covery, gives to the parties to administer interrogatories to each other has been abused, I have no doubt the learned ViceChancellor will take care that justice shall be done, and will make the party who is to blame pay all the costs of the improper exercise of this power."

INSPECTION.

Sect. 30 of the Patents, &c. Act of 1883, provides: "In an action for infringement of a patent, the Court or a judge may, on the application of either party, make such order for an injunction, inspection, or account, and impose such terms and give such directions respecting the same and the proceedings thereon, as the Court or a judge may see fit."

The power to order an inspection was always assumed by the Courts; in Bovill v. Moore (g), Lord Eldon said: "There is no use in this Court directing an action to be brought, if it does not possess the power to have the action properly tried. The plaintiff has a patent for a machine used in making bobbin lace. The defendant is a manufacturer of that article; and, as the plaintiff alleges, he is making it with a machine constructed upon the principle of the machine protected by the plaintiff's patent. Now the manufactory of the defendant is carried on in secret. The machine which the defendant uses to make bobbin lace, and which the plaintiff alleges to be a piracy of his invention, is in the defendant's own possession, and no one can have access to it without his permission. The evidence of the piracy, at present, is the bobbin lace made by the defendant. The witnesses say that this lace must have been manufactured by the plaintiff's machine, or by a machine similar to it in principle. This is obviously in a great measure conjecture. No Court can be content with evidence of this description. There must be an order that plaintiff's witnesses shall be permitted before the trial of the action to inspect the defendant's machine, and to see it work."

"The right to inspection is a right to be given at the discretion of the Court-to be exercised with a judicial discretion and

(g) 2 Coop. Ch. Ca. 56 (n.).

with due regard to the interests of the parties concerned in the litigation" (h).

The object which the Court has in view in all cases where an inspection is permitted, is to ensure that the true facts of the case shall be carefully sifted; but at the same time the Court will take care that the process of the law is not abused, and that an action for infringement shall not be made a means and lever for the discovery of other persons' secrets.

The Court requires, before granting an order for inspection, that a prima facie case shall be made out of infringement (i). And when the interests of justice require, the inspection will be granted to scientific witnesses, who will be required to keep any secrets which they may have discovered, and which do not affect the question of infringement (k). And in Flower v. Lloyd (1) the Court of Appeal strictly limited the inspection to scientific men, and excluded the plaintiff from being present.

In Pigott v. The Anglo-American Telegraph Co. (m), it was alleged that an inspection would disclose important secrets. Giffard, V.-C., in refusing an order to inspect, said: "Of late years greater readiness has been shown by the equity Courts to allow inspection in patent cases than by the courts of common law. But it has never been considered as a matter of right, nor have the equity Courts considered themselves as precluded from exercising a proper discretion in applications of this description. The Court ought to be satisfied of two things: that there really is a case to be tried at the hearing of the cause, and that the inspection asked for is of material importance to the plaintiff's case as made out by his evidence."

In Batley v. Kynock (n), Sir James Bacon, V.-C., said: "Upon the single point which is raised before me, there can

(h) Per Bristowe, V.-C., in McDougall v. Partington, 7 P. O. R., at p. 357.

(i) Bovill v. Moore, supra; The Singer Sewing Machine Co. v. Wilson, 12 L. T., N. S. 140; Shaw v. The Bank of England, 22 L. J., Ex. 26; Batley v. Kynoch, L. R., 19 Eq. 90; Germ Milling Co. v. Robinson, 55

L. J., Ch. 287; 1 P. O. R. 217.

(k) See Russell v. Crichton, 1 Web. P. C. 667 (n.); 15 Dec. Ct. of Sess. 1270.

(1) W. N. 1876, 169, 230; see also The Plating Co. v. Farquharson, Griff. P. C. 187.

(m) 19 L. T., N. S. 46.
(n) L. R., 19 Eq. 92.

be no doubt that the plaintiff in such a suit as this is entitled to an inspection of the means which the defendants employ in the manufacture of the articles alleged to be violations of the plaintiff's patent, when such inspection is essential for the purpose of enabling the plaintiff to prove his case; upon the materials before me that is not made out. There is no allegation by the plaintiff that he cannot make out his case without inspection. But there is on the part of the defendants a plain allegation that inspection is not necessary for the purposes of the suit; upon that only I must decide this question. I would rather not go into the other matters which have been referred to. The description in the specification and the allegation in the bill—but as I read both the description in the specification and the allegation in the bill-I find that the charge made by the plaintiff is that the cartridges, the right of manufacturing which is vested in him exclusively, have been imitated and copied by the defendant, and if that fact can be made out the plaintiff's case can be clearly established. The mode of making that out is by examination of the cartridges, the means by which they have been made, whether by a machine or hammer or a screw cannot signify in the least if the cartridges of the defendant when made are made upon the principle of the patent claimed by the plaintiff."

