In the Matter of Owen's Patent.

"disclaimer, that being clear under Section 18 (and also under Section 19), "which uses the three terms, and shows that the term 'disclaimer,' which "alone occurs in the 19th section, is so used advisedly." Therefore, it appears to have been the opinion of the Lord Justice in that case that the word 5 "disclaimer" in Section 19 should not receive the extended meaning which is sought to be attached to it here, and that only an application for leave to amend by way of disclaimer ought to be granted.

There is no express decision on the point, but the authorities appear to me to be all one way, that is to say, in favour of reading the word "disclaimer" 10 in Section 19 strictly. That is the conclusion to which, independently of authority, I myself should have come. Consequently, with reference to the amendments proposed in the present case, it seems to me the present application must be refused with costs, such costs to be costs in the petition for revocation, and to be the Petitioner's in any event.

15

IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION.

In 1888, a patent was granted to S. for "a disconnecting, folding, or fixed "arm anchor." In 1898, N. presented a petition for revocation of the patent on the ground (inter alia) of prior user of the invention, alleging that he had himself prior to the date of the patent altered an anchor so that it possessed the 25 features of the patented anchor.

30

Held, that the alleged prior user of the invention had been established, and the patent was revoked, with costs against the Respondents, except that a certificate was granted as to the costs of some only of the Particulars of Objection.

On the 4th of February 1888, Letters Patent (No. 1670 of 1888) were granted to Frederick James Sinnette for an invention of "A disconnecting, folding, or "fixed arm anchor."

The Complete Specification was as follows:-"A Disconnecting, Folding or "Fixed Anchor to be made of iron or Steel or other metals; the shank if 35" required to be made in more than one length, to disconnect, fold on either of "the two bolts by removing one, or fix by using the two bolts as in Figs. 1 and "2 with stock in or out of place; or if required, to be in one length to "disconnect only as in Figs. 3, 4 and 5.

40"

"The Arms to be inside or outside the shank as in Figs. 6, 61, 7, 71, 8 and 81, the arms to be two in number and each arm to bear on shank if fitted on inside or on

In the Matter of Sinnette's Patent.

"outside at one two or more parts according to size; each arm to work on bolt "A through shank secured with fore lock nut or the like, and arms when spread "for use as an ordinary Anchor as Figs. 1, 3, 6, 7 and 8 to be fixed in position by "bolt B with forelock, a nut and screw bolt, screw eye bolt, wedge piece or the "like, passing horizontally through shank as shown, or if required to be fitted 5 "vertically through junction of upper end of arms so as to answer the same 66 purpose, this same fitment B when removed allows the arms to be closed as Figs. 2 and 4, and by its being replaced fixes the arms in the closed position, or by not replacing it allows the arms to remain free to open or close and Anchor ready for use as a non-fouling one as Fig. 5. The Palms C to be on back of 10 arms if required as well as on front, and if so fitted they are to be either "portable or fixed.

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66

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"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 I claim is (1stly.) The Invention of an Anchor with or without a 15 "Disconnecting, Folding or Fixed Shank, and with Two Arms that may be "Disconnected, or Fixed for use as an ordinary Anchor, or Folded and Fixed "when not in use, or that may be free and fitted for use as a Non-Fouling Anchor, the Palms on back of arms if fitted to be either portable or fixed. (2ndly.) The Invention of these Improvements, regarding Shanks, Arms and 20 Palms, collectively and separately, all substantially as described and shown." In 1898 Thomas Ely Norton presented a petition for revocation of the patent, alleging : -" (1) Your Petitioner is a ship and engine smith, and has "for many years past been connected with the building of ships and the "making of anchors and other appliances required for the working of ships. 25 (2) In or about the month of July 1880 your Petitioner invented certain "improvements in the form of anchors, and on the 17th day of August 1880 applied for and obtained provisional protection, No. 3333 of 1880, for such "invention, and afterwards filed a Complete Specification for the said inven"tion, and in due course obtained Letters Patent. (3) From the month of 30 "July 1880, for some years afterwards, your Petitioner made and used and "supplied and sold to the public many anchors made by him in accordance "with his said invention. Such anchors so made by him were also exhibited "in the various public places mentioned in the Particulars of Objections filed "herewith. (4) Your Petitioner has recently discovered that on the 4th day 35 "of February 1888, one Frederick James Sinnette obtained Letters Patent for a disconnecting, folding, or fixed armed anchor,' No. 1670 of 1888. (5) Such "Letters Patent are invalid by reason of your Petitioner being the true and "first inventor of the invention the subject matter thereof, and having "publicly manufactured, used and sold and exhibited the same within the 40 "realm before the date of the patent granted to the said Frederick James "Sinnette, and by reason of the other matters appearing in the Particulars of "Objections delivered herewith."

