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"mechanism herein distinguished generally;' and in their second, third, and "fourth claims, they have specified the subordinate or subsidiary parts to which "they lay claim as novel, and the specification of those subordinate or subsidiary parts appears to me to exclude the possibility of a claim for any other parts as novel." Lord Chelmsford, at page 579, says :-" With great submission, 5 "the claim of a combination or arrangement of parts of a machine without more is itself a sufficient description of a novel invention, i.e., of a com"bination of parts which have never been combined in the same manner "before. The explanation of the novelty is to be found in the description "of the arrangement of the parts in the body of the Specification. Whether the 10 "combination is new or not is a question of fact to be proved on a trial. Where claim is clearly and distinctly made, there can be no necessity for a Patentee "to distinguish between what is claimed and what is disclaimed. It is enough "to say, in answer to Lord Gifford's suggestion, that everything which is not "claimed is disclaimed. It may be necessary for a Patentee sometimes not to 15 "disclaim in his Specification, but to state what he does not claim. Where, for "instance, it may not be possible to explain his improvements of a machine "without describing other closely connected parts of it which are not patented, "it may then be proper and certainly prudent for him to state that he does "not claim these as part of his invention, and to add a distinct description 20 "and limitation of his claim." Then, at page 581, he uses these words :--" I "return to the question whether the Patentee has sufficiently described his "invention in his Specification. This question turns entirely, as has been said, on the first claim in the Specification. The office of a claim is to define and "limit with precision what it is which is claimed to have been invented, and 25 "therefore patented. In the construction of a Specification, it appears to me "that it ought not to be subjected to what has been called a benign interpreta"tion or to a strict one. The language should be construed according to its "ordinary meaning, the understanding of technical words being, of course, "confined to those who are conversant with the subject-matter of the invention; 30 "but if the claim is for a combination, it has been fully shown that the claim "itself is a statement and assertion of novelty. What is it then that the Patentee "claims? It appears to me that although this important part of the Specifica"tion is not artistically drawn, it is sufficiently intelligible to be read as a claim “for a combination of two separate parts, called improperly the two main 35 parts, of an entire machine consisting of the mechanical apparatus called "respectively the shuttle box moving mechanism and the pattern mechanism, "both of which are described in the Specification and delineated upon the "drawings with great minuteness of detail, and, as I must assume, with sufficient "clearness to enable a workman of ordinary skill to follow the directions." 40 And then Lord Hatherley, in a closely reasoned and powerfully expressed judgment, says, at page 583 :-" Well, my Lords, that being the case, the Judges "extended, as it appears to me, with great respect, the doctrine of Foxwell v. "Bostock in their application of it to this case. It was there held, and that I "think was all that was held, that it is not competent to a man to take a well- 45 "known existing machine, and having made some small improvement, to place "that before the public and say: 'I have made a better machine. There is the "sewing machine invented by so and so; I have improved upon that. That is "mine; it is a much better machine than his.' That will not do. You must "state clearly and distinctly what it is in which you say you have made an 50 "improvement. To use an illustration which was adopted, I think, by Lord "Justice James in another case, it will not do, if you have invented the gridiron "pendulum, to say, 'I have invented a better clock than anybody else,' not telling the public what you have done to make it better than any other clock "which is known. That principle was laid down in Foxwell v. Bostock; and I 55 "do not think that anything further was intended to be determined in that case. "It could not have been meant in that case to say that where that happens,

