a patent for a well-known mechanical contrivance merely when it is applied in a manner or to a purpose which is not quite the same, but is analogous to the manner or the purpose in or to which it has been hitherto notoriously used." 1

Lords Cranworth and Wensleydale based their judgments on the first anticipation, and all approved of the rule laid down by the judges in the Exchequer Chamber.

Notes.

The principle of the foregoing case is undisputed: "the application of it is a matter for the Court in each case" (per Bowen, L.J., in Cropper v. Smith, 1 R. P. C. 90). The facts of it were discussed and compared with those under discussion respectively in Jordan v. Moore, L. R. 1 C. P. 635; White v. Toms, L. J. 37 Ch. 207; Lister v. Norton, 3 R. P. C. 205; Williams v. Nye, 7 R. P. C. 68; Wenham Gas Co. v. The Champion, &c. (the amount of invention compared with Harwood v. G. N. Ry.), 9 R. P. C. 54; Lane & Fox v. Kensington, &c., 9 R. P. C. 416.

In British Dynamite Co. v. Krebs, 13 R. P. C. 199, Lord Penzance distinguished that case from Harwood v. G. N. Ry. on the ground that the old igniter was applied to the new material dynamite, whereas in the case of Harwood v. G. N. Ry. the object was old as well as the material. In Morgan v. Windover, 4 R. P. C. 426, Kekewich, J., considered that the amount of ingenuity displayed in that case was greater than that in Harwood v. G. N. Ry., and upheld the patent, his decision being subsequently reversed. See post, p. 323.

1860. HILLS 7. LONDON GAS LIGHT CO., 5 H. & N. 312.

Construction of Specification-Invention by Selection.

The plaintiff was patentee of "an improved mode of manufacturing gas" (No. 12867-1849).

2

The specification described methods of purifying gas from sulphuretted hydrogen, cyanogen, and ammonia, by passing the gas through certain porous materials which could be used over again. The patentee effected this by taking "the subsulphates, the oxychlorides, or the hydrated or precipitated oxides of iron (which I prefer to use in a rather damp state), either by themselves or mixed with sulphate of lime or sulphate or muriate of magnesia, baryta, strontia, potash, or soda, and absorb them into or mix

1 This passage has been frequently quoted as authoritative: Morgan v. Windover, 7 R. P. C. 136; Thomson v. American Braided Wire Co. (per Lord Watson), 6 R. P. C. 525; Williams v. Nye (per Cotton, L.J.), 7 R. P. C. 68; Elias v. Grovesend Tin Plate Co., 7 R. P. C. 468; Moser v. Marsden, 10 R. P. C. 214; Thierry v. Riekmann, 12 R. P. C. 426; Ibid. (per Lord Davey), 14 R. P. C. 121; Case v. Cressy, 17 R. P. C. 261.

It is here given summarized as amended.

them with sawdust or peat charcoal in coarse powder, or breeze or other porous or absorbent material, so as to make a very porous substance easily permeable by gas." The gas on passing through it was described as being deprived of sulphuretted hydrogen, cyanogen, and a part of its ammonia, "water being at the same time formed by the union of the oxygen of the oxide and the hydrogen of the sulphuretted hydrogen absorbed." 1 As soon as the material ceased to purify from sulphuretted hydrogen, the gas was to be shut off from the purifier and "a communication is to be opened to the external air which is to be admitted to the purifying material, and by the agency of which it will be renovated, and the uncombined gases which have been absorbed will be driven off." The best means of effecting this was given. "The air will at the same time reoxidise the iron of the sulphuret of iron which has been formed, and the sulphur will be precipitated, and a small but variable quantity of sulphuric acid will be formed." 2 Other details and modifications were mentioned, such as removing the ammonia first by scrubbers. "Hydrated or precipitated oxides of iron may be conveniently prepared for these purposes by decomposing sulphate or muriate of iron with hydrosulphuret of ammonia, or with lime, magnesia, potash, or soda; they may then be absorbed, &c." The mechanical contrivances to supply water or ammoniacal liquor were next described.

