Van Berkel and Others v. R. D. Simpson Ld. In the case of British Dynamite Company v. Krebs, already referred to, the patentees claimed the mode of manufacturing the dynamite, or "safety-powder," &c., "and also the modes of firing the same by special ignition." The modes of firing there described were not new, but the Patent was upheld. It was in this case that Lord Cairns drew the distinction: "He does not claim the means 5 "of ignition in gross, but only as appendant to dynamite." I think that this distinction is sufficient to save the Specification, though I cannot commend the Specification as a piece of intelligent drafting. On the third branch of the case-the question of infringement-I am satisfied that the Respondents' machine is in fact an infringement of the Complainers' 10 patent-right. But I do not propose to add any observations of my own on this subject, because I agree with all that the Lord Ordinary has said in his opinion, and on this question of fact I accept the view of the Judge before whom the evidence was taken. LORD KINNEAR concurred. LORD PEARSON.-The Complainer holds Letters Patent for a meat-slicing machine, which were issued in 1898 and amended in 1905. The invention, as the Specification bears, has for its object a machine for slicing German sausages and the like meat goods, in which a rotating circular knife of spherical or dished form is arranged for cutting the sausage. The Complainer seeks to have the Respondents interdicted from selling machines which infringe his Patent. The Respondents deny the infringement, and, further, they attack the validity of the Complainer's Patent on various grounds. It is convenient to consider first the latter group of questions. 15 20 The first ground of attack on the Complainer's Patent is, that the subject- 25 matter of it was not patentable, it being a combination of well-known elements, without any invention or ingenuity being involved either in the combination itself or in the application of it to the new use. In my opinion this objection is not well founded in fact. The combination itself, regarded in its essential features, was a new combination, involving both a new idea and a new and 30 most valuable result. The evidence shows that other inventors had been trying to produce an effective machine for the purpose, and had failed; and Mr. Van Berkel describes the efforts which he himself made before he produced this machine. Professor Hudson Beare puts it, I think rightly, as a question of degree; and he admits that the Complainer's machine shows ingenuity, though 35 not in his view sufficient ingenuity to support a Patent. In my view the selection of the essential features and their combination in one compact machine, actuated with ease by a single handle, shows sufficient inventiveness to satisfy the requirements of Patent Law under that head. Such a machine was wanted; and, while there had been attempts to solve the problem, there is no evidence 40 that meat was ever sliced by a machine before or that meat could have been effectively sliced by any existing machine. Certainly no machines having all the Complainer's essential features had been put on the market, nor any machine which solved the difficulties of the problem practically and commercially. It is not conclusive, but it goes a long way to support the Complainer's case-that 45 his machine at once took and held the market, and has from the first been a commercial success. The next objection raises an important question on the construction of the Complainer's Specification and Claims. Primarily the Patent is for a combination. But as is often done, though never without some risk to the validity of 50 the entire Patent, the draughtsman, after formulating his claim as a whole, has gone on to select certain leading parts of the combination, and has set them forth one by one as being to some extent and effect claimed by him. The question is, to what extent and effect? That is a question to be determined on the construction of the Specification and Claims as a whole. If these minor 55 Claims are, as the Respondents maintain, intended to be separable and to stand each by itself, then, if any one of them is open to the objection of want of Van Berkel and Others v. R. D. Simpson Ld. novelty, the whole Patent is challengable as it stands. On the other hand, these minor Claims may be inserted merely for the purpose of making it clear what the inventor regards as the important parts of his combination, and not as substantive Claims to have invented those parts. That is quite a legitimate way 5 of framing a Claim, and, as I have said, the document must be construed fairly and as a whole, in order to determine as to each subordinate Claim whether it is an independent Claim for an invention, or whether it relates back to the leading combination Claim and is a mere pendant to that. I must say I think this is a somewhat narrow question upon the construction of this Specification; 10 but my opinion on it is in favour of the Complainer. I acknowledge the difficulty arising from the circumstance that the first head of claim was amended, and that prior to that amendment the shape of the circular knife (as being "of "spherical or dished form ") appeared in Claim 2 and not in Claim 1: and further that Mr. Van Berkel holds to it that the dish-shape of the circular 15 knife was an original invention of his own, and that he was not aware that it had been used in other trades for cutting other substances. The record (in statement 4) distinctly puts forward the dished knife