patent for it can be granted, either to the true or first inventor himself, or any other person, for the public cannot be deprived of the right to use the invention, and a patentee of the invention could not give any consideration to the public for the grant, the public already possessing everything that he could give.' This is, in my opinion, a correct statement of the law.

"It is not necessary that the invention should be used by the public as well as known to the public. If the invention and the mode in which it can be used has been made known to the public by a description in a work which has been publicly circulated (Stead v. Williams, 7 M. & G. 818, 842), or in a specification duly enrolled (Bush v. Fox, 5 H. L. Cas. 707; Betts v. Menzies, 10 H. L. Cas. 117), it avoids the patent, though it is not shown that it ever was actually put in use. It is true that the later case establishes that an antecedent specification ought not to be held to be an anticipation of a subsequent discovery, unless you have ascertained that the antecedent specification discloses a practical mode of producing the result which is the effect of the subsequent discovery.' (Per Lord Westbury, C., 10 H. L. Cas. 154.) But all difficulty on that score is, in this case, removed by the statement in the 37th paragraph of the bill of complaint already cited. If the date of the patent had been after the circulation of the report amongst the gas companies, instead of being, as it was, a few weeks earlier, the case would, it seems to me, have been quite unarguable. The date of the patent was, however, before the contents of the report were known to the gas companies, though several weeks after they were known to the whole of the referees and their secretary; and, as I have already pointed out, from the moment the referees became aware of what was in the report, it became the property of the public, and they were bound to make it known. The appellant, indeed, contends that he made it known to the referees only confidentially. I do not pause to inquire whether this was the fact or not, for I think it immaterial. I do not mean to throw any doubt on the doctrine in Morgan v. Seaward (2 M. & W. 544), that a disclosure to assistants or partners of an invention whilst it is being perfected, under an obligation to keep it secret till the patent is taken out, is not a disclosure to the public, for such persons could not make the invention known without a breach of duty. But, in the present case, the disclosure was to paid public officers, who could not keep it secret without a breach of duty. They were bound to make it known, and even if they, in breach of their duty, kept it back, the invention was not the less the property of the public from the time the referees knew it, which was at least as early as the date of the report." (Ib. 244.)

(j) BAILEY v. ROBERTON. H. L. [1878]

A patent for "improvements in preserving animal substances, in which the invention consists in preserving fresh meat by dipping it into a solution of bisulphite of lime, is anticipated by a prior patent for "improvements in preserving organic substances," in which the invention consists in preserving meat already par

tially preserved, either by salting, drying or smoking, or the like, by dipping it into a like solution.

Lord Blackburn: "Could it be said, you have dipped a ham into bisulphite of lime, and so stopped the putrefaction; but I say you shall not dip a leg of fresh pork into it. I think you cannot do better than take the old illustration. The old illustration was, you cannot take out a patent, saying: You have eaten soup with a spoon, I will take out a patent for eating pea soup with a spoon. You have taken out a patent for sweeping an old carpet with a new broom, I will take out a patent for sweeping a new carpet with an old broom. I quite agree there may be cases in which there is real invention and discovery, though an apparent application of an old principle; the best case for illustration is one in which, I believe, the patent was granted, but the invention was not found practicable. About thirty years ago an ingenious man, seeing the plastic nature of the dough of flour, and knowing that the Neapolitans spin all kinds of macaroni out of it very ingeniously, came to the conclusion that if he could only manage to take red hot iron almost melting he, by an analogous process, could spin gas pipes, but the principle failed in practice; as might be supposed, it was rather a difficult thing to do. Nobody would have doubted, if he had succeeded in it, that it would have been a very great invention. But there is no such invention here; it is merely saying the exact mode in which R. has been preserving his semicured meat is to be prohibited to him when it is applied to meat which is not cured at all. I must say it strikes me that would not be a good patent at all." (L. R., 3 App. Cas. 1079.)

