 66 66 "At Figure 3, I show a short groyne or screen such as where the beach has a 25 "sharp slope, while at Figure 4 I show a long groyne or screen such as for a "comparatively shallow beach. "The rapidity with which a groyne on my principle can be prepared and set "in position is marvellous as compared to the time occupied in digging, shoreing, "strutting, and then tying in position by angle set struts or props driven into 30 "the beach at a distance from the groyne itself. "The ground line in Figure 4 shows the approximate level assumed by "shingle, sand, or the like next the shore, and according to the usual practice "in making a groyne the top is generally carried up to a uniform inclination as "indicated by the dotted line a, a, Figure 4, this indicating a useless waste of 35 "timber which my system is intended to prevent. 66 "It will be gathered from the foregoing that all my timber work can be prepared on shore, so that it has only to be carted to the spot as each hole is "dug and the uprights be set in place gradually moving shore-wards or sea"wards according to the desire of the contractor. It is also to be noted that 40 "practically no plant or preparation other than the above is necessary, so that "at the shortest notice advantage can be taken of an extraordinary low tide "caused by favourable wind or otherwise to extend the groyne sea-wards. "Little or no skilled labour will be necessary as the central position for "the digging of the holes can be readily staked out for guiding the 45 "digging labourers who also after inserting the uprights simply hold them. "vertically while the cement concrete is shot in preferably from a cart to find "its own packing, the action of the water of the inflowing tide effecting the "consolidation. Should the sand or shingle be washed up to about the top "of the groyne, said groyne can be easily raised in height by securing 50 "fresh uprights to the existing horizontal planks and then to insert fresh "horizontal planks as before. This will be understood by the dotted lines in "Figure 3." The Patentee claimed "The construction of shore groynes in the manner "described, by preparing braced uprights, inserting them in holes, fixing them 55 "by cement concrete, and finally screening the intermediate spaces by Case v. Cressy. "horizontal planks, or their equivalents as set forth, the structure taking the "form shown on the annexed drawings." In 1897 Thomas Alfred Cressy, who was clerk to the Clacton-on-Sea Commissioners, inspected some groynes constructed by the Plaintiff at Dym5 church, and shortly afterwards wrote to the Patentee asking his terms for permission to construct groynes under the Patent. The Commissioners and the Patentee were unable to agree upon terms, and the negotiations fell through. Shortly afterwards the Commissioners constructed shore groynes, which the Patentee alleged were made in infringement of his Patent. He thereupon 10 commenced an action against Cressy, as clerk of and representing the Commissioners, claiming an injunction and damages. By his Particulars of Breaches he alleged that the Commissioners had infringed his Patent by constructing and using shore groynes of the same construction in all respects (or so near thereto as to be colourable imitations thereof) as the shore 15 groynes described in his Specification (No, 14,115 of 1896) and the Figures 1, 2, and 3 of the drawings, |