NOVELTY-continued. The first Claim was for piles formed of bars of iron embedded in béton and cross tied by cramps; the third Claim was for a form of cap for use in ramming the piles. In an action for infringement of the Patent against three Defendants C. and W. and a firm (W. & S.) it was proved that the firm was licensed by C. to work certain Patents of C., that W. was C.'s agent, but that neither C. nor W. had taken any part in the acts of which complaint were made. The Plaintiffs' piles were being extensively used. Evidence was given by the Defendants showing that in 1897 strengthened concrete (also called ferro-concrete), such as was used by the Plaintiffs, was a well-known material and had been used for various purposes, but not for piles, though the Specification of B. described the construction of piles with trussed framing and wirework enclosing and incorporated with concrete, and the Specification of S. described a similar mode of construction of posts, pillars and railwayties, and a note of a foreign Patent of the Defendant C. mentioned the construction of piles in cement with metallic framework. At the trial it was held that the Patent was valid, and that W. & S., but not C. or W., had infringed Claim 1, but not Claim 3. The action as against C. and W. was dismissed with costs. An injunction was granted against W. & S. on Claim 1 with costs, with a set-off of the costs on Claim 3, but the injunction was suspended as to specified works (23 R.P.C. 649). The Defendants W. & S. appealed.-Held, by the Court of Appeal, that a wide construction must be put upon the Specification, and that the first Claim was not confined to piles capable of being driven, and that the Patent was invalid, the alleged invention having been anticipated. The appeal was allowed with costs. The difference between discovery and invention discussed. MOUCHEL v. COIGNET, p. 229. 5. Patent held to be anticipated by prior user. Prior grant not found.-Action for infringement.-True and first inventor.-Prior publication and prior user.-Prior grant pleaded.-Construction of Specification of alleged prior grant.—Prior grant not proved.-Prior user proved.-Costs.-Set off. The owner of a Patent (No. 22,894 of 1894) for "Improvements in drop-down guns" brought an action for infringement. The invention consisted of certain improvements in single trigger guns to prevent the involuntary discharge of the second barrel after the firing of the first. A firer, on the recoil of the gun, unconsciously releases the trigger and involuntarily and unconsciously gives it a second pull. An interceptor was introduced by the Patentee, which prevented the trigger mechanism from engaging the second barrel, but which was removed by the second or involuntary pull. The Defendants pleaded (inter alia) that the Patent was invalid-(1) By reason of the prior manufacture, use, and publication of certain guns containing the invention during the year 1883; (2) By reason of the manufacture and use of guns similarly constructed during the months of July to November 1894; (3) That the Patentee was not the true and first inventor, who was N; and (4) By the prior grant to N. of a Patent for the same invention (No. 13,130 of 1894). The Plaintiff in his Reply stated that the alleged prior grant was (a) for a two-pull as distinguished from his three-pull mechanism; or (b) alternatively, if it was for a three-pull mechanism it was invalid for disconformity or for insufficiency of the Specification; and (c) that the plea of prior grant was bad in law.-Held, that prior invention by another will not of itself avoid a Patent granted to a subsequent true inventor; that N. had in fact invented the Plaintiff's device before the date of his Patent, but that it was not published before that date; that the alleged user by NOVELTY-continued. firing the guns at a private range was not of such a nature as to invalidate the subsequent Patent of the Plaintiff; that the plea of prior grant was good in law, but on the true construction of N.'s Specification there was no prior grant of the patented invention, N.'s Patent being invalid for insufficiency; that there was prior user of the invention by the manufacture and use of the guns made in 1883, and the Patent was invalid on that ground. Judgment was given for the Defendants, with the general costs of the action and of those of the anticipations proved, the Plaintiffs to have a set off of the costs of the issue as to N. Where an invention has proved a commercial success, evidence of anticipation by prior user must be examined with the greatest care and caution. ROBERTSON v. PURDEY, p. 273. 6. Patent held not to be anticipated. IN THE MATTER OF BROWN'S PATENT, p. 313. See SUBJECT-MATTER, No. 2. 66 A 7. Patent held not to be anticipated, the Specification, which was alleged to be an anticipation, being either limited to something excluded from the Claims or being unintelligible.-Petition for revocation.-Construction of Specification.-Sufficiency of Specification.-Disconformity. - Prior publication.- Subject-matter.- Patent ordered to be revoked at hearing.