The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. and Others. endless, and continued to roll it till the round solid tyre was got, after that it had to be rolled and the edges were fastened down; one tyre was finished at a time before the next was commenced. Terrell, Q.C., said that he could not displace this evidence, but the legal effect 5 of it was another matter. Moulton, Q.C., summed up the Defendants' case.-The first thing is to get the true interpretation of the Specification as it would have been read at its date. The first sentence states in general terms the class of fabrics to which it relates. It does not limit this to the use for pneumatic tyres. The first two paragraphs 10 tell what the Patentee is working at, and the difficulties which, in the state of the art, were met with. The statement of the invention which is to remove all danger of sawing action begins at the word "primarily." He takes a sheet of rubber and embeds in it parallel fibres out of contact with each other, and then vulcanises. This makes his unit sheet. The fabric is made by taking two plies 15 and putting them together. The language of the Patentee, when he states in the Specification what is the point of his invention, is conclusive. The next paragraph is also very important; it states how for practical purposes to carry out the invention, there is to be a sheet of rubber, and it is heated, and the threads are to be embedded, and not merely stuck on. Then, in the disclaiming note, 20" so constructed" means fabrics with parallel or various plies of parallel threads; that is the only construction referred to. The first claim is a perfect claim for what he has described; the words subject to the alove disclaiming note are inserted ex abundanti cautela; the Patentee had already limited himself by the vulcanisation, by "out of contact," and by embedding in rubber. These points 25 are not referred to in the disclaiming note, which does not really limit the claim. As to vulcanisation, the unit fabric is vulcanised, but in making the fabric out of the two plies these may be cemented together, but the Patentee never omits vulcanisation. If vulcanisation were omitted, you could not carry it out because, if some of the rubber be plastic, the form and arrangement would 30 get altered. The joining of two plies need not be by vulcanising, but each ply must be a vulcanised fabric. In the second claim that is the structure when each ply is vulcanised separately. In the first one there is not necessarily separate vulcanisation-the whole may be vulcanised; but there must be vulcanisation to come within what the Patentee says is the 35 point of his invention. If the Patentee is limited according to my contention the Defendants do not infringe. There is no case where a Patentee has in his Specification expressly stated the point of his invention and a Court has put it aside. If it is essential that the threads should be out of contact, then it is admitted that ours are in contact, and we do not infringe. Nobel's Explosives 40 Company v. Anderson, 11 R.P.C., pp. 115 and 128, and 12 R.P.C. 167, shows that the question of infringement is whether the alleged infringer is, as a matter of substance, taking what is claimed, not what the Patentee might have safely claimed. It is said now that "out of contact” might have been left out, but the interpretation must be the same, whether "in contact" will do or not. It would 45 be sufficient for non-infringement that our threads are out of contact, but besides this our fabric is not vulcanised, and our threads are not embedded in a sheet of rubber. Generally "flexifort" is not in the least of the character of which the Patentee was thinking, except so far as the cross series of parallel threads. He intended a rubber fabric: the Defendants use rubber 50 only as a gum; it is very thin, and plays no part in the behaviour of our fabric. Going to the question of validity the case of anticipation falls into two divisions. One is the anticipation by J. S. 106 and J. S. 109— the Hawthorn anticipations. The admissions in the evidence of the Plaintiffs show that this is a case of absolute anticipation. [The evidence was referred 55 to.] The evidence is that tyres made out of J. S. 109 were manufactured The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. and sold in 1889 and 1890 before pneumatic tyres were practically in the market. The Defendants buy "flexifort," which is the single sheet, and which is admitted not to be within the Patent, and they do exactly what the witness Mrs. Hawthorn did. They cut out and put the two parts together just as she did. They, it is true, make it up subsequently in another way, but the 5 claim being for a fabric there is no answer to this. If that fabric had been applied to pneumatic tyres it would have been the Palmer fabric. R. v. Cutler, 3 C. & K. 234, shows that a mere application cannot generally be the subject of a Patent. As to Boucley, if it is an essential feature of the Palmer fabric that the threads should be substantially out of contact, Boucley is not an anticipation, 10 but the argument on this is the usual dilemma. Bouclay is not relied on as common knowledge, but as a paper anticipation. In many ways tyres are similar to hose-pipes. If you cut the Boucley pipe in two you