Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld. and Co. as agents for Sidney C. Taunton of Birmingham) appeared for the Respondents. The following cases were cited in the course of the arguments :-Gandy v. Reddaway (2 R.P.C. 49), Hattersley v. Hodgson (21 R.P.C. 517), and Badische 5 Anilin und Soda Fabrik v. La Société Chimique (14 R.P C. 875). VAUGHAN WILLIAMS L.J.-In my opinion the judgment of Mr. Justice Swinfen Eady in this case ought to be affirmed. I do not propose to go at any very great length into the arguments that have been addressed to us. I will first deal with a point that Mr. Justice Swinfen 10 Eady deals with last, that is the point of anticipation. In my judgment, neither King's nor Billington's, nor Goodwin's Specifications can fairly be said to be anticipations of the Plaintiff Evans' invention. It seems to me quite plain that the essence of the Plaintiff Evans' invention is this, that you should by his arrangement get diagonal strains passing from each end of the frame through a 15 central region so that you may have an inextensible medium of communication from spring to spring. The object, as appears from the very words of the Specification, was that in this way you should get the greatest strength at the point where there was the greatest work, and that you should arrive at and attain that object by means of diagonally directed strains pointing 20 towards the centre to a point where the work had to be done according as the body shifted from place to place in the centre of the bed. When the Specifications of King, Billington, and Goodwin are looked at, although you may find some feature like the features that one finds in a bed made according to the Plaintiffs' Specification, they are not features which are introduced into King's 25 Specification, or Billington's Specification, or Goodwin's Specification with the object and for the purpose with which the diagonal strains are introduced into the Plaintiffs'. It is quite true that Mr. Justice Swinfen Eady in his judgment only deals with King's Specification which, according to his view, was the one in respect of which the principal argument was directed by Mr. Walter when 30 the case was before Mr. Justice Swinfen Eady, but I think that the reason I have given for differentiating those Specifications, and not recognising them as anticipations includes in kind the reason which Mr. Justice Swinfen Eady gave when he refused to recognise King's as an anticipation. That being so I shall say no more upon the point as to anticipation. 35 45 " I shall deal now with the point of construction. I say, as I put it to Mr. Walter in the course of the argument, that the point of construction is a very much more difficult point to deal with than the point of anticipation. I confess that one has got in this case a Specification so expressed that it does require some careful consideration of it, as a whole, before one can arrive at the 40 conclusion that it is not open to the attack which is made upon it by Mr. Walter. The substance of Mr. Walter's attack is really based upon a clause which appears in the Complete Specification-"I wish it to be understood that the "tension springs may be of any pattern or 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. The supporting frame-work may be "of metal, wood, or other material." Mr. Walter said that claim is so worded 50 that it includes, as something covered by the Patentee's claim, a pattern of the construction of link work which admittedly will not achieve the result which is described in Claim 1 of the Patentee, which runs-"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 55"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 66 66 Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld. "in Figure 1." Mr. Walter said that it is admitted that, if you have link work which consists of squares, the sides of which are parallel to the outside ends of the frame, you cannot achieve those diagonal strains pointing towards the central region of the mattress, which is the avowed object of the Patentee. He said that the result is that the Specification is bad because it misleads the public, and would 5 mislead the intelligent workman, and would lead him to suppose that the result would be achieved by the user of this suggested square meshed mattress and that he could only find out that that is not so by experiments, and that the Patentee has no right to throw upon the public, or upon the workman, the obligation of experiment. My answer to that argument of Mr. Walter's is this- 10 I think that, if you take the Specification as a whole, it is plain that the Patentee did intend, and shows by the words which he uses that he did intend, to work out the result in respect of which he makes this claim by an arrangement which involved diagonal strains passing the centre with springs attached to either end of the frame. I agree that it is true that you cannot attain that result with the 15 square meshed links arranged horizontally in the same line as the ends of the outside frame, but I do not agree that you can only discover that these square meshed links will not do by making a series of experiments. It seems to me that if you take the Specification as a whole you find at once that the square meshed mattress, with the squares arranged in the way that I have said, will 20 not work because it is manifestly incompatible with the arrangement pointed at by the Patentee. In the very portion of the Specification which is relied upon as claiming successful results where successful results cannot be attained, the Patentee says "I wish it to be understood that the tension springs may be "of any pattern or strength desired, also the supporting frame-work, so long as 25 "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." The arrangement which, it is said, is covered by these wide general words-that is the arrangement of a mattress with this square pattern with the links of the square lying parallel to the ends of the frame-does not 30 in my opinion 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. Such a pattern of netting, so placed, is not suitable for the arrangement that is indicated by the Patentee, involving the diagonal strains pointing towards the middle, and with a force operating from springs attached to either end of the 35 frame. I think such wire netting is unsuitable, and it seems to me that one ought to reject such wire netting as being unsuitable in the same way in which I suggested that when you come to deal with the supporting framework, and you find the words "The supporting framework may be of metal, wood or "other material," you would reject materials which were inconsistent with the 40 claim of the Patentee as developed in his Specification read as a