INFRINGEMENT-continued.

Certificate of validity previously obtained did not apply to the Specification in its form as last amended. A Certificate of validity was given and also a Certificate under Section 20 of the Patents &c. Act, 1883, that the original Claim had been framed in good faith and with reasonable skill and knowledge. The Court declined to make an Order for a stay of execution or for an undertaking as to costs. J. B. BROOKS & Co. LD. v. RENDALL, UNDERWOOD & CO. LD., p 17.

3. The Plaintiffs' process held not to have been proved to be taken. -Construction of Specification.-Limitations on claiming clauses.Prior publication.-Judgment for Defendants.-Appeal dismissed. The Plaintiffs were the owners of a Patent granted in 1898 for "Improved treatment of glass for coating purposes as a backing for slabs, tiles, facing plates, and the like," which consisted in painting on to the back of the glass tiles a hot mixture of British pitch and gas tar, and sprinkling thereon coarse granulated clinker or coarse coke breeze having absorbent qualities. The Defendants were alleged to have infringed this Patent by backing glass tiles with a mixture of pitch, "marine glue" (a kind of pitch), and shellac, sprinkled with broken pottery which was of a non-absorbent character as regards pitch. The Defendants alleged anticipation by certain other Specifications as part of their defence.-Held, at the trial, that the Plaintiffs' Patent was for the process described in the Specification which included the addition of gas tar; and that, as the Defendants did not introduce gas tar, and their backing was sprinkled with a material which was non-absorbent as regards pitch, they had not infringed. Judgment was given for the Defendants with costs. The Plaintiffs appealed.-Held, on Appeal, that the Plaintiffs' Claims only covered the use of material with absorbent properties of the type of those possessed by breeze or granulated clinker, and that the Plaintiffs had not proved that the broken pottery of the Defendants was within the fair meaning of these Claims. The appeal was dismissed with costs. NEWELLITE GLASS TILE CO. LD. v. LAWSON'S NON-CONDUCTING COMPOSITION LD., pp. 101 and 305.

4. Chemical Equivalent. Patent held to be infringed by Defendants, who had replaced a small portion of the substance mentioned in the Specification, namely, aluminium, by silicon, another metal capable of reducing oxide of iron. THERMIT LD. v. WELDITE LD., p. 441.

5. Patent upheld on a limited construction, but Defendants found not to have infringed.-Subject-matter.-Prior user.-Certificate granted that the validity of the Patent had come in question.-Judgment for Defendants. 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 supported, means for enabling the tine bar or frame to be tilted "around the 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

INFRINGEMENT-continued.

"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 shaft fixed to the frame instead of being journalled to it.-Held, 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. HARRISON PATENTS CO. LD. . W. N. NICHOLSON & SONS LD., p. 722.

6. Defendant not appearing at the trial.-Judgment for Plaintiffs.Certificate of validity granted. SODASTREAM LD. v. DAVEY, p. 763.

66

7. Construction of Specification. Defendants held not to infringe. -Judgment for the Defendants. This was an action by a Patentee for infringement of Letters Patent relating to "Improvements in or relating to rim brakes for velocipedes and the like." The Plaintiff contended that he was the first to invent rim brakes having brake blocks readily detachable without the use of tools or screws, and that the Claims in his Specification, in which were described means of applying this feature of detachability by the use of a spring arch, were wide enough to cover the Defendants' device in which a spring arch was differently applied for the same purpose.-Held, that the Claims relied upon were narrow; that if the Claims were given a broad construction the Patent would be invalid; and that the Defendants had not infringed. The action was dismissed with costs. BOSWORTH v. COMPONENTS LD., p. 765.

INSUFFICIENCY. See SPECIFICATION (SUFFICIENCY OF).

INTERLOCUTORY INJUNCTION. See also LICENCE, No. 2.

Refused on account of Plaintiffs' delay. The owners of a Patent for safety razors sold them in boxes, to each of which was affixed a limited licence containing the restriction that the razor therein should not be resold by any retailer or advertised for sale at less than one guinea. The owners of the Patent brought an action to restrain the Defendants from breaking this condition or from otherwise infringing the Patent, and moved for an interlocutory injunction. An injunction was granted by the Vacation Judge until the second motion day in the Michaelmas sittings, when on the Plaintiffs asking for an injunction until the trial it appeared that, although they had made complaints to the Defendants in March 1906, they had only commenced their action in October 1906. The Defendants set up the Plaintiffs' delay, and also alleged that they had a defence on the merits.-Held, that under the circumstances an interlocutory injunction ought not to be granted, and, the Defendants undertaking to keep an account, no Order was made, except that the costs should be costs in the action. GILLETTE SAFETY RAZOR CO. v. A. W. GAMAGE LD., p. 1.