used by the Respondents as being an infringement of the Complainer's machine. But in my opinion he had no intention of claiming, and did not claim, the dish-shaped knife generally, 20 and apart from the purposes of his machine. His Provisional Specification and his unamended Complete Specification both bore on the face of them that the invention was a combination which included a circular knife of that particular shape; the subject-matter of the invention being described as a machine for slicing meat goods in which a rotating circular knife of dished form is arranged 25 for cutting the meat. This being so, one does not expect, after reading the Specification, to find the knife claimed separately as an independent invention in Claim 2, any more than to find the "Whitworth" lever claimed separately as an invention in Claim 3. Accordingly, in each clause of the Claim there is a distinct reference back to a "machine for slicing German sausages and the 30 "like;" and I read the expression "substantially as and for the purposes herein"before set forth," occurring at the end of Claim 2, as applying to and conditioning the whole of that Claim. I hold with the Lord Ordinary that these and the other minor Claims "are not, as matter of fair construction, made as "subordinate integers, but as appendant only to his principal claim for the 35 "invention." Then it is said, that assuming the validity of the Complainer's Patent, the invention was anticipated by Kolbe's Patent, published in 1897. Kolbe, however, missed what is by far the most important member of the combination,. namely, the dish-shaped knife; and I think it is a just inference from the 40 Proof that his machine was, as the Lord Ordinary said, not intended to perform nor capable of performing the meat slicing-operation of the Complainer's Patent. I am satisfied with the way in which the Lord Ordinary has dealt with this part of the case. The Complainer's Patent being thus supported on all points, it is further 45 incumbent upon him in this application to show that it has been infringed by the Respondents' sale of the Brinnhauser machine. I think he has shown this quite clearly. Not only are the two machines very similar in appearance, but they are in great part substantially identical in arrangement and design; and where Brinnhauser's differs from the Complainer's, the differences consist in 50 the use of mechanical equivalents to serve the same purposes, but not always to serve them so well. I am therefore of opinion that the interlocutor should be affirmed. The judgment of the Lord Ordinary was sustained with costs. In the Matter of Dawson's Patent. IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE KEKEWICH. January 18th and 21st, 1907. IN THE MATTER OF DAWSON'S PATENT. Patent.-Petition for revocation.-Patent revoked with the consent of the 5 Patentee. A Petition was presented for revocation of Letters Patent (No. 15,150 of 1894) granted to B. Dawson for an invention of "Improvements in gas producers." The Attorney-General had given his fiat for presenting the Petition. The Petition was mentioned on the 18th of January 1907, when KEKEWICH J. 10 asked for authorities that a revocation Order could be made by consent, and the Petition came on again on the 21st of January 1907. H. A. Colefax (instructed by Radford and Frankland) appeared for the Petitioner; J. H. Gray (instructed by W. H. Smith) appeared for the Respondent. 15 Colefax for the Petitioner.-The Respondent is here and he consents. Your Lordship wanted me to produce authorities that a petition for an Order for revocation can be made by consent. There are several. There is Clifton's Patent (21 R.P.C. 515; L.R. (1904) 2 Ch. 357), and there are Sleight's Patent (10 R.P.C. 447) and Wilkinson's Patent (11 R.P.C. 298). The head note in 20 Clifton's case in the Law Reports is "A Petition for revocation of a Patent should be heard in open Court and not, even by consent, in chambers." That was the point in that case. There was a consent, and when the matter came on in Court an Order was made by consent for revocation. [KEKEWICH J. -I entirely agree, if I may say so, with what Mr. Justice Buckley said about 25 the first point.] He deals with that point and then ends his judgment, "I pronounce judgment for revocation by consent.' KEKEWICH J.-That is enough. 66 Colefax.-I do not ask for costs, but simply for an Order for revocation. 30 Stroud v. Humber Ld. IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE PARKER. December 5th, 6th, 7th, and 21st, 1906. STROUD v. HUMBER LD. 5 Patent. Subject-matter. - Novelty. - Anticipation found. - Patent held invalid.-Action dismissed with costs. A Patent was granted in 1905 for "Improvements in transmission, change speed and reversing gear for automobile vehicles." The improvements consisted in employing a U-shaped locking plate, each arm of which had a tooth capable 10 of engaging at one time in notches in two of the three push rods, thereby preventing those rods being moved by the operating arm by which the third push rod was moved. The locking plate was, in one form of the device, suspended vertically from the axle by means of which it was caused to slide into position and by which the operating arm was rotated, or, in a modification, it was fixed 15 horizontally. An action for infringement of the Patent having been brought, it was suggested by the Defendants at the trial that they were the inventors of the device. It was admitted by the Defendants that the Plaintiff's device was an effective simplification of certain previous devices described in Specifications that were alleged to be anticipations, but they contended that the essential features of it 20 were described in those Specifications. The Defendants also admitted that if the Patent was valid they had infringed. Held, that there was no foundation for the suggestion that the Defendants were the inventors of the Plaintiff's device, but that the four characteristics of the Plaintiff's locking plate were not new, either considered separately or in 25 combination, and that any departure made by him from what was known before required no exercise of inventive power. The action was dismissed. 