rated with a particular machine." 1 The earlier part of the invention he does not say is infringed, the defendants do not use it ; another mode of maceration has been adopted. "If the patent be good, so far as the spinning machine is concerned, that is to say, if the plaintiff has a right to tell the defendants, and all the rest of the world, that they shall not use the common spinning machine with rollers at 2 inches distance, then the existence of the patent deprives the defendant and all the rest of the world of the right of using the ordinary spinning machine in the form in which they had the right to use it before the patent was granted. Now that is not the object of the patent. If he has discovered any means of using the machine which the world had not known before, the benefit of that he has a right to secure to himself by means of a patent; but if this mode of using the spinning machine was known before (and the endorsement upon the postea states that it was known before), then the plaintiff cannot deprive them of having the benefit of that which they enjoyed before." Notes. Kay v. Marshall has been referred to as an illustration of the want of subject-matter by Fry, L.J., in Edison v. Woodhouse: "The invention was for the use of a well-known machine in a manner in which it could have previously been used" (4 R. P. C. 92). A similar view was expressed by Charles, J., in Herrburger v. Squire, 5 R. P. C. 592. Lord Penzance commented on this decision in British Dynamite Co. v. Krebs, and distinguished the two cases. See post, p. 277. 1842. CRANE 7. PRICE, 4 M. & Gr. 580; 12 L. J. C. P. 81; 1 Webs. 393. Manufacture-Subject-matter-Combination Process. A patent was granted Sept. 28, 1836, to G. Crane for "an improvement in the manufacture of iron." The specification reviewed the existing methods of the production of iron from ore by means of bituminous coal, and also the advantages of using anthracite or stone coal, when possible, the result being the production of " a quality of iron more nearly resembling iron obtained by the aid of vegetable charcoal. Now, the object of my invention is, the application of such anthracite, or stone coal, combined with a hot-air blast in the smelting or manufacture of iron from iron stone, mine, or ore." Full directions were given as to the mode of using the anthracite. The claim was in the following terms: "I would have it understood, that I do not claim the using of a hot-air blast separately in the smelting and manufacture of iron as of my invention, 1 This was the real discovery of the plaintiff which revolutionized the industry. Had it been properly described and claimed as a method or process of wet spinning by means of maceration and a shortened reach, a valid patent could have been obtained. when uncombined with the application of anthracite, or stone coal, or culm; nor do I claim the application of anthracite, or stone coal, in the manufacture or smelting of iron, when uncombined with using the hot-air blast. But what I do claim as my invention is, the application of anthracite, or stone coal, or culm, combined with the using of hot-air blast in the smelting and manufacture of iron from iron stone, mine, or ore, as above described." This was an action on the case for infringement. The evidence at the trial was to the following effect :— The hot blast used was Neilson's and that the invention lay in using it with anthracite coal. Previous to Crane's invention, many attempts had been made without success to use anthracite in the smelting of iron. Neilson's patent had been known for eight years. Seventy patents had been taken out to effect the same object, and all were useless. The results of the new process were immense. The breaking-weight of a bar of iron was increased in the ratio of 1 to 1211, and the resistance to bending under a transverse strain from 1 to 13. The whole smelting industry in South Wales was revolutionized, iron being obtained equal to the best Swedish charcoal iron. At the trial a formal verdict was taken, Sir N. C. Tindal, C.J., expressing the opinion that it was a question of law at the last: "I have been listening with great attention to it; it must come at last to what is the meaning of the word 'manufacture' under the statute; whether the application of a known mode of working the blast, applying it to all purposes, when applied to a known purpose is a manufacture; and then you come to the other-whether he was the true and first inventor." The case came on as a special case before Tindal, C.J., Erskine, Coltman, and Maule, JJ. Several issues were raised by the case, the most important being that suggested by Tindal, C.J., at the trial. In delivering the judgment of the Court, Tindal, C.J., reviewed the issues, the specification, the claim with its disclaimers, and continued: "And