As we have seen, the plea of secret process is of no avail for the purpose of resisting an order for inspection, but in such a case before granting the order the Court will require the plaintiff to make out a strong primâ facie case of infringement (o).

In Drake v. Muntz Metal Co. (p), before statement of claim application was made to Bacon, V.-C., that the defendants by their proper officer should make an affidavit verifying the machines and processes used by the defendant company in bending metal tubes since the date of the plaintiff's patent and for inspection. The Vice-Chancellor said that sect. 30 (supra) did not give him power to direct an affidavit to be made, but ordered inspection of the machines.

The Court, in the case of The Patent Type Founding Co. v.

(0) Germ Milling Co. v. Robinson,

1 P. O. R., at p. 219.

(p) 3 P. O. R. 43.

Walter (q), assumed the jurisdiction to order the defendant to deliver to the plaintiff a sample of the type made by him so that the plaintiff might have the same analysed, for the purpose of ascertaining whether the composition was similar to the plaintiff's patented composition.

In that case it was also held that laches sufficient to defeat the plaintiff's right to an interlocutory injunction was no bar to an order on the same motion for inspection.

Inspection will only be allowed of that with regard to which a primâ facie case of infringement has been made out (r).

In some cases where it is necessary, the Court will order the defendant and the plaintiff to give mutual inspection, and to show both the patented machine and the alleged infringement at work, and to permit either party to take away any of the work or samples of the work which has been done in their presence (s).

Whether the plaintiff will be entitled to see the alleged infringing machine at work or not will depend upon the circumstances of the case (t).

Where the defendant has delivered to the plaintiff specimens of the alleged infringing articles, the latter is not entitled to see those articles in actual use on the defendant's premises (u).

No order will be made for inspection by the plaintiff of articles not within the control of the defendant, nor of exhibits which the defendant's witnesses will give in evidence (x).

In McDougall v. Partington (y) the plaintiff's right to inspection depended upon a contract which was the matter in dispute, and since he was unable to show that inspection was necessary to prepare his case, it was held that no inspection should be granted

(q) 8 W. R. 353; John. 727; see also Germ Milling Co. v. Robinson, 3 P. O. R. 11.

(r) Cheetham v. Oldham, 5 P. O. R. 617, 621.

(s) Davenport v. Jepson, 1 N. R. 307; see also The Singer Sewing Machine Co. v. Wilson, 5 N. R. 505; The Germ Milling Co. v. Robinson, 55 L. J., Ch. 288; 3 P. O. R. 11.

(t) The Germ Milling Co. v. Robinson, 3 P. O. R. 11; Drake v. Muntz Metal Co., 3 P. O. R. 43; Sidebottom v. Fielden, 8 P. O. R. 266.

(u) Sidebottom v. Fielden, 8 P. O. R. 266.

(x) Garrard v. Edge, 6 P. O. R. 372; also Sidebottom v. Fielden, 8 P. O. R. 266, 269.

(y) 8 P. O. R. 351, 472.

on the ground that the right depended upon the question to be determined at the trial.

The application may be made on motion to the Court or by summons; it is usually made upon the application for an interim injunction, but it is immaterial at what stage of the proceedings the application is made. The evidence in support must be on affidavit, and a primâ facie case of infringement must be made out, and that the inspection is material to the plaintiff's case.

Order L. of the Rules of the Supreme Court, 1883, contains some provisions as to inspection which must be noticed.

Rule 3 provides for the inspection of property and the taking of samples, or for "any observations to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence." Rule 4: "It shall be lawful for any judge, by whom any cause or matter may be heard or tried with or without a jury, or before whom any cause or matter may be brought by way of appeal, to inspect any property or thing concerning which any question may arise

therein."

This last mentioned rule was introduced by the Rules 1883. Before, the parties must have consented to a view being had. In Jackson v. The Duke of Newcastle (z), Lord Westbury said: "A judge is bound to pronounce his decision according to the evidence before him, but his inspection of the premises may bring him to a conclusion directly opposite to that which is established by the evidence."

THE TRIAL.

The constitution of the Court which is to hear and determine patent actions is provided for by sect. 28, sub-sect. 1, of the Act of 1883: "In an action or proceeding for infringement or revocation of a patent, the Court may, if it thinks fit, and shall on the request of either of the parties to the proceeding, call in the aid of an assessor, specially qualified, and hear and try the case wholly or partially with his assistance; the action shall be tried without a jury, unless the Court shall otherwise direct."

(z) 33 L. J., Ch. 698.