The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. Patent. I will deal with the meaning of Trigwell's Specification. It is a narrow one; one figure in it only differs from Thomas in having an inner tube. The only fastening contemplated by Trigwell was having a U-shaped channel with. a bead fitting into it and drawn up tight. Inflation and deflation do not affect the position of the wire. Only particular means, which are described in the 5 clearest language, are claimed. The language of the Specification is very precise. It is quite a different case from those of the Welsbach or Welch Specifications. It is different both as to the kind of language used and the knowledge of the time. Trigwell is not merely for the fastening, but for the combination of the fastening and the strengthening. The strengthening is meant 10 to be by wire gauze or an equivalent material. Canvas was used in the Clincher tyre, and the reference would not be taken to be to that, but to something special. Astbury, Q.C., replied.-As to construction, I agree that the Patent is for the combination described. I do not say that Trigwell suggests Welch or wires 15 floating or not bound down. This is not a Curtis v. Platt case. Apart from Welch, Trigwell was the first person to fasten a loose cover on to an iron rim by wires. The Defendants have to say in this case that Trigwell is not infringed, if the wires are not tight. Welch may be an improvement, but nevertheless it is an infringement. The case of The North British Rubber 20 Company, Ld. v. Macintosh, 11 R.P.C. 477, well illustrates that. If the Defendants take the rim, the cover and the wires, yet do not clamp up, they still infringe. Some degree of tightness of the wires is necessary. If in Fig. 2 of Trigwell the wires are less in circumference than the edge of the rim, they cannot be got off unless there is a way of enlarging their circumference. 25 Welch appreciated that he could make alterations in Trigwell for getting the wire off, but when Trigwell and Welch are each in operation the forces at work are the same, unless the wires in Trigwell are clamped up very tight. If they are not so clamped, the air pressure lifts the wires from their seat. In Fig. 3 the wires have to be clamped more tightly than in Fig. 2. Clamping to a high 30 degree only is not what the Patentee intended. To construe it so would be to overlook the enlarged beads. The distinction between wires which are floating and wires which are sometimes taut and sometimes floating has not been before suggested. No one can use a tight wire in this combination without infringing. There are two rules which govern the question whether an 35 article is an infringement although not identical with what is described. If a Patent is for a mere improvement in a well-known article used for a well-known purpose, no new result being obtained, then the Patent is confined to the actual thing claimed. But if a Patent is for a new result produced or for a new means of producing a result, then, although the invention be small and 40 language be narrow, the Patentee is given the full benefit of his invention. Here the Patent is not for an old thing, nor is it for producing a thing by old means. Trigwell was the first man to wire on a cover for a pneumatic tyre. If Welch is out of the way, then Trigwell was the pioneer of one of the greatest inventions in tyres. Although wires had been used for other tyres, yet he was the first to 45 use them for pneumatic tyres, therefore he is not confined to the details, although the language be narrow. The improvements are four in number, namely, the cover, the clamping by wires, the strengthening, and the U-shaped channels. The infringement is absolute, with the exception of the omission of the inner sides of the channels. As to the claims, the invention is good, though each part be 50 old; the article is better by putting the parts mentioned together. The Defendants have the cover, the wires, the beads in the edges of the cover, and, although they have not canvas, they have "flexifort." The Complete Specification includes strengthening either by a lining or by something in the middle of the rubber. It was commonly known, as in Dunlop or Thomas, that there must be 55 The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. strengthening. In the Specification, this term indicates something giving greater support and affording greater protection against punctures. There may be infringement although everything is not taken, Clarke v. Adie, L.R. 2 App. Cas. 315. At the date of the Provisional Specification Trigwell was probably not aware of 5 Thomas, and he thought that he had invented two modes of attachment, one by bending over the edge, and the other by wiring on; he therefore took the U-shaped channel which would do for both. He afterwards had to drop the bending over because of Fig. 12 of Thomas, but he kept the U-shaped channel, which was a very useful form. Trigwell may not have appreciated how little 10 the inner part of the U was necessary, but that is immaterial. But it is found that the inextensibility of the wires and the lesser circumference of them is the main advantage, and that advantage is secured by Trigwell. If the Welch action is brought in, it is impossible for the inner side of the U to have any operation. It is clear that the ledge in the Defendants' tyre plays an important 15 part; it prevents the tyre from a rolling movement. The whole advantage of Trigwell is taken. [The Pneumatic Tyre Company, Ld. v. The East London Rubber Company, 14 R.P.C. at pp. 100 and 103, was referred to.] It was there argued unsuccessfully that clamping took the alleged infringement out of Welch, but it was held that, even although there was clamping, the benefit of Welch's 20 invention was taken. Here it is submitted that the Defendants have all Trigwell's parts, and that those parts have the same functions as they have in Trigwell. As to Palmer's Patent, Terrell, Q.C., opened the Plaintiffs' case on this Patent.