of the invention secured to him by the patent "the application and use" of a detent link or holder of a peculiar form to retain the door in its position, but which was proved to have been previously used and applied to grates without overhanging doors :-Held, that the use of a similar detent link, when applied to an overhanging door, but which did not produce a double draught, was not an infringement of the patent. (19 Dec. of Crt. of Sess., 2nd Series, 1087.)

A valid patent for an entire combination for a process gives protection to each part thereof that is new and material for that process, without any express claim of particular parts, and notwithstanding that parts of the combination are old. (8 Ell. & B. 1004 affirmed in Ex. Ch., Ib. 1031.) Williams, J., in delivering the judgment of the Court of Exchequer Chamber, said: "It was argued before us, on behalf of the appellants, that, if a patent be taken out for a combination of a, b and c, it could not be infringed by using a combination of b and c only. We are of opinion that the answer to this inquiry turns altogether upon what a, b and c are, how they contribute to the object of the invention, and what relation they bear to each other. Cases may possibly be suggested where the use of b and c might not be an infringement of the patent; but more easily cases may be put where the use of b and c would be an infringement of the patent. Whether in this case it was so or not would depend upon the facts of the case, and may be more a question of fact for the jury than of law for a court of appeal. But the facts are not before us; and we think the court below was right in deciding that the use of a subordinate part of a combination might be an infringement of the patent if the part so used was new (by which we understand new in itself, or in its effects, not merely in its application) and material." (Ib. 1033.) But see Harrison v. Anderston Foundry Company, inf. p. 180 (d).

It

(p) THE PATENT BOTTLE ENVELOPE COMPANY v. SEYMOUR. [1858] The plaintiff obtained a patent for "improvements in the manufacture of cases or envelopes for covering bottles," and in the specification the invention was stated to consist "in an arrangement of apparatus by which lengths of rush, straw or other suitable material may be readily tied together, so as to form cases or covers to protect bottles from breakage when packed." then proceeded: "For this purpose I take equal lengths of rush, straw or other suitable material, and confine them at one end within a ring or cap, which I then place over the neck end of a mould or mandril, corresponding in form to the bottle for which the case or cover is intended" :-Held, that the use of the mandril, which was admitted to have been long commonly used for producing given forms of pliable materials, and the application of which to work previously untried materials or to produce new forms, was held not to be the subject of a patent, was not an infringement of the plaintiff's patent. (5 C. B., N. S., 164; 5 Jur.,

N. S., 174; 28 L. J., C. P. 22.) Willes, J., in delivering the judgment of the Court, said: "The infringement of any part of a patent process is actionable, if that part is of itself new and useful, so that it might be the subject-matter of a patent, and is used by the infringer to affect the object, or part of the object, proposed by the patentee." (5 C. B., N. S., 172.)

(4) THOMAS v. FOXWELL. [1858]

Evidence may be admitted of an infringement by an imitation of a material part of a general combination, notwithstanding the disclaimer of the mechanical parts separately, of which the combination consists, and although there be no separate and specific claim in respect of the part imitated, while there are separate and distinct claims in respect of other subordinate combinations. The jury ought not to find for the plaintiff upon the plea of not guilty, unless they are convinced that the defendant has imitated a part of the plaintiff's combination, both substantial and new, and for the same purpose. (5 Jur., N. S., 39.)

(r) SEED v. HIGGINS. H. L. [1860.]

The plaintiff claimed by his specification and disclaimer the application of centrifugal force in the particular manner described in the specification. The particular manner described was by the use of "a weight." The defendant employed a machine similar in many respects, but, though using weight, or pressure occasioned by weight, as a force, did not use "a weight":-Held, that this did not amount to an infringement of the plaintiff's patent. (8 H. L. Cas. 551.)

