IMPROVEMENT-continued.

Patent of 1907.-Held, that the Patent of 1907 was not an improvement on the Patent of 1903, but was for a separate and distinct invention; also that the invention was made after the 14th of November 1906. Relief was granted to the Plaintiff accordingly, and the Counterclaim was dismissed. DAVIES v. DAVIES' PATENT BOILER CO. LD., p. 823.

INFRINGEMENT. See also PROCESS.

1. Mechanical equivalent.-Patent held to be infringed where the Defendant had merely substituted for one of the parts of a combination a mechanical equivalent. BESTON v. WATTS, p. 19.

2. Patent held to be for the machine specified and not to be infringed by a machine performing the same sequence of operations by other means.-Action for infringement.-Construction of Specification.-Infringement not found.-Judgment for Defendants. -Appeal dismissed. The owners of Letters Patent for "Improvements "in machinery for breaking pig iron " brought an action for infringement. The Patentees in their Specification described mechanism for feeding the mass into position, clamping it, breaking off pigs from the sow, and breaking the sow, and for each of these operations they described plungers working in ram cylinders. In their first Claim they claimed the machine comprising the four rams for the four operations, substantially as described. The Specification stated that plungers, instead of being operated by hydraulic power, might be actuated by steam or other motive agent. In the Defendants' machine the operations were effected by means of eccentrics, toggle links, levers, and cams, off a mechanically driven shaft, whereas the Plaintiffs' machine had no revolving parts. The question of infringement turned on the point whether the Claims were confined to machines such as described and operated by means of rams, or whether they included machines with similar or analogous working parts operated by means of a power driven shaft. It was held at the trial (24 R.P.C. 7), that the Plaintiffs could only claim the invention specified-that is, the machine with four rams for four definite purposes-and that the Defendants had not infringed. The action was dismissed with costs. The Plaintiffs appealed. The appeal was dismissed with costs. MARTIN AND JAMES v. CONSETT IRON CO. LD., p. 27.

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3. Patents held to be for particular combinations and not to be infringed.-Construction of Specification.-State of the art.-Novelty. -Utility.-Infringement.-Mechanical equivalents. S. & Co. were owners of a Patent (No. 25,490 of 1898). The first Claim was :(1) Side lights or windows for ships and other structures in which "the glazed sash slides in a movable frame that is connected to the "stationary frame in such manner that it can by a cam or other suitable "means be moved slightly away from the said frame while keeping parallel therewith for enabling it to be opened and be pressed watertight against the said frame in the position for being closed so that "shutters may be dispensed with, substantially as set forth." Watertight sliding windows or doors had previously been patented, but none had been put on the market. A practicable watertight sliding window for ships was a desideratum in the trade. S. & Co. did not put the window patented as above on the market, but in 1901 they caused a Patent to be taken out for an improved window (No. 8551* of 1901). This window had a large sale. B. & Sons made and sold windows

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INFRINGEMENT-continued.

according to the Specification of a Patent owned by them (No. 19,245 of 1905) in which was claimed :-"(1) In a window of the type "described " (i.e., in which a window frame counterbalanced by springs slides in a fixed frame) "a counterbalanced window frame carried "between guides on a fixed frame and secured by wedges acting "between parts on the fixed frame and the faces of the sides "of the window frame and operatively connected to a transverse "shaft adapted to be rotated to operate the wedges by a handled lever "or by gearing." S. & Co. brought an action against B. & Sons to have it declared that the Defenders' windows were an infringement of No. 25,490 of 1898 and No. 8551* of 1901, and for interdict and damages. B. & Sons pleaded no infringement, and also that the Pursuers' Patents were bad on account of prior publication and want of novelty, and that the 1898 Patent was bad for want of utility.Held, that in the state of the art in 1898 there was no room for a Patent whereby all means of mechanically rendering sliding windows watertight should be claimed; but that on the construction of the Specification of the 1898 Patent it did not claim all such means but only a particular combination with that object and that that combination was new; that the 1901 Patent also claimed a particular new combination; that the 1898 Patent was not void for want of utility, there being no reason, but for the advent of the 1901 Patent, why it should not have been successfully put on the market; that the Defenders' 1905 Patent was also a Patent for a particular combination; that the wedges described as an element in that combination were not mechanical equivalents for the movable frame described as an element in the combination in the 1898 Patent; and that the Defenders' combination was different from either of those described in the Pursuers' Patents. Interdict was refused. STONE & Co. LD. v. BROADFOOT & SONS LD., p. 313.

