but also in the nature of the evidence of "prior user" which may be given in an action either for infringement or revocation. The ambiguity of the form of letters patent which is given, and the by no means clear provisions of the Act upon these matters, will in all probability result in a plentiful crop of litigation (r). The next proviso is one for the determination of the patent in the event of the prescribed fees not being paid, and the last provides for the supply of the patented article for the use of the public service on reasonable terms. This proviso in no way binds the Crown if the patented article should be required for the public service to purchase it from the patentee upon reasonable terms and conditions. Prior to the Act of 1883 letters patent did not operate as against the Crown. The Crown might make use of the invention without in any way recognising any rights of the inventor or patentee (s). But should the Crown have employed a contractor, as distinguished from a servant, to manufacture the patented article, the usual proceedings for infringement might be brought against the contractor, since he is the person using the patent, and not the Crown. There are two methods of infringing; first, making and vending; and secondly, using, consequently the contractor infringes by doing the first, and it makes no difference that the Crown also infringes by using the invention (†). This case was subsequently affirmed in the House of Lords. Lord Hatherley said, "The Crown has no right to authorize others who are not their officers, servants, or agents, to use a patented invention without a license from the patentee;" and Lord Selborne added, "I agree with the Court of Queen's Bench that this decision (Feather v. R.) is not to be extended by any reasoning from the convenience of the Crown, or of the public service, or from any idea that it practically comes to the same thing, whether the Crown manufactures itself or gives orders to other manufacturers." The right of the Crown to use a patented invention for the (r) See Marsden v. The Saville Street Foundry Co., L. R., 3 Ex. D. 203; Rolls v. Isaacs, L. R., 19 Ch. D. 268. (s) Feather v. R., 6 B. & S. 257. (t) Dixon v. The London Small Arms Co., L. R., 10 Q. B. 130; L. R., 1 App. Cas. 641. public service without being under any obligation to remunerate the inventor has been abolished by sect. 27 of the Act of 1883. (1) "A patent shall have to all intents the like effects as against her Majesty the Queen, her heirs and successors, as it has against a subject. (2) "But the officers or authorities administering any department of the service of the Crown may, by themselves, their agents, contractors (u), or others, at any time after the application, use the invention for the services of the Crown on terms to be before or after the use thereof agreed on, with the approval of the Treasury, between those officers or authorities and the patentee, or, in default of such agreement, on such terms as may be settled by the Treasury after hearing all parties interested." Sect. 44 deals with the acquisition by the Secretary of State for War of any inventions dealing with instruments or munitions of war, and with the non-publication of specifications describing such inventions, and generally with the preservation for the public benefit of the secret of them. THE CONSTRUCTION. "And lastly, we do by these presents for us, our heirs and successors, grant unto the said patentee that these our letters patent shall be construed in the most beneficial sense for the advantage of the said patentee." These words are inserted in the patent for the purpose of preventing the common rule of construction of grants of the Crown when founded upon a petition being read most strongly against the grantee. This favourable construction will not, however, in any way save the validity of the patent if it can be shown to have been granted upon a false suggestion. (u) Dixon v. The London Small Arms Co., supra. CHAPTER XI. AMENDMENT OF SPECIFICATIONS. THE Patents, &c., Act, 1883, provides for the amendment of specifications in two ways, compulsorily and voluntarily. We have seen that sect. 6 directs that the comptroller shall refer the specification to an examiner. Sect. 7 as amended by sect. 2 of the Patents, &c., Act, 1888, provides that (1), "If the examiner reports that the nature of the invention is not fairly described, or that the application, specification, or drawings has not or have not been prepared in the prescribed manner, or that the title does not sufficiently indicate the subject-matter of the invention, the comptroller may refuse to accept the application or require that the application, specification, or drawings be amended before he proceeds with the application, and in the latter case the application shall, if the comptroller so direct, bear date as from the time when the requirement is complied with." Sub-sects. 