The machine consisted in an arrangement whereby the lace or other fabric was passed by means of rollers in an endless band over a flame of gas. The flame was drawn through the interstices by a chimney above the fabric singed. The rate of motion required in each case could only be determined by an actual experiment which could be easily performed.

It was proved that singeing had previously been done by means of oil and other flames, but not gas-flames; that gas-flames were well known and used for other purposes; that it was well known that flame would not (as in the Davy safety-lamp) ordinarily penetrate interstices; that bellows had been used for the purpose of singeing; and that the combination of a flame and chimney to ensure combustion by promoting draught (as in the Argand lamp) was also known.

Held, that the patent was valid.

Notes.

The above case was referred to in Losh v. Hague (1 Webs. 207) by Lord Abinger, C.B., as being the application of a new contrivance to the same purpose as was effected by an old one, and by Tindal, C.J., in Crane v. Price (12 L. J. C. P. 86) as an illustration of "the use of things already known, and acting with them in a manner already known, but producing those effects so as to be more economically or beneficially enjoyed by the public."

It will be observed that at this date the necessity of a certain amount of ingenuity, in addition to novelty and utility, to support a patent had not been generally discussed.

1841. NEILSON V. HARFORD, I Webs. 295.

Benevolent Construction- Utility.

The plaintiff's patent (No. 5701 of 1828) was for the "improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required." The specification stated that the blast of air might be made by any known means, and was "to be passed from the bellows or blowing apparatus into an air-vessel or receptacle made sufficiently strong to endure the blast, and through or from that vessel or receptacle by means of a tube, pipe, or aperture into the fire, forge, or furnace. The air-vessel or receptacle must be air-tight or nearly so, except the apertures for the admission and emission of the air, and at the commencement and during the continuance of the blast it must be kept artificially heated to a considerable temperature. It is better that the temperature be kept to a red heat or nearly so, but so high a temperature is not absolutely necessary to produce a beneficial effect. The vessel or receptacle may be conveniently made of iron, but as the effect does not depend on the nature of the material, other metals or convenient materials may be used. The

size of the air-vessel must depend upon the blast and on the heat necessary to be produced." Dimensions in cubic contents were then given for forges, iron-founders' cupolas, and blast furnaces. "The form or shape of the vessel or receptacle is immaterial to the effect, and may be adapted to the local circumstances or situation." The air-vessel may be heated from any source, and preferably enclosed in brickwork; "the manner of applying the heat to the air-vessel is, however, immaterial to the effect if it be kept at a proper temperature."

At the trial of this action for infringement several pleas were set up, amongst others insufficiency of the specification was alleged, and want of utility.

Parke, B., in his address to the jury referred to the former practice of construing specifications strictly as against the patentee, and continued (1 Webs. 310): "Within the last ten years or more, the Courts have not been so strict in taking objections to the specification; and they have endeavoured to hold a fair hand between the patentee and the public, willing to give the patentee, on his part, the reward of a valuable patent, but taking care to secure to the public, on the other hand, the benefit of that proviso which is introduced into the patent for their advantage, so that the right to the patent may be fairly and properly expressed in the specification.”1

The learned judge then dealt with the questions of infringement, objections to the title, and the extent of the claim.

On the question of sufficiency (p. 314): "You are not to ask yourselves the question whether persons of great skill-a first-rate engineer, or a secondclass engineer-whether they would do it: because generally those persons are men of great science and philosophical knowledge, and they would upon a mere hint in the specification probably invent a machine which should answer the purpose extremely well; but that is not the description of persons to whom this specification may be supposed to be addressed-it is supposed to be addressed to a practical workman, who brings the ordinary degree of knowledge and the ordinary degree of capacity to the subject.” 2 The learned judge reviewed the evidence at length and explained the law as to sufficiency of directions.

Certain questions were left to the jury.

