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embossing, the roller had a pattern upon it, and the speeds of the roller and bowl were equal. A patent was taken out for a combination of a patterned roller with a bowl moving at unequal speeds. The invention was held not to be one which could be the subject of a valid patent, as it amounted to nothing more than how to use an existing machine more beneficially than had been previously known. Although the patentee might have discovered that by making the patterned roller and the bowl move at different speeds instead of at the same speed, and by moving the fabric transversely when fed up, the machine could be worked more advantageously than formerly, he had no right to prohibit the owner from using his property as he thought fit. (Ralston v. Smith, 9 C. B. N. s. 117; affirmed by the House of Lords, 11 H. L. C. 223.)

In the case of Patterson v. The Gas Light and Coke Company (L. R. 2 Ch. D. 812, L. R. 3 App. Cas. 239) a patentee claimed the employment of sulphides of calcium in separate purifiers as a means of purifying coal gas from sulphur existing in other forms than that of sulphuretted hydrogen. Now, as it was well known to chemists, and had been long taught in books, that sulphides of calcium would absorb sulphur compounds -moreover, as it was plain that if sulphide of calcium was to be used, a separate holder must be employed, and as no special apparatus was suggested, it was held that there was no invention that would support a patent. The same patentee also claimed a method or system of employing lime purifiers in succession, whereby the contents of all the purifiers, or any required number of them, could be converted into sulphides of calcium, and also, if required, be maintained in that condition. Now, lime purifiers in succession had been in general use for a long time, and the patentee had not devised either a new process or any

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new apparatus. What he really thought he had discovered was that, if the carbonic acid, which is the first thing taken up by the lime, was allowed to enter the last purifiers, it would have a deleterious effect on the purifying process. It ought, therefore, to be removed at the beginning of the operation. But this, though it might be a very useful piece of advice, and an instruction of great value, was held by the Court of Appeal not to constitute of itself the subject-matter of a patent.

Other cases in which the inventions were held to be insufficient to support patents were Thompson v. James (32 Beav. 570), and White v. Toms (32 L. J. Ch. 204). Upon the question of what is subject matter of patentable invention, reference may usefully be made to the judgment of Grove, J. in Young v. Rosenthal, (1 R. P. C. 30.)

SECOND PATENTS.

In Lister v. Leather (8 E. & B. 1004) it was held that a second patent for an improvement on an invention which is the subject of a previous patent afterwards assigned to the second patentee is not void as being contrary to public policy. And the same rule holds good in regard to a second patent obtained by the same inventor. The argument that the second patent prolongs the monopoly granted by the first until the expiration of the second is answered by the fact that the former invention without the improvement is free as soon as the earlier patent comes to an end.

CHAPTER III.

THE INCIDENTS OF UTILITY AND NOVELTY WHICH MUST BY LAW ACCOMPANY PATENTABLE INVENTIONS.

THE two chief incidents which are required by law to attend every invention that claims the protection of a patent, are utility and novelty.

If a material part of the alleged invention should turn out to be either not useful or not novel, the patent is altogether void, the legal maxim utile per inutile being here disregarded. (See Crossley v. Beverley W. P. C. 106; Hill v. Thompson, 1 W. P. C. 249; Manton v. Parker, 1 W. P. C. 192 n.; Dav. P. C. 327; Bloxam v. Elsee, 6 B. & C. 169; 1 Carp. 444; Roberts v. Heywood, 27 L. T. n. s. 454; Hill v. Tombs, April 1881, Engineer,' 51, p. 274.) And in like manner, where several distinct heads of invention are included in one patent, one useless or old invention will invalidate the whole patent (Turner v. Winter, 1 W. P. C. 77 ; 1 T. R. 602; Bloxam v. Elsee, 6 B. & C. 178; Morgan v. Seward, 1 W. P. C. 196; Kay v. Marshall, 2 W. P. C. 71). The Crown having been misled as to the extent of the invention, the grant of a patent in respect of it is void. It was on this principle that the Court, in deciding Morgan v. Seward, looked at the cases of Hill v. Thompson (1 W. P. C. 237), and Brunton v. Hawkes (4 B. & A. 541); in which a patent for several inventions was held to be altogether void because one was not new. The want of novelty is a fatal defect by the express wording of the statute, so far as

relates to that which is old; and the whole patent is rendered void by the construction that the consideration for the grant is the novelty of all the parts claimed to be new, which consideration failing, or, as it is sometimes expressed, the Crown being deceived, the patent is void.

As it is of the utmost importance to ascertain what construction the courts have put upon the terms new and useful when applied to patented inventions, and how they have administered the law in dealing with the cases that have come before them, it will be necessary to go into the matter at some length. And first as to the question of

UTILITY.

If an invention contains no degree of usefulness whatever, over and above inventions already known, then the patent is void. (Manton v. Parker, Dav. P. C. 327; W. P. C. 192 n.; Manton v. Manton, Dav. P. C. 348.)

'A mere trifling matter' (said Sir W. P. Wood, V. C., in Dangerfield v. Jones, 13 L. T. N. s. 142) or a thing of no value will not do, inasmuch as the whole theory of the patent law is based upon the assumption that it is something of real value. You must show that you have invented something useful, a new and useful improvement in manufacture.'

A patent for a useless invention is thought by some to be void at common law; by others, by force of the Statute of Monopolies, which renders void grants of privileges which tend to the hurt of trade, or are generally inconvenient. For if a monopoly were allowed in a useless invention, other persons would be prevented from improving it, or turning it to any account whatever, so that combinations of utility might be impeded. It would stand in the way of real inventors, and hence be mischievous to the public generally.

(See the observations of Parke, B., in Morgan v. Seward, 1 W. P. C. 196.) On the trial of Palmer v. Wagstaff (Newton's Lond. Journ. vol. xliii. p. 151), Chief Baron Pollock said that in legal language it is a fraud on the law of patents for any person to take out a patent with a view to the obstruction of improvements. The evidence showed that the plaintiff's patent, which it was alleged the defendant had infringed, had never been worked; no attempt had been made to bring the candles of the patented construction before the public; and the patent was only then brought into play for the purpose of stopping the defendant from a course of improvement.

A patent for an invention which is merely to obstruct every subsequent improvement, which is to step in and prevent the exercise of the ingenuity of mankind and the introduction of other inventions adapted. to the particular subject to which the invention may be applicable, cannot, in my judgment, be supported.' (Per Pollock, C. B., in Crossley v. Potter; Macr. P. C. 240.)

It is to be observed that the recital in the Letters Patent of the Crown's willingness to encourage all inventions which may be for the public good,' clearly points to the quality of utility as one of the considerations for the grant, which failing, the patent will be invalid.

When an action is tried before a jury, it is for them, not the Court, to decide the question of utility when the point has been raised by appropriate pleadings; 1

That the patentee must go into proof of the utility of his invention in case that issue is raised is shown by what fell from the judges in the cases of Rex v. Arkwright, Dav. P. C. 138; Manton v. Parker, Dav. P. C. 327; Manton v. Manton, Dav. P. C. 333; Bovill v. Moore, Dav. P. C. 399; Brunton v. Hawkes, 4 B. & Ald. 541; Russell v. Conley, 1 W. P. C. 467; Hill v. Thompson, 1 W. P. C. 237; Minter v. Wells, 1 W. P. C. 129; Crane v. Price, 1 W. P. C. 411; Derosne v. Fairie, 5 Tyr, 393; 2 Cr. M. & R. 476.

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