Martin and James v. Consett Iron Company Ld.

There is

of the combination. The breaking rams are not claimed with suitable methods of clamping and feeding, but the Claim is for a machine worked by rams as opposed to one working by revolving actuation. So in the second Claim the words "actuated feeding ram" might well have been omitted if 5 it were not that ram actuation was intended to be emphasized. Again, in the third Claim, the reference to the third ram shows the same thing. nothing inconsistent with this construction in the Specification. The last paragraph in the Specification bears this out. It means that steam or compressed air could be used in the cylinders instead of water. The third sentence in the 10 Specification bears out this construction. It is not open to the Plaintiffs to put a construction on the Specification which would not be open if the alleged infringement had come before the Patent. If the infringement had been put forward as an anticipation, the Plaintiffs would have relied on the limited language of the Specification-namely, that ram actuation was insisted on, and 15 that such a thing as the Defendants' machine was excluded. As to Claim 4, there is no subject-matter. If the novelty of the pig breaking machine is there relied on, it is simply covered by the previous Claim. The Defendants do not infringe unless they come within the language of the Specification (Dudgeon V. Thomson L.R. 3 App. Cas. 38 at page 40). In that case the patentee set out 20 with a new principle, which the defendant also used, but that did not entitle the patentee to go outside the language of the Specification. Here the Plaintiffs must say that, although the Defendants are not within the words of the Specification, they take the substance of the invention. The eccentric in the Defendants' machine which moves the wedge is not a ram. Also, the 25 Defendants have no feeding ram.

J. Swinburne gave evidence for the Defendants.

66

Walter K.C. in reply. This is a pure question of construction. The paper written by Marley which has been referred to shows that the Defendants' devices may be called "rams." The Patentees say that the machine may be 30 preferably actuated by hydraulic power, but that steam power may be used. The Defendants seek to limit the machines to those in which a motive fluid is used. But motive agent" is perfectly general. The Defendants' machine is not actuated by fluid under pressure, but by steam, and the changes made are only to adapt it to steam. [SWINFEN EADY J.-Is not the question whether 35 the Specification does or does not contemplate the direct action of the motive power?] That is really the question in issue. But the Specification says the breaking machine may be actuated by any means. The sequence of operations can obviously be carried out by any motive agent. Have the Patentees excluded from their Patent a steam engine in which reciprocating motion is erted into vertical motion? The Plaintiffs' machine could obviously not be actuated by steam without alteration. The last paragraph in the Specification

that

40 con

does

not

not say that the plungers may be actuated "directly" by steam or other suitable motive agent, but the words are perfectly general. There is no reason I submit for confining the Specification to direct action. The Defen45 dants' machine causes the same motion of the rams. It causes a piece, although a ram, to move the table. Here there was a new combination of parts, forming the first machine for the purpose. There are four steps in the operations-first, to feed forward the sow and pigs; secondly, clamping by a or plunger; thirdly and fourthly, breaking, by a ram plunger or other piece 50 of metal, the pigs and the sow. The Defendants have taken all the parts actuated by suitable motive agents; they operate in the same sequence. The case is one of the nature of Proctor v. Bennis (4 R.P.C. 333). The first Claim is for the four parts there mentioned operated by a suitable motive agent. I submit that on the true construction of the Specification the Defendants have infringed. SWINFEN EADY J.-This is an action for infringement of a Patent for breaking pig iron and loading it into wagons. The Patent has expired, so the

55

ram

Plaintiffs cannot obtain an injunction, but they ask for damages.

Martin and James v. Consett Iron Company Ld.

On smelting iron, the liquid metal is run from the furnaces into a mould in the sand consisting of one long straight bar and many cross-pieces at right angles to the straight bar, and joined to it at one end only, bearing a fanciful resemblance to a sow and sucking-pigs. Hence the long straight bar is called the "sow" and the cross-pieces the "pigs." Before the Plaintiffs' invention, 5 the pigs were broken off the sow by manual labour while hot by means of levers, and when cold by means of a sledge-hammer, and the separate pigs were then broken into two pieces by hammers. The sow was broken up in the same manner. The Plaintiffs' invention has enabled a sow and pigs to be dealt with as a whole entirely by machinery. The sow and adhering pigs are 10 lifted from the casting bed in one mass by a crane or overhead traveller, and taken to the machine. The Patentees describe their machine and the way it works as follows:-"The breaking machine, which is preferably actuated by "hydraulic power but may be worked by steam, compressed air or other "motive agent, is constructed and arranged substantially as follows. Carried 15 "in a frame bridging over a space between two walls or other suitable supports “is a ram cylinder the plunger of which works through the bottom of the said 66 cylinder and is fitted at its lower end with a head somewhat after the manner "of the hammer-head of a steam hammer. At that end of the machine at "which the sow and adhering pigs are fed for breaking is a pair of arms con- 20 "nected to a rocking shaft. These arms are fitted at their lower ends with pawls for advancing the mass to the ram aforesaid. When sufficiently "advanced, the mass is clamped by a block operated by a wedge-shaped lever "actuated by a separate ram. The plunger aforesaid is then lowered and as "many pigs as the head has capacity for are thereby snapped off from the sow 25 "and also severed at or about midway. The pig-breaking ram plunger is then "withdrawn and the clamping block raised. By the arms and pawls above " mentioned the mass is again advanced and the processes of clamping and "breaking repeated. Simultaneously with the second and subsequent down"strokes of the pig-breaking plunger, the plunger of a ram employed for 30 "breaking the sow descends upon that part of the latter from which the pigs "have been separated by the immediately previous down stroke of the pig"breaking plunger. This said part of the sow is accordingly broken into "lengths approximating to that of one-half of a pig. These operations are "repeated until the sow and the whole series of pigs are broken up. The pig- 35 " iron thus broken is precipitated on to a shute or inclined table preferably "formed of heavy rails with longitudinal openings for sand to fall through, "which shute may either be fixed or capable of movement on hinges. By this "shute the iron is guided into wagons placed below for its reception," and the first claiming clause is as follows:-"A machine for breaking pig-iron, raised 40 as one mass with the sow from the casting bed, the said machine comprising

