that he intended to give evidence to shew that the patent would be hurtful to trade, by loading the cotton manufactories of this country with a monopoly. Mr. Justice Buller would not allow him to call any witnesses to prove it, upon the ground that it was merely a consequential issue, and that it was a question of law, whether the patent was or was not prejudicial to the community.

The observations of that very learned judge were founded on the circumstance, that no facts shewing the inconvenience were stated in the record to be proved. The defendant was not able to learn by the pleadings from whence the supposed inconvenience arose. Such an investigation would be a surprise upon him. He could not possibly come prepared with evidence to rebut an undefined accusation.

A question of inconvenience arose in an early Generally case, (i) whether Mr. Arkwright should obtain

(i) Arkwright v. Nightingale, Dav. Pat. Cas. 55. Lord Loughborough. It is said, it is highly expedient for the public that this patent, having been so long in public use after Mr. Arkwright had failed in that trial, should continue to be open but nothing could be more essentially mischievous than that a question of property between A. and B. should ever be permitted to be decided upon considerations of public convenience or expediency. The only question that can be agitated in Westminster Hall is, which of the two parties in law or justice ought to recover.

Lord Thurlow declared, that letters patent, even if they were granted in fee, could not stand half an hour, if abused, 1 Ves. jun. 118.

inconvenient.

Grant void in particular under the statute.

a verdict after having submitted upwards of three years to a nonsuit on a former trial, inasmuch as many persons had, in consequence of his apparent abandonment of the patent, laid out great sums of money in constructing his machine. Such submission merely prevented him from obtaining damages, because the patent still remained uncancelled.

Hence it is evident, that if an issue were joined on certain facts stated in the record of scire facias, which shewed that the patent had a tendency to produce any of the bad effects, of being contrary to law, hurtful to trade, or generally inconvenient, such issue would be capable of trial; and the patent might on that account be declared to be void.

That the grant is invalid when the patentee is not the inventor, (j) when its object is not a manufacture, (k) and when the specification is not sufficiently correct, (1) has already been shewn. If the patent has not been obtained (m) in the usual mode, or will not bear the construction (n) that must necessarily be put upon it, it is also void. Any one of these circumstances appearing in evidence will be the means of destroying the patent; and it is not necessary to prove more than one objection or cause for cancelling the grant. (0)

(0) The King v. Arkwright, Printed Case, 187. Dav. Pat. Cas. 141.

II. WHAT THINGS DO NOT VITIATE PATENTS

GENERALLY.

There are some instances in which mistakes do not vitiate a grant. (p)

1. Every false recital in a thing not material will not vitiate the grant, if the queen's intention is manifest and apparent.

2. If the queen is not deceived in her grant by the false suggestion of the party, but from her own mistake, upon the surmise and information of the party, it will not vitiate or avoid the grant.

3. Although the queen is mistaken in point of law, or of matter of fact, if that is not part of the consideration of the grant, it will not avoid it.

III. PROCEEDINGS BY SCIRE FACIAS TO REPEAL

A PATENT.

Upon these grounds letters patent are voidable in themselves, but cannot be treated as of no effect in law until they are cancelled by the legal process of a writ of scire facias; in the investigation of which it will be necessary to

consider

1 By whom it may be obtained.
2. The necessary instruments.
3. The surrender of the patent.

(p) Bull. N. P. 75; and see as to construction, ante, p. 200.

1. By whom obtained.

2. The neces⚫ sary instru

ments.

If a patent be void for any of the reasons which have been assigned as sufficient to invalidate the grant, the queen, jure regio, for the advancement of justice and right, may have a scire facias to repeal his own grant. (q)

A subject also, who is prejudiced by a grant, may of right petition the queen to use her name for its repeal. All persons are injured by the existence of an illegal patent for an invention, and every one is therefore at liberty to petition for a scire facias to have it cancelled. (r)

But between subject and subject, if the queen has granted a patent to each of them for the same thing, then generally the first patentee may have a scire facias to repeal the second patent:(s) but the second patentee cannot bring a scire facias to repeal the first patent, though the better right should be in him. (t) In the case of two patents for the same invention, supposing the object to have been simultaneously discovered by the patentees, the second grant would necessarily be bad, even if the first were for some informality rendered invalid. (u)

The scire facias for repealing letters patent is an original writ, and must be founded on some

(q) 4 Inst. 88. For the law and practice of repealing letters patent by scire facias, see Tidd's Prac. 7th edit. 1123. 2 Wms. Saund. 72, p. q. Com. Dig. Patent F. 6. id. Pleader. (r) Dyer, 276, b. 2 Ventr. 344. 3 Lev. 220. S. C. 6 Mod. 229.

(s) 4 Inst. 88.

(t) Dy. 276, b.

Dy. 197, b. 198, a.
277, a.

(u) Ante, p. 40.

matter of record. (v) A patent for an invention is a record in Chancery, and therefore the writ must issue out of that court. It is directed to the sheriff of Middlesex, and made returnable in the Petty Bag Office. (w) The record of the proceedings upon the writ is made up in that court, and sent into one of the courts of common law at Westminster, to be tried. (x)

The first step to be taken is to present a petition Memorial. or memorial (y) to the crown for a scire facias. The next is to obtain the queen's warrant to sue; (2) which is directed to the Attorney General, who thereupon grants his fiat. (a)

A summons is then sent to the defendant; Summons. which informs him that this writ has been issued against him, and warns him to appear to it. (b)

The scire facias in form recites the patent, and states the grounds upon which it is meant to be impeached; as that the patentee was not the first and true inventor, but that it had been previously invented or used by others, &c. (c)

After the defendant has appeared, he may Plea plead either in abatement or in bar. The most

(v) 4 Inst. 88. 3 Lev. 223.

(w) Rex v. Haine, 2 Cox, 235; and see 3 Lev. 223;

6 Mod. 229; and ante, p. 238.

(x) See 21 Jac. 1, c. 3, s. 6.

(y) 2 Rich. Prac. C. P. 391. (a) Id. 395.

(≈) Id. 392.

(b) See Tidd's Prac. 1158, 1172. (c) For precedents, see the printed account of Mr. Arkwright's patent, where the whole record is set out; and Tidd's Prac. Appendix, Chap. XLI. s. 6. Lil. Entr. 411. 2 Rich. Prac. C. P. 395.