the question, therefore, becomes this-whether, admitting the using of the hotair blast to have been known before in the manufacture of bituminous coal, and the use of anthracite, or stone coal, to have been known before in the manufacture of iron with the cold blast, but that the combination of the two together (the hot blast and the anthracite) were not known to be combined before in the manufacture of iron, whether such combination can be the subject of a patent." "We are of opinion that if the result produced by such a combination is either a new article, or a better article, or a cheaper article to the public, 1 The passage quoted in this paragraph has been frequently (and is the only one) quoted by learned judges in subsequent judgments. See Murray v. Clayton, L. R. 7 Ch. Ap. 584; Lyon v. Goddard, 10 R. P. C. 346; Lister v. Norton, 3 R. P. C. 205; Morgan v. Windover, 4 R. P. C. 425. than that produced before by the old method, that such combination is an invention or manufacture intended by the statute, and may well become the subject of a patent." The learned judge supported this view by quotations from R. v. Wheeler, 2 B. & Ald. 349 (ante, p. 186), and Hill v. Thompson, 1 Webs. 237 (ante, p. 184). He reviewed the facts of previous cases, and the evidence taken at the trial. He continued: "It was objected, in the course of the argument, that the quality or degree of invention was so small, that it could not become the subject-matter of a patent; that a person who could procure a license to use the hot-air blast under Neilson's patent, had a full right to apply that blast to coal of any nature whatever, whether bituminous or stone coal. But we think if it were necessary to consider the labour, pains, and expense, incurred by the plaintiff, in bringing his discovery to perfection, that there is evidence in this cause that the expense was considerable, and the experiments numerous. But in point of law, the labour of thought, or experiments, and the expenditure of money, are not the essential grounds of consideration on which the question, whether the invention is or is not the subjectmatter of a patent, ought to depend. For if the invention be new and useful to the public, it is not material whether it be the result of long experiments and profound research, or whether by some sudden and lucky thought or mere accidental discovery. "The Case of Monopolies states the law to be, that where a man, by his own charge or industry, or by his own wit and invention, brings a new trade into the realm, or any engine tending to the furtherance of a trade that never was used before, and that was for the good of the realm, that the King may grant him the monopoly of a patent for a reasonable time. If the combination now under consideration be, as we think it is, a manufacture within the statute of James, there was abundant evidence in the cause, that it had been a great object and desideratum, before the granting of the patent, to smelt iron stone by means of anthracite coal, and that it had never been done before; there was no evidence on the part of the defendants to meet that which the plaintiff brought forward. These considerations, therefore, enable us to direct that the verdict ought to be entered for the plaintiff on the third issue; that it was a new manufacture-new as to the public use and exercise thereof within England and Wales.” 1 It was also decided that the use of Neilson's hot blast, although the subject of a patent still running, could form part of a process or combination the subject of another patent. Notes. The main issue decided in this case was that the process described by Crane was a "manufacture," and that a "manufacture " may be new although 1 The passage here quoted gives the real ground of the decision. The test of the minimum amount of ingenuity necessary to support a patent was never discussed at all. the several processes then combined for the first time may be severally old. Several dicta will be found in the reports of subsequent cases to the effect that Crane v. Price is of doubtful authority at the present day. A close examination, however, reveals the fact that such dicta occur chiefly in cases in which Crane v. Price has been relied on in argument in support of the proposition that, if the conditions mentioned in the paragraph above noted (ante, p. 196) be fulfilled, the invention is patentable, ignoring the facts proved in the case showing the failure of preceding inventors who laboured at the same problem. This occurred in the following cases. In Morgan v. Windover, 4 R. P. C. 425,' it was followed by Kekewich, J. (whose decision was subsequently reversed); in Lister v. Norton, 3 R. P. C. 205, it was similarly quoted by Chitty, J.; in Rushton v. Crawley, 10 L. R. Eq. 524, it was so referred to and subsequently doubted by