Clement Talbot Ld. v. Wilson.

done to them because they are Patentees of the accessories. That is their trade which is injured. The other passages which have been referred to in the same judgment seem to me to support that view, and I do not think I need refer to the other cases which have been cited. It is difficult, no doubt, to lay down any rule in a case of this kind, and it is still more difficult to apply it; 5 but what it seems to me to be is this. The measure of the plaintiff's loss must be, to some extent at any rate, commensurate with the defendant's gain; and what is the Defendants' gain here? They have purchased a car with these accessories for a price less than they would have paid for a car without these accessories, because I must take it on the evidence that the accessories are 10 valuable. The Patents attach to them, and they command a ready sale in the market. The Patentees have lost that. It is to that extent that he has been injured. If they had sold a car with the accessories, I cannot say that they would, because the evidence does not prove it but I infer that they would have sold a car for more than they would have sold one without the accessories. That is the 15 loss which they have presumably incurred; at least, that is the only way in which I can see my way to getting at the desired result; that is to say, what have they lost as the Patentees of these accessories? I think I must ascertain, in order to determine the damages, what is the difference between the value of such a car as the Defendants have bought with the accessories and the value of such a car 20 without the accessories. What it is I do not know. The Defendants have attempted to meet that by proving that by the expenditure of 77. they have converted the car into one without the accessories, and it is now as good as it was before. Well it is their business now, of course, to run down these accessories and say they are worth little or nothing. That evidence does not go 25 far with me to show, if they had acted properly, when they wanted, as they did want, a car with these accessories, what they would have had to pay for a car with them instead of buying, as they now have by the expenditure of 71. extra, a car without them. Therefore his evidence does not help me. The result is that all I can do is to discharge the Certificate and send the matter back for 30 inquiry to the Master and reserve the costs.

Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld.

5

IN THE COURT OF APPEAL.

Before LORDS JUSTICES VAUGHAN WILLIAMS, ROMER, and BUCKLEY.

April 4th, 6th, 7th, 8th, 10th and 11th, 1905.*

EVANS and J. AND J. TAUNTON LD. v. HOSKINS AND SEWELL LD.

Patent.-Infringement.- Anticipation. Patent upheld.- Appeal dismissed. -Certificate as to validity granted.

Letters Patent were granted to E. for "Improvements in wire mattresses or "fabrics for bedsteads, cots, and like articles of furniture," the invention consisting in the use of spiral springs set at an angle to the sides of the bed in 10 such a manner that the tension of the central part of the mattress was greater than that of the sides. In an action for infringement, the Defendants set up the invalidity of the Patent on the grounds (inter alia) of want of utility and novelty, and alleged prior publication by several Specifications including the U.S.A. Specification of K. It was contended that the Patentee's Claim covered 15 square mesh netting which would not produce the Patentee's result. It was held at the trial that there had not been prior publication of the invention which was novel and substantial; also that the Patentee had not claimed square mesh netting. An injunction with costs was awarded, and a Certificate of validity given. The Defendants appealed.

20

Held, that the Patentee's Claim was for diagonally directed springs and a bed with netting, so that the springs may cause diagonally directed tension across the centre of the bed; that the Patentee did not mean to include any pattern or construction of link work which did not admit of a diagonally directed strain being applied across the centre, and did not claim square mesh netting; and that 25 the invention had not been anticipated. The appeal was dismissed with costs.

30

In 1899 Letters Patent (No. 23,859 of 1899) were granted to Robert Evan Llewellyn Evans for "Improvements in wire mattresses or fabrics for bedsteads, "cots, and like articles of furniture." John and Joseph Taunton Ld. were the exclusive Licensees under this Patent.

"This invention relates to The Specification of the Patent was as follows:"wire mattresses or fabrics for bedsteads, cots, and other articles of furniture, "and particularly to those composed of links, or diamond shaped connections "with coiled springs arranged at each or only one end of the fabric. According to "my invention, I direct (looking from the end frame-work towards the centre 35" of the fabric) the coiled or other tension springs which are connected to the

* The publication of this report has been delayed by exceptional circumstances,―J.C.

2 x

Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld.

"end framing by any suitable means, inwardly towards the centre of the "frame; or, looking at the surface from the centre of wire netting or link work "towards the end framework, the springs are arranged diagonally in opposite "directions from the centre of each end, thus a greater pressure is exerted on "the centre of the mattress surface or fabric than on the other portion. Where 5 "a mattress is required with tension springs at one end only, this arrangement "will of course apply to that end alone.

66

Figure 1 of the accompanying Drawing, represents the two end parts of a spring surface or fabric with springs arranged according to my invention, and "fitted to the frame-work of a bottom of a bedstead, cot, or like article. From 10 "this it will be seen that, according to my invention, instead of the tension "springs being arranged parallel with the longitudinal members of the sup"porting frame-work they are (looking from the end frame-work towards the "centre of the fabric) directed inwardly towards the middle thereof. Or, "looking at the surface from the centre of the netting or link work towards the 15 "end frame-work, the said tension springs are arranged diagonally in opposite "directions from the centre of each end. The effect of this arrangement, is to "direct the tension from all the springs on the middle portion of the wire netting or link work, thus making the said middle portion, which receives the "most strain in use, considerably lighter and stronger, and, inasmuch that 20 "when a person is reclining on the surface, the weight or strain is evenly "distributed on, and borne by all the tension springs, a highly elastic and "comfortable surface is produced, and moreover the durability of the fabric is "greatly increased.