66 6

:

The Particulars of Objections, as amended under an order of the 6th of June 1898, alleged (1) That the alleged inventor was not the first and true 45 inventor; (2) that the Petitioner was the true inventor; (3) that the Petitioner had publicly manufactured within this realm before the date of the said patent the whole invention therein claimed, namely, in the years 1880 and 1885, at the shipyard of Mr. N. S. Luke, Itchen Ferry, near Southampton, and at the shipyard of Messrs. Osward, Mordaunt, and Co., Woolston, near Southampton 50 aforesaid, and in the years 1881 and 1882, at the Petitioner's own workshop, No. 47, Belvedere Terrace, Southampton aforesaid; (4) that the Petitioner publicly used within this realm before the date of the said patent the whole invention therein claimed, namely, at the times and places mentioned in paragraphs 3 and 5, and at West Quay, Southampton, where his agents 55 frequently demonstrated the holding power of his anchors to the public; (5) that the Petitioner publicly sold within this realm before the date of the

In the Matter of Sinnette's Patent.

said patent the whole invention therein claimed, namely, in the years 1880, 1881, and 1882, and 1885, at Southampton aforesaid, to (inter alia) Mr. Rosamond, the owner of the yacht "Algerine"; (6) that the said patent was in fraud of the Petitioner's rights; (7) that the said alleged invention was not fit subject5 matter; (8) that it was not of public utility; and (9) that models and patterns of the said alleged invention were formerly exhibited at places therein specified.

T. Terrell, Q.C., and C. Herbert Smith (instructed by Marshall and Pridham, agents for G. C. Prior, Portsmouth) appeared for the Petitioner; Astbury, Q.C., 10 and E. Russell Clarke (instructed by Lovell, Son, and Pitfield, agents for Paris, Smith, and Randall, Southampton) appeared for the Respondent.

15

Since in the result the case was decided on a question of fact, the arguments of Counsel are not reported.

Judgment was reserved, and was delivered on the 31st of October 1898. BYRNE, J.-The Petitioner, Norton, was Patentee under Letters Patent, dated in 1880, of a form of anchor, so designed as to permit the flukes to move independently of each other and of the shank, and intended in operation automatically to take and hold the ground with one fluke while the other would also automatically lie close to the shank. When not in use, the flukes could 20 both be folded close to the shank for convenience of stowing. No provision was made, or intended to be made, in the Specification for bolting or retaining the flukes of the anchor either when outstretched or when lying close to the shank. The patent was, in fact, invalid, having been anticipated by at least one other (Warren's, dated in 1870), but, so far as I know, Norton was, until after the present proceedings, and indeed, until quite recently, unaware that he had been anticipated in his invention.

25

Norton now petitions to revoke Sinnette's patent, dated in 1880, for an anchor which differs in this essential particular from that described in Norton's Specification, namely, that provision is made for locking the flukes of the anchor 30 either in an outstretched position or lying close to the shank. This is effected by means of a bolt, which passes through holes in the head of the anchor catching the shoulder or shoulders of either or both flukes, which are brought close together, such shoulders having cuts in them for the purpose. The bolt can be inserted or withdrawn at pleasure.

