Allen v. Oates and Green, Ld.

Particulars of Breaches alleged :—(1) That the Defendants had manufactured and sold water closets constructed in accordance with the said invention; (2) that, in particular, on or about the 29th of November 1896, the Defendants sold three water closets, constructed as aforesaid, to the Plaintiff, or his agent on his behalf.

5

The Defendants, by their Defence, (1) did not admit that the Plaintiff was owner of the said Letters Patent, (2) denied infringement, and (3) alleged invalidity, for the reasons set forth in the re-amended Particulars of Objections delivered therewith. The Defendants, by their re-amended Particulars of Objections, alleged :-(1) That the Plaintiff was not the first and true inventor 10 of the invention, in respect of which the said Letters Patent were granted, inasmuch as the said alleged invention was communicated to the Plaintiff by Alfred Hill, M.D., Medical Officer of Birmingham, at the office of the said Alfred Hill, in the Town Hall, Birmingham. The date of such communication, to the best of the Defendants' knowledge, was August 1885. (2) That the 15 said alleged invention was not a new invention at the date of the said Letters Patent, but had been published in the manner following :-(a) By the erection of closets at Westfield Terrace, Lightcliffe, Halifax, about the year 1880, and still in use; by the erection of closets at Christchurch Day Schools, Crewe, prior to the year 1882; by the publication by J. Parker, now Inspector 20 of Nuisances at Birmingham, and F. W. Lloyd, now of 50, New Street, Birmingham, in September and October 1885, to the Health Committee of the Birmingham Town Council, of drawings of proposed water closets; by the erection of a closet in the premises of John Spencer, Maltster, Cross Lane, Upper Worley, Leeds-this closet was erected and used for several years prior 25 to the Plaintiff's patent, and was still in use; by the erection of several closets in Rockley Hall Yard, Sowerhead Row, Leeds, about the year 1880, but since removed. (b) And had been published, by the manufacture of closets connected direct to the drain, by the persons at the dates and places following:The Farnley Iron Company, Ld., Leeds, in the year 1880; Jennings, George, 30 of Lambeth, in the year 1880. (c) And by the publication by the Crewe Town Council of plans showing a form of closet proposed to be adopted by that body in the year 1882. The plans were prepared by the borough surveyor in the year 1882, and by the erection of such closets in Crewe shortly afterwards. (3) That the said alleged invention was not a new invention, but had been 35 published before the date of the Plaintiff's Letters Patent in the following Specifications:-Tayler, William Henry, No. 3388 of 1871. The Defendants relied on Figure 2. Kolb, Adolph and Allsop Coleridge, No. 316 of 1873. The Defendants relied on part of Figure 4, where the direct connection is shown to a cesspool or drain, and on line 33, page 4, and descriptions in lines 4 to 6, 40 page 5. Liernur, Charles Theim, No. 3168 of 1873. The Defendants relied on the part of Figure 4, showing two plans connected to drains. Jennings, George, No. 4935 of 1876. The Defendants relied on Figure 8 and the printed matter relating thereto, and page 5. Fowler, Alfred Mountain, and Husband, Richard, No. 1528 of 1874. The Defendants relied on the whole of the Specification. 45 Fowler, Alfred Mountain, No. 2299 of 1874. The Defendants relied on the whole of this Specification and the drawings thereto. Stidder, James George, No. 569 of 1878. The Defendants relied on Figure 43 and the letterpress relating thereto. Cross, Benjamin Croker, No. 2324 of 1878. The Defendants relied on the drawings, sheet 1, to the said Specification, and the letterpress relating thereto. Marks, 50 Hubert Noel, No. 16,860 of 1884. The Defendants relied on the whole of this Specification and the drawings thereto. (4) That the said alleged invention was not proper subject-matter for the grant of valid Letters Patent, inasmuch as closets connected direct to drains were known, and in public use at the date of the said Letters Patent, No. 12,505 of 1885, and it required no invention 55 either to make the pipes of earthenware, or of any particular shape or form, or to connect them so that the main drain became a direct receptacle for

Allen v. Oates and Green, Ld.

excreted matter. (5) That the Specification, filed in pursuance of the application for the said Letters Patent, as amended, did not particularly describe and ascertain the nature of the invention. The Specification, as amended, was ambiguous, and did not ascertain what the invention was which was 5 claimed. Further Particulars as to paragraph 2 (a) (b) and (c) of the reamended Particulars of Objections were subsequently given.