1. Covenant in licence under Patents held to be limited to the term of the licence which was coterminous with the Patents and not in restraint of trade and to be valid.-Covenant alleged to be in undue restraint of trade.-Construction.-Covenant held valid.Judgment for Plaintiff. In 1903 the Plaintiff granted to the Defendants a licence by Deed to use, within a certain district, the inventions protected by three Patents granted to H. in 1897 and relating to the employment of ferro-concrete in the construction of buildings. The Deed contained a covenant by the Defendants that they would not at any time, without the written consent of the Plaintiff, carry out, or contract to carry out, any ferro-concrete or other similar work which might be an infringement of the Patents or be in competition with them. In an action to restrain breaches of the covenant, the Defendants, who were builders having a large business both in, and outside of, the district, alleged that the covenant, if valid, would prevent them using at all in the United Kingdom in their business the modes of building construction which they had used before the date of the licence; they contended that the covenant was wider than was necessary for the protection of the Patentee and injurious to the public interest, and was in undue restraint of trade, and void. They tendered evidence to show the scope of the Patents, the modes of building prior to, and subsequent to, the date of the Patents, the extent and nature of the Defendants' business at the date of the licence, and the effect which the covenant would have upon their business, and what, having regard to the nature of the Patents, was necessary for the protection of the Patentee. The Defendants also contended that the Plaintiff was, as the agent of H., incompetent to sue.-Held, that the Plaintiff was competent to sue; that the restraint under the covenant continued only during the existence of the licence, which was coterminous with the Patents, and did not extend beyond what was reasonably necessary for the protection of the trade of the covenantee, and was valid, and that the evidence tendered by the Defendants was inadmissible. Judgment was given for the Plaintiff with costs, but with a set-off of the costs of certain allegations; and an inquiry as to damages was directed to be referred to an official Referee. MOUCHEL v. WILLIAM CUBITT & CO., p. 197.

2. License held, on Motion for interlocutory injunction, to be an exclusive licence, and injunction granted to restrain Patentee from either directly or indirectly using, exercising, or putting in practice the Patent, and from manufacturing or causing to be manufactured,'otherwise than by the Plaintiffs, the patented articles. RAPID STEEL Co. v. BLANKSTONE, p. 529.

MECHANICAL EQUIVALENTS. See also INFRINGEMENT, No. 4.

66

Equivalents in Chemistry. "Counsel for the Respondents met the "difficulty by saying that in chemical Patents there is no such thing "as the application of the doctrine applied in the case of mechanical equivalents, and Mr. Astbury argued very confidently that the authorities, from the House of Lords downwards, showed that you "cannot apply the doctrine of mechanical equivalents to a chemical "Patent. I cannot agree. The doctrine does apply in cases where, having regard to the subject-matter, it can be truly asserted that one "of two or more chemical substances is well known as producing the same effect on the same subject-matter." Per VAUGHAN WILLIAMS L.J., IN THE MATTER OF ANDREWS' PATENT, p. 366.

66

MISREPRESENTATION.

Of proceedings in Court. GILLETTE SAFETY RAZOR Co. v. A. W. GAMAGE LD. See CONTEMPT OF COURT, No. 1.

66

1. Patent held to be invalid by reason of anticipation of one of the Claims.-Action for infringement.—Anticipation.—Invention.-Infringement.-Patent held invalid.-Judgment for Defendants.-Appeal by Plaintiffs dismissed. The owners of a Patent for Improvements "in boot-nailing machines" brought an action for infringement. The Specification described improvements in details, each of which was made the subject of a separate Claim, The Plaintiffs contended that the whole new machine was designed to accomplish certain specified objects which were new, and that each improvement claimed tended to the furtherance of those objects as a whole, and that therefore the Claims should be limited in construction and be held valid. They alleged infringement in respect of the eighth Claim only. It was held at the trial that the Claims must be construed separately, and that each must stand on its merits; that certain of the Claims involved no invention and that others were anticipated; also that on a wide construction the Eighth Claim would be invalid, while on a narrow construction there was no infringement. Judgment was given for the Defendants (23 R.P.C. 321). The Plaintiffs appealed. On the hearing of the appeal the Plaintiffs contended that the eighth Claim, if construed with regard to the whole Specification, was valid, but they admitted that on a wide construction it was invalid.-Held, that the eighth Claim was too wide and was invalid. The appeal was dismissed with costs. BRITISH UNITED SHOE MACHINERY CO. LD. v. HUGH CLAUGHTON LD., p. 33.

