66 66 Waterson v. W. A. Lloyd's Cycle Fittings, Ld. "fixed framing common with the bearings, and which are affixed by clamping screws or equivalent devices, substantially as described and set forth in 5 Figures 9 and 10. Fourthly :-In breadth-adjusting pedals for velocipedes, "fitting or providing the supplementary extension part with pegs, stalks, or "their equivalents, which take through holes in an end plate of the fixed 5 "framing, and are affixed thereto by eyed bolts, pins or similar clamping "expedients, substantially as described and set forth in Figure 11. Fifthly:"In breadth-adjusting pedals for velocipedes, fitting or providing the fixed part "with a supplementary sliding and adjustable extension plate, having an upright "flange or pedal plate side at its outer end, and which extension plate is clamped 10 "in position by the means and in the way substantially as described and set "forth in Figures 12, 13 and 14, whereby a breadth-adjusting pedal is produced "and at the same time a counterpoised or self righting pedal. Sixthly :-In "breadth-adjusting pedals, fitting or mounting the supplementary or loose end "to or upon the pedal by the means and in the way substantially as described 15 "and set forth in Figures 15 and 16. Seventhly :-In breadth-adjusting pedals, fitting the supplementary or loose end to the pedal by the means and in the "way substantially as described and set forth in Figure 17. Eightly :-The improvements in the construction, arrangement and combination of the parts "of pedals substantially as and for the purpose described and set forth in the 20 "several figures of the drawings." 66 66 On the 27th November 1897, H. Waterson commenced an action against W. A. Lloyd's Cycle Fittings, Ld., for infringement of these two Patents, and also of another Patent granted to Waterson in 1897, claiming the usual relief. The Plaintiff by his Statement of Claim alleged that he was the legal and 25 duly registered owner of the two first-mentioned Patents, and that they were valid and subsisting, and that the Defendants had infringed the same in the manner set out in the Particulars of Breaches delivered therewith. The Particulars alleged in particular infringement by the manufacture, sale and use of pedals constructed in accordance with the invention patented by the Patent 30 No. 17,940 of 1893, as defined by the 1st, 7th and 8th claiming clauses of the Specification. The Defendants by their Defence alleged that (1) they had not infringed the Patents mentioned in the Statement of Claim or either of them; (2) that the Waterson v. W. A. Lloyd's Cycle Fittings, Ld. said G P. Main was not the first and true inventor of the alleged invention forming the subject-matter of the Patent No. 8856 of 1893, nor was the Plaintiff the first and true inventor of the alleged invention forming the subject-matter of the Patent No. 17,940 of 1893; (3) that the said alleged inventions were not 5 useful; (4) that the said alleged inventions were not new; (5) that the said alleged inventions were not, nor was either of them, the subject-matter of Letters Patent; (6) that the Complete Specification of the Patent No. 17,940 of 1893 described and claimed an invention larger than and different to the invention described in the Provisional Specification of the said patent. The 10 Particulars of Objections, after repeating paragraphs 1 and 2 of the Defence, alleged (3) that the said alleged inventions were not, nor was either of them, new (a) as to Letters Patent No. 8856 of 1893 and No. 17,940 of 1893; the alleged inventions which form the subject-matter of those Letters Patent had been published in this realm prior to the date of either the said Letters 15 Patent in the following Specifications :-(1) Crutwell, No. 4562 of 1878; (2) Garrood, No. 4964 of 1880; (3) Haddon, No. 4802 of 1883; (4) Hadley (United States Specification), No. 313,323, deposited in the Patent Office Library on or about the month of August, 1885; (5) Pearce and Higgett, No. 6635 of 1885; (6) Welch, No. 13,986 of 1886; (7) Palmer, No. 15,982 of 1887; (8) Skinner, 20 No. 5946 of 1888; (9) Truman, No. 8804 of 1892; (10) Retford, No. 13,761 of 1892; (11) Palmer, No. 21,792 of 1892 (in each case the whole Specification was relied on); (b) as to Letters Patent No. 17,940 of 1893, the Defendants would, in addition to the above-mentioned Specifications, rely on the following Specification as anticipating all the claims of the said Letters Patent, viz.: Main, No. 8856 of 25 