10

15

The trial of the action took place on the 28th and 29th of April 1898, when it was held by Kekewich, J., that the patent was invalid for want of subjectmatter, and the action was dismissed.*

The Plaintiff appealed.

T. Terrell, Q.C., and A. J. Walter (instructed by Pepper and Tangye) appeared for the Appellant; Moulton, Q.C., and J. C. Graham (instructed by Chester and Co., agents for W. H. Boocock, Halifax) appeared for the Respondents.

T. Terrell, Q.C., and Walter for the Appellant.-The questions of infringement and utility have been found in our favour, but Kekewich, J., was against us on subject-matter, whilst it is doubtful whether on that of anticipation he was against us. The invention relates to that class of water closets in which they are placed in series and in which the water is introduced below. 20 The invention is for a way of connecting a vertical pipe of large diameter with a horizontal pipe of small diameter without having a taper. A combination of such parts as produce the results is subject-matter if it is the combination itself that produces the result. The invention has been largely used; this is a case in which a known want was satisfied after there had been much experiment by 25 others. The alleged anticipations assist us as to this, and they show what had been done. The Plaintiff's invention really consists in making the main drain the direct receptacle from the seat, and this was not anticipated. Counsel for the Respondents were not called on.

LINDLEY, M.R.-I do not think there is anything in this at all. We have 30 only to read the Specification. I am sorry for Mr. Allen. I am assuming that what his learned Counsel has stated is true, that he has hit on a very ingenious method of flushing these water closets; but all I can say is, that he has not described it a bit. He has missed out every important feature of the invention. CHITTY, L.J., and VAUGHAN WILLIAMS, L.J., concurred.

* Ante page 298.

MacSymons Stores, Ld. v. Shuttleworth.

IN THE HIGH COURT OF JUSTICE.-QUEEN'S BENCH DIVISION.

Before MR. JUSTICE DAY and MR. JUSTICE CHANNELL.

December 17th, 1897.

MACSYMONS STORES, LD. v. SHUTTLEWORTH.

Trade Mark.-Patents, &c. Act, 1888, Section 105.-Using word" Registered" 5 in reference to a Trade Mark not registered in the United Kingdom although registered in a foreign country.

In this case the Defendant had been convicted by the Stipendary Magistrate of the City of Liverpool, he being charged with a breach of the 105th Section of the Patents, &c. Act, 1883, in selling a tin or box of "Royal Baking Powder" 10 similar to that which had been sold by the Defendants in the Irish case of Wright, Crossley, and Co. v. William Dobbin and Co., reported ante page 21. A case having been stated by the Stipendary Magistrate, the matter came on by way of appeal before Mr. Justice DAY and Mr. Justice CHANNELL, and they, after hearing Counsel for the Defendant (who in the course of his speech 15 referred to the before-mentioned case of Wright, Crossley, and Co. v. William Dobbin and Co.), and without calling upon Counsel for the other side, dismissed the appeal, with costs.

DAY, J.-I am clearly of opinion that the appeal must be dismissed, and that the Magistrate was entirely right. I may say that I thoroughly agree with the 20 judgment of the Irish Court, and express no views further than saying that I entirely agree with it.

CHANNELL, J., concurred.

Hulton and Bleakley's Petition.

10

Before W. R. BOUSFIELD, ESQ., Q.C. (Referee).

April 4th and 5th, 1898.

IN THE MATTER OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883,

AND

5 IN THE MATTER OF LETTERS PATENT NO. 5470 OF 1886 AND No. 5989

OF 1888,

AND

IN THE MATTER OF PETITION OF EDWARD HULTON AND OF EDWARD OVERALL BLEAKLEY, NEWSPAPER PROPRIETORS, TRADING AS E. HULTON & Co., TO THE BOARD OF TRADE FOR A COMPULSORY LICENCE UNDER THE SAID PATENTS.

Patent.-Compulsory Licence.-Application to Board of Trade.-Hearing before Referee.-Construction of Patents, &c. Act, 1883, section 22.-Meaning of "the public."-Order for grant of Licence.-Amount of Royalty.