-Appeal allowed. A Patent was granted in 1901 for "Improvements in conditioning or improving "the quality of recently ground flour, semolina, or the like." Petition was presented for the revocation of the Patent on the grounds of disconformity, want of novelty, want of subject-matter, inutility, and insufficiency of directions. One of the Claims was as follows:--" In "the process of conditioning flour and the like, passing the same with "full exposure through an atmosphere containing a gaseous oxide of "nitrogen or chlorine or bromine oxidising agent in the gaseous or vapourised state." It was stated in the Complete Specification that, preferably, nitric acid or nitrogen peroxide was caused to act upon the flour by forcing a current of air over or through the oxidising agent employed, and into contact with the flour, and an apparatus for the purpose was described and shown. The use of ozone as an oxidising agent was excluded. In the Provisional Specification it was stated that "the invention consists essentially in exposing the flour to the action "of nascent oxygen or a gaseous oxidising agent whereby nascent "oxygen is produced in the flour," and that the oxidising agent preferred was air passed through nitric acid. The objection of disconformity was that the process claimed did not accord with the statement of the invention in the Provisional Specification. A Specification of F. was relied on as an anticipation. This Specification described a process of bleaching grain or flour by subjecting it "to the action of "nascent oxygen or ozone in the various forms of oxygenated water, "ozonised water, ozonated oxygen, or ozonated air.' It was also alleged that, except as to nitrogen peroxide, the alleged invention. was not useful and the directions given in the Specification were insufficient. The Respondents contended that "nitric acid" meant "fuming nitric acid" of specific gravity 1.52, but that, even if (as the Petitioners contended) the expression meant the acid of specific gravity 1-42, that acid would (contrary to the Petitioners' contention) have the desired effect. Evidence was given on behalf of the Petitioners to show that the bleaching effect of nitrogen peroxide and of chlorine was not produced by oxidation. It was held at the hearing that there was no disconformity; that "nitric acid" in the Specification had the meaning which the Petitioners contended that it had, but that the NOVELTY-continued. objection to validity based on this failed; that, whether or not the bleaching effect was due to oxidation, it was attained by the means that the Patentees described; but that the Patent was invalid by reason of the prior Specification of F. An Order for revocation was made (23 R.P.C. 441). The Respondents appealed.-Held, by the Court of Appeal (Vaughan Williams L.J. dissenting) that the Petitioners ought not to be allowed to amend their Particulars of Objections by including an allegation of disconformity on the ground that the use of nitrogen peroxide was mentioned in the Complete but not in the Provisional Specification; also (Vaughan Williams L.J. doubting) that disconformity had not been established; further, that the Patent was not anticipated by F.'s Specification which (per Farwell and Buckley L.JJ). was confined to oxidation by ozone and (per Vaughan Williams L.J.) was unintelligible; and that the Patent was not invalid for want of subject-matter. The appeal was allowed, with costs on the higher scale. IN THE MATTER OF ANDREWS' PATENT, p. 349. 66 8. "An invention which is practically useless is not an anticipation of a subsequent invention which achieves success, even although there is "considerable similarity between the two." Per FARWELL L.J. in IN THE MATTER OF ANDREWS' PATENT, p. 349 at p. 371. 9. Patent held not to cover an arrangement that would not achieve the result described, and held also not to be anticipated. EVANS V. HOSKINS AND SEWELL LD., p. 517. See SPECIFICATION (CONSTRUCTION OF). See 10. Patent held to be novel, useful, and the invention held to be good subjectmatter. IN THE MATTER OF MAX MÜLLER'S PATENT, p. 465. UTILITY, No. 2. 11. One Patent sued on held on Appeal not to have been anticipated, and to have been infringed. Appeal dismissed as to other Patent.-Actions for infringement of wo Patents.-Construction.Novelly-Subject-matter.-One Patent held invalid; the other Patent held not infringed.-Actions dismissed.-Appeal as to one Patent allowed and Patent held valid and infringed.-Appeal as to the other Patent dismissed.-Costs on higher scale and of three Counsel. In 1895 a Patent was granted to B. for "Improvements in pneumatic and "similar hand tools." Claims 42 and 43, which were alleged to have been infringed, related to the handle of the hammer and means for controlling the admission of pressure to the tool through the handle. Claim 15 related partly to a constantly open port or passage forming a communication between the valve chamber and the rear end of the piston chamber. In 1896 another Patent was granted to B. for "Improvements in pneumatic hammers and hammers and valve mechanism "therefor." The alleged improvements consisted partly in employing a cylindrical shell valve, with differential areas, placed near the rear end of the piston chamber so that the piston passed through the valve. Claims 13 and 14 were alleged to have been infringed. Claim 13 related partly to a live air passage leading directly from the source of supply to the piston chamber through the wall of the latter and independently of the piston, and Claim 14 related partly to the provision in the piston of a circumferential groove, by means of which the live air passage was placed in communication with a passage leading from the piston chamber to the larger area of the valve. Claim 7 related partly to an auxiliary passage, opened by the movement NOVELTY-continued. of the valve, to admit an additional supply of motive fluid to the larger area of the valve. Three actions were brought for infringement-in the first two actions, of both Patents, and, in the third action, of the second Patent only. The hammers alleged in the first two actions to infringe the 1895 Patent were substantially the same.