to a public user in this way:-Twenty-six years ago Freer produced to Tilsley a model of a lock, and desired him to make six dozen like it, and afterwards a dozen and a half. Tilsley employed Walker to execute the order, and gave him the model. The locks were made, and Freer paid for them. Here you have an article manufactured by an English manufacturer, and sold; and in my opinion, if it was sold even for the assumed purpose of being sent to America, I cannot but think that that would be a destruction of the novelty of the plaintiff's invention. When a model is sent to a workman, who sells seven and a half dozen, and sells them for a certain price, I must say I think the invention was used and publicly exercised. There is no secrecy in the manufacture of them; it is not shut up in the closet of the workman who makes them, but the man who makes them gives directions to another workman; he · sells them for his own profit.'

These observations of Lord Abinger were made at the trial of an action which terminated in favour of the defendant. On the motion for a new trial, on the ground of misdirection, the judges of the Court of Exchequer expressed themselves satisfied with his lordship's view of the law and refused a rule, Alderson, B., saying that 'public use means a use in public, so as to come to the knowledge of others than the inventor, as contradistinguished from the use of it by himself in his chamber.'

The point as to public use was again raised in an action for infringing a patent for paving streets with wooden blocks. It was shown that, some time before the date of the patent, the carriage-way of a porch of Sir W. Worsley's dwellinghouse in Yorkshire had been laid with blocks of wood, on a system apparently similar to the plaintiff's. Cresswell, J., told the jury, that if they thought the plaintiff's method of constructing the wooden pavement was the same as that adopted at Sir W. Worsley's, the invention must be deemed to have been made public. It had been publicly used, and made known to all persons who went to the house, so far as ocular inspection could acquaint them with it. Whether it

had been used by one or used by five, the learned judge thought made no difference. (Stead v. Williams, 2 W. P. C. 136.)

In another action for infringing the same patent brought against another defendant, it was proved that the pavement at Sir W. Worsley's was on a different principle from the plaintiff's. Parke, B., told the jury that if the mode of forming and laying the blocks at Sir W. Worsley's had been precisely similar to the plaintiff's, that would have been a sufficient user to destroy the plaintiff's patent, though put in practice in a spot to which the public had not free access. (Stead v. Anderson, 2 W. P. C. 149.)

A patent for an improved anchor was granted in 1838 to one Porter. On the trial of an action, brought by Porter's assignee, for an infringement, it was shown that in 1826 an anchor-smith had invented an anchor similar to Porter's, and had sold a few of that make to various shipowners for use in their ships. This was held such a public user as sufficed to invalidate the patent. (Honiball v. Bloomer, 2 W. P. C. 199.)

Hancock v. Somervell (reported in Newton's L. J., vol. xxxix. p. 158) is a case in which peculiar circumstances tending to show public user were adduced in evidence for the purpose of rebutting the claim to novelty, and it raised the interesting question whether publication in this country of an article made abroad, there having been no disclosure of the secret of making it, is equivalent to a publication of the invention, so as to render void a patent afterwards. obtained in this country by another inventor for a similar invention. Hancock's patent was for improvements in the preparation of caoutchouc, and the invention consisted in combining sulphur with the caoutchouc, which rendered it elastic at all temperatures. The defendants imported from America shoes made of caoutchouc, which, when analysed, were found to contain sulphur along with oxide of lead and other ingredients. In an action for an infringement of the patent it was proved that previously to the date of the plaintiff's patent specimens of caoutchouc prepared by