1893, the whole was relied on ; (4) that the said alleged inventions were not, nor was either of them, the proper subject-matter of Letters Patent. The Defendants would rely in support of this objection upon all the prior Specifications set out in paragraph 3 thereof, and would also allege that neither of the said inventions forming the subject-matter of the said Letters Patent No. 8856 of 1893 and 30 No. 17,940 of 1893 disclosed any patentable improvement upon pre-existing common public knowledge, and that it required no invention to adapt adjustable sliding extension pieces to the pedals of bicyles or other velocipedes; (5) that the Complete Specification of Letters Patent No. 17,940 of 1893 described and claimed an invention larger than and different to the invention described in the Pro35 visional Specification of the said Letters Patent. In support of this objection. the Defendants would rely on Figure 17 and the letterpress relating thereto, and claimed in the Complete Specification of Letters Patent No. 17,940 of 1893. Moulton, Q.C., and J. W. Gordon (instructed by Ward, Bowie & Co., agents 40 for Lane, Clutterbuck, and Tomlinson, of Birmingham) appeared for the Plaintiff; A. J. Walter and J. H. Gray (instructed by Douglas, Norman & Co., agents for A. L. Crockford, of Birmingham) appeared for the Defendants. Moulton, Q.C., opened the Plaintiff's case, after which Messrs. P. L. Renouf and G. C. Marks were called as witnesses on behalf of the Plaintiff. 45 Moulton, Q.C., summed up the Plaintiff's case.-There is evidence of the great utility of the invention. The anticipations alleged are paper anticipations; one has not, therefore, to consider whether if a certain thing were in use something of the Plaintiff's invention might be learnt from it, but whether it has been described. Anticipation is a question of fact. Different 50 considerations arise where there have been users which might suggest alterations. The invention must be found suggested as if it were there in words. There is no evidence of user of the alleged anticipations, and no prior user of them was alleged. The Courts have never allowed paper anticipations to be widened; they are not part of the common knowledge of the trade. As to the 55 force of such anticipations I rely on Otto v. Linford, 46 L.T.N.S. 44. This invention is not suggested by spring clamps or adjustable toe-clips. It is much easier to adjust the latter. The fact that Crutwell will do if turned round so as to widen instead of lengthen is not fatal to validity. The turning round may be patentable. Ours is not an obvious analogous user. Morgan v. Waterson v. W. A. Lloyd's Cycle Fittings, Ld. Windover, 7 R.P.C. 131, was a case of actual user, the only alteration being the application to the front of the carriage of a spring which had been used for the back. The article had been sold complete as a carriage spring for the back of a carriage. But in the present case nothing has been done to suggest our use. [Fawcett v. Homan, 13 R.P.C. 398, was referred to.] The Plaintiff's invention was a pedal extensible sideways without interfering with the bearings. Walter for the Defendants elected not to call evidence, and was not called on to argue. COZENS HARDY, J.-In this case Mr. Waterson claims an injunction in respect of two patents, which may be called Main's Patent and Waterson's 10 Patent, and he says the Defendants are manufacturing pedals in accordance with the invention. I may at once put aside and disregard Main's Patent, except collaterally and for a secondary purpose, for this reason-that the witness called by the Plaintiff this morning, Mr. Marks, himself said that what the Defendants are making and selling is not within Main's Patent. 15 Main's Patent therefore is, so far as infringement is concerned, out of the way, and the question resolves itself into this: aye or no, has there been an infringement of Waterson's, and is Waterson's a valid Patent? The evidence which I have had satisfies me of this. I treat these prior specifications as merely books, as merely so many pages, if you like, of an encyclopædia; but they show 20 beyond all doubt that from 1878 downwards there were many well-known modes of making adjustable toe-pieces to pedals, in some instances worked by means of a screw, in others worked by means of a slot; but in various modes the idea of making the front part of the rectangular pedal adjustable and extensible was familiar to all persons concerned with these matters, and 25 