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"which may well happen, that a person arranging his machinery in a totally different way from the way in which it has ever been arranged before, although every single particle of that machinery is a well-known implement, produces an improved effect by his new arrangement, that new arrangement cannot be "the subject of a patent. It may be that the levers may be perfectly well-known "in their mode of action, and it may be that all the other separate portions of "the machinery to which the patent relates may be perfectly well known; but "if he says: "I take all these well-known parts, and I adjust them in a manner 'totally different from that in which they have ever been before adjusted; I "have found out just what it is that has made those parts, though they may "have been used in machinery, fail to produce their proper effect; and it is this, "that they have not been properly arranged; I have therefore reconsidered the "whole matter and put all these several parts together in a mode in which they "never were before arranged, and have produced an improved effect by so doing.' 15 "I apprehend it is competent to that man so to do, and that it would be perfectly impossible for him to say what is new and what is old, because ex "concessis it is all old, but nobody ever before used it in the manner in which "he has used it. That, my Lords, is the principle of a patent for a combination. "It seems to me that that is just what this gentleman claims to have done." 20 There is also another portion of the judgment very applicable to the present case; but I content myself with reading the passages I have read. Lord Penzance gave judgment to the same effect; but I think it sufficient to read the passages I have read from the other judgments, though there are several passages in the judgment of Lord Penzance that help to elucidate the matter 25 and strengthen the view I have adopted. Now, the only other case to which I intend to refer, and that only for a very narrow purpose, is Clarke v. Adie (2 App. Cas.). There Lord Blackburn, at page 436, uses these words :-"My "Lords, in construing the Specification, we must construe it like all written documents, taking the words and seeing what is the meaning of those words 30" when applied to the subject-matter; and in the case of a Specification which is "addressed not to the world at large but to a particular class, for instance, "skilled mechanicians possessing a certain amount of knowledge, it is material "for the tribunal to put itself in the position of such a class, namely, skilled "mechanicians, and to see what the words of the Specification mean when applied to such a subject as skilled mechanicians would know, and as the "tribunal has now. by the admission of evidence or otherwise, put itself in a "position to understand; and then to say what the words of the Specification "mean when applied to such a subject-matter. For that purpose I am not at "all prepared to say that the other patents and Specifications would not, in the present case, be admissible evidence as having more or less weight-in this "case I think they would have but little weight-or value, as putting the "Court in the position of knowing what was the subject-matter they were "dealing with, and what the words meant, and whether they had a different "construction from what thay would have if construed without that knowledge. 45 "But when it is admitted, as it was certainly in the argument before us, I "do not know whether the Vice-Chancellor went so far as that—to say that "inasmuch as these Specifications show, or are alleged to show, matters which, upon a fair construction of the Specification claimed by the Patentee, were old "at the time that the patent was taken out, and were generally known to be old, 50 "that therefore the Specification must be construed as not to include them"that seems to me to be both contrary, as far as I know, to the course of decision, "and contrary to principle. As my noble and learned friend opposite, Lord Hatherley, has just observed, it would afford a very simple recipe for saying that no patent should ever be upset upon the ground of want of 55 knowledge. If, when you say you can show that a thing was old at the "time the patent was granted, you are to construe the Specification as not "intending to claim that, because the man who claimed it would be suicidal

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"and foolish, it would be a recipe for saying you shall never upset a patent at "all for want of knowledge. I do not think, my Lords, that that can possibly "be done." Now, that states, I think, fairly, what should be the standpoint of any one, when applying himself to construe a patent Specification-that he should take into consideration the state of knowledge existing in the scientific 5 world, the scope and bearing of the then existing patents, and the then state of scientific knowledge. But I rest my judgment, as I have said, on the judgments of the House of Lords in Harrison v. Anderston Foundry Company, and on the passages I have read from those judgments. I am of opinion that the Appellant in this case has failed to show any error in the judgment of the Master of the 10 Rolls; and am therefore of opinion that the appeal should be disallowed, and the decision appealed from affirmed.

FITZGIBBON, L.J.-Patent cases have a bad pre-eminence in the time and space which they occupy, and in the multitude of authorities which Counsel think it necessary to cite. I shall endeavour to avoid detail upon the question 15 of infringement and the conduct of the Defendants. I propose to consider, first, the nature of the Plaintiff's invention; secondly, whether it is patentable; and lastly, whether it has been well patented. When the facts have been ascertained, the law being settled, the difficulty lies in its application to the particular case. The multiplication of references only multiplies axiomatic 20 statements of principles which, in the abstract, are little more than platitudes, or multiplies instances in which the same difficulty of application has arisen from facts more or less similar; and cumulation of instances gives as little help as the citation of decisions upon numbers of other puzzling wills gives to the interpretation of some particularly puzzling disposition, which presents special 25 difficulties of its own. If we could ascertain the facts of this case, I venture to think that the law would take care of itself; and I find it necessary to refer to but few cases, and to those chiefly on the question of the sufficiency of the Specification.