66

66

a ram or hammer for breaking one or more pigs at each down stroke, a "second ram or hammer for breaking the sow, a third ram for clamping "the mass in position for breaking, and a fourth ram for feeding the mass "to the breaking rams, all constructed arranged and operating (either by 45 hydraulic power or other suitable motive agent) substantially as herein"before described with reference to the accompanying sheets of illustrative "Drawings."

66

The Defendants are using a machine, of which a model was put in evidence. The complete pig is laid in two channel guides or supports; there is a table 50 under the guides, and pig-bed, which has a reciprocating and a rising and falling motion: the effect of this is to feed the pig-bed into the machine. There is then a clamping device consisting of a wedge pulled down by a cam so as to secure the sow and pigs before the blow is struck by the hammer. There is a ratchet arrangement to prevent the wedge going back. There is a 55 plunger carrying a three-stepped hammer head to break the pigs, the plunger being operated in a driven shaft by means of an eccentric and toggle

Martin and James v. Consett Iron Company Ld.

links. There is another plunger and hammer head to break the sow, the plunger being operated by an eccentric. The motion for operating the table is obtained by means of a bell crank. The pig-bed is fed into the machine by the rising and falling table, the three-headed hammer breaks off three pigs and 5 also breaks each pig into two pieces; then the overhanging portion of the sow is broken off; then another three pigs and another portion of the sow, and so on, until the whole pig-bed has been broken up. The order of these operations and the actual operations are the same in the Plaintiffs' and Defendants' machines respectively; in each the pig-bed is fed into the machine, then securely clamped, 10 then the pigs broken off, and then the sow and the broken pig passes down a shute into a wagon, tub, or other receptacle below. The difference is that in the Plaintiffs' machine the operations are executed by means of four hydraulic rams, in the Defendants' by means of eccentrics, toggle links, levers and cams off a mechanically driven shaft.

15

The real question between the parties is whether, upon the true construction of the Plaintiffs' Specification, the Plaintiffs are confined to machines such as described, and operated by means of rams, or whether it extends to and includes machines with similar or analogous working parts operated by means of a power driven shaft. Mr. Dugald Clerk, who was called for the Plaintiffs, 20 stated that one merit of the particular method of carrying out the Plaintiffs' invention by using rams is that there are no revolving or rotating parts to be affected by the dust and fine sand which fly about and accompany the manufacture of the iron, and he stated that, speaking as an engineer, he preferred a ram to a cam and wheel machine. The Patentees certainly describe a machine 25 which has no revolving parts, and which can be worked by something which does not involve that kind of friction, and in their first Claim they declare hat they claim a machine comprising four rams, the first for breaking the pigs, the second for breaking the sow, the third for clamping the mass in position, and the fourth for feeding the mass into the machine, all constructed, arranged and operating substantially as described.

66

the

With regard to the power to be employed, the Patentees say that the machine "is preferably actuated by hydraulic power but may be worked by steam Compressed air or other motive agent," and in their first Claim they state that 35 The Defendants insist that the Patentees describe and claim a machine with four rams are operated "either by hydraulic power or other suitable motive agent." rams, and such a machine only, but that the power actuating the rams need not necessarily be water, but that oil, compressed air, steam, or other motive agent may be employed, but that in every case the rams must be operated directly by the motive power employed. The Plaintiffs, however, contend that the Patentees

40 do

not limit themselves to rams directly actuated by water pressure, steam or otherwise, but that the Patentees use the word "ram" as meaning or including

a

Plunger with a hammer-head attached and that such plungers would be operated or actuated by steam within the meaning of the Patent if a steamengine is introduced and power obtained by means of it and the plungers 45 worked by being connected with the revolving shaft. In my opinion this is not the true construction of the Specification. The Patentees claim the arrangement of the four rams, the cylinders with the plungers working within them, but they do not confine themselves to operating them by hydraulic power. By the language they use they mean-We may put steam into the cylinder instead 50 of water, or we may put compressed air into the cylinder instead of water. It does not mean that we may do away with the cylinders altogether and operate our breaking hammers and clamping block and feeding arrangement by an entirely different machine, using an engine with rotating parts. In my opinion the Patentees have confined themselves to a machine worked, not by the revolving 55 parts, but by rams. They use the word "ram as meaning the whole organism— that is, the cylinder and the rod or moving part which comes out of it--and the moving part they usually call "the plunger," although on page 3 the language