(8) M'CORMICK v. GRAY. [1861]

A patent for a reaping machine, the several parts of which are not claimed, is not infringed by the manufacture of the blade or cutter similar to that described in the specification, which does not of itself constitute a machine; but the patent may be infringed by a person who subsequently makes the cutter into a machine which is identical, or an imitation of the plaintiff's machine. (31 L. J., Ex. 42; 7 H. & N. 25.) Martin, B. (dubitante), said: "I think it a very arguable question whether, if a man has invented a machine consisting of several parts, one of which when in the machine effects a cutting purpose, it would be competent for a manufacturer to manufacture that very part so as to make any person who put it into a machine and sold it, liable to an action for an infringement of the patent." (31 L. J., Ex. 47.)

(t) LISTER v. EASTWOOD. [1864]

Where a patent is for a combination, a person who takes a new and material part of the combination, but does not apply it to a similar or analogous purpose to that to which it was applied in the patent, does not infringe the patent. (9 L. T. Rep., N. S.,

(u) WHITE v. FENN. [1867]

If a patent be taken out for an invention by means of a combination, the use of a subordinate part of the combination is no infringement of the patent, unless such part is new and material. (15 W. R. 348; 15 L. T. Rep., N. S. 505.)

(v) BOVILL v. CRATE. [1867]

The plaintiff's patent being for an improved method of exhausting air which accumulated round millstones in grinding, the defendant objected that the plaintiff was limited by his claim to exhaustion by a superadded blast, and that as the defendant did not use a superadded blast there was no infringement:-Held, by Wood, V.-C., that as the superadded blast was not brought forward as new, but the removal of the accumulated air, the defendant had no right (even assuming that the patent was for a combination of using the blast with drawing away the air) to take that portion of the invention which would exactly effect the same thing, because he could apply it to another particular form of blast. (2 Griff. 46.) (w) BOVILL v. SMITH. [1868]

This was an action for infringement of the same patent as that in the preceding case. The defendant's apparatus could be made if properly used, by means of slides, to keep the machine clear of stive and damp and heat sufficiently to prevent the accumulation of moisture-i.e. to produce the effect which the plaintiff produced :Held, to be an infringement. (2 Griff. 49.)

(x) TATHAM v. DANIA. [1869]

:

66

:

The plaintiff's patent was for improvements in machinery for teazing and opening textile materials, and showed the ordinary toothed cylinders of a cotton hard-waste breaker machine or devil, and the common feed-rollers, but the cage-roller, which in other machines worked in stationary bearings, was made to rise and fall and to revolve at any required speed. The only part which the defendant had adopted was the mode of retarding the cage. Willes, J. In such a case, in order to show infringement, you must show that that which had been infringed and made by the alleged pirate is a use in his machine of such part of that which is described in the specification as could stand by itself in respect of invention and in respect of use as the subject of a distinct patent.... I am satisfied that it (the retardation of the cage) could not have been the subject-matter of a patent, because the use of sets of rollers in a series going at different rates of speed for the purpose of making materials not of the same kind, but of a like kind, pass through in a form more convenient, . before. I apprehend that is the use of an old process applied to another state of things,. different only in the circumstances and not in the species." (Griff. 213 at p. 215.)

(y) PARKES v. STEVENS. Ch. [1869]

....

was in use

Action for the infringement of a patent for "improvements in

N

the manufacture of railway station and other lamps." The specification declared the invention to consist in the production of “a glaze lamp, the frames of which shall throw little or no shadow, and yet at the same time possess the requisite strength, and also facilities for lighting and cleaning." The patentee claimed only "the arrangement and combination of parts herein before described and represented in the drawings: "-Held, that the use by the defendant of a sliding spherical door, which, although its advantages were altogether collateral to the objects of the invention, was a feature in the plaintiff's lamps, and described in his specification, was no infringement of the plaintiff's patent. (L. R., 8 Eq. 358; 38 L. J., Ch. 627.) Sir W. M. James, V.-C.:" The patent being for the arrangement and combination of parts so as to form an entire lamp, and not being for, or claiming to be for, any particular part, the last question arises, is the introduction into a lamp, which is not alleged in any other respect to have adopted any part of the plaintiff's arrangement and combination of a sliding door, an infringement? The plaintiff's counsel have contended that it is, on the authority of the case of Lister v. Leather. The authority of that case has been pressed upon me as if it really established this, which would be a most startling proposition, that a patent for a combination or arrangement would be a distinct patent for everything that was new and material, and that went to make up the combination. The marginal note, if read hastily, is calculated to give some colour to that contention. But if the judgment be read, it will be found to give no warrant whatever for such, I must call it, baseless notion." (L. R., 8 Eq. 366.) "To say that a patent for an entire combination is a valid patent for a part, when that part would not have itself been patentable, is, in my judgment, a reductio ad absurdum of the supposed principle of Lister v. Leather." (Ib. 368.) Judgment affirmed on appeal. (L. Rep., 5 Ch. 36.)

