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disclaimer, provided that the specifications as amended shall not be receivable in evidence in this action. And the costs of and occasioned by any such application of the plaintiff shall be the defendant's costs in
event. And it is ordered that the costs of this motion shall be costs in the action.
20. ORDER FOR REFERENCE UNDER SECT. 57 OF THE
JUDICATURE ACT, 1873.
[Formal parts.] Upon hearing counsel for the plaintiff, and for the defendant [or This cause coming on for trial], It is ordered that the fol. lowing questions 1. As to whether the invention, the subject of his letters Novelty. patent of the
was or was not, at the date of the said letters patent, new as to the public use
and exercise thereof within this realm ; 2. Whether the plaintiff was the true and first inventor of First the said invention ;
inventor. 3. Whether the specification of the said letters patent in the Sufficiency of
pleadings mentioned does or does not particularly de- specification.
patent; 4. Whether the defendant has, or has not, infringed the said Infringement.
letters patent, in or by any or either, and which of the
other manner; 5. Whether the undisclaimed portions of the said alleged Disclaimer.
invention were used in the United Kingdom at the
date of the said letters patent ; be referred, to be tried before one of the official referees (or a special referee), who shall have all the powers as to certifying and amending of a judge at nisi prius, and shall make his report of and concerning the matters ordered to be tried as aforesaid, pursuant to the statute ; and it is further ordered that the said referee shall be at liberty, if he shall think fit, to
examine the said parties to this action, and their respective witnesses upon oath or affirmation, and that the said parties do and shall produce before the said referee all books, deeds, papers, and writings in their or either of their custody or power, relating to the matters ordered to be tried as aforesaid. And it is further ordered, that neither the plaintiff nor the defendant shall bring or prosecute any action against the said referee, or against each other of and concerning the matters ordered to be tried as aforesaid. And that if either party shall by affected delay, or otherwise, wilfully prevent the said referee from making his report, he or they shall pay such costs to the other as the said Court, or any judge thereof, shall think reasonable and just. And it is further ordered, that in the event of the said referee declining to act, or dying before he shall bave made his report, the said parties may, or if they cannot agree, one of the judges of the said High Court may, upon application of either side, appoint a new referee.
21. ORDER FOR TRIAL OF A REPRESENTATIVE CASE, FOR
THE PURPOSE OF DETERMINING THE QUESTION OF
Undertaking And the plaintiff, F., by his counsel, undertaking to be bound to be bound by the result of the trial hereinafter directed, and the said
above-mentioned defendants, by their respective counsel, admitting that the letters patent in the pleadings mentioned are duly vested in the plaintiff, and consenting to be bound by the result of the trial hereinafter directed, and that the said trial shall be conducted by B., G., B. and W., four of the abovenamed defendants, on behalf of, and as representing all the defendants in the said suit ; let, by consent of all the said several defendants in the above-mentioned suits, the said defendants, B., G., B. and W., be the defendants in the said
trial, and let the said defendants, B., G., B. and W., on or Delivery of before the
, pursuant to the statute, deliver to objections.
the plaintiff their objections to the validity of the said patents; and let, by the consent of the plaintiff and the said defendants, the following question be tried before his lordship without a jury, that is to say, whether the patent in the pleadings men
tioned, dated, &c., is a valid patent ; and the plaintiff is to proceed to such trial on such day, &c. Adjourn the consideration of the costs on the several applications to the judge and to his lordship until after the said trial ; and let all further proceedings in the above-mentioned causes be stayed until after the said trial, and any of the defendants in any suits commenced by the plaintiff with respect to infringement of the said patent are to be at liberty to apply to be made parties to Liberty to this order (s).
22. FINAL JUDGMENT--RECITAL OF EVIDENCE–INJUNCTION
- INQUIRY AS TO DAMAGES-ORDER FOR DESTRUCTION
The following Order was settled by the late Master of the Rolls,
Sir George Jessel, personally, in the case of Plimpton v.
Spiller, reported L. R. 6 Ch. D. 412. In the High Court of Justice.
1876. P. 69.
Thursday the 19th day of April, 1877.
