'It has long been the practice' (said Jessel, M. R., in Hinks v. Safety Lighting Co., 4 Ch. D. 607) 'to insert in specifications the distinct claim of what is said to be comprised in the patent; meaning that nothing else is comprised, that everything else is thrown open to the public; or, to put it into other words, if at man has described in his specification a dozen new inventions of the most useful character, but has chosen to confine his claim to one, he has given to the public the other eleven.'

In drawing the claims in a specification which refers to a machine or apparatus consisting of many old and new parts, it is desirable to introduce a general claim to the entire machine as a combination, and then separate claims to the new minor combinations and to the new parts. An observance of this rule will be attended with useful results, in case there should arise any necessity for disclaiming part of the invention.

Under the old law all the claiming clauses might be struck out of the specification by disclaimer, if there remained sufficient in the specification to show distinctly what the invention was. (Thomas v. Welch, L. R. 1 C. P. 192.)

In Kay v. Marshall (2 W. P. C. 39), Cottenham, L. C., said, 'The claim is not intended to aid the description, but to ascertain the extent of what is claimed as new. It is not to be looked to as the means of making a machine according to the patentee's improvements. If, therefore, the specification containing the description be sufficiently precise, it cannot be of any consequence that expressions are used in the claim which would be too general if they proposed to be part of the description.' See also Lister v. Leather (3 Jur. N. s. 811; S. C. in error, 8 E. & B. 1004).

On the other hand, where the description in a specification was in the first instance too general, but the inventor afterwards in describing his invention referred to certain figures in drawings annexed to the specification, and the claim was for the invention described with reference to those figures, the specification was held sufficient (Daw v. Eley, 14 W. R. 126, and on another hearing, L. R. 3 Eq. 497). See also Russell v. Cowley (1 W. P. C. 465); Thomas v. Welch (L. R. 1 C. P. 192).

In the case of Arnold v. Bradbury (L. R. 6 Ch. 706) it appeared that the specification under a patent for an improved ruffle and sewing machine stated that the invention related to an improved frill or gathered fabric, and to the machinery for making the same; that the apparatus used in producing the article consisted of a peculiar mechanism for gathering and feeding one of the fabrics operated on, which mechanism was used in combination with a sewing machine, the latter being modified to receive it. The gathers in a fabric were fed into the machine by mechanism without being scratched by a pointed instrument as when formed by hand. A description of the mechanism was given. Drawings figured the mechanism, and one of them showed a portion of a sewing machine to illustrate its operation. The claims were for (1) The production by machinery of gathered work when it was simultaneously attached to a plain fabric by stitches; (2) the production by machinery of gathered work when it was simply gathered and secured on itself by stitches; and (3) the combination of mechanism for gathering with the mechanism of a sewing machine for the two purposes above mentioned. It was contended by the defendants, who admitted the infringement, that the patent was void, because the first two claims were too wide and general, inasmuch

as they claimed the production of gathered work by any kind of machinery. Lord Hatherley, L. C., however, said that a claim must be very large and vague indeed to justify any court in saying that it is impossible to sustain a patent based upon it. He read the first claim as one for the production by machinery of that which had not been done by machinery before, viz. an improved frill. The inventor had stated in what the improvement consisted, and he described the machinery by which it was produced; and then he said, I claim the producing of this by machinery, of which machinery I have given full details. In other words the judge read the specification as not claiming more than the production of gathered work by the machinery therein described. As to the second claim, his lordship said that he could not tell that the frill produced without being scratched was not more durable and elegant than one formed by hand and scratched. If the inventor had produced a machine which dispensed with an injurious process, the judge said he could not in the absence of evidence take upon himself to say that it would not be the subject-matter of a patent, and he decided. that there was no ground for holding that the claims were too large per se.1

As to the construction of a claim which can be read in two senses, one of which would make the patentee appear to claim something which was well known and in common use, see Cropper v. Smith, Court of Appeal, W. P. C. p. 81, and Westinghouse v. Lancashire and Yorkshire Railway Company, ibid. p. 98. And see what fell from Tindal, C. J., in Haworth v. Hardcastle, 1 W. P. C. 484. If one construction would

1 Lord Hatherley remarked in this case that it was a singular fact that no case had been cited from the law books of any claim being held to be too large on account of the greatness of the claim independently of external evidence.

imply that the claim is practically a repetition of what has gone before and entirely superfluous, yet so long as it does not seek to enlarge the monopoly beyond what the patentee is entitled to, it will not make the patent invalid. (Plimpton v. Spiller, L. R. 6 Ch. D. 412.)1

INTERPRETATION OF SPECIFICATIONS.