2, 3, 4, provide for an appeal to the law officer; and sub-sect. 5 gives directions as to what should be done when there are two applications for substantially the same invention. Sect. 9, sub-sect. 1, requires that the examiner shall report to the comptroller as to "whether the complete specification has been prepared in the prescribed manner, and whether the invention particularly described in the complete specification is substantially the same as that which is described in the provisional specification." If the examiner reports that these conditions have not been complied with, the comptroller may refuse to accept the complete specification until it has been amended to his satisfaction, subject to appeal to the law officer. Sub-sect. 3: The law officer shall, if required, hear the applicant and the comptroller, and may make an order deter mining whether, and subject to what conditions, if any, the complete specification shall be accepted. By sub-sect. 4 the application is rendered void, except in the case of an appeal, unless a complete specification is "accepted" within twelve months from the date of application. Sect. 94 provides: "Where any discretionary power is by this Act given to the comptroller, he shall not exercise that power adversely to the applicant for a patent, or for amendment of a specification . . . . without (if so required within the prescribed time by the applicant) giving the applicant the opportunity of being heard personally or by his agent (a)." These provisions of the law were novel at the date of the Act of 1883. It will be particularly observed that compulsory amendment is strictly limited to matters of form. The comptroller has no power to order an amendment on the ground that too much is claimed, or that there is want of novelty, or that the invention is not subject-matter for a patent. It is difficult to predicate what judicial interpretation will be put upon the words "that the nature of the invention is not fairly described." Is the examiner to be in the position of an expert witness, and to decide whether or not the description is sufficient to enable a skilled artizan to carry the invention into effect within the meaning of Jessel, M.R., in Plimpton v. Malcolmson (b)? or is he merely to see that the language is correct, and that, without going technically into the matter, the specification appears to fairly describe the invention? If the former is his province, it is difficult to see how it is to be carried into effect, since there is no machinery in the Act for the receiving of skilled evidence, such as would be necessary for the purpose of arriving at a satisfactory conclusion upon such a point. The applicant or his agent are alone to be heard. It is true that by sect. 38, where the applicant appeals he may call witnesses before the law officer, but surely the statute does not contemplate that questions should be gone into which, it is evident, can only be decided on appeal, and even then not satisfactorily without the procedure and care of a regular formal trial. Under such circumstances, it may fairly be presumed that the (a) See also P. R. 1890, rr. 11-14. (b) L. R., 3 Ch. D. 568. meaning of the section is, that the examiner shall report whether the specification, on the face of it, appears to fairly describe the invention (c). In construing sect. 9, it will probably be held that a minute and scientific inspection of the specification is not within the contemplation of the statute. It is the duty of the examiner to report whether the specification contains a full and fair description of the invention, but it is not within his province to decide what the amendment is to be, in cases where amendment is necessary (d). Sect. 18 provides for the amendment of the specification by the applicant or patentee. There are several reported cases showing that at common law mere clerical errors in a specification might formerly be amended by the Master of the Rolls and the Lord Chancellor upon petition, but these amendments were strictly limited to verbal or clerical errors arising from mistake or inadvertence (e). In re Gare's Patent in 1884 (f), Brett, M.R., allowed amendments of clerical errors in a specification filed under sects. 27 and 28 of the Patents, &c., Act, 1852, and said: "The Master of the Rolls is of opinion that sect. 18 of the Patents, &c., Act, 1883, does not affect the power of the Master of the Rolls to allow amendments in a patent specification filed in pursuance of sects. 27 and 28 of the Patent Act, 1852, or which is otherwise to be considered as a record under the authority of the Master of the Rolls. So long as the specification is in the Patent Office, and before the patent is sealed, the Master of the Rolls considers that the proceedings of sect. 18 should be the only proceedings taken by anyone asking for amendment under that section." It would appear from the words printed in italics that the jurisdiction of the Master of the Rolls is still intact with reference to amendments after sealing. (c) Brown's Patent, Griff. L. O. C. 1. (d) In re C.'s application, 7 P. O. R. 250. (e) In re Sharp's Patent, 1 Web. P. C. 641; In re Nickel's Patent, 1 Web. P. C. 650; In re Redmund's Patent, 1 Web. P. C. 649 (n); In re Whitehouse's Patent, 1 Web. P. C. |