In the Matter of Brown's Patent.

Chimique* does not appear to me to be in point. There the use of any autoclave was specified where only one particular form of autoclave would avail.

This brings me to the last objection that Claim 6 for a closed circuit inductive coil placed in the fork of the bridge of a duplex line and in series with the receiving instrument for the purpose of preventing jar to the receiving instrument 5 where a curb transmitter is used, is bad for want of subject-matter. It appears that no such device was in use before, and that the jarring in question was a serious evil-so much so, that it is said to have resulted in some cases in the abandoment of curb transmitters. I have here to determine upon a conflict of evidence. Although the closed circuit inductive coil was old, it had never been 10 employed for the purpose specified by Brown, and having regard to that fact that it successfully met a recognised difficulty in a novel manner, I find that there was sufficient ingenuity in its adoption to support the Claim.

Some point was originally made with regard to the alleged insufficiency of Brown's Specification, but I think, after the evidence, this was not seriously 15 pressed, or at all events, I was not convinced by it. In one particular, however, it was insisted on. It was contended that Brown's description of his magnetic shunt was too vague in that it did not give the time constant, i.e., the ratio between the self-induction and the resistance. In my opinion the evidence shows that there is no difficulty in following the Specification and in making an 20 induction coil on Brown's instructions suitable for any given conditions. Upon this particular point the practical men called by the Patentee were not crossexamined.

I come therefore to the conclusion that the Petitioners have failed to establish any of their Objections and the Petition must be dismissed with costs.

Russell Clarke asked his Lordship to direct that his costs be paid by the Petitioners, as he appeared for the Commercial Cable Company, who were made Respondents to the Petition.

Walter K.C.-My friend has taken no part in this.

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Bousfield K.C.-We were both cited. It is true that we, on behalf of the 30Patentee, had the conduct of the case, but the Licensees were cited and my friend appears for a Licensee. We had the benefit of Mr. Clarke's assistance throughout, and, therefore, there has been a saving of costs.

Walter K.C.-The Petitioners have, under the Act, to serve all persons whose names appear on the Register as having any interest in the Patent. 35Mr. Clarke has taken no part in the actual hearing of the case, I ask your Lordship to make no Order. Mr. Bousfield does not appear with him for the Commercial Cable Company.

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NEVILLE J.-I cannot do that. You have served the Commercial Cable Company with notice. They are entitled to appear, and if you are unsuccessful, 40 you should pay their costs. But I think I ought to have heard about it at the time. Bousfield K.C.-I did tell your Lordship at the beginning. It is on the Notes: Mr. Clarke appears on behalf of the Commercial Cable Company," but Mr. Clarke did not desire to put any questions in cross-examination. NEVILLE J.--Apparently they are Respondents to the Petition. Walter K.C.-The Petitioners are bound under the Act to give notice to all persons interested and unless they take part, or ask to take part, I know of no case in which they have had any costs. This is an attempt to introduce an entirely new practice. Only one set of costs is given.

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NEVILLE J.-I must apply the general rule. Here is a Petition which has 50 been served on certain Respondents and they appear. I do not think that there was any necessity for them to take part. The matter has been dealt with efficiently by others. You must pay their costs. What those costs will be, will be a matter for the Taxing Master.

* 14 R.P.C. 875.

Wrightson v. Taylor, Maddox & Co.

IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION.

5

Before MR. JUSTICE WARRINGTON.

May 10th, 1907.

WRIGHTSON V. TAYLOR, MADDOX & CO.

Action to restrain Threats on two Patents.-Undertaking by Defendants to commence an action against the Plaintiff for infringement.-Stay of Threats action.-Form of Order.

On the 29th of April 1907 Norman Wrightson issued a writ against Taylor, Maddox & Co. in an action for an injunction to restrain the Defendants, their 10 servants and agents, from threatening by means of letters, circulars, or otherwise, the Plaintiff or any other person with legal proceedings or liability for infringement of Letters Patent Nos. 18,890 of 1900 and 12,482 of 1901 by the use of the Plaintiff's Patent No. 27,142 of 1905. On the 30th of April the Plaintiff gave notice of Motion for an injunction in the terms of the writ until 15 judgment in the action or further Order.

The Motion came on for hearing before Mr. Justice WARRINGTON on the 10th of May 1907.

Walter K.C. and J. H. Gray (instructed by Maxwell and Dampney) appeared for the Plaintiff; Martelli (instructed by Maples, Teesdale & Co.) appeared for 20 the Defendants.

