Reddaway & Co. Ld. v. Irwell and Eastern Rubber Company Ld. "to define and circumscribe and lay down in other words than are laid down "in the Rule, the jurisdiction and duties of the Court of Appeal; and certain "cases have been cited in which learned judges have used expressions with "regard to the particular facts before them, which, if they were to be taken to "be the law laid down as to all cases, would alter the effect of and would 5 "introduce words into the 15th Rule. I object absolutely to alter the words of, "or to introduce words into, the 15th Rule. That Rule must stand as it was "written; it must stand as it was adopted by Parliament; and what the Court "has in each case to do is to see whether there are grounds for the Court to give "the special leave; and I know of no rule other than this, that the Court has 10 66 power to give the special leave, and exercising its judicial discretion, is bound "to give the special leave, if justice requires that that leave should be given." Later on he refers to a case "which was heard when Lord Selborne was present "in the Court of Appeal " and says "he again pointed out, not only that those expressions which had been used were not sufficiently elastic, but he added 15 "this, that it is the most unsafe thing for the Court to use any expressions other "than the expressions which are in the Rule, because it is impossible for anybody who attempts to alter the wording of that rule by other interpretative "words to foresee all the cases which might arise." This judgment of Lord Esher seems to me to say that the Rule survives in perpetual youth. It is our duty 20 and our power to exercise discretion as to whether we shall give special leave. In this case I can see no injury whatever that is done by granting the special leave. I am satisfied that there was a bona fide mistake, and without in the least deciding that in all the cases of bona fide mistake there must be leave given, for that would lead the Court into the very error which I think Lord 25 Esher and Lord Selborne warned the Court against, I think that leave ought to be given in the present case. 66 66 BUCKLEY L.J.-Where the time limited by Order LVIII., Rule 15, has run, there is constituted what Lord Justice Cotton, in the Manchester Economic Building Society case, called a legal bar to an appeal.* No appeal will lie rebus 30 sic stantibus; but the would-be appellant may, under the Rules, apply to the Court of Appeal for an Order which, if granted, will allow the appeal to run. The question in all these cases is whether such a state of facts has arisen as that the Court ought to make that Order. On the one hand, the party who holds the benefit of the Order, sought to be appealed from, has an Order in his favour 35 which he is, prima facie, entitled to hold, and, in my opinion, these Rules, which endeavour, as far as possible, to bring finality to litigation, are not to be lightly departed from, I think that substantial reasons must be shown why a litigant, who has obtained an Order in his favour, and as against which the time for appeal has run, should be placed in a position of danger of being deprived 40 of the benefit of that Order. Of course, if the party holding the benefit of the Order has himself misled the intending appellant with reference to the proper time for appealing, no doubt that would be a sufficient reason for giving special leave, but it is erroneous to suppose that the equity, so to call it, of the intending appellant is confined to the case where the party holding the benefit of the 45 Order has misled him. There may be many cases in which he would be entitled to the Order. I find Lord Justice Cotton describing the right generally in these words: "It is sufficient if he (the intending appellant) satisfies the "Court that there is something, either in the acts of the respondent or from "other circumstances, which entitled him to be relieved and to be allowed to 50 "appeal notwithstanding the time has elapsed." I think it would be the greatest misfortune if this Court were ever to lay down that the mere fact that the intending appellant has made a mistake is a sufficient reason. His opponent is entitled to say: "You must not make a mistake; the time has run within which * L.R. 24 C.D. 488, at page 499. Reddaway & Co. Ld. v. Irwell and Eastern Rubber Company Ld. "you are entitled to appeal; it is not enough for you simply to come and say, 'I “'did not know my practice; I was bona fide, and I made a mistake.'" There must be something more than that, no doubt. What there must be more, must depend on the circumstances of each particular case. One circumstance, I 5 think, certainly to be weighed is whether, if the Order is made, the respondent to the application will be injured. If he had changed his position consequent upon the Order being, as it is until the leave is given, a final Order, that would be a matter which would weigh very much with the Court; but if he has not changed his position, and if purely, as between the parties, the matter may be 10 re-considered