The claims were:

"Firstly, the purifying coal-gas from sulphuretted hydrogen, cyanogen, and more or less perfectly from ammonia, by passing it through the precipitated or hydrated oxides of iron, or the subsulphates or oxychlorides of iron, from whatever source obtained, either by themselves, or, which is much better, made into a more porous material by being absorbed into or mixed with sawdust or breeze or peat-charcoal in coarse powder, or other porous or absorbent material, so as to be readily permeable by the gas, and either used alone or mixed with sulphate of lime or sulphate or muriate of magnesia, potash, or soda, or in conjunction with any other purifying material at present in use for a similar purpose. But I do not claim peroxide of iron or manganese made at a red heat, or the oxide of iron mixed with chloride of calcium, or with the muriates and sulphates of manganese, iron, and zinc, and absorbed into sawdust, etc.3

"Secondly, repeatedly renovating or reoxidizing the said purifying materials by the action of the air whenever they from time to time cease to absorb sulphuretted hydrogen, so that they may be used over and over again to purify the gas."

This case turned on the process for removing the hydrogen sulphide. In modern notation the process substantially consists of the combination of hydrated ferric oxide with hydrogen sulphide

Fe2O3, H2O + 3H2S = Fe2S3 + 4H2O

2 The renovation of the material used is substantially

2Fe2S3 +302 = 2Fe2O3 + 3S

* This disclaimer covered what Croll and Laming had shown.

P

A third claim was for the means of supplying the purifying liquid to the scrubbers or purifiers at intervals.

At the trial, in addition to other evidence of alleged anticipations, two specifications were relied on.

Croll's (No. 8577 of 1840) described improvements in the manufacture of gas. He described purifying coal-gas from ammonia, and continued: "The third part of my improvements in the manufacture of coal-gas consists in the application of the black oxide of manganese to remove or free coalgas of sulphuretted hydrogen, which is accomplished in the following manner: After the gas has been freed from ammonia as above described, it is then to be passed through a vessel similar to those now in use for the purification of coal-gas by what is denominated dry lime, and charged in a similar manner with black oxide of manganese in powder, moistened with water to about the same consistency. The period required for each charge is to be ascertained and regulated by the same tests as if dry lime were used, and which is well understood, in short, requiring no further alterations, except in the materials I employ for the absorption of the sulphuretted hydrogen. This material, after it has ceased to absorb the sulphuretted hydrogen, is to be removed from the purifying vessel and wasted in an oven to expel the sulphur which it then contains. After this material has become thoroughly red in the oven, I have found two or three hours' further time to be sufficient to accomplish this object, taking care that whilst it is being raised it will be stirred about in the oven. After this operation is completed the material is fit again to be employed, by being placed in the purifier moistened with water as in the first instance. The same effect may be produced by the application of the oxide of zinc and the oxides of iron, and treated precisely in the same way as above described."

It was proved by evidence that Croll as a matter of fact did not know whether he used hydrated or anhydrous oxides of iron, but that following his method hydrated oxides alone could be used, the roasting not being at a temperature high enough to dehydrate the oxide. The specification, however, included both hydrated and anhydrous oxides of iron.

Laming's specification (No. 11944 of 1847) described various processes of purifying coal-gas. Amongst other materials chloride of calcium was used, also muriate and sulphate of iron. It was pointed out that "under certain circumstances it may, however, be desirable to make it, for the purposes of gas-purifying, by decomposing muriate of manganese, iron, or zinc, by means of lime, or of chalk when the latter will suffice. In such cases the oxides or carbonates which result are useful for the said purification, and need not be removed." He also claimed the use of oxides of manganese, iron, zinc, or lead (by preference, manganese) with chloride of lime. The preparation of black oxide of manganese by heating the carbonate "to a heat gradually increased to near redness, with access of air for an hour or two."

Evidence was also given of the known action of sulphuretted hydrogen on hydrated oxides of iron, and of the air on the former. It was also

proved that all oxides of iron would not do, but only the hydrated oxides artificially prepared by precipitation.

The jury found that the plaintiff's invention was new.

A rule nisi was obtained to enter a verdict for the defendants, or a nonsuit on the following amongst other grounds :

Anticipation by Croll's and Laming's specifications;

Insufficiency for not specifying what oxides would answer, or for claiming all hydrated oxides, some being useless for the purpose;

That the mere application of hydrated oxide of iron to absorb sulphuretted hydrogen from gas was not subject-matter, its properties and effects being well known;

That the renovation of hydrated oxides by exposure to the air being well known, its application to gas-purification was not subject

matter.