-Held, at the trial, as to the 1896 Patent, that it was not limited to a hand pneumatic hammer, but extended to any pneumatic hammer to which the combination therein described was applicable; that the Claims were for subordinate integers; that Claims 13 and 14 failed for want of subjectmatter and because they had been anticipated, and that Claim 7 also had been anticipated; and, as to the 1895 Patent, that Claims 42 and 43 had not been infringed and were bad by reason of anticipation and want of subject-matter; and that it was doubtful if Claim 15 had been anticipated. All the actions were dismissed with costs on the higher scale, and the costs of three Counsel were allowed (23 R.P.C. 666). The Plaintiffs appealed.-Held, by the Court of Appeal, that, as to the 1895 Patent, the appeal should be dismissed; and as to the 1896 Patent (Cozens-Hardy M.R. dissenting) that the Patent was valid and had been infringed, and that the appeal in respect of it should be allowed.* An injunction and an inquiry as to damages were granted. The Respondents were ordered to pay three-fourths of the Appellants' costs of the Appeal, and costs on the higher scale and of three Counsel were allowed. CONSOLIDATED PNEUMATIC Co. LD. v. CLARK; SAME v. SIR W. G. ARMSTRONG, WHITWORTH & CO. LD.; SAME v. INGERSOLL SERGEANT DRILL CO., p. 593. 66 66 12. Paper anticipation. "A paper anticipation may be a very serious "anticipation, and, although there may have been no practical carrying "out of the prior Specification, yet if that Specification was reasonably clear, and reasonably would enable a person to work or to make the patented article, it practically would have the same effect as if the "article had been made in many cases. But where the article has not "been made, where the Specification alleged as a prior publication, "fairly read, does not show the subsequent invention that is patented, "and would not, fairly construed, lead any person to make such an article, then I think you cannot say that the prior publication "invalidates the invention when all that can be said is that if you look "at some Figure there you will see something which approximates to "the invention patented.' Per ROMER L.J. in EVANS v. HOSKINS 66 AND SEWELL LD., p. 526. OPPOSITION. See GRANT OF PATENT (APPLICATION FOR). PARTICULARS OF OBJECTIONS. See also COSTS, No. 3, and NOVELTY, No. 7. 1. Leave to amend in the course of an appeal refused. A Petitioner for revocation of a Patent, having raised an Objection of disconformity on one ground, at the hearing questions were put to witnesses to show disconformity on another ground, and the latter point was taken in the summing up of the Petitioner's counsel, but no leave to amend the Particulars of Objections was asked for.-Held, that leave to amend the Particulars of Objections ought not to be given on appeal. IN THE MATTER OF ANDREWS' PATENT, p. 349. * The decision as to this Patent has since been reversed by the House of Lords. D PARTICULARS OF OBJECTIONS-continued. 2. Construction of. Amendment. Where in an action for infringement of several Patents the Defendants by their Particulars of Objections alleged inutility against all the Patents, and against one Patent alleged inutility on the ground that the invention was claimed as operating with all oxides, but was useless with many, and on being required to give further particulars of that plea, gave a list of particular oxides and also of some sulphides and chlorides with which the invention was alleged to be useless, the Defendants' counsel at the trial were not allowed under the general plea of inutility to put questions to show that the invention would not work with other oxides or with other sulphides or chlorides, and, the further particulars having been given more than six months before trial, leave to amend the Particulars was refused. THERMIT LD. v. WELDITE LD., p. 441. 3. Further Particulars not ordered of an objection that the Specification did not sufficiently define the extent or limits of the invention. Action for infringement.-Particulars of Objections.Alleged insufficiency of Specification. Further Particulars applied for.-Application refused.-Patents &c. Act, 1883, Section 5. În au action for infringement of two Patents, the Defendants alleged in their Particulars of Objections to one of the Patents (2) that the Complete Specification did not describe and ascertain the invention or in what manner it was to be performed, and under this head stated that they would rely (inter alia) on the defect (a) that the Specification did not sufficiently define the extent or limits of the invention claimed; another alleged defect related to insufficient description of a substance to be used. The Plaintiffs applied for further and better Particulars of 2 (a) and of a similar objection to the second Patent, and the application was adjourned into court.-Held, that the Defendants ought not to be required to give further Particulars at the then present stage of the action. The application was dismissed with costs. BRITISH ORE CONCENTRATION SYNDICATE LD. v. MINERALS SEPARATION LD., p. 790. PATENTS, &c. ACT, 1883. Section 5 BRITISH ORE CONCENTRATION SYNDICATE LD. v. MINERALS Section 11 IN THE MATTER OF AN APPLICATION BY JAMES YATE JOHNSON Section 25 IN THE MATTER OF FRIESE-GREENE'S PATENT, p. 464. Section 29 MICA INSULATOR CO. LD. v. BRUCE, PEEBLES & CO. LD., p. 393. PETITION. See REVOCATION; and PROLONGATION. |