machinery in the old manner to an analogous substance. That cannot be the subject of a patent.'

In Harwood v. Great Northern Railway Company (2 B. & S. 208), Cockburn, C. J., said Although the authorities establish the proposition that the same means, apparatus, or mechanical contrivance, cannot be applied to the same purpose, or to purposes so nearly cognate and similar as that the application of it in the one case naturally leads to the application of it when required in some other, still the question in every case is one of degree, whether the amount of affinity or similarity which exists between the two purposes is such as that they are substantially the same; and that determines whether the invention is sufficiently meritorious to be deserving of a patent.'

The following cases will illustrate the law as thus laid down by these learned judges :—

The casting of tubular boilers in one piece, similar boilers having been previously made in several pieces which were afterwards fastened together by means of cement, was held not to be an invention for which a valid patent could be obtained, although the result was useful and beneficial to the public. It was only the application of a well-known article, viz. iron, by a well-known process, viz. casting, to the production of a well-known article, tubular boilers. (Ormson v. Clark, 13 C. B. N. s. 337; S. C. in error, 14 C. B. N. s. 475.)

Again, the application of double-angle iron (a wellknown article of commerce already applied to a variety of purposes) to the construction of hydraulic joints of telescopic gas-holders, instead of making them of two pieces of single-angle iron attached to a plate, was held not to be patentable. (Horton v. Mabon, 12 C. B. n. s. 437; S. C. in error, 16 C. B. N. s. 141.)

From what was said in Mackelcan v. Rennie (13 C. B. N. s. 61), it would appear that the Court con

sidered that the application in the construction of a known apparatus of a material not before used for that purpose, for example, iron instead of timber in the construction of floating docks, was not an invention for which a valid patent would be obtained.

'The use of a new material to produce a known article is not the subject of a patent,' said Malins, V. C., in Rushton v. Crawley (L. R. 10 Eq. 522), a case where a man had taken out a patent for the use of a kind of wool called Russian tops in the manufacture of artificial hair. (See also Thompson v. James, 32 Beav. 570.)

In the case of Losh v. Hague (1 W. P. C. 202) the question was reduced to this-Is a man who finds a particular construction of wheel already in use for carriages on ordinary roads entitled to a patent for applying it to railway carriages, such application not having been previously made? Lord Abinger remarked that you cannot have a patent for applying a well-known thing, capable of being applied to fifty thousand different purposes, to an operation which is exactly analogous to what was done before. His lordship put this case: Suppose a man invents a pair of scissors to cut cloth with; if the scissors were never invented before, he could take out a patent for it. If another man found he could cut silk with them, why should he take out a patent for that?' Again-'It would be a very extraordinary thing to say, that after all mankind have been accustomed to eat soup with a spoon, that a man could take out a patent because he says you might eat peas with a spoon.'

In an action for the alleged infringement of a patent for improvements in separating the fibres of cocoa-nut husks, it was shown that the principal part of the invention consisted in passing the split husks between crushing rollers, and that, for some time previous to

the date of the patent, similar rollers had been employed in treating hemp. Lord Campbell, who presided at the trial, told the jury that the use of the crushing rollers having been thus anticipated, no claim for their application to the crushing of cocoa-nut husks would hold good. (Hyde v. Trent, Newton's Lond. Jour. vol. 45, p. 135.)

So, in the case of Regina v. Cutler (Macrory's Pat. Ca. 124-138), it was held by two judges on different occasions, that the mere application of a known article to a new use, the mode of application having been previously employed in applying analogous articles to the same purpose, cannot be made the subject of a patent. In this case the patent was for improvements in the construction of the tubular flues of steam boilers. The specification claimed the application of iron tubes coated with copper or brass to this purpose. This kind of tube was not new; nor was there any novelty in the way the patentee applied the tubes in the construction of flues, uncovered tubes having been previously used in a similar way.

In The Patent Bottle Envelope Co. v. Seymer (5 C. B. N. s. 164) it was held that the use of a model or mandril in the form of a bottle in making envelopes for bottles out of rushes or straw, could not be the subject of a patent, this being merely the application of a well-known tool to work previously untried materials or to produce new forms.

On the trial of Bush v. Fox (Macr. P. C. 163), it appeared that the invention, for an infringement of which the action was brought, consisted in the use of a caisson or hollow cylinder for building under water. It was proved at the trial that a similar caisson for building on land had been described in the specification of a patent granted several years previously. This, therefore, was only a new application of a machine pre

viously applied to another purpose. I think' (said Pollock, C. B., to the jury) that a man cannot, if he has applied an old invention, or part of an old invention to a new purpose, obtain a patent for such an invention. Both the plaintiff and the other witness say that the invention consists in the application, and not in the novelty of the thing itself-in other words, that the only novelty is in the application of the apparatus. I think that a patent cannot be taken out for such an application. If a man were to take out a patent for a telescope to be used to make observations on land, I do not think any one could say, "I will take out another patent for that telescope to be used for making observations on the sea."" When the legal points raised at the trial were argued in the Exchequer Chamber, Maule, J., said, ‘Assuming that the machine itself is old, the learned judge held that a mere new application is not a new manufacture, and therefore not the subject of a patent; and my present opinion is that, on the evidence, he was right in so directing the jury' (Macr. P. C. 175). The case having been taken to the House of Lords (Macr. P. C. 179), it was there held that the judge's direction was right.

In Brook v. Aston (8 E. & B. 478), the plaintiffs had obtained a verdict in an action for an infringement of their patent granted in 1856, for improvements in finishing yarns of wool and hair; but the defendant. obtained leave to move to enter the verdict in his favour if the Court should be of opinion that the patent was invalid. It appeared that the plaintiff had obtained a patent in 1853, for a process precisely similar except that it was applicable to the finishing of cotton and linen yarns. After argument, the Court held that as the alleged invention under the later patent was only the application of an old machine in an analogous manner to another but similar object, there had been

no improvement or discovery for which a patent could be obtained. This decision was affirmed by the Court of Exchequer Chamber (5 Jur. N. s. 1025).

In the case of Harwood v. The Great Northern Railway Company (2 B. & S. 194; 11 H. L. C. 654) a patent for the application of fishes' to iron rails for railways, for the purpose of securing them, was held invalid, because a similar contrivance had been applied to fasten pieces of timber together in the construction of bridges, and had also been used in various articles of machinery. As Mr. Justice Willes said, the invention for which the patent had been obtained was the mere application of an old contrivance in the old way to an analogous subject without novelty or invention in the mode of applying such old contrivance to the new purpose.'

Jordan's specification claimed the construction of ships with an iron frame combined with an external covering of timber planking for the sides, bilges, and bottoms. At the trial of an action for an infringement of the patent, it appeared that a combination of wood and iron in the construction of ships was well known previous to the patent, and that frames partly of iron and partly of wood had been coated with iron. The jury having returned a verdict in favour of the plaintiff, the patentee, a rule was obtained for leave to enter a verdict for the defendant on the ground that the invention was not patentable. The Court decided that as iron and wood had both been long used in the construction of vessels, the application of wooden planking to the iron frame of a vessel, without any peculiarity in the nature of that planking, could not be the subject-matter of a patent. The alleged invention was as to one part nothing more than the substitution of one well-known and analogous material for another that is, wood for iron-to effect the same