sulphur were sent to England by Goodyear, of New York, and were shown to Hancock, but the secret of the manufacture was not communicated to him. Negotiations were commenced for the sale of the invention to Hancock, but never completed. It was stated in evidence that Goodyear's agent left specimens with Hancock, supposing that it would not be possible for him to discover the process by which it was prepared. However, Hancock made experiments, and discovered that sulphur endowed caoutchouc with the property of elasticity at all temperatures, and he then took out his patent. Mr. Justice Williams left it to the jury to say whether, supposing the shoes to have been manufactured in England, they could have been made without infringing the plaintiff's patent; and then he proceeded to make these remarks upon the novelty issues:- The defendants do not deny that Hancock is to be considered the inventor, notwithstanding Goodyear had previously made the discovery, provided the invention had not been published or in use in this country before the date of the patent. The defence consists of this: not only had Goodyear discovered the invention first, but also that the invention had been substantially published, and was in usenot in secret use, but in public use-before the date of the patent; that the material being in public use, the ready means of the invention were also necessarily before the public; because it is said the article presented in itself such means of knowledge to the public as to enable anyone of ordinary competence to reproduce the article. If you should be of opinion that the material was in use before the date of the patent, then the question resolves itself into this: what is your opinion as to whether the publication of the material was substantially a publication of the invention ? If you should find that the material was in public use, but that, notwithstanding, the invention remained still a matter to be discovered, in my opinion the plaintiff's case would not be affected by the circumstance of the material being in public use. If, on the other hand, you should think not only that the material was in public use (and I should here

say that I do not think it is necessary the use should be actual sale—if it were in public use it need not be sold; it would be sufficient, for instance, if it were in use, handing about the country for the purpose of attracting customers); if you should think, also, that the material being so in use, it was so palpable how you could make it, when you got the material, that substantially the disclosure of the material was a disclosure of the means of making it; if you do not think that, then I think the plaintiff's case is unaffected by the circumstance of the material being before the public in the way I have been describing.' The jury found a verdict for the plaintiff, and thus the foreign inventor lost the benefit of a very valuable invention by not taking the precaution to obtain a patent in this country before opening negotiations for the sale of the manufactured article.

On the trial of Muntz v. Foster (2 W. P. C. 103-108), Tindal, C. J., said to the jury, 'I look upon the invention to consist in this, that Muntz has by an experiment ascertained that a certain mixture of the alloy of zinc with copper will have the effect of producing a better sheathing (for the bottom of ships) by reason and by means of its oxidating just in sufficient quantities-that is, not too much, so as to wear away and impair the sheathing and render the vessel unsafe, but enough, at the same time, to keep by its wearing the bottom of the vessel clean from those impurities which before attached to it. And if it was shown, as possibly it might be, that sheets had been made of metal before, in the same proportion which he had pointed out, and if this hidden virtue or quality had not been discovered or ascertained, and consequently the application never made, I cannot think the patent will fail on that ground. . . . In my judgment it will not go far enough [to show that sheets of this particular alloy had been previously made], unless they can show there has been some application of them before to this very useful purpose. . . I do not think that the circumstance of showing that the combination of these two materials in a metal plate will of itself destroy this patent, when no attention at the time was paid to the

purpose for which this patent was taken out, and it was made merely in the ordinary course of melters of metals for the various and ordinary purposes of life. I do not think that the circumstances of showing, that in the long time that has passed before us in the different, and I may say infinitely varying, combinations that must have been made for the various purposes for which brass and other metal was manufactured for ordinary and common purposes of life to call a workman to show that on some occasion or occasions he had combined them in those proportions for another and different purpose; it does not appear to me that such destroys the patent.'

The question of public user arose in the case of Heath v. Smith (2 W. P. C. 268). An action for the infringement of a patent under which the invention claimed was an improved method of making cast steel, by fusing carburet of manganese along with common iron or steel. It was proved at the trial that five manufacturers of steel had used substantially the process patented by the plaintiff before the date of his patent, not by way of experiment, but in the way of their trade, and to the extent of hundreds of tons. Two of the manufacturers had kept the process a secret. The other three had openly practised it; but it had not become generally known, and the trade was not made acquainted with it until the plaintiff took out his patent. It was held, after argument, by the Court of Queen's Bench, that there had been a public use of the process, and that the patent was, therefore, invalid. One of the judges pointed out this consequence of an opposite decision, that a man who made a discovery would be obliged to take out a patent for it in order to free himself from liability to action in the event of another man making the same discovery and procuring a patent. The process adopted by the five manufacturers was to place iron, manganese, and carbon in a crucible. The application of heat, according to the scientific witnesses, made first a carburet of manganese, and then made that substance unite with the iron. Now the Court of Exchequer Chamber had previously held