I think it is sufficiently plain that there is no substantial difference between the mode used of adjusting the front side or toe-piece of these pedals and the mode used by the Defendants in adjusting the sides of their pedals. But then it is said that, although there may have been many instances in which the idea of an adjustable toe-piece was made public, this idea of adjustable side- 30 piece was novel, and Waterson was the man who discovered it. Now, unfortunately, Main's Specification is prior to Waterson's. Main gave the idea of an adjustable side-piece. That was, I think, in the words of his Specification, the very essence of his idea. The very first words of his Provisional Specification show that: "An improved pedal that can be adjusted to either 35 narrow or wide tread by means of two screws, two angle plates, and "two slots." So that before Waterson came on the field the idea of a pedal adjustable to wide or narrow tread was made known, and, given that idea, it does seem to me that there was not such an amount of invention required as is necessary to support the Patent. Given the idea of side adjustment, given 40 also the knowledge of front adjustments of various kinds, I do not think it was a good subject-matter for a Patent; or, perhaps, a better way of putting it is that I do not think there was any sufficient novelty in merely applying to the side of the pedal that which was familiar and well known in connection with the toe-piece. 66 45 I do not think it is necessary for me to go through these Provisional and Complete Specifications. It is true, I think, that they most of them relate to toe-pieces; but I am bound to say I am not satisfied that one or two of them do not indicate also, in a sufficient manner to destroy Waterson's Patent, the possibility and the advantage of a lateral movement by screws or by slots. For 50 all these reasons I think that the Plaintiff has failed in this action, and the action must be dismissed with costs. Payton & Co., Ld. v. Snelling, Lampard, & Co., Ld. IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE BYRNE. February 11th, 13th, 14th, and 15th, and March 21st, 1899. PAYTON & Co., LD. v. SNELLING, LAMPARD, & CO., LD. 5 Action to restrain passing off-Get-up of coffee tins.-Injunction granted. The Plaintiffs in an action for passing off sold their coffee in circular tins surrounded by paper labels. The predominant colour of the label for one quality was red, for another quality blue, and for another quality green. 10 There were three sizes of the tins of each colour. The Plaintiff's subsequently adopted enamelled tins in red and blue displaying a reproduction of the labels for the two larger sizes of the two higher qualities. The smaller tins of these qualities and all of the lowest quality were still used with paper labels. The brand "Royal" appeared on the back and front of all the Plaintiffs' tins. 15 The Defendants sold coffee in circular red, blue, and green tins, all of which were enamelled, resembling in general appearance, but differing in details from the Plaintiffs' tins. The brand "Flag" appeared upon the back and front of all the Defendants' tins, and their trade mark “Flag” in tricolour was on the front of each tin. The names and addresses of the Plaintiffs and 20 Defendants were not placed upon their respective tins. Held, that the Plaintiffs were entitled to an injunction to restrain the use of the tins complained of. On the 17th of December 1897, Payton & Co., Ld., commenced an action against Snelling, Lampard, & Co., Ld., claiming an injunction to restrain the 25 Defendants, their servants and agents, from in any manner passing off, or enabling or assisting others to pass off, any coffee or similar goods not being the Plaintiffs' goods, and from selling or offering or exposing or advertising for sale or procuring to be sold any such goods as aforesaid in tins or canisters or other similar receptacles so printed, painted, enamelled, coloured, labelled, 30 or otherwise prepared or got up as by colourable imitation of the Plaintiffs' tins or canisters or otherwise to be calculated to represent or lead to the belief that the goods therein contained are the Plaintiffs' goods. Damages, or an account of profits, and other consequential relief, were also claimed. 