66

15 In 1886 Letters Patent were granted to B., B., and S. for "Improvements "in arrangements and mechanism to facilitate the rapid application of type "representing late news or matter to and the printing of the same by newspaper printing machines," and in 1888 Letters Patent were granted to the same persons for improvements relating to the same class of machinery and 20 having a like object. The first-mentioned Patent became vested in a firm of T., G., & Co., who also became equitably entitled to the 1888 Patent. In November, 1897, H. & Co. presented a Petition to the Board of Trade for an Order for the grant of a Compulsory Licence under the Patents, and the Petition was heard before a Referee appointed by the Board of Trade. One of the 25 Patentees had been served but did not appear. It appeared from the evidence that T., G., & Co. had granted licences to newspapers in various towns, but for Manchester and district they had granted an exclusive licence to use the inventions to an evening paper with which they had certain commercial relations. The Petitioners were the owners of another evening newspaper in Manchester, 30 and alleged that, by reason of the default of the Patentees to grant licences on reasonable terms, the reasonable requirements of the public with respect to the inventions could not be supplied. T., G., & Co. had refused to grant a licence to the Petitioners owing to the contract with their exclusive licensee. It was contended for the Petitioners that whether the public formed of the persons who 35 wished to use the invention, or the public constituted by the readers of the Petitioners' newspaper, were regarded, the reasonable requirements of the public could not be supplied. For the Respondents, it was contended that, as regards the first class, the evidence only showed an individual complaint on the part of the Petitioners, and that, as regards the second class, the benefit of the invention

3 U

Hulton and Bleakley's Petition.

was open to the members of it, since they could obtain the benefit by purchasing the newspaper licensed by the Respondents. The highest royalty charged by the Respondents had been £15 per machine.

The Referee having reported to the Board of Trade, an order was made for the grant by the Patentees (which expression included the members of the firm of 5 T., G., & Co.) to the Petitioners of a licence to use the inventions claimed in the Patents at a royalty of £20 per machine.

On the 20th of April 1886, Letters Patent (No. 5470 of 1886) were granted to John Henry Buxton, Davies Braithwaite, and Mark Smith, for an invention of "Improvements in arrangements and mechanism to facilitate the rapid 10 "application of type representing late news or matter to and the printing of the "same by newspaper printing machines." On the 23rd of April 1888, Letters Patent (No. 5989 of 1888) were granted to the same persons for an invention of "Improvements in and relating to newspaper printing machinery."

and 25

or

On the 13th of November 1897, Edward Hulton and Edward Overall Bleakley 15 (trading as E. Hulton & Co.) presented a petition to the Lords of Committee of Privy Council for Trade, praying that an order might be made by the Board of Trade that the Patentees should grant to the Petitioners a licence to use in connection with the newspapers of which they were the proprietors the inventions described and claimed in the Complete Specifications of the said Letters Patent at the 20 same royalty for every printing machine used by the Petitioners in connection with the said invention as paid by other licensees, or such royalty as to the Board of Trade might seem meet, or that the Petitioners might have such other relief in the premises as the Board of Trade might deem just. The Petition was subsequently amended by asking for an order against the Patentees John Edward Taylor and Charles Prestwick Scott (trading as Taylor, Garnett, & Co.), who, at the date of the amendment, were registered owners of the first-mentioned patent, and were alleged by the amended Petition to be equitably interested in the other patent. The Petition, after stating the 30 above-mentioned facts as to the patents, alleged-" (3) The Petitioners are the "publishers and proprietors of the following newspapers, 'The Athletic News,' "The Sporting Chronicle,' 'The Sunday Chronicle,' and 'The Manchester "Evening Chronicle.' (4) In the publication of daily newspapers it is necessary "and is the common practice to insert for the benefit of the public news which 35 "arrives after the type is set and the printing in progress. This is particularly "necessary in the evening newspapers when a considerable quantity of late "afternoon and evening news has to be inserted in the paper in order to give "the public the latest information on the various topics of the day, such as " cricket, football, athletic, and sporting results, besides late news of a general 40 "character. (5) Until the invention of the said John Henry Buxton, Davies "Braithwaite, and Mark Smith, it was the usual custom to insert this late news "by cutting out a portion of the already set type and inserting a new section "of mould type with the late news to be printed. This was an extremely slow process and caused much delay to the public in obtaining these late items of 45 "interesting information. (6) By the said two patents referred to in paragraph 1 "of this Petition an entirely new and extremely rapid method of printing late "news has been disclosed by the inventors, consisting mainly of an auxiliary "cylinder attached to a newspaper printing machine, the said auxiliary cylinder "containing one or more type boxes in or upon it, the said type boxes being 50 66 capable of being applied to the printing of the late news independently of the "impression of the main printing machine. This does away with the necessity "of lengthy stoppage of the press as the auxiliary cylinder on being inserted, "containing in its type boxes the items of late news, immediately begins "printing the late news, and no cutting of the already set type is required, 55

66