(k) UNITED TELEPHONE COMPANY v. HARRISON, COX, WALKER, AND COMPANY. [1882]

An instrument which was alleged to be an anticipation of an invention patented in 1876, for improvements in electric telephony and telephonic apparatus was described with plates in a paper written in German in a scientific journal called the Zeitschrift ' of the German-Austrian Telegraph Union, published in 1862, in Berlin. A copy of the Zeitschrift' was in the library of the Patent Office in London, and another copy was in the library of the Institute of Civil Engineers, where it was accessible to all the members, more than 3000 in number, and to friends introduced by them. It was, however, entered in the catalogue only under the head of Journals, not under the head of Telephones or Telegraphs. A telegraphic engineer gave evidence that before the date of the patent he had seen the description in the Zeitschrift,' and that though he could not read German, he was able from his knowledge of the technical words used, with the assistance of the plates, to understand the substance of the invention. Held, that there was evidence from which it ought to be inferred that the description in the journal must be considered to have been within the knowledge of persons skilled in such matters in this country. But held, on the facts, that the description was not an anticipation of the patented invention. (21 Ch. D. 720.)

(1) DAVIS v. FELDMAN. C. A. [1884]

Another way of stating the question whether a specification is an anticipation of a particular invention in a material part, is to try the question: "Would the patentee by using his patented invention be infringing the patent which did or would have resulted from the completion of the prior specification?" (Griff. 75; 1 O. R. 193.)

(m) PHILPOTT v. HANBURY. [1884-5]

Grove, J.: "My opinion is that there is not the same necessity for accurate description of how an invention shall be carried into effect for the purpose of anticipating an invention, as there is for the purpose of sustaining a patent in the hands of a patentee, because in the latter case a description ought to be given which ought not to merely inform the minds of every skilled person or scientific person in the trade, but should inform the minds of ordinary persons who are accustomed to work at the trade. Therefore I think that there is a distinction, but I am willing to rest my definition or description of what anticipates a patent on this, that there must be a publication, which, when read by persons versed in the trade, skilful and well acquainted with the trade (I might even limit it perhaps to those in the trade who are most skilled, the higher class of skilled workmen), would enable them to understand it. If it be such it anticipates the patent. If it is a mere suggestion, if it is so erroneous in the description that they cannot by reasonable application of the mind. find out what it means, it does not anticipate the patent." (Griff. 185; 2 O. R. 33, at p. 43.)

(n) JENSEN v. SMITH. [1885]

It was alleged that the plaintiff's patent for improvements in lubricators, wherein the lubricant was forced through a pipe by a screw actuated by a cap, had been anticipated by a lubricator having a top through which a screw passed, and a piston inside actuated by the screw :-Held, that assuming that the plaintiff's patent had been valid the alleged anticipation would have been an infringement of it, and that, therefore, there was not sufficient invention in it. (Griff. 136; 2 O. R. 249.)

(0) POOLEY v. POINTON. [1885]

The specification which was alleged to be an anticipation was so clogged with superfluous apparatus that the patented process never obtained currency in England. Pearson, J.: "It may be said that inasmuch as his apparatus was so costly and so cumbersome that it prevented the use of his process, that he had described no way by which that process could be effectually used, and that accordingly his patent must be considered as a dead letter, and did not stand in the way of any person who should take out a patent for a similar principle shown in the process easy and without cost." But whether this was so or not the judge held that the plaintiff in his patent had not got any further than the prior specification, and that, therefore, the patent was bad. (Griff. 199; 2 O. R. 167, at p. 171.)

S

(p) LAWRENCE v. PERRY. [1885]

A patent for improvements in lead and crayon holders was alleged to have been anticipated by various specifications, one of which was only provisional. North, J.: "I have felt some difficulty in seeing how the plaintiff's invention can be useful if it only differs from an earlier one by an ingredient which does neither harm nor good." (2 0. R., p. 184.) It was alleged "that no case has occurred yet in which the description contained in a provisional specification has been held sufficiently precise to destroy a later patent for a like subject. Be this as it may there is nothing in that remark relevant to the present case. . . . In this case I am clearly of opinion that Wiley's provisional specification does contain quite a sufficient description of the nature of the invention, and also of the manner in which it is to be performed to bring the case within the ruling of Lord Westbury in Hills v. Evans. I find a clear description how to construct an instrument which is completely covered by the first claiming clause of the plaintiff's; and this is, in my opinion, quite sufficient to prevent there being subsequent first and true inventors within the realm of the instrument so described even if the description in the provisional specification of other alternative forms of instrument were mere sketches only." (Griff. 143; 2 O. R. 180, at p. 187.) [1886]

(1) OTTO v. STEEL. C. A.