The Plaintiff's patent is for "An improvement in apparatus," i.e., for an 30 improved machine, "for concentrating sulphuric acid." The concentration of sulphuric acid is an object attained by other means: the Plaintiff claims to have invented an improved machine which will attain that object better than before. If his machine does the work distinctly better than it was ever done before, and if his improvement involves ingenuity, whether it consists of the 35 introduction of new parts, or in a new arrangement of old parts, or of both, the Crown may grant him a patent monopoly of his improved apparatus, and if he has complied with the conditions of our law, his patent will be valid.

To understand the operation and value of an alleged improvement in the apparatus for concentrating sulphuric acid, we must remember the special 40 difficulties of the operation. The corrosiveness of the acid, the deadliness of its fumes, and its “refractory" chemical properties, involving the use of heat roughly three times greater than that of boiling water, make the process abnormally difficult and dangerous, while the demand for extremely concentrated acid has extended its manufacture, and has made improvements in the apparatus corre- 45 spondingly valuable. Accordingly, it is not surprising that many experts, and people in the trade, have been trying to simplify the process and to improve the apparatus. That these efforts have been effectual is curiously proved by the affidavit of the Defendants' expert director, Mr. Cocking, in endeavouring to prevent the Plaintiff from inspecting the alleged infringement. This affidavit 50 described the apparatus erected by the Defendants as a complete success": it says that some of the most important parts and arrangements of that "apparatus are the invention of the Defendants," and "constitute a valuable "trade secret."

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What is the Plaintiff's apparatus? It is, in the words of the Specification, 55 "(1) a series of glass vessels (2) placed on steps (3) in a heating chamber, "(4) each of these vessels being made with an overflow spout and (5) having

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placed in it a glass tube (6) reaching down to its bottom from the spout of "the next higher vessel, (7) arranged and (8) operating substantially as "described" in the Specification. What are the essential features of their arrangement and their mode of operation? I consider this question first, as 5 one of fact, apart altogether from the form of the Specification. The improved machine consists of six parts; but all of these are old, and therefore the improvements must be either in their arrangement, or in their mode of operation, or in both. They are easily described. Open evaporating vessels overflow each into the top of a loose tube, resting, as the Master of the Rolls 10 has said, like a spoon in a teacup, in the next lower one. This tube delivers the acid overflowing from the top of the upper vessel, at the bottom of the lower one; it rises to overflow again, and so it flows zig-zag down the whole cascade, the acid and the apparatus being all the time in a chamber hot enough to cause continuous evaporation and progressive concentration, till it emerges 15 from the lowest vessel sufficiently concentrated for its special uses. The intense heat necessary to produce evaporation involves great risk of breakage in the apparatus, and the required degree of concentration is so high that leaden vessels would be corroded; and unless costly platinum is used, fragile glass must be employed. Glass would inevitably break if the whole of each vessel 20 was not exposed, as nearly as possible, to the same intensity of heat; and while the breaking of any part stops the working of the whole of the apparatus, the heat and fumes make access for repair dangerous and difficult. Thus rapidity of evaporation, reduction of breakage, and facility of repair are desiderata all important; and the attainment of each is, to some extent, incompatible with 25 that of the others, so that ingenuity may well be exercised to reconcile them. The evidence satisfied the Master of the Rolls, and has satisfied me, that the Plaintiff's apparatus attains these objects distinctly better than any previous apparatus; and the means by which this improved result is attained are as easily described as the apparatus itself. The evaporation is facilitated, and 30 breakage reduced, by placing the whole apparatus in a chamber, which though divided by an iron floor, may be made almost equally hot. The Specification expressly says that the appliances are "arranged to give an approximately "uniform heat throughout the whole chamber, without any openings which "might allow cold air to strike against the glass." The difference in the heat 35 above and below the floor is but slight, because the floor being of iron transmits heat with little diminution, and being required only to separate the products of combustion in the furnace below from the fumes of evaporation above, may be thin. The open shape of the "beakers" further facilitates evaporation. The high boiling point makes actual ebullition difficult to obtain; and I gather 40 from Chance's Specification, as well as from the parol evidence, that only very "gentle ebullition is desirable. Below the boiling point, evaporation by absorption takes place, though not so rapidly, provided the atmosphere of the heated chamber is not saturated with the acid fumes. In the Plaintiff's apparatus, as in all the others, the fumes pass into some form of condenser, 45 which is not covered by the patent. But whether the acid is boiling, or simmering, or only evaporating, its concentration is greatly facilitated by the open or "beaker" shape of the evaporating pans. To give a homely illustration, a saucepan will boil water away far more quickly than a kettle. Uniform concentration and evaporation are secured by the zig-zag flow down the cascade. 50 But for this top to bottom, and bottom to top, or zig-zag course, throughout the whole series of vessels, which is secured by the loose tubes, the lighter acid would simply overflow straight across from vessel to vessel, leaving the more concentrated liquid undisturbed. On the other hand, if siphons were used, as by Garraway, the bottom or heavier stratum only would pass from vessel 55 to vessel.