When a patent case is tried before a jury it is the duty of the judge, where a specification comes into question, to explain to the jury what that instrument directs to be done, and it is for the jury to say whether, upon the evidence, the promised result will be accomplished by pursuing those directions. (Per Cresswell, J., in Beard v. Egerton, 8 C. B. 165; 19 L. J. C. P. 36.)

Formerly there was a disposition in the Courts to take part against patentees, under the impression that monopolies were not to be encouraged, attaching the old odious sense of the term to the phrase indicating a patent privilege for an invention. Then came a change, and some of the judges thought that a specification ought to be read with indulgence; that a liberal construction should be put upon it, and that the words should receive a benign or a benevolent interpretation. But of late years the Courts have laid down that specifications are to be construed like other written documents, that is, with a disposition to read them fairly, and with an endeavour to ascertain their real meaning, not straining the language nor giving effect to petty objections. In the case of Newton v. Halbard (Hil.

The following decisions have reference to the interpretation of 'claims: '-Palmer v. Wagstaff (9 Exch. 494); Macalpine v. Mangnall (3 C. B. 496); Templeton v. Macfarlane (1 H. L. C. 595); Sellers v. Dickinson (5 Exch. 312); Seed v. Higgins (8 H.L. C. 550); Thomas v. Foxwell (6 Jur. N. s. 271); Dangerfield v. Jones (13 L. T. N. 8. 142); Thomas v. Welch (L. R. 1 C. P. 192); Jordan v. Moore (L. R. 1 C. P. 624); Daw v. Eley (L. R. 3 Eq. 497); Hinks v. Safety Lighting Co. (L. R. 4 Ch. D. 607); Wright v. Hitchcock (L. R. 5 Ex. 73); Arnold v. Bradbury (L. R. 6 Ch. 706); Harrison v. Anderston Foun dry Co. (L. R. 1 Åpp. Cas. 574); Westinghouse v. Lancashire and Yorkshire Railway Co. (1 R. P. C. 98); Cropper v. Smith (1 R. P. C. 81).

M

Term, 1872) Mr. Justice Grove said, 'A specification should not be construed in a technical or captious spirit, but with a fair intention to give it effect if it be reasonably intelligible.' In the case of Harrison v. The Anderston Foundry Co. (L. R. 1 App. Cas. 574) Lord Chelmsford said, 'In the construction of a specification it appears to me that it ought not to be subjected to what has been called a benign interpretation, or to a strict one. The language should be construed according to its ordinary meaning, the understanding of technical words being, of course, confined to those who are conversant with the subject-matter of the invention.' 'I am anxious' (said Jessel, M. R., in Hinks v. Safety Lighting Company, L. R. 4 Ch. D. 607), 'as I believe every judge is who knows anything of patent law, to support honest bonâ fide inventors who have actually invented something novel and useful, and to prevent their patents from being overturned on mere technical objections or on mere cavillings with the language of the specification, so as to deprive the inventor of the benefit of his invention. This is sometimes called a "benevolent " mode of construction. Perhaps that is not the best term to use, but it may be described as construing a specification fairly, with a judicial anxiety to support a really useful invention, if it can be supported on a reasonable construction of the patent.' See also the remarks of the same learned judge, and of Brett, L. J., in Plimpton v. Spiller (L. R. 6 Ch. D. 412). Also the observations of Jessel, M. R., in Otto v. Linford (Court of App., 46 L. T. N. s. 35). In Dudgeon v. Thomson (L. R. 3 App. Cas. 53) Lord Blackburn said, 'I apprehend the duty of the court is fairly and truly to construe the specification, neither favouring the one side nor the other; neither putting an unfair gloss or construction upon the specification for the purpose of saving a patent, nor in order to extend it.'