-This Patent 25 has reference to the manufacture and application of the canvas lining to the outer cover of tyres. When pneumatic tyres were first thought of it was soon found that it would not do to rely on rubber alone, but that a fabric to restrain by its tensile strength the enlargement of the rubber was necessary. Therefore a lining of canvas was put to the rubber. It was then found that the 30 canvas split before the rubber outside gave way. Palmer discovered that, when the threads of the cover are woven in together, in riding they exert a sawing action on each other, and they ultimately get cut through. He had the idea of having the warp all parallel in one direction, and the weft lying over it parallel in another direction; so that by that means a better resistance to the 35 strains was obtained, and also the sawing action was got rid of. It was found at once that Palmer's tyre won all the records, because in other tyres some of the power was used up in the sawing action. The important issues are infringement and novelty. [Moulton, Q.C.-Both those are serious. Utility is not a serious issue.] [The Amended Specification was then read.] The Patentee first gets a 40 bed of parallel threads out of contact with each other. Then he has two plies with the thread in one at right angles to the threads in the other; or the threads may be embedded on the opposite sides of a bed of rubber. The threads must not be loose on the surface of the sheet, but must be bedded in. The disclaimer is to be incorporated into the claim. The Patentee disclaims a fabric even with 45 parallel threads if it does not contain his invention. The operative thing in his invention really consists in placing the two plies separately so as to prevent the cutting and sawing. The application of the fabric to the purpose is his invention. The Patentee disclaims any other use, he makes no general claim to such fabrics; he disclaims the use of them for strengthening in such things as 50 belts and hose-pipes, and for resisting longitudinal strains in belts. He claims for pneumatic tyres and other similar purposes where the rubber would be subject to the same sort of bendings, twists, and so on causing the sawing. There were two Specifications which were the cause of the disclaiming note. The first is Coles Jaques and Fanshawe, No. 83,132 of 1868 (United States). They had in 55 contemplation the making of an ordinary hose-pipe, and wanted to have a cotton The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. fabric embedded in rubber. The object was not to have the threads parallel, but to strengthen; they had no idea of the sawing action. The second Specification is Boucley, No. 451 of 1875; the invention there was for driving belts and such things, where the strain is longitudinal. The danger in such things is disintegration of the fabric, as stated in the Specification. Boucley points out 5 that the threads crosswise are useless in resisting the longitudinal strains, and moreover the longitudinal threads tend to lengthen themselves and to buckle up the fabric. There could not be a sawing action in driving belts, because the strain is in one direction, and the transverse threads are always loose and cannot saw or be sawed. Palmer disclaims the use for such purposes as in 10 these two Specifications, he only claims it for the purposes for which he himself discovered the use. I rely on the following cases on this point: The Shrewsbury and Talbot Cab Company v. Sterckx, 13 R.P.C. 44, where almost the identical process had been used for ship plates: the mode of rolling was old, but had never been applied to tyres for the purpose of holding an india- 15 rubber tyre on an iron tyre. Also Penn v. Bibby, L.R. 2 Ch. 127 at p. 135. The question is whether a man with full knowledge of the alleged anticipations and noticing the defect in the tyres, would require to make an invention. He would first have to discover the cause and then how to remedy it. Here, there is a far greater difference between the purposes than in Penn v. Bilby. 