Besides combining the several parts of different old apparatus, Webb has effected simplification in the details. The heated chamber is a simple furnace,

Webb v. Kynoch and Co., Ld.

oven, or flue, divided only by an iron partition. Upon each step of his "cascade" there are but two articles of glass-the beaker and the tube. Each is of the simplest shape and loose, most efficient for its primary purpose, least liable to breakage; and arrangements are made in case of breakage for saving any escaping acid, giving warning, and obtaining access for repairs. 5 The details of these arrangements appear in the "Instructions for Working' the Plaintiff's patent. While the Defendants have sworn that their apparatus, which, but for the omission of the iron partition, is identical with Webb's, is "a complete success," the definite result of Webb's invention may be measured by the evidence that his apparatus, when put up by himself, can concentrate 10 five tons of dilute acid in twenty-four hours, while Chance's apparatus, supplied with acid already partially concentrated by boiling in lead pans, will turn out only two tons in the same time. Even doing this much, Chance's apparatus is still working-a proof that the Plaintiff's apparatus meets an industrial need. Chance's Specification and drawings show differences in 15 construction, which account for the difference of result. Instead of Webb's open "beakers," Chance uses partially closed vessels, from which evaporation is necessarily slower. Chance's vessels are rather stills than evaporating pans. They discharge the fumes from the evaporating surface, not into a comparatively open part of the heated chamber, but into alembic shaped heads; and the upper 20 part of these vessels, as well as the heads, are not exposed to the furnace heat as fully as if they were inside the heating chamber. It is proved that they are so far accessible to outer air that the fumes are carried by a draught into the "alembic heads." This both diminishes evaporation and increases the risk of breakage. This risk is further increased by the shape, size, and construction of 25 Chance's vessels-the dome-shaped tops, the large size, the welded nozzle or "tubule," the funnel sockets and the necks, all involve increased liability to breakage under heat. The necessity for the "greenhouse," as well as the draught into the alembic heads, show that the access of air is not excluded. The zig-zag circulation is effected by Chance, and its advantages are indicated 30 in his Specification; but he conveys the acid from vessel to vessel by two tubes, the first of which is a long thin one, not unlike a churchwarden pipe, balanced between the "tubule " or nozzle of the upper vessel and the top of the second tube or funnel, which leads to the bottom of the lower one. Though this funnel is not fixed as Professor Reynolds thought it was, 35 like a stopper in a bottle, it rests in an orifice made in the shoulder of the lower vessel. For Webb's single loose tube, "lying like a spoon in a teacup," Chance has a welded nozzle, a long pipe, a socket, and a funnel. I am satisfied that, as a simplification of apparatus resulting in diminution of risk of fracture, and in increased facility for repair, this part of Webb's apparatus is an improvement 40 upon Chance's. The whole apparatus is more efficient and so much simpler that it must be both more durable and more easily repaired. Simplification means cheapness, and cheapness means improvement, in commercial matters. 66 I observe, too, that no one has ever used a cascade" of Chance's vessels at all approaching in number, or consequently in concen- 45 trating power, to Webb's construction; nor has anyone been able to produce the required degree of concentration with Chance's apparatus, unless the acid is first partially concentrated.

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Garraway's apparatus anticipated Webb's only in the use of beaker-shaped evaporating pans. I am not satisfied that, as shown in the drawings, Garraway's 50 invention was intended to be used in the same way, or at the same stage of the process, as either Chance's or Webb's. He seems to show a machine working by the heating power, and in the fumes, of the furnaces used for producing the gases, which are afterwards turned into weak sulphuric acid by exposing them to steam. He refers to "the flue which conducts the 55 "sulphur fumes from the sulphur or pyrites ovens or furnaces to the oil "of vitriol chamber," as the place within which his "series of open beakers