Defendants. This action, coming on for trial the 11th and 12th days of April, 1877, and this day before this Court, in the presence of counsel for the plaintiff and the defendants, upon hearing an order, dated the 4th August, 1876, an affidavit of A. F. S. filed the 15th March, 1876 ; an affidavit of J. I., filed the 16th Evidence February, 1877, the bill, answers, orders, record for trial, and the certificate of the Master of the Rolls, the judge before Certificato whom the questions of fact were tried, that the validity of the letters patent of the 25th day of August, 1865, granted to A. V. N., and numbered 2190 hereinafter mentioned, came in
(8) Foxwell v. Bradbury, dc., 80 other titles, L.C., 7th December, 1863, A. 2391.
question in the cause of P. v. M., 1875, P. 39, and upon hearing the said letters patent, and a certified printed copy of the specifications and drawings, filed under the said letters patent, and the indenture of assignment, dated the 10th day of January, 1866, and made between the said A. V. N., therein described, of the one part, and the plaintiff, J. L. P., of the other part, and registered in the Great Seal Patent Office on the day of the date thereof, the printed shorthand note of the evidence taken orally before this Court, on the trial of the said action of P. v. M., 1875, P. 39 ; of A. V. N., F. J. B., J. I., J. L. P., E. A. C., R. C. M., W. W. H. and E. J. C. W. and the exhibits marked 1, 2, and 4, then produced ; the examination of H. J. A., W. B. P., W. G. A., A. F. S., J. I., T. M. W., G. B., C. P. B. S., E. E., W. S. M. and H. L., taken orally before this Court, on the 11th, 12th, and 19th days of April, 1877, and the exhibits marked : 1. 2. 4. A. B. C. D. E. F. G. H. I. L. M. N. 0. P. E. E. 2. S. 1. S. 2. E. E. 1. E. E. 3. W. S. M. 1. W. 1. and W. 2. and the two catalogues and donation book produced to W. G. A., and the volume of the year 1863, of Jewitt's Book of Illustrations to the Report of the American Commissioners of Patent, and the “ Scientific American " for the years 1863 and 1865 ; the records from the Court of Bankruptcy of an assignment, dated the 11th August, 1865, by W. S. M., for the benefit of his creditors, and of a compozition deed by the said W. S. M., in the year 1869, and what was alleged by counsel on both sides, and this Court being of opinion that the plaintiff has proved the breaches complained of, in the particulars of breaches delivered by him in this action, doth order that an injunction be awarded to restrain the defendants, their servants, agents, and workmen during the continuance of the letters patent, granted to A. V. N., dated the 25th day of August, 1865, and numbered 2190, and any extension of the term thereof from using, or exercising, or causing or permitting to be used or exercised, the invention described in the hereinbefore mentioned specification and drawings, filed under the said letters patent, and from selling, letting for hire, or making any profitable use, or permitting the sale, letting for hire, or profitable use of any roller or runner skates not made by the plaintiff, or his licensees, and having applied thereto rollers or runners in manner described
Proof of breaches.
and for the purposes mentioned in the said specification, or fitted with any apparatus for causing the skate to run in a curved line, in the manner described in the said specifications and drawings, or differing therefrom only colourably, and by the substitution of mere mechanical equivalents, and it is ordered Mechauical thai it be referred to the official referee in rotation, to inquire equivalents. vhat sum of money is fit to be awarded to the plaintiff, to be Enquiry as to
damages. paid by the defendants in respect of any damage sustained by the plaintiff up to the day of the date of this order, from the manufacture, sale, or letting for hire, of skates, being the same as the “Spiller" Skates, and “Wilson " Skates, in the pleadings in this action, and in the said order dated the 4th August, 1876, mentioned, or of any other skates made in infringement of the said letters patent, or otherwise from the sale, or use by the defendants of the said invention, or any apparatus in imitation of, or being only a colourable deviation from the said invention. And it is ordered, that the defendants, A. F. S. and Payment of T. C., do pay to the plaintiff, J. L. P., such sum of money as upon such inquiry shall be found fit, to be awarded to the plaintiff for such compensation as aforesaid, within twenty-one days after service of the official referee's report of the result of the said inquiry. And it is ordered, that the defendants, Destruction. A. F. S. and T. C., do deliver up on oath to the plaintiff, or break up, or otherwise render unfit for use, all roller skates, or parts of roller skates so manufactured, or let for bire by, or by the order, or for the use of the defendants in infringement of the said letters patent as aforesaid, which are in the possession, custody, or power of the defendants, or either of them, or their, or either of their, servants or agents. And it is ordered, that Pull costs. the said defendants, A. F. S. and T. C., do pay to the plaintiff, J. L. P., his full costs, to be taxed by the taxing master as between solicitor and client, including all costs, charges, and expenses. And any of the parties are to be at liberty to apply, Liberty to as they may be advised.
apply. W. C.