20 Up to the time of Palmer, the mischief was felt but not understood. [The judgment of Lindley, L.J., in Gadd v. Mayor of Manchester, 9 R.P.C. 516, at p. 524, was referred to.] There is abundance of invention to support the Patent. Moulton, Q.C., asked to be heard on the question of construction before the 25 witnesses were called. [WILLS, J. intimated that he should be glad to hear the view which Moulton, Q.C., wished to put forward.] This Patent claims only the invention of a new fabric. It is a Patent under the International Convention, and there is no Provisional Specification. [The Specification was read and commented on.] It relates to the manufacture of the class of fabric used in 30 pneumatic tyres, but such fabric would be used for other things; it is fabric of that class. The principal purpose of his invention is to produce a fabric of requisite strength and not subject to the disadvantages to which he refers. He calls it "my fabric." The disclaimer states that he makes no general claim to fabric constructed as in the disclaimer mentioned. The Patentee has put in 35 several special points, the threads are to be embedded in a sheet of rubber, they are to be out of contact with each other, they are to be vulcanised. In the disclaimer, he does not refer to these points. The claims mention these points. He gives a complete description of the way of making the fabric and no description of the way of applying it. He told the world that he had made a 40 novel fabric, and that rubber fabrics to which this applied had never been made except with woven sheets. I do not say that any fabric made with parallel threads would anticipate it, because his claims are limited. There is a great difference between the claim here and a claim like that in the Patent in Penn v. Bibby, which was for a novel construction with old materials. If the claim 45 is for a novel fabric, no one could make or sell it for any purpose. He is careful not to limit his claim to the purpose of pneumatic tyres. The Patentee has to bear the burden of showing that he invented a novel fabric. Terrell, Q.C.-It is not the manufacture of all fabrics of rubber that is referred to, but of that particular class which is used for pneumatic tyres. 50 Read those words into the Specification wherever the word "fabric comes in, and that is what the invention is. Undoubtedly it is the fabric that we claim. Mr. Swinburne and Professor Ewing were called as witnesses for the Plaintiffs. 55 66 66 The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. and Others. Moulton, Q.C., opened the Defendants' case.-There is no justification for the contention that the Patentee has disclaimed any user. The Patent is for a special fabric, which he claims to be novel, and it is claimed for all purposes. Probably the Specification was drawn up with a knowledge of Coles Jaques and 5 Fanshawe, and of Boucley: it insisted on the points of novelty which, as compared with these, the Patentee had. The Patentee was not conscious of the greatest advantage of his fabric, but it was one possessed in common with other fabrics. The Patent relates to that class of fabric which is used among other purposes for pneumatic tyres. The statement in the Specification as to the 10 ways in which rubber fabric were then produced is wrong. The Patentee is anxious not to tie himself down to the instance he gives as to the defect; "such " refers to "bending, folding, twisting, or other manipulation." First he describes his unit. He takes a sheet of rubber, he embeds the threads therein and he vulcanises it afterwards. The threads are to be parallel and out of 15 contact with each other. The Patentee thought it of great importance that each thread should have its bed and be separated from the next by rubber. He relied on this for giving greater elasticity and as a point of novelty. Nobody had insisted on that before; Boucley made his as we make ours. The Patentee's unit fabric has inextensibility in one direction and extensibility in the other. 20 That is not true as to the unit of "flexifort," it is not extensible transversely, because it would tear, having no strength except the coat of varnish. More than two plies may be used in making the fabric. Instead of vulcanising the plies together they may be secured in any other satisfactory manner, but the Patentee does not dispense with vulcanising altogether. He may vulcanise and then join 25 the plies together, or he may join before vulcanising and then vulcanise, but in every case there must be vulcanisation. Also two or more sets of threads may be used, as to make a stout hose-pipe. His disclaimer relates to "fabrics so constructed," not to the user of those fabrics. The claims emphasise the embedding of the threads out of contact with each other. In the second claim the 30 plies are vulcanised separately, the first claim includes vulcanisation after the threads are put in. In the one case the ply is vulcanised separately, in the other case you .need not do that. Although vulcanising is not mentioned in the first claim, it is "substantially as described." The Patentee limits himself to the case of the threads being out of contact. Two plies of 35 rubber with parallel threads in them, the sets of threads being at right angles, were old. There was, therefore, good reason for the Patentee insisting on the threads being out of contact, and they were to be out of contact in each unit. It is clear that the Defendants do not infringe. Mr. Swinburne admits that their threads are in contact with each other. They 40 hold them in position by putting on a layer of india-rubber solution or indiarubber varnish, which is rubber dissolved in a volatile solvent. They have no sheet of