« PreviousContinue »
new, better, or cheaper.
be the subject of a patent privilege; but that this was so was not fully established till the case of Crane v. Price (r), which concerned a patent for a process of smelting iron by means of a hot-air blast. Chemical Processes are the result of the application of the mechanical. sciences of mechanics and chemistry to the arts; but there can seldom be a purely chemical process, for chemical substances, in order to act on each other, must be brought into intimate relationship, and the difficulty of duly effecting this necessitates a large amount of mechanical invention. If by means of Must be the process a new, better, or cheaper article is produced, it may be the subject-matter for valid letters patent (s). The patent may be for the article produced by the process if the article is not new, for a new method of producing an old article, as was decided in the case of Stevens v. Keating, is a new manufacture (t). When letters patent Process and have been obtained for a new result, and the duct. patent describes a process of arriving at that result which is effectual at the date of the patent, the patentee is entitled to protection against all other processes; it is an infringement to adopt any other process for the purpose of arriving at that result (u).
(r) 4 M. & G. 580.
(s) Gibson v. Brand, 4 M. & G. 602, 1 Webs. P. R. 409; Murray v. Clayton, L. R. 7 Ch. 584.
(t) 2 Webs. P. R. 182; Bush v. Fox, Macr. P. C. 176; Ralston v. Smith, 11 H. L. C. 223.
(u) Bädische Anilin Fabrik v. Levenstein, 48 L.T.(N.S.) 822.
part of pro
Omission of A patent for an invention which consists in the omission of part or parts of a process will be supported (v), and so will a process by which old materials can be used again (w), or which makes a chemical curiosity available for practical purposes (a).
The decisions as to patents for combinations are in effect similar, if not identical with those already stated as to processes. The combination must
Must be a result in a substantial improvement, and be attended with results of novelty and utility to the public, by the adoption of new parts or new arrangements of the parts (y); and care must be taken only to claim the combination, unless a part or parts of the combination be novel, in which case a separate claim may be made (z). If three patents are taken
(v) Minter v. Mower, 6 A. & E. 1 Webs. P. R. 139; Russell v. Cowley, 1 Webs. P. R. 463; Wellington v. Dale, 7 Exch. 888.
(w) Hills v. Liverpool Gas Company, 9 Jur. (N. S.) 140; Steiner v. Heald, 6 Exch. 607.
(a) Sellers v. Dickinson, 5 Exch. 326; Young v. Fernie, 4 Giff. 597,
(y) Lister v. Leather, 8 E. & B. 1004 ; Huddart v. Grimshaw, Dav. P. C. 267; Newall v. Elliot, 10 Jur. (N. S.) 954; Murray v. Clayton, L. R. 7 Ch. 570; Foxwell v. Bostock, 12 W. R. 725; Cannington v. Nuttall, L. R. 5 H. L. 205; Spencer v. Jack, 3 De G. J. & S. 346; Bovill v. Keyworth, 7 E. & B. 725; Cropper v. Smith, W. N. 1883, p. 49.
(2) Clark v. Adie, 2 App. Cas. 321.
out for a combination, of which the third consists in merely such a combination of improvements introduced by the other two as any person of ordinary knowledge might effect without further experiment or further information than that contained in the prior specifications, the letters patent will be held void (a). But where a slight alteration turns that which was practically useless into a useful and important article of commerce, though the amount of the invention be small, yet, because of the greatness of the results, the patent will be supported (b).
Of course, if the improvement is on a valid Improveexisting patent, the patent for the improvement patents. does not give the right to use the prior patent, the consent of the owner of which must be obtained until his term has expired (c). In Parks v. Stevens, James (V.-C.) sums up the law on this point when commenting on the case of Lister v. Leather: "The cases establish that a valid patent for an entire combination for a process gives protection to each part thereof that is new and material for that process; which is really nothing more than stating,
(a) Saxby v. The Gloucester Waggon Company, 7 Q. B. D. 305.
(b) Hinks v. The Safety Lighting Company, 4 Ch. D. 616.
(c) Lister v. Leather, 8 E. & B. 1017; Saxby v. Clunes, 43 L. J. Ex. 228; White v. Fenn, 15 W. R. 348; Grant of Compulsory Licenses, s. 22.
in other words, that you not only have no right to steal the whole, but you have no right to steal any part of another man's invention. And the question, every case, is a question of fact-is it really and substantially a part of the invention ?" (d).
Perhaps patents for combinations are more equivalents. numerous, and the attempts to evade them more
frequent, than any other description of patent taken out. The means of evasion usually employed are the snbstitution of what are termed mechanical or chemical equivalents in the place of a part or parts of the combination (e). Referring to one kind of evasion-that of colourable imitation-Lord Cairns, in the case of Dudgeon v. Thomson (f), says as follows: "That which is protected is that which is specified, and that which is held to be an infringement must be an infringement of that which is specified. But Colourable I agree that it will not be the less an infringement because it has been coloured or disguised by additions or subtractions, which additions or subtractions may exist and yet the thing pro
(d) L. R. 8 Eq. 358; Affirmed on Appeal, 5 App. Cas. 36. (e) Stevens v. Keating (Chemical Equivalent), 2 Webs. P. R. 181; Russell v. Cowley (Mechanical Equivalent), 1 Webs. P. C. 463; Heath v. Unwin (Chemical Equivalent), 5 H. L. C. 505, 543; Muntz v. Foster (Chemical Equivalent), 2 Webs. P. C. 96; Hills v. The Liverpool Gas Company (Chemical Equivalent), 9 Jur. (N. S.) 140; Patent Type Founding Company v. Rich, Johns 381; Parks v. Stevens, L. R. 8 Eq. 258. (f) 3 App. Cas. p. 43.
tected by the specification be taken notwithstanding." "When the result is old, but the means new, the Court will look jealously at the claims of inventors seeking to limit the rights of the public at large for effecting that which has been commonly known to all the world long before" (g).
The subject-matter of the invention must be(1) NOVEL.
(3) ADEQUATELY DESCRIBED.
c. 3, s. 6.
The words of the statute of James, on which the 21 James I. decisions as to novelty are based, are: "All letters patent and grants of privilege of the sole working or making of any manner of new manufactures within this realm. which others, at the time of making such letters patent and grants, shall not
(g) Judgment of Lord Hatherley in Curtis v. Platt, 3 Ch.
(h) See Introduction, p. xxi.; s. 46, p. 93. In the case of Rolls v. Isaacs it was held that the fact that an invention has been used in a British colony before the date of letters patent granted in respect of the invention for the United Kingdom does not invalidate the patent, 45 L. T. (N. S.) 704; Brown v. Annandale (distinguished), 8 Cl. & Fin. 437.