whole. In my judgment, although I do not know that it is at all essential to the result that I have to arrive at, I do not think that in reading a Specification you are entitled to wholly exclude from consideration the Claim, or any other part of it. If the Claim clears up something which in the other part of the text might be doubtful, 45 it seems to me that the Court may, and is bound, in a Specification, to take into consideration in construing it everything you find in the Specification just as much as you would in any other document. It is quite true that you will not allow the Claim to supplement the description in the Specification so as to introduce features which are not there, but when you are asked to put a particular con- 50 struction upon particular words in the Specification, which are capable of two meanings, I think you may assist your conclusion by looking to see how those words, as to which it is said the meaning is doubtful, are embodied in the Claim itself. I have come to the conclusion that on the whole, not dealing with the 55 Specification in any benevolent spirit, but simply asking myself does the Specification sufficiently disclose the method which is asserted by those who Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld. appear for the Plaintiffs to be the method of the Specification to enable the Court, reading the Specification as best they may, fairly to say "Yes, we can "find that in the Specification which it is alleged on the part of the Plaintiffs it " contains." Mr. Walter, at the beginning of his argument, said that when you 5 look at the Specification the only matter in respect of which the word "diagonally was used was the springs, and the direction of the springs, and he said that that did not cover the wires. I think he said that if it was intended by the words to cover the wires it ought not to have been said of the springs that they were diagonally directed, but that they were diagonally conducted. I do 10) not myself assent to that construction, and I think that if you look at the passage on page 2 from line 5 to line 20*, there can be no doubt that the Patentee means the word "diagonally" to apply not only to the springs, but to the wire pathway along which the strain is directed or conducted. 66 66 66 "The effect," it is said at line 15, "of this arrangement, is to direct the tension from 15" 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, con"siderably lighter and stronger, and, inasmuch that 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 20 moreover the durability of the fabric is greatly increased." In my judgment the word "diagonally" is clearly intended to be applied not only to the springs, but to the pathway along which the strain is to go. I think also that another argument of Mr. Walter's fails, but I was hesitating for a moment whether I should say anything about it, because I do not think that Mr. Walter 25 insisted upon it very much. I think he said that strictly speaking the pathways were not diagonal, that they did not constitute a straight line running from angle to angle. If such argument was insisted upon all I can say is that in my judgment the word "diagonal" according to the ordinary user of the English language, is not only used in its strict sense, but is also used to describe those 30 lines which lie parallel to a true diagonal line. I will not say anything more about that. With regard to two cases that were cited, the Badische Anilin case, (14 R.P.C. 875), and Gandy v. Reddaway (2 R.P.C. 49), I only want to say, as I think Mr. Walter very frankly admitted, that those cases have no 35 application whatever if we reject his construction of the Specification; I have rejected his construction of the Specification, and, therefore, I do not think I ought to take up time by saying anything at all about those two cases. 40 On the whole I think the construction put by Mr. Justice Swinfen Eady on the Specification must be supported. As to the anticipation point, I entertain a very strong opinion that there is little or no case; but I am not prepared to overrule the decision of Mr. Justice Swinfen Eady upon the question of construction. I think, fairly construed, the Plaintiffs' Specification means what I have said. ROMER L.J.-The Appellants' case has had the advantage of being very 45 clearly and powerfully argued by the Counsel who appeared on their behalf. The argument of Mr. Walter was made all the more effective by his evident sincerity. I do not think that the case of the Appellants could have been put better than it has been by him. I can only say that I think I have followed his arguments and appreciated them, but nevertheless though I think the 50 points give rise, certainly one of them, to some difficulty, I have come to the conclusion on the whole that the Appeal should fail. I propose to state my reasons comparatively shortly. As in all other Patent cases, so in this, many subsidiary points-I do not mean to say points that did not require consideration-have been argued or touched upon by Counsel on 55 both sides. It must not be supposed that I have not followed them because * Ante page 518, line 10 to 24. Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld. I do not deal with them when I try to state my reasons for my opinion shortly. It has to be borne in mind that the utility of the Patentee's invention is not disputed, and that must be borne strictly in mind, because I noticed a tendency now and then, perhaps unintentionally on the part of the Appellants' Counsel, to try and obtain arguments for the side they were 5 advocating, which, when you carefully considered them, were only relevant on the question of utility. It is also not denied on behalf of the Appellants but that the Specification shows a clear and proper method of carrying out the invention as shown in Figure 1 and Figure 2. The objections taken to the Patent are, in substance, two. The first is a point arising upon, and depending 10 upon the true construction of the Specification. The second point is a question of anticipation. 