rubber, and no embedding of the threads, and no vulcanisation. They do not vulcanise because they do not want the strength of the rabber, it is only a thin film to stick the threads together. It is said that 45 it was new to make a sheet, although it was old to make a pipe. But the Plaintiffs themselves used it to make a hose-pipe tyre. It was old to make a pipe of the fabric, and the fabric cannot be novel. As to anticipation, the evidence admits all that the Defendants require for want of novelty. It is admitted on the evidence that Palmer added nothing to the manufac50 ture qua manufacture, that the Boucley unit fabric was the same as the Palmer unit fabric, and that the completed Boucley fabric only differed in being in the shape of a tube. There was no suggestion at first of employing Palmer's fabric as a cover, it was intended for single tube tyres. The suggestion that there was any merit in getting it in a sheet therefore fails. Moreover, there 55 would be no invention in so doing. Boucley in two layers is the same as The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. Palmer. The serious part of this case is based on the erroneous doctrine, that if there is an invention, and a feature can be dispensed with, the Patentee has a right to include as infringers all those who use, not his invention, but the invention minus the part which one can dispense with. It may be that an invention can be made by showing how precautions may be dispensed with. 5 Here the Patentee says that the threads must be "out of contact," that is the one novelty, yet it is said that as "in contact" would have done, " in contact is an infringement. There is no justification for making construction depend on evidence that something is unimportant which is made essential in the Specification. There is no question here about the Defendants taking the main 10 characteristic of a new invention; the claims are narrow and the Defendants do not take any of the characteristics. If the claim is narrow for the purpose of the protection of the Patentee, he must be held to it for the purpose of infringement. A loose interpretation is sought to be put on the Specification in order to get out of the fabric claim. The Plaintiffs' evidence is that the 15 fabric was not novel. It is said that the invention related to pneumatic tyres, but, on the claim, the use of the fabric for any purpose could be prevented. There may be a subordinate patent for an application of a known fabric if there were some ingenuity in the application to a special purpose. But there are two essentials,-first, there must be invention in the application, secondly, 20 the claim must be for the application. Here the claim must be defended as a claim for a novel fabric. I shall prove that the fabric J. S. 109 was actually made, used in making the commercial article, and sold before the date of the Patent. The following witnesses were called for the Defendants:-Messrs. J. W. 25 Thomas, J. Kear, R. W. Hadwin, C. W. Boys, D. Clerk, F. C. Baisley, and S. F. Edge, and Mrs. Hawthorn. Mrs. Hawthorn, in her evidence-in-chief, said (in effect) that she was for eleven years before 1892 in the employ of Messrs. Moseley & Son, and remembered making up solid tyres out of layers of rubber in 1888 and 1889, 30 she made tyres from sheets of rubber similar to J. S. 109, the sheets were brought from the spreading room, they had to cut them, the first lot were only of one thread, and were not successful, the first tyres rolled were similar to J. S. 111, they afterwards had orders to make them of two layers of rubber with the threads of one running one way, and those of the other the other way, in 35 rolling one of the layers was started about an inch in advance of the other, and one finished about an inch in advance of the other, they joined them and made them endless, and gradually worked the thing up until the tyre was even all round, and then they had to roll them with a little hand-roller, then they had to roll the edges down, which caused the edges to be fastened; J. S. 112 was 40 like the second lot of tyres. In cross-examination the witness said that the stuff was delivered to her in a broad sheet on a roll, it was unvulcanised, the threads ran lengthwise, the stuff was about one-sixteenth of an inch thick, the threads were not quite one-sixteenth of an inch apart, the threads were like thickish cords, it was something like H. 101; in the second lot when they 45 got the roll they drew the stuff down off the roll on to the table, she and the foreman worked at the first table, they used a straight edge, and took it across from one corner to the opposite side of the table to cut the stuff on the bias, they cut a strip according to the thickness of the tyre by a gauge, the stuff was sticky then they cut a strip off another roll the other way of the table, and naphthaed 50 one of the pieces and laid it on the table, then naphthaed the other strip on one side and put it on the top of the other with the threads crossing, one about an inch in advance of the other-the top one, then they rolled the threads so that no air could get underneath, then naphthaed the top piece and commenced to roll up a piece to get a start in the centre of the tyre, then joined it to make it 55 |