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Lister and Company, Ld., and Others v. Dix Brothers.

dyed pile warp and with each pile warp wherever held into either "ground held with a single pick of weft only and bound between two ground warps above and two below the pick of weft and afterwards "gumming or sizing the back of the ground or first steaming the fabric and "afterwards gumming or sizing the back. 5

"3. The herein before described process of manufacture of pile fabrics con"sisting in first weaving a pile fabric double face to face with each pile warp "wherever held into either ground held with a single pick of weft only and "bound between two ground warps above and two below the weft and after"wards steaming the fabric to fix the pile then dyeing and afterwards gumming 10 66 or sizing the back of the ground.

"4. The manufacture of pile fabrics substantially as herein before described "with reference to Figures 1, 2, and 3."

On the 5th of November 1889, Letters Patent (No. 17,620 of 1889) were granted to José Reiruch for an invention of " Improvements in the manufacture 15 "of double pile fabrics." The Complete Specification was as follows:

"My invention relates to the manufacture of fabrics which are woven face to "face and in which the pile is tied with one pick only and has for its object to more effectually hold the pile into the fabric.

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Velvets now are generally made with the pile tied with one pick only 20 "because in this way much less pile warp is used than when the pile warp has "to go round three or four picks as it used to do in the old fast pile fabrics "whilst at the same time a finer faced cloth is obtained.

"When a stiff fibre like mohair wool &c. is used for the pile warp if pressure "is put on the face of the pile the loops of pile thread are pressed through the 25 "cloth and form loops on the back and these when subjected to wear get "gradually drawn out entirely from the cloth and the fabric is spoilt.

"By this invention I prevent the pile from being so pressed back and drawn "out and thereby not only obtain the advantages derived from tying in the pile "by one pick only but also make such fabrics as marketable and durable as the 30 "old fast pile.

"I do this by means of extra or additional warps in each ground or cloth of "the double fabric one for each pile warp used and which wherever a pile warp "is tied in is made to float on the back of the cloth and ride over the back of "the pile warp and so to cover or fix the back of the pile threads and prevent 35 "them from being rubbed at the back and drawn out backwards or from being "pushed back by pressure applied to the face of the pile.

"In place of one floating warp only being used for each pile warp a greater "number might be used.

"In the drawings annexed I have shewn my invention applied to a double 40 "pile fabric woven as described in the Specification of a Patent granted to me "and another No. 18794 in the year 1888. In this fabric each loop of pile warp " where it is held into one or other of the cloths by a single pick of weft is held "between two ground warps above the weft and also between two ground warps "below the weft so that the ends of the loop of pile are held erect.

"The diagram Figure 1 shews the back of one of the cloths of a double pile "fabric made as heretofore and as is described in the Specification No. 18794 of "the year 1888.

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"The diagram Figure 2 shews the back of one of the cloths of a double pile "fabric formed in the manner above described.

"Figure 3 is a diagram view in cross section of a double fabric woven as "shewn by the diagram Figure 2.

"Figure 4 is a cross section on an enlarged scale of one portion of the pile "fabric woven as shewn by the diagram Figure 1 and

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"Figure 5 a similar cross section of a portion of the pile fabric woven as shewn 55 "by the diagram Figure 2.

Lister and Company, Ld., and Others v. Dix Brothers.

"a are the pile warps b the ground warps c the weft threads and d in Figures "2, 3 and 5 are the additional warps which are made to float over the backs of "the pile loops.

"Thus it will be seen that in addition to using two sets of ground warps for 5" holding the wefts and to tying in the pile warps by a single pick only I use "other additional warps which are made to float over the backs of the pile warps where they are tied into the cloths and so prevent the pile loops from "working out of the cloth.

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"As will be seen these additional warps float at the back over three wefts, 10“ viz. :—the weft which ties the pile and the two wefts which come before and "after this weft.

"Additional warps so made to float over the backs of the pile warps where "they are tied into the cloths of double pile fabrics may not only be applied to "fabrics formed as shewn by the diagrams Figures 1 and 4 but also to fabrics 15"formed as described in the Specification of the Patent No. 3327 of 1878 and to "other double pile fabrics in which the pile warps are held by a single pick of "weft only.

"Having now particularly described and ascertained the nature of my said "invention and in what manner the same is to be performed I declare that what 20"I claim is :—

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"1. A double pile fabric each cloth of which has its wefts held between two "sets of ground warps and the pile warps tied into the ground by a single pick "of weft only and in which in addition the backs of the pile warps are covered "by a warp or warps floated over them substantially as described.