66 I will deal first with the question of the construction of the Specification. I agree that the point of construction, which we have to consider, raises a question of some difficulty. I disclaim any intention of reading the Specification 15 benevolently, so far as concerns the Patentee, if by benevolently is meant that in his favour I try to unduly strain his intention as shown by what he has written. But when I read the Specification-and I have read it more than once, and have considered it, and I trust considered it fairly-I come to the conclusion upon the Specification as a whole that, fairly construed, it has not the wide claim 20 that the Appellants insist upon. I think that the Patentee has shown that his object and his claim is that his diagonally placed springs are so placed for the purpose, and are limited to the purpose, of producing diagonal tension on the central portion of the bed by a diagonally directed strain across that central portion-putting it shortly, by what I may describe in a homely manner as a pull 25 across the central portion of the bed. I think that appears, as I have said, from a fair construction of the Specification as a whole, and in particular from a consideration of what he says "I wish it to be understood that the tension springs may be of any pattern or strength desired, also the supporting framework, so long that these parts respectively permit of the springs being so 30 arranged that a diagonally directed strain is applied on the middle portion of "the wire netting or link work." Now the springs are, obviously from the Specification, placed in the diagonal position not from any motives of prettiness, not from any other motive except the motive and the object specified and stated by the Patentee with the object of getting this diagonally directed tension in 35 the central position of the bed, and when in the Specification he proceeds to say, following the lines I have just read, "I do not confine myself to any particular "pattern or construction of link work or netting," I think the reasonable and true construction is that he means there any particular pattern or construction always provided that his main object is attained--that he gets a diagonally 40 directed strain applied to the middle portion of the wire netting or link work. I also think that is supported by what he says where he is dealing with Figure 1, though I agree the wording is open to criticism "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 45 "receives the most strain in use, considerably lighter and stronger." I come 66 66 then to his main claim, Claim 1. There he claims-"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 50 "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." After making every allowance for criticisms on the words used in that Claim I still say that reading that Specification as a whole the Patentee's invention, as 55 thereby shown and claimed, is not a claim for springs at large but for diagonally directed springs and a bed with netting, so that the springs may cause and Evans and J. and J. Taunton Ld. v. Hoskins and Sewell Ld. exert diagonally directed tension across the central portion of the bed. Notwithstanding the criticisms that were made on certain words that are used, I think that, fairly considered, is the true meaning and limit of this Specification. Claims 2 and 3, I may point out, although they do not repeat the 5 words to which I have called attention in Claim 1," whereby a diagonally directed "tension is exerted," are, to my mind, intended to embody them. I say that for this reason-If you look for example at Claim 2, to my mind the object of that Claim was to take care that claims covered the case where the Patentee had the springs only at one end of the bed, and I do not think he was intending to do 10 away with the rest of Claim 1. In Claim 3 I think he was intending to deal with only the double bed instead of the single bed. That being the construction that I put upon this Specification, the Patentee has shown how to carry out his invention-there is no question of that or of utility. Now what is it that the Appellants really say against this Patent? They 15 have put in evidence one kind of mesh. It is possible if they had exerted themselves they might have found another, but at any rate they have put in evidence a kind of mesh which, if used, as the meshing of the bed with diagonal springs, will not exert, and cannot be made to exert, any diagonal tension upon the central portion of the bed at all, and they say, "You, the Patentee, have not 20" shown that your Specification excludes that except by the words about the "tension to be exerted across the central portion of the bed," and they say, "You ought to have pointed out on the face of your Specification that such a "mesh as that will not answer and does not come within your Claim." It does not come within the Claim clearly, but the question is simply-Ought the 25 Patentee to have said, "I have pointed out to you what the limit of my Claim 66 is ; I have pointed out to you what I desired to do?" Was he bound to say, what I should have thought was obvious, "that you may find, if you are "ingenious, a mesh or net which will not exert any tension, and therefore "cannot be applied according to my invention"? I think not. I do not agree, 30 looking at the evidence as a whole, that with regard to this square mesh it required experiment or anything of that sort to find out that the square mesh would not exert the tension across the centre, and therefore did not come within the Plaintiffs' Specification and Claim. Much was made, and rightly made, on behalf of the Appellants of Mr. Clerk's 35 evidence in regard to the experiments he made and his first disbelief in the Patent, but he did not say, "I had to start with the assumption that the Patent "was good, and then found out by experiment that it could not apply to square "meshes where the top side of the square is parallel to the ends of the frame." What he said in his evidence was this "I thought that the Plaintiff's invention as 40 "set forth in his Specification would not work; it was founded on a wrong idea." That was what he had to experiment upon and he found out he was wrong-that the Patentee had made a proper claim; that the Patentee was right as a practical man; and that the theory was wrong. Then he had to readjust his theory; but, as I read the evidence as a whole, when once Mr. Clerk had found out that he 45 was wrong and that the Patentee was right he had no hesitation, and nobody else would have, in saying that it was only too obvious that the kind of square mesh, which the Appellants have relied upon, would not work and could not be applied, and as I read it there was no evidence that would justify this Court in supposing that any ordinary person trying to use this invention would think, unless he 50 were absolutely wanting in common sense, of trying to use, for the purpose of carrying out the invention, a square mesh such as that relied upon by the Appellants. While I am upon this I may also make a remark upon the answer of Mr. Clerk, which was so much relied upon on behalf of the Appellants. He was asked: "(Q.) When did you arrive at the conclusion that the square 55 "link would fail with this?—(Ă.) I arrived at that conclusion after my first "investigation which was some years ago. I made a preliminary investigation "of some bedsteads they sent me some years ago, I think three or four years ago, |