Martin and James v. Consett Iron Company Ld.

becomes a little more careless; thus at line 5* they speak of "the plunger c and "the ram q," working in "the cylinder r." According to the language previously used by them they would have said "the plunger q, working in the "cylinder r." Again at line 7 they speak of the down stroke of the "ram c," while previously they have called the "plunger," but in the rest of the 5 Specification they speak of the "plunger of the ram," the ram being the whole organism and the plunger the part that moves.

The Patentees can only claim the invention specified, and that is a machine with four rams for four definite purposes. This construction of the Specification is aided by the mode in which the second and third Claims are expressed. 10 These Claims are for the separate mechanism of feeding the sow and pigs into the machine and of clamping and securing the mass before each blow of the hammer. As to the second Claim, the Patentees have used the phrase "actuated by the ram referred to in the preceding Claim as the fourth or "feeding ram," and as to the third Claim they say, "actuated by the ram 15 "referred to in the above first Claim as the third or clamping ram." If a machine such as the Defendants use had been relied upon as a prior user so as to defeat the Patent, the Patentees could have defended themselves on the language of the Specification from the machine being held to be an anticipation, as they could show that the old machine was worked by rotating parts, 20 whereas their own machine was a great improvement, being worked throughout by rams.

Not only is the Defendants' machine worked entirely by rotating parts, but there is nothing in it resembling a "plunger" as regards the feeding and clamping arrangements, taking Mr. Swinburne's explanation of the word 25 "plunger" as meaning anything which goes up and down in a slide. Although statements by the Patentees cannot, of course, be referred to for the purpose of construing the Specification, it is gratifying to find that the meaning which I place on the Specification as a matter of construction is consistent with that which one of the Patentees himself has said of his machine. In replying to the 30 discussion upon the papers read before the West of Scotland Iron and Steel Institute in 1900 on pig-iron breakers, the Patentee, Mr. James, wrote of his machine as follows:-"In deciding to adopt hydraulic power in preference to "steam it was with a view of making the machine as simple and strong as "possible so as to avoid breakdowns and the difficulty of finding men to carry 35 "the pig-iron whilst the machine was undergoing repairs. To those acquainted "with machinery it was scarcely necessary to point out that the amount of "sand found in connection with pig-iron was most damaging to any revolving motions, and the upkeep of the hydraulic machine was much less in consequence."

66

As the Defendants have not in my judgment infringed the Plaintiffs' Patent, the action must be disinissed with costs.

A Certificate that the validity of the Patent had come in question was applied for, but refused on the ground that, on the construction put on the Specification, the validity did not practically come into question.

A Certificate that certain of the Particulars of Objection were reasonable and proper was granted, namely, as to such of the Specifications mentioned in paragraph 2 as had been referred to at the trial, and as to the alleged prior user at the Blaenavon Iron and Steel Works Ld.

40

45

* Ante, page 9, line 5.

J. B. Brooks & Co. Ld. v. Rendall, Underwood & Co. Ld.

IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION.

5

Before MR. JUSTICE SWINFEN EADY.

October 30th and 31st, and November 10th, 1906.

J. B. BROOKS & Co. LD. v. RENDALL, UNDERWOOD & Co. LD.

Patent.-Action for infringement.-Construction.-Infringement found.Judgment for Plaintiffs.-Certificate granted under Section 20 of the Patents &c. Act, 1883.

Patent was granted in 1893 for "Improvements in velocipede saddles." The Specification was amended in 1901, and, in 1903, in an action of Brooks v. 10 Lycett (20 R.P.C. 390), a Certificate of the validity of the Patent was granted. In January 1904, in an action of Brooks v. Lycett's Saddle &c. Company (21 R.P.C. 651), the amendments made in 1901 were declared invalid, and in July 1904 the Specification was again amended. In an action for infringemert of the Patent the Defendants alleged (inter alia) that the proceedings 15 reszelting in the amendment of 1904 were ultra vires, but at the trial the only con test was as to the construction of the Specification and infringement. In one form of the Plaintiffs' saddle there was an underframing consisting on each side of two wires made to converge at the peak of the saddle, and at the rear of the saddle spread outwardly and rivetted at four points to the cantle plate, or, in

20 am

odification, to a cross bar bolted to the cantle plate. The wires were bound together in a girder-like form by means of an attachment boss for the seat pillar. In the alleged infringement the wires were spread at the rear, but were bent round and attached to the cantle plate by bolts at two points. The Defendants contended that some words had been omitted from the Claim, and 25 tha in reality it was for the attachment boss.

Held, that the Claim was for the construction and arrangement of the metallic underframing of cycle saddles substantially as described, and that the Defendants had infringed. Judgment was given for the Plaintiffs with costs, but costs as between solicitor and client were not given, it being held that the 30 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

B