66

"I wish it to be understood that the tension springs may be of any pattern or 25 "strength desired, also the supporting frame-work, so long that these parts "respectively permit of the springs being so arranged that a diagonally directed "strain is applied on the middle portion of the wire netting or link work. I do "not confine myself to any particular pattern or construction of link work or "netting, also I may, if desired, use springs of various lengths and strengths. 30 "The supporting framework may be of metal, wood, or other material.

"The several letters of reference indicate corresponding parts in the drawing. "A are the side members of the supporting framework, and A', the end

5

10

Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld.

"members thereof. B the tension springs, C the wire netting or link work, "and D the side wires thereof, which may be connected to the frame-work by any suitable means, such as hooks (E).

66

66

"Figure 2, shows an arrangement which may be utilised when a large size "surface or mattress is required. It will be seen that in this form the tension "springs are arranged diagonally in series, and each of these series are directed diagonally towards, and exert a tension upon any portion of the link work. "I find in practice that with spring surfaces constructed according to my "invention, the middle portion is so very strong and unsagging, that there is no necessity whatever to raise the centre of the fabric by artificial means, such "as arching upwardly and outwardly the end supporting members of the frame"work. As before observed, my invention applies equally to fabrics with "tension springs at one end only as to fabrics with springs at both ends."

66

15

20

25

The Patentee claimed :-" 1. The combination with the link work or netting "of a mattress or fabric for bedsteads, cots, and like articles of furniture, of "tension springs arranged (looking from the centre of the surface towards the "end thereof) diagonally and in opposite directions from the centre of each end, "whereby a diagonally directed tension is exerted on the middle portion of the "surface, substantially as described and set forth in Figure 1. 2. The combination "with one end of the link work or netting of a mattress or fabric, for bedsteads, "cots, and like articles of furniture, of tension springs arranged (looking from "the centre of the surface towards the end thereof) diagonally in opposite "directions from the middle portion of the said end, as described. 3. The "combination with the link work or netting of a mattress or fabric for bedsteads, "cots, and like articles of furniture, of one or more series of tension springs 66 arranged at either one or both ends of the fabric, and directed in such a manner as to exert a diagonal tension on one or more portions of the said "mattress or fabric, as described and set forth in Fig. 2."

66

On the 1st of December 1903 the Patentee and the Licensees commenced an 30 action against Hoskins and Sewell Ld. for infringement of the Patent, claiming the usual relief.

Particulars of Breaches were delivered, for which see 21 R.P.C. 677.

The Defendants by their Defence denied infringement, and also pleaded that the Plaintiffs' Patent was invalid for the reasons set forth in the following 35 Particulars of Objections:-" 1. The said Robert Evan Llewellyn Evans was "not the first and true inventor of the said alleged invention. The first and "true inventor was one John Griffin, and the said alleged invention was made "by him at the Plaintiff Company's works in or about the month of September "1899. 2. The said alleged invention is not useful. 3. The said alleged 40"invention was not new. The said invention was published in this realm "prior to the date of the said Letters Patent-(A) By the publication at the "Patent Office Library of the final Specifications of the following British and "United States Patents. The whole of each is relied upon as against all the "claiming clauses of the Plaintiffs' Specification:-Lake (No. 3926 of 1882); 45 "Newton (No. 2199 of 1855); Hughes (No. 2307 of 1872); Welch (No. 2714 of "1874); Hunt (No. 252,772 of 1882, U.S.A.); Rowcliffe (No. 58:15 of 1883); "Fielding (No. 323,572 of 1885, U.S.A.); Brown (No. 357,697 of 1887, U.S.A.); "Horton and Siefkin (No. 369,791 of 1887, U.S.A.); King (No. 371,591 of 1887,

Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld.

"U.S.A.); Goodwin (No. 19,064 of 1890); Miller (No. 506,246 of 1893, U.S.A.); "Gale (No. 22,738 of 1894); Gale (No. 18490 of 1895); Nichols (No. 5613 of "1897); Ackermann (No. 8149 of 1897); Billington (No. 8455 of 1897); "Nichols (No. 20,338 of 1897); Ryan (No. 5043 of 1898); Billington (No. "14,928 of 1898); Wesner (No. 607,102 of 1898, U.S.A.). (B) By the manu- 5 "facture by the Plaintiff Company at their works in Sherbourne Road, Birmingham, in or about the month of September 1899 of a wire mattress "constructed according to the invention as claimed in all the claiming clauses "of the Plaintiffs' Specification. 4. The Complete Specification in Claims 2 "and 3 claims an invention larger than and different to the invention the 10 "nature of which is described in the Provisional Specification. 5. The said "alleged invention as claimed in all the claiming clauses of the Plaintiffs' "Specification is not the proper subject-matter of valid Letters Patent. "Defendants will rely hereunder upon the matters set out in paragraph 3 "hereof and upon the common knowledge of the trade as to the construction 15 "of wire mattresses and spring supported mattresses. 6. That the said alleged "Letters Patent are void by reason that the invention in respect of which they purport to be granted formed the subject of a grant to Henry Clay Fletcher "and Sidney Herbert Cornish, dated 19th of June 1899, and No. 12,776 of "A.D. 1899, which said grant was prior to the alleged grant to the Plaintiff. 20 "The whole of the Specification and all the claiming clauses are relied on." Fig. 1 of King's Specification is subjoined.

66

The action came on for trial in July 1904, before Mr. Justice Swinfen Eady, who gave judgment for the Plaintiffs with costs (21 R.P.C. 675). The Defendants appealed.

Walter and J. H. Gray (instructed by Sharpe, Parker, Pritchards, Barham and Lawford, as agents for E. C. Newey & Son of Birmingham), appeared for the Appellants: Astbury K.C., and J. C. Graham (instructed by Sayle, Carter

25