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4. Patent held to be for a particular machine and not to have been infringed.-Action for infringement.-Subject-matter.-Prior user.— Construction of Specification.-Infringement not found.-Judgment for Defendants.-Appeal dismissed. The owner of, and the sole licensees under, Letters Patent for "Improvements in implements "for the cultivation of land" brought an action for infringement, in which the Defendants contended that they did not infringe, and alternatively that, if the Claims included what the Defendants did, then the Patent was invalid. The seventh Claim of the Specification, as amended, was: "In a cultivator, the combination of "tines having the points of their shares perpendicularly below the "centre from which the curve of the working part of the tine is struck, or thereabouts, a bar or frame carrying such tines, a shaft carried by "the machine frame and from which such bar or frame is sup66 ported, means for enabling the tine bar or frame to be tilted "around said shaft to enable the tines to be raised entirely out of the ground or lowered into working position, and means for enabling "the angle of the cranks by which the said shaft is supported on the "carrying wheels to be varied, substantially as herein shown and "described." The Plaintiffs alleged that the chief feature of their invention was the combination whereby parallel working at different depths could be obtained when two or more rows of tines were used in a cultivator. The Defendants' cultivator differed from that of the Plaintiffs in several respects, including the use of two levers, one at each end of the machine, instead of one lever, and in having a through

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NFRINGEMENT-continued.

shaft fixed to the frame instead of being journalled to it. It was held at the trial that, upon the true construction of the Specification, the Claim was for a combination, but limited to the particular mode of carrying it out described in the Specification, and that the Defendants had not taken the patented invention and had not infringed. The action was dismissed with costs. The Plaintiffs were granted a Certificate that the validity of the Patent had come in question (24 R.P.C. 722). The Plaintiffs appealed. The appeal was dismissed with costs. Where a Specification described a particular machine, varied as therein stated, and the Patentee contended that rotating round a common centre so as to get parallelism was the governing idea of the Patent, held that, if he desired to claim all machines which would produce that result, he ought in his Specification to state and claim in explicit terms that principle. HARRISON PATENTS Co. LD. v. W. N. NICHOLSON & SONS LD., p. 393.

5. Defendants held to infringe by the use of an apparatus falling within the Claims of a Specification construed in a previous action.-Action for infringment.-Validity not denied.―Judgment for Plaintiffs.-Certificate of validity granted in prior action.-Certificate to deprive Plaintiffs of solicitor and client costs refused. A Patent was granted in 1901 for "Improvements relating to the extraction of dust "from carpets and other materials." The Specification stated that it was essential to practical success to drive by power the pump employed for producing a vacuum and to maintain a vacuum of at least 5 lbs. per square inch at the filter used, and that it was only to extractors working with a considerable vacuum that the Claims related. In a previous action for infringement of a Patent a Certificate of the validity of the Patent had been granted. In the present action for infringment of the Patent the Plaintiffs claimed costs as between solicitor and client. The Defendants denied infringement but not validity. At the trial they alleged that the cyclone apparatus used by them for extracting the dust from the air drawn into the instrument was substantially different from the Plaintiffs' filtering medium, and that, although they used a power pump and a vacuum of about 5 lbs. at the pump, the construction of their extracting implement was such that there was not the considerable vacuum described in the Plaintiffs' Specification as essential to practical success.-Held, that the Defendants' cyclone, with their water filter, was a mere mechanical equivalent of the Plaintiffs' filtering medium; that, in the absence of evidence of prior knowledge the Court was bound by the construction put upon the Specification in the previous action; that the Defendants used an extractor working with a considerable vacuum ; and that they had infringed. An injunction was granted and a Certificate depriving the Plaintiffs of solicitor and client costs was refused. The infringing dust extracting instruments were ordered to be delivered up within fourteen days, and (the Defendants having refused the Plaintiffs' offer to accept 60l. as damages) an inquiry as to damages was directed. BRITISH VACUUM CO. LD. v. EXTON HOTELS Co. LD., p. 617.

6. Where Defendants had manufactured an article, which was in certain respects an improvement on the patented combination, it was nevertheless held to be an infringement of the Patent. A Patent, even for a combination, cannot be evaded by merely grafting upon it improvements however meritorious. Per Lord SALVESEN in LYNCH and HENRY WILSON & Co. LD. v. JOHN PHILLIPS & CO., p. 694.

INFRINGEMENT-continued.