The rule was discharged by the Court of Exchequer.

Held: That the terms "hydrated" and "precipitated" in the specification were synonymous; that the specifications were such that the Court could not decide on them alone whether the invention was novel, and that it was rightly left to the jury. Also that the application of the known chemical properties of substances to gas-purification was subject-matter.

Per Baron Bramwell, in delivering the judgment of the Court (at p. 369): "It appears to us, upon looking at the specification, that the plaintiff uses these as equivalent expressions because he says 'hydrated or precipitated,' and that oxide of iron may be conveniently prepared for these purposes, and so on; and therefore it is obvious that when he uses that word 'hydrated,' he uses it as synonymous with 'precipitated;' and consequently, when he speaks of using hydrated or precipitated oxides, he means such oxides ast are precipitated. That is the construction.we put upon the specification, and therefore we think that objection fails.

"It is said that the mere application of the hydrated oxides to absorb the sulphuretted from coal-gas is not the subject of a patent, that property of it being previously well known. With that we do not agree. The answer is that the question is not properly stated. The application of the hydrated oxide is the principle. If a man were to say, 'I claim the use of hydrated oxide of iron for the purification of coal-gas' without saying how it is to be applied, it is possible that the objection might be well founded; but here the plaintiff says, 'I claim it in the manufacture of gas in the way I have described,' and he shows how it may be used. Therefore this objection fails."

Notes.

This case was referred to as an authority to show the insufficiency of a model to anticipate an invention: Winby v. Manchester Tramways Co.,

1 It was therefore unnecessary to go into the question of anticipation by these specifications; but the material parts of them are here set out in view of Hills v. Evans, post, p. 222.

6 R. P. C. 364. It was also cited and followed by Wright, J., in Lyon v. Goddard (10 R. P. C. 135) to show that a machine which does its work more or less badly does not invalidate a subsequent patent for an invention which turns "failure into success."

The facts in this case are referred to by Lord Halsbury, L.C., in The Cassel Gold Extracting Co. v. Cyanide Gold Recovery Syn., 12 R. P. C. 242, as being very similar to those in that case; and Smith, L.J., quoted (p. 256) the passage of Baron Bramwell's cited above as being directly in point.

But in Wylie & Morten's application (13 R. P. C. 98) Finlay, S. G., pointed out that the above case can only be cited for the proposition that if the earlier patent mentioned oxides of iron generally, and the subsequent patentee by invention found that certain particular oxides had advantages, the latter patent was valid.'

1860. SEED V. HIGGINS, 8 H. L. Ca. 550.

Construction-Effect of Disclaimer.

In 1846 a patent (No. 11293) was granted to W. Seed for "certain improvements in machinery or apparatus for preparing, slubbing, and roving cotton and other fibrous substances."

The specification was as follows: "My improvements in machinery or apparatus for preparing, slubbing, and roving cotton and other fibrous substances, apply solely to that part of such machinery called the flyer, which is employed in connection with the spindle for the purpose of winding the sliver or roving upon the bobbin. My invention consists in the application of the principle of centrifugal force to the flyers employed in the above-mentioned machinery, for the purpose of producing the required elasticity or pressure upon the bobbin, by causing the small spur or lever, which conducts the sliver of cotton or other fibrous material on to the bobbin, to press or bear against the same simply by the action of such force, instead of being effected by springs or such other mechanical pressure. By the application of this invention the bobbin of rovings will not only be made hard, but equally compressed throughout, as the pressure upon the same will be found to decrease slightly as the diameter of the bobbin increases, and thus equalize the formation thereof, instead of having the outer or finished diameter made harder than the interior, which has hitherto been the case." Then follows an explanation of the drawings, in which the same letters denote corresponding parts throughout. "Fig. 1 is a front elevation of the flyer; Fig. 2 is a side or edge view of the same; and Fig. 3 is a plan or horizontal view as seen from above. a, a, is the spindle; b, b, the bobbin; and c, c, the flyer. To one or both of the legs of the flyer c, c, are attached two or more fixed bearings d, d, supporting the guide or pressing apparatus e, f, g, formed of wire. The lower part or portion e of this wire is bent and formed into a

1 Hill's claim was for his improvements only, and expressly disclaimed what Croll and Laming had done.