by a Court of Appeal without doing any injury to the other side, and if the Court is satisfied that the intending appellant, acting perfectly bond fide, has made a mistake, justifiable under the circumstances, which was induced, not by the acts of his opponents, but by that which he was entitled to rely upon from other parties, then I think this Court ought to take that 15 matter into consideration. I am not going to read at length Mr. Blair's affidavit. The substantial reasons upon which I found my judgment will be found in paragraph 3 of that affidavit. Shortly stated, it is that the question of appealing was one which was prominently before the intending appellant, or his solicitor, from the 20 first; that there was a bona fide intention from the first to prosecute an appeal; that an inquiry was made of what is called the Chancery clerk of the High Court at Manchester as to the time for appeal; that he unfortunately gave erroneous advice as to what the time was; that the solicitor repeatedly asked his clerk whether he was keeping the matter in view so as to be in time for 25 appealing, and that the omission to give notice within due time was simply a mistake caused by that state of facts. The time within the Rule would expire on the 11th of October. The notice of appeal was given on the 24th of October, 13 days too late. Of course those 13 days in October, by themselves, were of no importance to anybody. On all the facts of this case, I think that the 30 intending appellant bond fide intended, from the first, to appeal; that his mistake was, if I may so express it, a bona fide legitimate mistake, and that he ought to be relieved from the consequences of it and be allowed to appeal-of course on the proper terms as regards costs. Jenkins K.C.-I have agreed, subject to the approval of the Court, to let the 35 present notice of appeal stand instead of having a fresh notice; the appeal not to come on before the first day (that is merely for the purpose of identifying a day) on which Palatine appeals are taken in the next term. VAUGHAN WILLIAMS L.J.-Mr. Clauson's clients must pay the costs of this application. In the Matter of Scott's Patent (No. 18,593* of 1903). IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE PARKER. January 19th, 1907. IN THE MATTER OF SCOTT'S PATENT (No. 18,593* of 1903). Patent.-Petition for revocation.-Order for revocation by consent, but only 5 to be lodged in certain events. This was a Petition for revocation of Letters Patent (No. 18,593* of 1903) granted to Benjamin Scott for "Improvements in the manufacture of tinplate "and articles therefrom." The Patent had been held to be invalid for want of subject-matter by Kekewich J. and the Court of Appeal in Hudson. Scott & 10 Sons Ld. v. Barringer, Wallis and Manners Ld. (23 R.P.C. 79 and 502). time for appealing to the House of Lords would not expire until the 17th of July 1907. The Petitioners were the Defendants in the above-mentioned action, and the alleged grounds of the invalidity were the same as those alleged in that action. The The Petition came on for hearing before Mr. Justice PARKER on the 19th of January 1907. D. Fulton (instructed by C. U. Fisher) appeared for the Petitioners; Walter K.C. and Byrne (instructed by G. B. Ellis) appeared for the Respondents. 15 After some discussion the following terms were agreed upon :-"By consent. 20 "Order for revocation. Order not to be lodged at Patent Office until after the "17th of July 1907. If appeal presented to House of Lords by Plaintiffs in "action of Hudson, Scott & Sons Ld. and Sir Benjamin Scott v. Barringer, "Wallis and Manners Ld., Order not to be lodged until after judgment in "House of Lords. If no appeal to the House of Lords presented, or if appeal 25 "fails in the House of Lords, costs of Petition to be paid by Respondents. If appeal to the House of Lords successful, Order for revocation to be discharged "and costs of Petition to be paid by Petitioners." 66 Newellite Glass Tile Company Ld. v. Lawson's Non-conducting 5 IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE KEKEWICH. January 17th and 18th, 1907. NEWELLITE GLASS TILE COMPANY LD. v. LAWSON'S NON-CONDUCTING Patent.-Action for infringement.-Construction of Specification.-Limitations on claiming clauses.-Prior publication.-Judgment for Defendants. 1066 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 15 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, that the Plaintiffs' Patent was for the process described in the Specification which included gas tar; and that, as the Defendants' process did not 20 include coal tar, and their backing was sprinkled with a material which was non-absorbent as regards pitch, they had not infringed; and that there must be judgment for the Defendants with costs. 