I

Walter K.C.-This Motion is for an injunction to restrain the Defendants from threatening proceedings for infringement of two Letters Patent. understand that the Defendants are desirous of commencing an action for infringement, in order to bring themselves within the proviso to Section 32 of the 25 Act of 1883. So there should be an Order to stay the threats action, the Defendants undertaking not to threaten the Plaintiff or his customers with proceedings, and also undertaking forthwith to issue a writ against the Plaintiff for infringement of the two Letters Patent, and to prosecute the same with due diligence. I am quite content to accept the usual Order, which is that the 30 costs of the threats action shall be costs in the infringement action; but Mr. Martelli, though not definitely, has intimated that his action may include other Patents; therefore the costs of the threats action ought to abide the result of the infringement action as to the two Patents.

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WARRINGTON J.-That seems reasonable.

Martelli. -My client is in Canada, and it may be that we have given the wrong references to Patents in our threats; and it would not be right to give an undertaking which, if there has been a mistake, would prevent the Defendants getting the costs. I am quite content to have the costs of the threats action reserved to be dealt with at the trial of the infringement action.

Wrightson v. Taylor, Maddox & Co.

Walter K.C.-I know of an exactly similar case, where the costs were reserved to the trial, in which there was a great deal of trouble eventually. I submit that the proper course is for the costs to abide the result of the infringement action on those two Patents, and so end the matter.

WARRINGTON J.-Mr. Martelli, how can I do harm by saying that the costs 5 of this action shall abide the result of the infringement action as regards these two Patents ?

Martelli.-I suggest that it is not the usual form to put in the last few words. The usual course is to make the costs of the threats action costs in the infringement action.

WARRINGTON J.-You might succeed in the infringement action, but not in respect of these two Patents.

10

Martelli.-That is why I suggested that the costs should be reserved. WARRINGTON J.-I do not like reserving costs. You never know what expense it will cause. I do not see why I should not make the Order sug- 15 gested, whether it is in the usual form or not. It seems to me to be just.

Walter K.C.-The Order will be to stay the threats action, the Defendants undertaking not to threaten the Plaintiff or his customers with proceedings for infringement, and undertaking forthwith to issue a writ against the Plaintiff for infringement of Letters Patent No. 18,890 of 1900 and No. 12,482 of 1901, 20 and to prosecute the same with due diligence, the costs of threats action to be costs in above action for infringement, and to abide the result of the action on the above two Patents. Then if the action for infringement is not commenced, or, if commenced, is not prosecuted with due diligence, the stay of the threats action to be removed.

WARRINGTON J.-That is right.

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In the Matter of Andrews' Patent.

IN THE COURT OF APPEAL.

5

Before LORDS JUSTICES VAUGHAN WILLIAMS, FARWELL and BUCKLEY.

February 8th, 11th, 18th, 19th, 20th, 22nd, 23rd and 25th, and March 26th, 1907,

IN THE MATTER OF ANDREWS' PATENT.

Patent.-Petition for revocation.-Construction of Specification.-Sufficiency of Specification.-Disconformity:-Prior publication.-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." A 10 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 con"ditioning flour and the like, passing the same with full exposure through "an atmosphere containing a gaseous oxide of nitrogen or chlorine or bromine 15 "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 20 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. objection of disconformity was that the process claimed did not accord with the 25 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 30 peroxide, the alleged invention was not useful and the directions given in the Specification were insufficient. The Respondents contended that "nitric acid"

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The

In the Matter of Andrews' Patent.

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 142, 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 5 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 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 10 Specification of F. An Order for revocation was made. 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 15 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.J.J.) was confined to oxidation by ozone, and (per VAUGHAN WILLIAMS L.J.), was unintelligible; and that the Patent was 20 not invalid for want of subject-matter. The appeal was allowed, with costs on the higher scale.

On the 24th of January 1901 Letters Patent (No. 1661 of 1901) were granted to John Andrews and Sydney Andrews for "Improvements in conditioning or "improving the quality of recently ground flour, semolina, or the like." The 25 Specification was amended in accordance with the decision of the Law Officer dated the 10th of December 1902.

The Provisional Specification was as follows:-" It has long been known "that flour, semolina, and the like, hereafter spoken of under the generic name "of flour, if kept for two or three months after grinding is greatly improved 30 "in quality, but this improvement does not increase after that period, but "deterioration if anything then begins.

"Now our invention is designed to bring about this improvement or con"ditioning immediately after grinding, without having to wait two or three "months, and further not merely to bring about a conditioning equal to that 35 "caused by keeping it for such a period, but a much greater improvement, and "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. A very minute quantity of nascent oxygen is sufficient, so little "indeed that the actual analysis of the flour is but slightly altered.

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40

"In our experiments we have passed the flour through a reel having a screw conveyor to remove the falling flour and the oxidising agent being introduced "into the space surrounding the reel. The oxidising agent we prefer is air "passed through nitric acid. The air takes up a sufficient quantity of nitric. "acid at even ordinary temperatures to effect the result. We have found how- 45 ever that azone (sic) can also be employed, but with not such a good result, "and it is much more expensive. Also that chlorine and other gases producing "nascent oxygen can be used. With regard to the quantity as before stated, a

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