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tion on his part, such a partial or defective publication will not invalidate a patent afterwards applied for.
The possessor of an invention, specimens of which he had sold or used publicly, or exposed for sale before being protected by an application for a patent at home (or abroad under the circumstances above set forth on page 29), cannot validly patent it ; nor can any one obtain a sound patent for a process which he has already used secretly for a period of years, and sold the produce thereof in the realm.
Experimenting on the invention before patenting, if every reasonable precaution has been taken to keep it secret, and the working has not been for profit, does not invalidate a patent afterwards obtained. Thus it was decided that where a machine for laying cables had been used for laying a single cable to America, and, proving a great success, was patented on the return of the ship, there had been only an experimental use insufficient to entail the invalidity of the patent, it being impossible to ascertain whether it could usefully perform its work without a trial. On the other hand, the use of a newly invented crane for five months in the owner's yard, which was open to the railway and to the view of customers calling on business, was held to be a publication; as five months was far more than sufficient tim to test it, and the continued use was to profit, and not for the purposes of experiment.
The prior existence of an invention, which, if it had been made subsequent to the date of the patent, would be considered a clumsy colourable imitation for the purpose of effecting the same result, does not invalidate the patent by anticipation.
Similarly a prior unsuccessful and abandoned experiment by a third party, even though it embrace all the principles of the invention, is not sufficient
to invalidate the patent afterwards obtained. The imperfect publication of an invention in an abandoned specification of a third party has been held not to invalidate a subsequent patent for the same invention; and in order to prevent abandoned provisional specifications from interfering any more with subsequent applications, and for other reasons, a short Act was passed in 1885 requiring the Comptroller to keep such specifications secret from that date. This Act practically cuts off from the public all abandoned provisional specifications entered under the Act of 1883, as very few of these were published at the time of the passing of the said Act.
An invention that has been registered as a design, or a specimen of which has been sold in the realm, cannot be validly patented.
In order that a patent may be sustained, it is essential that it should be useful; but this point, though usually all-important as regards its value to the inventor, is never investigated by the officials when examining an application with a view to granting a patent.
The exhibition of an unpatented invention at an industrial or international exhibition, certified as such by the Board of Trade, or the publication of the invention during the period of the holding of the exhibition, or use of the invention by others elsewhere without the knowledge or consent of the inventor during the period of exhibition, will not invalidate the subsequent patent, provided the inventor, previous to exhibiting, gives due notice at the Patent Office of his intention to so exhibit, and provided he applies
for a patent within six months of the date of opening the exhibition. As, however, Provisional Protection is now so very cheap, and expensive litigation might result before the inventor obtained his rights, if another applied for a patent during the period of exhibition and prior to patenting by the original inventor, this clause in the law is of very doubtful advantage.
Where any person claiming to be the patentee of an invention, by circulars, advertisements, or otherwise, threatens another person with legal proceedings in respect of any alleged infringement of the patent, any person or persons aggrieved thereby may bring an action against him, and may obtain an injunction against the continuance of such threats, and may recover such damage (if any) as may have been sustained thereby, if the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats. This section does not apply if the person making such threats commences and prosecutes, with due diligence, an action for infringement of his patent.
Any person who represents that any article sold by him is a patented article, when no patent has been granted for the same, or describes any design or trademark applied to any article sold by him as registered which is not so, is liable for every offence on summary conviction to a fine not exceeding five pounds. This enactment has been held to apply even in cases where the article was at the time provisionally protected.
In such latter case, however, the article can be marked "Provisionally Protected," “Protected under the Patent Act," or "Patent Applied For."
If too a person marks articles as patented for
which he has only obtained provisional protection, he risks the chance of losing costs in subsequent actions for infringement which he may bring; the infringer making the plea that, seeing the word patent on the articles falsely placed thereon during provisional protection, he had made a search and ascertained that it was not then patented, and when afterwards warned that he was infringing the patent, he took no notice, believing the warning to be as false as the original marking was. This is a good defence.
A person is deemed to represent that an article is patented, or a design or a trade mark is registered, if he sells the article with the word "patent,' patented," "registered," or any word or words expressing or implying that a patent or registration has been obtained for the article, stamped, engraved, or impressed on, or otherwise applied to the article.
It is frequently requisite to examine the records to see if an invention has been previously patented or is an infringement of an existing patent.
The cost of a search varies according to the nature of the subject. A range of from two to ten guineas, however, should cover an ordinary case, as far as prior British patents are concerned. Inventions for heating, for steam-engines or boilers, guns, sewingmachines, looms, spinning and electrical appliances, are usually the most troublesome to search through, often taking, with the ordinary published indices only, a fortnight's hard work, and even with the most complete set of additional manuscript indices, a very considerable time. In all the larger cities and towns in the British Isles complete sets of the British patent specifications, from the earliest times to the
present date, are kept on file at public libraries, so that inventors and manufacturers may make their own searches; and should they have the requisite leisure and ability, this is decidedly the best course to pursue. When making a search, the inventor should make a record of the numbers and dates of all patents bordering on the invention. This information will be found invaluable when drawing up the final specification. In many cases the best and cheapest way of making a search is to apply for a United States patent. The American Examiners search through the English, French, Swiss, and German patents as well as the American, and also through standard text-books. If a patent has already been granted in America for the invention, we can always get a copy of the examiner's original report on the novelty of the invention.
Of course, now, the fact that an English patent is granted (after examination) without reference to prior patents, is proof that in the opinion of the examiner its claims are not found covered by any patents of the previous fifty years.
REVOCATION OF PATENTS.
Any person interested in having a patent revoked or cancelled can bring an action for this purpose.
A patent can be revoked, and a defence for an infringement set up, on any one or more of the following grounds :
That none of the patentees were the true and first inventors.
That they obtained a material portion of the invention from others.
That the invention was not new at the date of the patent.
That the subject-matter was not patentable.