A French treatise was placed in the British Museum in 1863. The Museum Catalogue is kept with reference to author's names; books are arranged according to subject matter; readers can under guidance search for books on particular subjects:-Held, that there was no prior publication in England of matter contained in the treatise so as to avoid a patent taken out in 1876. (31 Ch. D. 241 ; 55 L. J. Ch. 196; 54 L. T. Rep., N. S. 157; 34 W. R. 289; 3 O. R. 109.)

(r) LISTER v. NORTON. [1886]

The defendant in an action for infringement alleged want of novelty on the ground that the patentee had filed a provisional specification on the 24th July, 1880, the provisional specification of the completed patent being filed on the 21st January, 1881, and had so used and published the invention between these dates as to distinguish this case from Oxley v. Holden, and to invalidate the patent:-Held, that there was evidence of user during this period, but that this user in public was covered by the grounds on which Oxley v. Holden was decided, and was protected by the first provisional specification. (Griff. 148; 3 O. R. 199.)

(8) FLETCHER v. ARDEN. [1887]

The plaintiff's patent was for an improved gas-cooking apparatus:-Held, that it had been anticipated by an apparatus from which it differed only in the substitution of a hinge or a pivot for a slide as a means of attaching certain deflector plates. (5 O. R. 46.)

(t) MOSELEY V. THE VICTORIA RUBBER COMPANY. [1887]

Chitty, J. (following Hills v. Evans): "The information as to the alleged invention given by the prior publication must, for the purposes of practical utility, be equal to that given by the subsequent patent." (4 0. R. 252.) The defendants relied on four specifications covering a period of fourteen years, and the latest nearly twenty years before the plaintiff's patent. No one had produced from them an article such as that produced by the plaintiff's process:-Held, no anticipation. (4 O. R. 241.)

(u) HARRIS v. ROTHWELL. C. A. [1887]

In December, 1878, and February, 1880, specifications in German with drawings of two patents were deposited in the free library at the Patent Office, and the Commissioners' Journal, amongst the list of patents granted in Germany, contained entries of these patents with notes that the specifications might be consulted in the library of the office. In April, 1880, a patent was obtained for a similar invention :-Held, that there was evidence from which to infer prior publication in this country, and that this inference was not affected by the prior specifications being in German. Lindley, L. J.: "Prima facie a patentee is not the first inventor of his patented invention if it be proved that before the date of his patent an intelligible description of his invention, either in English or in any other language commonly known in this country, was known to exist in this country either in the Patent Office or in any other library to which the public are admitted, and to which persons in search of information on the subject to which the patent relates would naturally go for information. But if, as in Plimpton v. Malcolmson, Plimpton v. Spiller, and Otto v. Steel, it be proved that the foreign publication, although in a public library, was not in fact known to be there, the unknown existence of the publication is not fatal to the patent." (35 Ch. D. 416, at p. 431; 56 L. J. Ch. 459; 56 L. T. 552; 35 W. R. 581; 3 T. L. R. 553.)

(v) EHRLICH v. IHLEE. C. A. [1888]

Where the only anticipation alleged is by description in a specification or otherwise, it must be such as would enable any competent person to make from it the machine for which protection is claimed. (5 O. R. 437.)

(w) KAYE v. CHUBB. H. L. [1888]

Semble: A worthless and abandoned patent may be an anticipation of a subsequent invention if it describe such invention in terms which fully and sufficiently disclose it and the manner in which it is to be practised. (5 O. R. 641.)

(x) HERBURGER SCHWANDER ET CIE. v. SQUIRE. C. A. [1889]

An invention which was merely the adjustment in a beneficial manner of the distance between two of the working parts of a known machine :—Held, to be anticipated by a drawing in a previous