"2. A double pile fabric in each of the two cloths of which not only are the

FIG.I.

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"loops of pile tied into the ground by a single pick of weft but in which they are also held between two ground warps which pass above the weft and two "other ground warps which pass below the weft and in which in addition the

Lister and Company, Ld., and Others v. Dix Brothers.

"backs of the pile loops are covered by a warp or warps floated over them "substantially as described with reference to Figures 2, 3 and 5."

In 1897, Lister and Co., Ld. (hereinafter called the company), the Right Honourable Samuel Cunliffe Baron Masham, and José Reixach commenced an action against Dix Brothers for infringement of the said patents, claiming the 5 usual relief. The Plaintiffs by their Statement of Claim alleged (1) that the Company were the registered legal owners of the patents; (2) that the Plaintiffs

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other than the Company were, prior to the 23rd of March 1897, legal owners of the 1888 patent, and the Plaintiff José Reixach was, prior to the said date, legal owner of the 1889 patent; (3) that both the patents were valid and the respective 10 grantees were the true and first inventors and inventor; and (4) that the Defendants had infringed. The Particulars of Breaches alleged (1) that the Defendants had infringed the patents by selling, offering for sale, and dealing in mohair velvet cloth not of the Plaintiffs' manufacture in accordance with the inventions described and claimed in the Specifications of the patents, and (2) 15 that the Defendants, on the 23rd day of March 1897, sold to Messrs. Dargue, of Birmingham, 20 yards of velvet, not of the Plaintiffs' manufacture, but manufactured in accordance with the inventions described in the Specifications of the patents and claimed in the first claiming clause of each of the patents.

The mohair velvet complained of by the Plaintiffs as an infringement was 20 made under the Specification of a patent (No. 18,756 of 1896) for "Improve"ments in the manufacture of double pile fabrics" granted to Friedrich Krugmann, Junior, and Walter Küpper, of Elberfeld, Germany, which Specification contained the following passage explaining the following Figures :"Fig. 1* is a diagram of the ground portion and face or pile of one of the two 25 "fabrics forming a double-pile fabric showing clearly both the binding of the "ground-warp-threads with the picks or threads of weft, and the tying or "binding of the pile-warp-threads by the picks or threads of weft. Fig. 2* is a "diagrammatic longitudinal section through such double-pile-fabric. The "weft-threads are indicated by the lines marked (a), the ground-warp-threads 30 "are indicated by the lines marked (b), and the pile in Fig. 1 and the pile"warp-threads in Fig. 2 are indicated by the lines marked (c). The dots at the "ends of the lines (c) in Fig. 1 indicate the pile projecting from the ground "portion of the fabric. In these diagrams it is clearly shown that the pile"warp-threads are moved so as to be tied into the ground portion of one fabric 35 "and into the ground portion of the other fabric alternately. It is also clearly "shown that there are no picks or threads of weft which do not tie pile-warp"threads into one or other of the fabrics forming the double pile fabric. From "these diagrams it is also clear that in the ground portion of each of the two "fabrics woven together there are four ground warp-threads for each thread of 40 pile-warp and that the threads of ground warp in each fabric are made to cross after the insertion of every pick of weft inserted into such fabric. The "said diagrams also indicate that the ground-warp-threads next to each thread "of pile-warp in each of the said two fabrics are made to pass behind the weft "in such fabric at the same time as the said thread of pile-warp so as to secure 45 "such thread of pile-warp in the said fabric."

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* See p. 93.

Lister and Company, Ld., and Others v. Dix Brothers.

The Defendants by their defence (1) did not admit the allegations as to the ownership of the patents; (2) alleged that the patents were invalid and the respective grantees were not the true and first inventors or inventor respectively