35 66 The Statement of Claim alleged :-" (1) The Plaintiffs carry on, and have "for many years last past carried on, at Tower Hill Warehouses, Tower Hill, "in the City of London, and elsewhere, an extensive and increasing business 66 66 66 66 66 66 Payton & Co., Ld. v. Snelling, Lampard, & Co., Ld. as wholesale merchants of tea, coffee, cocoa, and similar goods, and one of "the most important articles in which the Plaintiffs deal is French coffee. (2) In the year of 1895, the Plaintiffs designed and adopted an entirely "new and distinctive method of putting up their French coffee, and offering "for sale and selling the same, that is to say, they put up the same and offered 5 "it for sale and sold it in cylindrical tins in three sizes containing respectively 1 pound,pound, and pound. They also distinguished three qualities of "their said coffee by the colours of labels, viz., red, blue, and green. One quality was put up in tins bearing a red label and in three sizes, another "quality in tins bearing a blue label and in three sizes, and the third quality 10 "in tins bearing a green label and in three sizes as aforesaid. The said labels were specially designed by the Plaintiffs' managing director, and were very "distinctive, the colour of the ground of the several labels being as above stated, with the price of the coffee displayed on a conspicuous gilt device in "the centre of each side with the name of the brand of the coffee on each 15 "side above the gilt device, and with the word 'coffee' on one side below "the device, and on the other side in a similar position the words 'French "coffee' with a statement that the article was sold as a mixture. All the "conspicuous lettering was in white. (3) The Plaintiffs put their said "French coffee on the market in their said range of tins labelled as aforesaid in 20 "the autumn of the said year 1895, and such tins so labelled were at once recognised both by the trade and the public as very special in character, and "as very effectually distinguishing the Plaintiffs' said French coffee from all "other brands, and the appearance of the said tins speedily became very well "known and generally recognised, and the sale of the Plaintiffs' coffee therein 25 "contained rapidly grew and increased. (4) In the year 1896 the Plaintiffs "determined to have their said tins in some cases enamelled with a repro"duction of their said labels instead of affixing their said labels to the tins as "previously, and they accordingly caused a quantity of tins (though not in all "the varieties) to be enamelled in manner aforesaid, and they began to put 30 "their said French coffee on the market in tins enamelled as aforesaid as an "alternative for the previous labelled tins in the autumn of the said year 1896. "The Plaintiffs' said tins so enamelled were as nearly as possible reproductions "of the previous labelled tins, and have always been regarded by the trade and "the public as identical with the Plaintiffs' said labelled tins, the only 35 "differences being that the device of the labels is enamelled on the tins "instead of printed on the adhesive labels. (5) The design and appearance "of the Plaintiffs' said tins, whether labelled or enamelled, has always been "entirely distinctive, and has been universally recognised as such, and anyone "who sees one of such tins, at once recognises it as one of the Plaintiffs' tins, 40 "and anyone who purchases one of such tins intends and expects to receive "the Plaintiffs' said French coffee therein. (6) The Plaintiffs' recently "discovered (as the fact is) that the Defendants, who carry on business "at St. George's House, Eastcheap, in the said City of London, as "wholesale tea dealers, were offering for sale and selling French 45 "coffee not being the Plaintiffs' coffee in cylindrical tins so got up as "to closely imitate the Plaintiffs' said tins, such tins being in some cases labelled and in other cases enamelled. The Defendants are putting up "their said French coffee in three qualities and in tins of three sizes, making "a range of nine varieties, corresponding with the Plaintiffs' said range. 50 "The Defendants' three qualities, like the Plaintiffs' said three qualities, are "distinguished by the colour of the ground of the design, viz., red, blue, and green; one quality is put up in red tins in three sizes, another quality in blue "tins in three sizes, and the third quality in green tins in three sizes. In the "centre of each side of the Defendants' tins is a conspicuous gilt device, with, 55 "on one side, the price of the coffee, and, on the other side, a flag; the name "of the brand of the coffee appears on each side above the gilt device. Below 66 66 |