2. New Combination of known elements to produce new and important result.-Claims held to be appendant and not for subordinate integers.-Patent held valid.-Mechanical equivalent.-Patent held to be infringed.-Judgment below affirmed on appeal. V. B. was grantee of a Patent (No. 5567 of 1898). The first Claim in the Specification was for " a machine for slicing German sausages or polonies and other "the like meat goods characterised by the arrangement of a revoluble "circular knife of spherical or dished form and a table having a "to and fro movement adapted to carry the polony or the like with it against the said knife in the direction of the cut whilst during the "return of the table (which is executed quickly relative to the forward movement) the polony is moved forward on the table to the width of

66

66

NOVELTY-continued.

66

66

66

66 a slice." The second Claim was :-- "In a machine for slicing German sausages or polonies and the like meat goods, a cutter consisting of a revoluble circular knife having a spherical or dished form whereby "only the cutting edge of the circular knife comes in contact with the polony or piece of meat during the slicing, substantially as and for "the purposes herein before set forth." The third Claim was :-" In a "slicing machine of the kind described" for the means of reciprocating the table; and the fourth and fifth Claims were for the means of moving forward the polony the breadth of a slice. It was proved that a slicing machine for sausages and the like was a desideratum, but that none had been invented that would work satisfactorily before that of V. B., and that the latter worked well and was a commercial success. Dished knives were old, but had never been employed before V. B.'s invention in a slicing machine or in any similar manner. The reciprocating mechanism was old but had never been before applied to a slicing machine, though reciprocating tables of different designs had been used. The method of moving forward the polony was old, and closely resembled that used in former machines. Kolbe's Specification, No. 579,486 of 1879, U.S.A. (which had been published in this country) was for a "device for cutting bread," which consisted of a flat knife or irregular edge, a reciprocating table and mechanism. similar to V. B.'s for "moving forward the bread the breadth of a "slice." In the above circumstances S. contended that V. B.'s Patent was invalid, on the grounds that it was anticipated by Kolbe, and that the Patentee had in Claims, 2, 3, 4, and 5 claimed the dished knife, the reciprocating mechanism and the mechanism for moving forward the sausage as substantial inventions; that as such they were plainly void for want of novelty, and that the Patent was therefore bad. S., the Respondent, manufactured slicing machines having a dished knife, a reciprocating table, and a device for moving forward the sausage, the first and last of which were clearly mechanical equivalents of those used by V. B., while the second differed from V. B.'s in that the backward and forward motion took place in approximately the same time, so that the slow forward and quick backward motion-a characteristic of V. B.'s machine-was not obtained.-Held, by the Lord Ordinary (1) that V. B.'s Patent was for a new combination for producing an entirely new and important result, and was not anticipated by Kolbe; that Claims 2, 3, 4, and 5 were not for subordinate integers, but only appendants to the principal claim, and that as such they were valid; that the differentation in the Respondent's machines had no practical advantage or utility, and that S.'s mechanism was a mechanical equivalent for that of V. B. Interdict was granted (23 R.P.C. 237). The Respondents reclaimed. to the first Division of the Inner House, which upheld the Lord Ordinary's Judgment on all points. VAN BERKEL v. R. D. SIMPSON LD., p. 117.

3. Patent held not to have been anticipated and invention held to be sufficiently described and defined. BESTON v. WATTS, p. 219. See SPECIFICATION (SUFFICIENCY OF), No. 1.

4. Claim held not to be for particular arrangement and construction, but to be so wide as to cover what was old.-Action for infringement.-Subject-matter.-Novelty.-Patent held valid-Judgment for Plaintiffs as against one Defendant.--Appeal by that Defendant allowed.--Patent held invalid. In 1897 a Patent was granted to H. for "Improvements in piles, quays, and retaining walls or structures,"