The jury found "that the shape and form are material to the effect, simply, that is to the extent of beneficial effect produced, not to producing some effect, for some beneficial result would be produced from any shape, and as to producing the extent of beneficial effect, the form and shape are material." They also found that the specification gave sufficient directions to enable an ordinary workman who knew of the old blowing apparatus to produce a beneficial result taking expense into consideration. They also found that no one would be misled by the specification.

The learned judge directed that judgment be entered for the defendants

1 Quoted as the rule by Kay, J., in Edison & Swan v. Holland, 5 R. P. C. 474.

2 This passage is quoted as the rule by Jessel, M.R., in Stoner v. Todd, 4 Ch. D. 61.

on the issue of insufficiency of the specification, as, on his construction of the specification, there was a misdirection (viz. that the form and shape were immaterial to the extent of the effect) in the specification itself, and that such could not be cured by parole evidence.

The plaintiffs appealed to the Exchequer Chamber.

During the argument Baron Alderson thus described the invention (p. 337): "What he really discovered is, that it would be better for you to apply air heated up to a red heat or nearly so, instead of cold air as you have hitherto done. That is the principle; that is the real discovery; but in order to take out a patent, you must have an embodiment of the principle, and his embodiment of the principle is the heating of the air in a separate vessel, intermediary between the blowing apparatus and the point where it enters the furnace."

During the argument on infringement and extent of the claim it was urged that every shape of vessel was included in the claim. Per Alderson, B. (p. 355): "Then I think that is a principle, if you claim every shape. If you claim a specific shape and go to the jury and say that which other people have adopted is a colourable imitation, then I can understand it. If you claim every shape you claim a principle. There is no difference between a principle to be carried into effect in any way you will and claiming the principle itself. You must detail some specific mode of doing it."1

The point at issue was thus stated by Parke, B., during the argument (p. 363): “Whether this Court is of opinion, comparing the specification with the fact that there is a clear misrepresentation in any part of it. The question is, whether that can be corrected by the evidence of men acquainted with the subject, who say they would be themselves able to correct that error by their knowledge of the subject. . . . That is the question I reserved for the opinion of the Court." 2

The Court made the rule absolute to enter judgment for the plaintiff. Parke, B., in dealing with the question of construction (p. 370): "The construction of all written instruments belongs to the Court alone, whose duty it is to construe all written instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained by the jury; and it is the duty of the jury to take the construction from the Court, either absolutely, if there be no words to construe as words of art, or phrases used in commerce, and the surrounding circumstances to be ascertained, or conditionally, where those words or circumstances are necessarily referred to them.":

The learned judge referred to his construction at the trial that the

This is the real state of the law as it at present stands : per Lindley, L.J., in Automatic Weighing Machine Co. v. Knight, 6 R. P. C. 308. It is the proper limitation of the generality of the dictum in Jupe v. Pratt. Nobel v. Anderson, per Kay, L.J., 11 R. P. C. 527. Followed also in The Ticket Punch, &c. v. Colley's Patent, 12 R. P. C. 185.

This question was not decided in this appeal, but in subsequent cases. See ante, pp. 76, 77.

* Quoted and followed by Lord Westbury, L.C., in Hills v. Evans, 31 L. J. Ch. 46ɔ.

specification meant that the shape was immaterial to the degree of effect in heating the blast-a statement that the jury found was not literally true. He continued: "But my lord and my brothers, after considerable hesitation, are of opinion that a construction may reasonably be put upon this clause which will support the patent; and though I myself still entertain great doubt whether such is the true construction, I am not prepared to say that it is not, and I am very glad, that in so meritorious an invention as this is admitted to be, in this view of the case the inventor will not be deprived of his reward." The Court held that the word "effect" meant the beneficial effect of the blast in the furnace, and that consequently the statement was not contradicted by the finding of the jury.

Notes.

Neilson v. Harford has been regarded as an authority that questions of construction determined from the specification above are for the Court exclusively Allen v. Rawson, 1 C. B. 571. Per Blackburn, J., in Betts v. Menzies, 31 L. J. Q. B. 239.