66 On the 11th of May 1898 Letters Patent (No. 10,807 of 1898) were granted to James Tyrrell Newell and Arthur Miller for an invention of an Improved 25" treatment of glass for coating purposes as a backing for slabs, tiles, facing plates, and the like, and for light reflection and other purposes." The Complete Specification, which was dated the 11th of May 1898, was as follows:-"This invention has for object, the preparation of a plastic compound "or body as a base for the back of sheet glass, and subsequent treatment of 30 "same by a coarse granulated material, and the after combination by heat to "constitute a rough backing on to which Portland or other like cement can "be placed and which when set forms a key for attachment to walls, the articles "thus prepared serving as slabs, tiles, facing plates and the like, and are "available for reflecting light into dark places such as in basements of buildings, areas, as wall facings in lieu of glass faced or enamelled bricks or glazed tiles. They can be of any kind of glass but preferably opal with a clear front, and 35" 66 H 66 66 66 66 66 Newellite Glass Tile Company Ld. v. Lawson's Non-conducting "can be arranged in any manner, and if desired in frames for securing to a wall, or be suspended at any desired angle as daylight reflectors for producing a "soft tone of light pleasant to the eye instead of harsh rays, as by the present systems. The slabs or glass sheets prepared as above are available for the "walls of bath rooms and lavatories, around sinks, the sculleries, and other 5 66 places where cleanliness and sanitation are desirable. This invention is "carried out as follows:-We take a sufficient quantity of British pitch, say, " 100 lbs. and after boiling it to a consistency of thick paste we add a small quantity, say, 5% of gas tar and well stir this in, and, if the boiling be "continued, we add another 5% of gas tar, and so on until the mixture is of 10 "about the consistency of ordinary paint and capable of being brushed, while hot, on to the back of the glass, the coatings being laid on until of sufficient depth as to receive a sprinkling of coarse granulated clinker or coarse coke "breeze having absorbent properties. The sheets or pieces of glass thus far prepared are allowed to cool, they are then arranged face downward on trays 15 "and sprinkled with the coke breeze or clinker and pushed into an oven with top heat only to re-melt the tarry pitch into which the clinker or coke breeze "by its absorbency clings and sinks, leaving a rough uneven coat which when "the glass is removed from the oven becomes quite hard by exposure and "forms a key to which Portland, Roman, Keenes, or other known cements can 20 "be spread and be built up, or, by protecting the edges of the glass by a lip "edging, a wash of cement can be poured into the pitch backing and be "impressed with any device, or be scored, or by grating like mould can be "chequered or roughened up ready for use such as for plastering on to walls or as before explained. The sheets or pieces of glass previous to the foregoing 25 "treatment can be ornamented in colour or otherwise in imitation of mosaic, or "may be prepared after the style described in a previous Patent No. 14,852 "dated 2nd August 1894." 66 66 66 The Patentees claimed :-" 1. The herein before described process or means "for coating slabs, tiles, and the like from glass in pieces or sheets with a 30 "compound of boiling pitch having from 5 to 15% of gas tar mixed therein "and on to which granular clinker or coke breeze is sprinkled as an absorbent, "submitting the material to top heat in a furnace for the thorough association "and rendering the same ready for receiving a floating of ordinary cement, as "and for the purpose or purposes set forth. 2. Treating the back of opal glass 35 "sheets with a combined pitch and gas tar mixture, covering the same with a coarse granular absorbent body, and subjecting the so coated sheets to top "heat for complete association prior to backing up by cement, as and for the 66 purpose or purposes described." On the 16th of March 1906 the Newellite Glass Tile Company Ld., as the 40 registered legal owners of the Patent, commenced an action for infringement against Lawson's Non-conducting Composition Ld., claiming the usual relief. By their Particulars of Breaches the Plaintiffs alleged that the Defendants had on divers occasions infringed their said Patent by making, selling and using in this country glass slabs, tiles and the like coated and treated in the 45 manner described in the Specification, in infringement of the claiming clauses, and they in particular complained of "Victorite" tiles so coated and treated. The Defendants by their Defence stated as follows:-" (1) The Defendants "have not infringed the Plaintiffs' Patent, No. 10,807 of 1898, and do not "threaten or intend to infringe the same as alleged or at all. (2) The said 50 "Letters Patent are void and of none effect." By their Particulars of Objections the Defendants stated :-"(1) The alleged "invention was not new at the date of the said Letters Patent having regard to "the common and public knowledge at the date thereof, and Claims 1 and 2 of "the Specification are wanting in subject-matter. (2) The alleged invention 55 "was published within the realm prior to the date of the said Letters Patent |