get the Palmer fabric. He taught one how to make a pipe having the walls of Palmer fabric. If Palmer's Patent be good, no one could do what Boucley did without 15 infringing. Mr. Swinburne admitted that if a hose-pipe was included in the things for which Palmer was to be used, it would have been the same as Boucley. There would be sawing action in driving belts; these are subject to the kind of usage described in Palmer's Specification. But the Plaintiffs cannot say that wherever there is sawing action they have patent rights. Whether the 20 consequences were known or not they belong to the structure. As a fact the great advantage of Palmer's fabric was not avoiding the sawing action, but that it gave speed. Palmer is entitled to this advantage, but so is Boucley to the advantage of the absence of sawing action. The argument on Coles Jaques and Fanshawe is the same as that on Boucley. It is admitted by the Plaintiffs that 25 their fabric must be novel. The reference in the claims to the disclaiming note makes no difference. The disclaiming note can only contract the claims, and the greater the importance given to it the stronger is the case against infringement. What that note says is that the Patentee does not claim the construction generally, but with his special points. If the Patent is for an application it does 30 not show how to apply. Terrell, Q.C., in reply.-I adhere to what I said earlier in the case, namely, that in the claim "substantially as described" means that the fabric has, by reason of the construction as described, the properties as described, and is capable of being applied as described. Referring to Palmer's Specification, 35 No. 4926A of 1893, which I objected to but which was put in evidence, it relates to the manufacture of hose-pipes, rubber tyres, and the like from a fabric fully described in No. 4926 of 1893 (the latter Specification was not then amended), and it is obvious that he was there referring to the single-ply fabric which was then claimed as part of the invention in No. 4926. The Court is not entitled to 40 look at the original Specification for the purpose of questioning the propriety of the amendment, but may do so for the purpose of seeing the meaning of the words. The Patentee took out two Patents, one to make the fabric and the other to do what Boucley did, that is, No. 4926A. This does not really affect the question of construction, but it is an answer to the point attempted to be 45 made on that Specification. The Patent is for a fabric consisting of a sheet capable of being used for the purpose of being manufactured into pneumatic tyres. It is to be a sheet of fabric to be used for the purpose of subsequent manufacture, and to have the capacity of being manufactured into pneumatic tyres or similar articles where crossing threads are to be avoided, and this sheet 50 is to contain two or more plies of parallel threads out of contact with each other. It is not an application Patent, but a fabric Patent; and the fabric is to have certain qualities and capabilities. If the material possesses the capacities, qualities, and structure described in the Specification, then to sell a sheet of it is an infringement whatever purpose it is sold for. [The Specification was then 55 The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. The read and commented on.] When the Patentee speaks of the ways in which rubber fabric was then manufactured, he means such rubber fabric as was intended for use in pneumatic tyres. He has substituted a particular arrangement of the fibres for a woven fabric in the making of a sheet. The principal 5 purpose of his invention was to produce a fabric having no sawing action. Patentee tells for what purpose and how far the threads are to be embedded. The purpose is to prevent them getting out of the parallel relation. The disclaiming note means that he disclaims Boucley and Coles Jaques and Fanshawe. There being a disclaimer for certain purposes mentioned, that 10 involves leaving a claim for certain purposes. The Patentee claimed a fabric capable of being applied to certain uses in which the threads would otherwise cut. He disclaims parallel threads for the purposes of thickening or strengthening to resist longitudinal strains as in belts. Coming to the claims, embedding does not mean so as absolutely to close round each fibre, 15 but sufficiently to preserve their parallel relation. The Patent is for a fabric, and if such a fabric had existed before, capable of being applied to pneumatic tyres, the Plaintiffs would have been in a difficulty. But this is not so. Boucley, which is merely put forward as a paper anticipation, had not that capacity. As to the construction to be placed on a Specification of this kind, as 20 to what will amount to anticipation, and as to subject-matter, I refer to The American Braided Wire Company v. Thomson, 5 R.P.C. 114. Palmer's discovery was not disclosed by Boucley or Coles Jaques and Fanshawe; it is a mere accident that in Boucley's hose-pipe when finished the threads were parallel. What Palmer really invented was pneumatic tyres without sawing 25 action in the fabric, but I am of course limited by his claim. In substance his Patent is an application Patent, although in form it is for a fabric having the capacity of being applied to