It also illustrates the rule that a small amount of utility will suffice to support a patent. Per Jessel, M.R., in Plimpton v. Malcomson, 3 Ch. D. 582.

In Young v. Hermand Oil Co., 9 R. P. C. 382, it was suggested by Lord Herschell that Neilson v. Harford showed that change of temperature in one retort might constitute a new process. As to this see ante, pp. 36, 37.

1841. KAY V. MARSHALL, 2 Webs. 34; 8 Cl. & F. 245.

New Use of Old Machine-Real Invention wrongly described.

In 1825 a patent (No. 5226) was granted to J. Kay for "new and improved machinery for spinning flax, hemp, and other fibrous substances by power."

The specification was as follows:

"I do hereby declare the nature of my said Invention to consist in new machinery for macerating flax and other similar fibrous substances previous to drawing and spinning it, which process I call preparing it; and also in improved machinery for spinning the same after having been so prepared. And in further compliance with the said proviso, I do hereby describe the manner in which I perform my said Invention by the following description; first, of the new machinery for macerating, and, secondly, of the improved machinery for spinning; reference being had to the drawing annexed, and the figures and letters marked thereon, that is to say

"DESCRIPTION OF THE DRAWING.

"I will first describe the new machinery for the purposes of maceration." The description was continued by references to Figs. 1 and 2 of the drawings showing how the flax is prepared and macerated by means of rollers and the roving or sliver received into vessels through which water

permeated, and in which the roving was left for some hours. The specification continued :

"Having now described the new machinery for the purposes of maceration, and which consists only of the vessels marked B, and the trough of water marked C, I will proceed to describe the improved machinery for spinning flax and other similar fibrous substances.

"Fig. 3 represents a side view in section of my improved spinning frame to be worked by power in any of the ordinary methods. D, D, is a wooden or other trough divided into compartments, each compartment having the contents of one of the macerating vessels emptied into it, in such manner that the said contents, when so emptied into it, may have the appearance represented in this Figure, and the best mode which I have found of doing this has been to turn the macerating vessel upside down carefully over the compartment, when the end of the roving or sliver will be easily found. E, E, represent the contents of two of the macerating vessels emptied as aforesaid. The ends of the roving or sliver being found, they are led over the roller G at the top of the frame H. From this roller G the roving or sliver is led between an ordinary pair of retaining rollers e, e, and a pair of drawing rollers c, c. The drawing rollers c, c, move at a pace eight times faster than the retaining rollers e, e, which retaining rollers I find answer better to be fluted. I place the drawing rollers only 2 inches from the retaining rollers, and this constitutes the principal improvement in the said spinning machinery; for the roving being so completely macerated would not hold together to be drawn out while in such a state to the ordinary length of the staple, but this very state, when drawn in so short a length as here represented, enables it to be spun very fine and evenly; for it should be stated that there is no elasticity in the fibre of flax, hemp, nettle-weed, or other the like substances, but when drawn by rollers so placed as aforesaid, and moving at the relative speeds aforesaid, and in the completely saturated state aforesaid, the fibres themselves are pulled asunder, and require to be twisted immediately, or the continuity of the thread would be destroyed. This position of the rollers is not necessary in the ordinary mode of spinning such substances as aforesaid, for in the ordinary process the elongation of the skim only is effected by the process of drawing, and not the elongation of the fibres themselves which compose the skim; J is the thread or staple in its twisted or spun state, and L is the ordinary bobbin and fly.

"Now whereas I hereby declare that what I claim as my Invention in respect of new machinery for preparing flax, hemp, and other fibrous substances, are the macerating vessels marked B, and trough of water marked C; and that which I claim as my Invention in respect of improved machinery for spinning flax, hemp, or other fibrous substances, is the wooden or other trough marked D, for holding the rovings when taken from the macerating vessels, and the placing of the retaining rollers e, e, and the drawing rollers ‹, c, nearer to each other than they have ever before been placed, say within 2 inches of each other, for the purpose aforesaid."