Hatherley, L. C., however, said: "If this door was plainly and manifestly a new part, forming part of the whole combination, it ought not to be taken." (Ib. 39.)

(2) WRIGHT v. HITCHCOCK. [1870]

The plaintiff obtained a patent "for the invention of improvements in the manufacture of frills or ruffles, and in the machinery or apparatus employed therein." The specification described the invention as relating "to a peculiar manufacture of frills, ruffles, or trimmings, and to a peculiar combination of mechanism to be applied to a sewing machine for producing the same." The specification described how the fabric was folded or crimped by a reciprocating knife, and the folds stitched by a sewing machine. The patentee claimed-" First, the general construction, arrangement and combination of machinery, apparatus, or means for producing crimps or plaited frills or trimmings in a sewing machine, as herein before described. Secondly, the application and use of a reciprocating knife for crimping fabrics in a sewing machine, substantially as herein before described. Thirdly, the

peculiar manufacture of crimped or plaited frills or trimmings, as herein before described and illustrated by figure 8 of the drawings:' -Held, first, that the essential improvement, introduced by the plaintiff, was the use of a reciprocating knife, and that the patent did not apply simply to its use in combination with a sewing machine, and therefore, that the use of the reciprocating knife, separately from a sewing machine, was an infringement of the patent. (L. R., 5 Ex. 37; 39 L. J., Exch. 97.)

(a) CANNINGTON v. NUTTALL. H. L.

[1871]

Per Lord Westbury: If there is a patent for a combination of machinery, originally directed to one purpose, and a person afterwards adopts that combination in order to make it minister to another and additional purpose, his doing so constitutes an infringement of the patent. (L. Rep., 5 H. L. 205.)

(b) SAXBY v. CLUNES. [1874]

A patent not only protects the entire apparatus, but also every part of it which is new and material, but if the defendant's apparatus, although for the same object, be a new and different apparatus, not copied from the plaintiff, and there is not used in its construction any part of the plaintiff's apparatus which was new and material, there is no infringement:-Held, on the facts, that the apparatus of the defendant for actuating railway points or signals was not an infringement of the plaintiff's patent. (43 L. J., Exch. 228.)

A patent for a mechanical arrangement whereby a particular operation may be performed for a particular purpose, the parts of the apparatus not being new in themselves, but thus first combined for that particular purpose, is not infringed by the adoption of the same arrangement or combination of parts for a similar purpose if the mode of operation is sufficiently distinct and different in principle, and the object achieved is also sufficiently distinct or novel, and does not form an essential part of the patent. (lb.)

(c) BINNEY v. FELDTMAN. [1875]

A patentee claimed as his invention "A packing (for stuffing boxes) composed of fibrous strands impregnated with powdered mineral lubricant, combined with a cover of braided, woven, or knitted fabric.' The defendant used for the same purpose a woven cover of fibrous material lined with one or more layers of cotton wick, the central space filled with soapstone or lubricating material, either dry or moist. The effect of moving the defendant's packing about was that naturally the lubricant became more or less absorbed into the cotton wick lining, and so produced a packing practically coinciding with the description in the patent: -Held, that as the claim in the patent was clearly intended to cover a designed impregnation of fibrous strands before they were enclosed in an outside covering, there was no infringement. The ground was perfectly open and clear to any person who might discover that it was better not to impregnate strands at all, but to