30 On the 1st of July 1905 Letters Patent (No. 13,551 of 1905) were granted to John Stroud Gwyer William Stroud for " Improvements in transmission, change speed and reversing gear for automobile vehicles." 66 The Provisional Specification was as follows:-"In certain descriptions of trans"mission change speed gear with reversing means to change the direction of travel "of the vehicle, longitudinal sliding rods are moved to and fro to move the sliding "wheels of the change speed gearing. These sliding wheels are mounted in pairs on sleeves. Each of these rods is toothed at its outer end and a slot or 66 66 66 66 Stroud v. Humber Ld. a toothed segment on the spindle of the gear changing lever may be moved "endways to engage with any one of them. The gear changing lever mounted on a cross spindle works in a quadrant or grid sector fixed to the side of the "vehicle having three or other number of guide slots communicating by gateways; the lever when in its vertical position may be moved sideways along 5 "its shaft from one slot to the other and takes the tooth or toothed segment "with it, it may then be rocked into one end or the other of its slots to throw "the change wheels into gear; the reversing slot extends on one side of the 66 gate only. Devices have been provided for locking two of the bars when the "third is in operation and the segment has been coupled to the clutch so that 10 "this is automatically disengaged whilst the gearing is being changed. 66 "The second motion shaft drives the compensating gear shaft by bevel wheels "and this drives the road wheels by chains and so on. Such toothed parts "when being shifted from one notch or engagement to another are apt to "disarrange the notches and longitudinal rack rods and considerable trouble 15 "and loss of time is often involved in the task of reinstating them. To remedy "this I have provided a slotted or notched and undercut holding bar and guard plate, capable of sliding over and in the notches or gates and this notch, or "slot of this plate, or bar is of the same width as the notch, or gate in the "longitudinal slide bars controlling the change speed wheels. The tooth or 20 segment arm passes through the notch in this guard plate and into the gate or "notch of the longitudinal arm and as the tooth arm is traversed it carries with "it the guard plate and holding sliding bar which contacts with the gated ends. "This guard plate engages the gated ends of the longitudinal tooth or rack bars "and prevents their movement, except the one that is co-incident with the slot 25 66 or groove in it and can be moved by the tooth or segment of the depending arm "but not the others. The guard plate and holding and sliding bar are carried "by supports which traverse in bearings suitably carried by the framing." 66 The Complete Specification commenced by repeating the portions of the Provisional Specification, ante, page 141, line 30 to line 2 supra, and supra 30 line 9 to line 16, and continued " Fig. 1 is a plan view showing the gear"changing lever in the fourth speed or direct drive (sometimes called the top "speed) slot, and the locking or guard plate retaining the reverse and first and "second speed changing rods for actuating the change gear. Fig. 2 is a sec"tional end view of the parts illustrated in Fig. 1 showing the recesses into 35 "which the projections formed on the guard plate and arm engage, for actuating "the rod that moves the wheels into and out of engagement for the varied "speeds. Fig. 7 is a modification in the arrangement or positioning "of the locking guard plate e, said plate herein being arranged horizontally "instead of vertically although it moves in the same plane as it does in the 40 "previous construction. 66 "The gear-changing lever a mounted on a cross spindle b works in a quadrant "or grid sector c fixed to the side of the vehicle, having three or other number "of guide slots 1, 2, 2a, 3 and 3; 1 is the reverse slot, 2 the first or lowest speed, 2a the second speed, 3 the third and 3a the fourth or direct drive, com- 45 "municating by gateways 4. The lever a when in its vertical position may "be moved sideways along with its shaft from one slot to the other and takes "the footh or toothed segment with it, it may then be rocked into one end or "the other of its slots 1, 2, 2, 3 or 3a, to throw the change wheels into gear; the reversing slot 1 extends on one side of the gate only and may if so desired 50 "have a hinged piece fitting into it preventing accidental entry of the change "lever a. 66 "In the construction illustrated, the cranked or slotted bar e is arranged so as to be slidable, with the parts 4, 5, in the groove formed of the gates 6, 7 " and 8, respectively slotted or notched in the respective change speed slide 55 "rods 9, 10, 11, and the parts 4 and 5 fit the parts 6, 7 and 8. The arm ƒ (mounted as an adjustable fixture on the cross spindle b) passes through the 66 |