35

The Petitioner has adduced evidence in support of a case set up by him, that in the years 1882 and 1885 he publicly sold within the realm, before the date of Sinnette's patent, to Mr. Rosamond, the owner of the yacht "Algerine," the whole invention claimed by Sinnette's patent, and I think he has proved the following facts :-In the year 1882, or 1883, Norton, while working for Walter 40 Smith Luke, a yacht builder, then carrying on business at Itchin Ferry, near Southampton, supplied an anchor made substantially in accordance with his Specification to a Mr. Rosamond, the owner of the yacht "Algerine." It was a 56 lb. anchor. In the summer of 1885, Mr. Rosamond, the owner of the Algerine, had lent it to his brother, Mr. Richard Rosamond, who was 45 experimenting about some invention of his not relating to anchors. The yacht was sailed by two men named Diaper, Captain Cook Diaper, and his brother, under Mr. Richard Rosamond's orders, and one day in bringing up off Calshott Castle, the anchor failed to hold the ground, apparently not being adapted to hold on a muddy bottom. The night of that day, or next morning, 50 Mr. Richard Rosamond told Captain Diaper to take the anchor ashore to Norton, and get him to do something to jam the flukes out, so as to hold like an ordinary anchor. Whether the credit of originating the notion was due to Luke, Norton's employer, or to Norton himself, is perhaps not quite clear, but Norton effected what was wanted, doing the work himself, by 55 making holes through the head of the anchor between the shoulders of the flukes, and putting a bolt through in such a way as to jam the flukes open, making a screw-thread at one end of the bolt and fitting it with a nut, so that

In the Matter of Sinnette's Patent.

by unscrewing the nut the bolt could be removed.

I cannot doubt upon

the evidence that this work was done, and so done as to enable the anchor to be used with the bolt in place as an ordinary anchor, or with the bolt removed as an anchor with pivoted flukes. I think it is proved that the anchor was subsequently used for some years, and that the bolt was frequently 5 removed to enable the flukes to lie close to the shank for convenience of stowage.

I need not trace the history of the anchor to its ultimate loss. Having heard the evidence given by the four witnesses, Luke, Norton, Richard Rosamond, and Holley, I am satisfied that the story told is in substance true. Whether 10 the bolt was round or oval, or what was its precise diameter, I will not pretend to say, but Norton says he did not actually construct his anchor flukes as far apart at the shoulder as might appear from the drawings attached to his Specification. I do not know certainly whether or not the bolt supplied by Norton would keep or jam the flukes to the sides of the shank. The anchor 15 as altered was openly used, and was known to a good many people. I do not think that Norton or Luke appreciated the usefulness and importance of the alteration made, and I think Sinnette invented his anchor without knowledge of what had been done to the Algerine's anchor in 1885. I believe that Luke was paid by Richard Rosamond for the work done by Norton, who was 20 in his service.

I have scrutinized the evidence closely because the anchor relied upon as anticipating Sinnette could not be produced; neither of the Diapers were called; and the case was undoubtedly launched and carried on until a late stage upon the footing that without a bolt Sinnette's patent was anticipated by 25 Norton's. I think that Sinnette's advisers were somewhat taken by surprise at the nature of the case made in reference to the Algerine's anchor, and they had no means of negativing it except by discrediting Norton and his witnesses. This serves as a justification for the great length and minuteness of the cross-examination. 30

I ought, in justification to Norton, to say that in his statement [Exhibit T.E.N. 3], which was prepared by him for his advisers before the action, and which was put in evidence and cross-examined on by Sinnette's Counsel, I find the following passage:-"I had one anchor made for Mr. Rosamond, of "Woolston. It would not hold in Amble River, so I took it and put a pin in 35 "the head of the anchor to keep both flukes open for soft mud, and it answered "well." This statement was made at the time when I do not believe that Norton or his advisers had the least notion of its importance.

Having given my judgment upon the issue of fact presented to me, I am prepared to hear argument if Sinnette's Counsel thinks that he can, notwith- 40 standing, resist an order for revocation; and I desire to hear from Norton's Counsel any reason why, having regard to the Particulars, he ought not to bear, or at least be deprived of, some part of the costs of the proceedings. I will not hear the discussion now, but I will give both sides an opportunity of considering what they will do. Mr. Astbury, if you want to show any reason why there should not be revocation it will be open to you to do so, and I will hear the argument.

Astbury, Q.C., said that after his Lordship's judgment he did not feel he could usefully resist an order for revocation.

45

After considerable discussion, his Lordship gave a certificate as to Nos. 1, 2, 50 3, 4, and 5 of the Particulars of Objections but limited to the anchor which he had held proved, and also as No. 7.