7. Patent held to be for a particular machine, and the Defendants' machine held not to be substantially identical in construction. -Action for infringement.-Construction of Specification.-Alleged anticipation.-Patent held to be valid, but not to have been infringed.— Appeal dismissed. The owners of Letters Patent for "Improvements "in the construction of automotor waggons and similar road vehicles," brought an action for infringement of the same, in which the Defendants denied infringement and alleged the invalidity of the Patent on the ground of (inter alia) anticipation. The Claim was for "a steam "automotor waggon or similar steam-driven road vehicle the main "frame of which is formed of two side girders bracketed or connected "to the boiler at the smoke-box and at the fire-box end and carries the "steam engine (mounted upon the boiler) as well as the waggon body, "substantially as herein described and illustrated." The merit of the invention was that it allowed for the expansion and contraction of the boiler, and prevented it from being subjected to undue strains. It was held at the trial, that the invention was a narrow one, and that the particular place and method of attaching the boiler to the side girders, having the rigid connection at the front end of the boiler, and the connection allowing of expansion and contraction at the rear end of the boiler, were of the essence of the invention, and that on this construction of the Specification the Patent was valid, but had not been infringed by the Defendants' vehicle which differed among other respects in having an attachment of the boiler at the fire-box end giving horizontal rigidity, and having a special method of providing for expansion and contraction at the smoke-box end of the boiler. The action was dismissed, the Plaintiffs being given the costs of the action so far as related to validity, and the Defendants being given the costs so far as related to infringement, with a set-off; a Certificate that the validity of the Patent had come into question was granted. The Plaintiffs appealed on the question of infringement.-Held, by the Court of Appeal, that the Defendants had not infringed, their machine not being substantially identical in construction with the patented machine. The appeal was dismissed with costs. FODEN v. WALLIS AND STEVENS LD., pp. 501 and 783.

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8. Utilisation by the Defendants of the same natural law as was used in the patented process, but for a different purpose and in a different way. Patents held not to be infringed.Action for infringement of two Patents.-Construction of Specification.-Infringement not found.-Judgment for Defendants.Certificate of Validity granted in respect of one of the Patents. A Patent was granted in 1898 to F. E. E. for "Improvements in separating metallic from rocky constituents of ores and apparatus there"for." The first Claim was "Process for separating the metallic from "the rocky constituents of ore by mixing the pulverised ore, first "with water in considerable quantity, then adding to the mixture an "oil of the kind described, which adheres to the metallic constituents "but not to the wet rocky constituents, allowing the water carrying "the rocky material to subside while the oil carrying metallic "constituents floats above, and separating the oil from these con"stituents, substantially as described." In 1901 Letters Patent were granted to A. S. E. for "An improvement in separating mineral "substances by the selective action of oil." The Claim was "The "method herein described of promoting the separation of mineral "substances by the selective action of oil, by adding to the mixture

INFRINGEMENT-continued.

"of ore, water and oil, a proportion of acid." The owners of the Patents brought an action for infringement complaining of the use of a process of ore separation in which the selective action of oil on ores in the presence of a large volume of water was utilised, and also of the use of acid in such process. It was contended, on behalf of the Plaintiffs, that the 1898 Patent was a Patent which covered all processes in which the selective action of oil on ore and water in a flowing pulp is used, and that the 1901 Patent covered all processes in which acid was used to promote such selective action. It was contended on behalf of the Defendants that the 1898 Patent was a Patent for a definite process only, that the process used by them was different, and that there was no infringement; as regards the 1901 Patent, that the invention was not defined in the Claim, and that, if the Claim was wide enough to include the process used by the Defendants, the Patent was invalid.-Held, that upon the true construction of the Specification, the 1898 Patent was a Patent for a process, in which the known law of selection by oil was utilised with a view to obtain the carrying up of the metallic particles by the oil to the surface, the specific gravity of the metal and oil together being less than that of water, that in the Defendants' process the same law was utilised for the purpose of greasing the metallic particles in such a way that it did not materially affect their specific gravity, that the two processes were in substance different, and that the Defendants had not infringed. The Patent was held to be valid, and a Certificate that the validity came in question in the action was granted.-Held, as regards the 1901 Patent, that the construction sought to be put upon the Specification by the Plaintiffs was too wide to support a valid Patent, and that upon the narrow construction necessary for the validity of the Patent the Defendants did not infringe. The action was dismissed with costs. BRITISH ORE CONCENTRATION SYNDICATE LD. v. MINERALS SEPARATION LD., p. 741.

9. Infringement not found. The word "fluid "held to be confined to a fluid in the ordinary sense and not to include a jelly-like substance. The fact that the jelly-like substance became in some instances, but after some time, a fluid, held not to constitute infringement.-Construction of Specification.-Alleged infringement.-Alleged infringement by change after manufacture.— Infringement found at the trial.-Appeal allowed and Defenders assoilzied. H. R., the Pursuer, was assignee of a Patent (No. 20,905 of 1905) for an improvement in golf balls. The first Claim in the Specification was for "a ball for use in the game of golf, made with a core or nucleus of incompressible fluid forced into and contained "within a receptacle of elastic material which when expanded to the "required size, is closed and thereafter wound round with rubber thread "or tape, substantially as herein before described." The description referred to contained the following passages :-"I substitute for the core hitherto used a core consisting of an incompressible fluid such "as water or other liquid or semi-liquid," and "Any convenient "incompressible fluid having no detrimental action on the receptacle "such as water, treacle, glycerine or the like may be used to form the "core." J. P. C. & Co. were licensees and manufactured largely under the Patent, using water for the core. They also manufactured a ball

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* It has been held on appeal that the 1898 Patent was valid, but had not been infringed, and that the 1901 Patent was valid, and had been infringed.