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of the inventions in respect of which the patents were granted for the reasons 5 appearing in the Particulars of Objections delivered therewith; and (3) denied infringement of either of the patents. The Particulars of Objections alleged (1) that having regard to the state of public knowledge with respect to the weaving of pile fabrics at the respective dates of the said Letters Patent, and to the Specifications thereinafter referred to, no invention was required to manu10 facture fabrics in the manner described and claimed in the respective Specifications thereof, and both the said Letters Patent were bad for want of subject-matter; (2) that the alleged invention, in respect of which the said Letters Patent, 18,794 of 1888, were granted was not new at the date thereof, but had been published within this realm before the date thereof in and by the documents and public 15 sale therein mentioned; (3) that the said Letters Patent were invalid by reason of the sale in London, in or about the spring of 1888, by Messrs. Stephen Court and Martin, of 145, Cheapside, London, to Messrs. Munt, Brown & Co., of 84 and 88, Wood Street, Cheapside, London, of double pile fabrics made in accordance with the said alleged invention; (4) that the said Letters Patent were invalid 20 by reason that the Complete Specification described an invention different from and larger than that disclosed in the Provisional Specification. The difference referred to was the ground warp which passes below the weft mentioned on page 2, line 39, of the Specification, and illustrated in the figs., and claimed in the first claiming clause; (5) the alleged invention, in respect of which the said. 25 Letters Patent, No. 17,620 of 1889 were granted, was not new at the date thereof,

Lister and Company, Ld., and Others v. Dix Brothers.

but had been published in this realm in and by the following documents:"The Cours de Tissage," par Edouard Gand, 1876, Tome II., page 230; the Specification of Letters Patent, No. 619 of 1886; granted to Bairstow (the parts relied on were page 5, lines 10 and 11, and figs. 13 and 14); the Specification of Letters Patent, No. 11,981 of 1888, granted to Southwell (the parts relied on 5 were page 2, lines 1 to 5, and page 2, lines 46 to the bottom, and page 3, lines 1 to 3, and fig. 7); the Specification of Letters Patent, No. 17,397 of 1889, granted to Mullers and Spindler (the parts relied on were page 1, lines 13 to 39, page 2, lines 6 to 32, and line 50 to the end of the Specification, and figs. 9 and 10); (6) that the said Letters Patent were invalid by reason that the Complete 10 Specification described an invention different from aud larger than that disclosed by the Provisional Specification. The Provisional Specification described a single floating warp over the loop of the pile warp, while the Complete Specification described and claimed a warp or warps over each loop of the pile warps.

The action was tried before WRIGHT, J., on November 29th, and December 1st, 2nd, and 15th, 1898.

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Moulton, Q.C., Bousfield, Q.C., and A. J. Walter (instructed by Speechly, Mumford and Rodgers, agents for Mumford, Johnson and Co., Bradford) appeared for the Plaintiff's; Lewis Edmunds, Q.C., Roger Wallace, Q.C., and 20 J.C. Graham (instructed by Rowcliffe, Rawle and Co., agents for E. Robinson Walker and Co., Manchester) appeared for the Defendants.

Bousfield, Q.C., opened the Plaintiffs' case.-The class of goods to which the patents relate is that known as double pile fabrics. The 1888 patent has reference to a particular weave or combination of threads. In weaving 25 the warp threads lie parallel making the length of a piece, and the shuttle passes through introducing the weft. The warp threads are actuated by healds carrying a certain number of parallel threads, by this means forming sheds through which the shuttle goes. Pile was originally made by drawing up loops out of the warp threads; a knife was drawn through, cutting the 30 loops and forming the pile. There are two sorts of pile; first, that in which the pile warp is held by one of the wefts; secondly, where it passes under and over several wefts. The latter formed a fast pile, whilst the former was a loose pile. Double pile fabrics are made on the principle of having two fabrics joined by threads, which, when cut, form the pile. In this case we have only to do 35 with pile formed with warp threads. Up to the date of the 1888 patents it was impossible commercially to produce face to face fabrics with a loose pile for Utrecht velvets, and the fast pile was not satisfactory for Utrecht or mohair velvets. [The 1888 patent was then specially referred to.] The object of the 1889 patent was to prevent a tendency which the ends of the pile had of being 40 forced through the cloth. This is achieved by floating additional ground warps over the back of the pile tufts, and so holding them in place. The extra thread may be single or double. The Defendants have the tufts held by a single pick ; two ground warps, one on each side of the pile warp above the pick, and two corresponding warps below. They have a pair of floating warps over the back 45 of the pile. The Defendants' cloth is identical with ours if you take the idle weft out of ours.

Sir Frederick Bramwell and Messrs. James Swinburne and R. Horshaw were called as witnesses for the Plaintiffs.

Edmunds, Q.C., opened the Defendants' case.

Mr. Dugald Clerk gave evidence on behalf of the Defendants', and also several witnesses who were called on the issue of prior user.

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On the fourth day of trial Bousfield, Q.C. for the Plaintiffs stated that as a question of some difficulty was raised, and as the 1889 patent was the one of chief commercial value, the Plaintiffs had decided to withdraw their case on the 1888 55 patent.

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