pneumatic tyres for the purpose of remedying a certain defect. An application Patent need not be so in express words. Supposing a Specification which describes doing something which might be 30 applied to A, B, C, and D, and the Patentee disclaims it as applied to A, B, and C, that is in effect claiming it only as applying to D. The whole of a Specification must be read with the claims in order to ascertain what is the substance of the invention claimed. It is said that the Defendants have not infringed because it is essential to the Patent (1) that the threads should be out of contact with each 35 other, (2) they should be embedded, and (3) that there should be vulcanisation, and it is said that the Defendants do not take these three points. As to the first and second, the principal object of the invention was that the threads should not cross in contact, not that they should be out of parallel contact; the secondary object was to maintain their parallel relation. The Defendants have 40 taken sufficient for effecting the purpose of the invention. [The Incandescent Gas Light Company, Ld. v. The De Mare Incandescent Gas Light System, Ld., 13 R.P.C. 301 and 559, was mentioned.] As to vulcanisation, the first claim does not necessarily include that. The Patentee says that he prefers to vulcanise. The mere fact that the Defendants leave this out, thereby making the article not so 45 good (or even if vulcanisation is not necessary), cannot take them out of infringement. The Patentee describes the best way. The Defendants take all that is material to the invention. The serious question is that of anticipation. First, as to anticipation by Moseley in the manufacture of the solid tyre of rubber with threads in it. There is only one point in the course of what Mrs. Hawthorn 50 described at which there can possibly be said that there is anticipation of Palmer. When the two strips were laid one on the other they were rolled to make them cohere; from that point they destroyed what they had got for the purpose of anticipating Palmer. No Patent has been anticipated by such a stopping in the middle of a continuous manufacture. Here there was a 55 continuous process going on; each tyre was finished before another was begun. The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. and Others. But is said that stopping before the rolling up you have an anticipation. It is publication of the invention that anticipates a Patent, and here there was no such publication. As to Boucley, the remarks of the Lords Justices in The American Braided Wire Company v. Thomson must be borne in mind. It is merely an alleged paper anticipation. Boucley made a one-ply 5 fabric and stopped at that. Then he described how to use that. First, as to the manufacture of hose pipes. Boucley wanted to take a fabric having good resistance to longitudinal strain, and to make a hose pipe by winding it circumferentially. There is no suggestion of Palmer's invention in Boucley. He describes an article in the course of the manufacture of which he gets a 10 fabric something like Palmer's fabric. Then in the manufacture of belts he wants to avoid using threads the longitudinal strength of which is useless to his fabric. The disintegration of the fabric which he mentions is quite different from the sawing action; it is disintegration of the rubber and tissue construction. Boucley does not describe any fabrics which are subject to a 15 sawing action. If Boucley is not an anticipation, à fortiori Coles Jaques and Fanshawe is not. Weight must be given to the disclaiming note. Palmer disclaims the use of parallel threads for thickening or for giving longitudinal strength. The Patentee claims the manufacture of his fabric for uses not disclaimed, and the use not disclaimed is the prevention of sawing action. In 20 Gadd v. Mayor of Manchester, 9 R.P.C., at p. 524, the propositions applicable to the present case are summed up. Here there is a new use for a purpose which made a revolution in bicycle tyres. The Patentee discovered this use and the principle on which it was founded. Applying Lord Westbury's test in Betts v. Menzies, 31 L.J.Q.B., at p. 244, can it be said that Boucley was a publication 25 which involved the same amount of useful information as Palmer? In Penn v. Bibby, L.R. 2 Ch. 136, it appeared that lignum vitæ had been used for bearings, but not for the purpose of avoiding electrical action; the identical thing had been done in an analogous way. Palmer is for an object different from Boucley; at the date of the latter the purpose had not arisen-pneumatic tyres 30 were not in use. [Muntz v. Foster, 2 Web. P.C. 93, was also mentioned.] As to Nobel's Explosives Company v. Anderson, that was a case of deliberate disclaimer because Nobel thought that insoluble nitro-cellulose would not work. Everything here turns on the construction of the Specification. Giving full weight to the whole of it, it really is not a Patent for a fabric; it is for the appli- 35 cation of a fabric to the remedying of a particular defect, which defect arises, as the Patentee pointed out, in pneumatic tyres. WILLS, J.