Malins, V.C. (at p. 529); in Blakey v. Latham, 6 R. P. C. 187; and in Rickmann v. Thierry, 12 R. P. C. 548 and 14 R. P. C. 114.2 In none of these cases was there such evidence of invention from the workman's point of view as was given in Crane v. Price. The presence of "invention" in Crane's process has been recognized by Lord (then Mr. Justice) Blackburn in Harwood v. G. N. Ry. Co., 11 H. L. Ca. 667,3 and subsequently in Clark v. Adie, 2 App. Ca. 335. In the cases in which Crane v. Price has been approved and followed there were facts showing invention from the workman's point of view :-Murray v. Clayton, L. R. 7 Ch. Ap. 584; Lyon v. Goddard, 10 R. P. C. 346.3 If the presence of sufficient ingenuity to support a patent be tested (as is submitted is the proper course, ante, p. 35) from the workman's point of view by comparing the state of the art before and after the disclosure of the invention in question, then the evidence of "invention" in Crane v. Price is abundant; but if it be allowed to test the necessary amount of ingenuity by an ex post facto examination of the problem, then the amount of ingenuity so tested appears at first sight not to be such as would support a patent at the present day. But, in applying this mental process, it is frequently forgotten that, owing to scientific discoveries and generalizations—the mechanical equivalent of heat, the conservation of energy, the interdependence of physical, chemical, and electrical phenomena-minds at the present time are better trained and more ready to perceive analogies and devise new methods than they were in 1842. It is dangerous in applying the ex post facto process to rely on early cases. Crane's invention has been sometimes described as a "combination" (Morgan v. Windover, 4 R. P. C. 425), but not without doubt (per James, L.J., in Murray v. Clayton, L. R. 7 Ch. Ap. 584). It appears to be the invention of a process for smelting iron in which an old invention, Neilson's 1 For facts, see post, p. 323. 2 For facts, see post, p. 391. 5 For facts, see post, p. 358. blast, was used with anthracite coal, the result being substantially a new process resulting in an improved kind of iron. In Vickers v. Siddell, 7 R. P. C. 302, Lord Halsbury, L.C., remarked that the judges in Crane v. Price seemed to have confused a patent for a process with a principle. 1851. ELECTRIC TELEGRAPH Co. v. BRETT & LITTLE, 10 C. B. 838. Construction of Specification-Essence of the Invention. The specification was that which described the Cooke & Wheatstone telegraph dated Dec. 12, 1837. unknown. The title was "Improvements in giving signals and sounding alarms in distant places by means of electric currents transmitted through metallic circuits." The specification described the invention fully with diagrams. Throughout metallic circuits were mentioned, earth-returns being then The action of a magnetic needle in the centre of a coil of conducting wire was known, and also that it could be operated from a distant battery. The novelty lay in the arrangement and use of two or more needles worked through two or more circuits, to produce different signals by combinations. The needles oscillated between stops in vertical planes, and were weighted to ensure stability. There were several claims. The first included the placing of the needles on horizontal axes, weighting them at one end, and limiting the oscillations by stops. The second was for the improvement in placing several needles on the same dial so as to give signals by combinations. The third included the combinations of wires, sending-buttons, and receiving-dials. The fourth was for the arrangements of sending-keys. The fifth included duplicate stations on the line. The sixth and seventh were for details as to the employment of temporary magnetism to influence the needles. The eighth and ninth related to the employment of local or relay batteries. Throughout the whole specification and in the claims the conductors were spoken of in the plural. Reference was made in the claims to communicating angular motions to vertical needles "by means of electric currents transmitted through metallic circuits." It was subsequently discovered that an earth-return could be used, and thereby only one metallic conductor in each circuit was required. It was held that the claims were for certain improvements, and that the use of a complete metallic circuit was no part of the improvements; hence the claims included cases in which only a single conductor and earth-returns were used, although the possibility of earth-returns was unknown at the date of the patent. Notes. This case was regarded as an authority in the Lane Fox case (post, p. 345). The specification of Mr. Lane Fox described a system of distribution of electricity for glow-lamps. In such a system it is material to supply the |