-In this case the Plaintiffs claim that three Patents now vested in them have been infringed by what is known as the Welch tyre of the Defendants. The inquiry, therefore, divides itself into three branches. The 40 Patents have nothing in common, and I will deal with each separately. The first is No. 4350 of 1889, granted to one Thomas. It is very badly drawn. It has been apparently the subject of two amendments, for the number is followed by a double asterisk, and, indeed, the Statement of Claim alleged two amendments, one in July 1893, and another of the 24th of May 1898. Unfortu- 45 nately, as I cannot help thinking, the present practice seems to be to print the Specification in its amended shape without showing what it originally was, and what alterations have been made. The practice is said to have been adopted in obedience to a passage in the Judgment of the House of Lords in Moser v. Marsden, to be found in 13 Patent Cases, p. 31. I doubt very much indeed 50 whether the House of Lords ever intended that the Court which had to construe the Specification, or the person who had to act upon it as given to the world, should be deprived of that natural aid to the interpretation of ambiguous passages. I entirely subscribe to what Lord Watson has said, but I cannot help thinking it has been misunderstood in its application. In the present case I certainly 55 The Palmer Tyre, Ld. v. The Pneumatic Tyre Company, Ld. should have been glad to have seen the original Specification and the amendments, and I think some useful information would probably have accrued from the comparison. However, the Specification is now printed, and nothing else has been before me, and I have to make the best I can of 5 the materials. 66 The Specification is entitled, "For improvements in tyres and fellies for the "wheels of vehicles," and the Patentee says that it has relation to the wheels of vehicles, enumerating them in terms which end with the words, "and other "rolling conveyances." So that so far as relates to the classes of carriage 10 wheels intended to be dealt with, it is as general and wide as it could well be made. My invention," the Patentee goes on," relates to details of construction " and mode of application and use "; so that it does not profess to enunciate or illustrate any new principle. "It may be carried into effect in a variety of ways and under different conditions such as hereinafter described," words too 15 general to perform any function other than that of referring us to what follows. My invention," he continues, "consists of a tyre made of a sheet of flexible "material impervious to liquids or fluids, and such as may be caused to assume "a cylindrical form in its engagement with an angular felly provided with grooves, slits, recesses or sunken channels in the side walls or edges thereof, 20 "and caused to maintain said form after inflation, to provide a very strong, "durable and serviceable tyre, especially adapted for use in connection with "the road wheels of bicycles, tricycles, velocipedes, and and other rolling conveyances." 66 66 66 I direct special attention to this paragraph because it is the portion 25 of the invention alleged to be infringed by the Defendants. It describes a sheet tyre intended to be inflated. One thing is perfectly clear, so far as this description goes, if taken by itself. The inventor uses the word "tyre" to express a structure which (whatever it be) is to consist of his sheet of flexible material only, and it is to be impervious to fluids (including air and 30 other gases) and it is to be inflated: and if the description ended here, I should say that it excluded any case of a tyre in which the sheet itself was not inflated, but was made to assume a cylindrical form by a tube inside, which was quite independent of the sheet, and where the cylindrical form of the sheet tyre was obtained by inflating this independent tube. I am, however, opposed 35 to any construction depending upon an isolated passage not intended to be inconsistent with the rest of the description, and I think from the character of the drawings to be mentioned, and their obvious adaptability to the case of a separate pneumatic tube encased in the sheet, that a structure compounded of the rim, of an inner inflatable tube, and an outer covering of flexible material 40 of the character and conformation described, would fairly fall within this description of a sheet tyre, although in that case the air-tight character of the sheet itself would be quite immaterial. The inflation of the inner tube blowing out the cover to the cylindrical shape may, I think, without undue straining of words, be considered to come within phraseology more strictly 45 applicable to the inflation of the sheet itself. The Specification is, as I have already pointed out, very inartistically drawn, but I think that between description and drawings so much as I have here indicated may be fairly gathered. Another form in which sheet tyre and rim may be compounded, within the 50 description in the paragraph in question, is where the felly itself forms part of the air-tight tube, and where the ring presented by a cross-section of the outside of the wheel consists, as to part of its ci cumference, of the rim, of the felly itself, and as to the rest only, of the sheet of flexible material to which he confines the word "tyre." In that case the sheet itself will be inflated on the 55 introduction of air into the hollow space between it and the rim—and provided |