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Pollock, C.B.: “The real invention may not be so much for the thing when produced as for the mode in which it is produced; and its novelty may consist, not so much in its existence as a new substance, as in its being an old substance, but produced by a different process. In one sense an old substance produced by a new process is a new manufacture; of that there cannot be a doubt."
The following are some cases of a patent for a new process : Walton v. Potter, 1 Web. P.R. 590 (1841).
Improvements in cards for carding wool, cotton, &c., by the application of a process of coating the
cards with india-rubber in place of leather. Gibson v. Brand, 1 Web. P.R. 633 (1842).
A process of manufacturing silk.
A patent for the manufacture of cast steel by use of carburet of manganese thrown into the crucible when the iron was in a state of fusion. Also, a process whereby oxide of manganese and coal tar, which when put in the crucible produced the same result, but was cheaper, and unknown at the time of the patent. Held a new process, and no infringement of
the other. Stevens v. Keating, 2 Web. P.R. 182 (1847).
A process of combining gypsum, acid and alkali, for manufacture of cement. Also a process for combining gypsum, sulphate of lime and borax for the same object. But the latter would have been an infringe
ment, if the former had not failed through its claim. Higgs v. Godwin, 27 L.J. N.S. Q.B. 424 (1858).
The precipitation of animal and vegetable matter from sewage water by means of hydrate of lime, for
agricultural purposes. Simpson v. Holliday, L.R. 1 H.L. 315 (1866).
A process for preparation of red and purple dyes. This patent was, however, held bad, as the specification was misleading in describing two alternative pro
cesses, one of which would not work. Wright v. Hitchcock, L.R. 5 Ex. 37 (1870).
Improvements by a machinery or apparatus in doubling, folding and plaiting woven and other fabrics.
Held good for a process.
The plaintiff had a patent for an improvement in the manufacture of packing for joints of steam engines
and pumps, &c. The defendant took out a patent for
no infringement of the plaintiff's
A patent for a process of producing more cheaply
The plaintiff's process was a combination of sheet
no infringement of the plaintiff's, and both were good. The discovery of a more skilful and efficient mode of A mere working working a process already known and in use is not the old process is no proper subject of a patent.
subject of a Patterson v. Gas Light and Coke Company, L.R. 2 Ch.D. 812 (1876).
The plaintiff took a patent for improvements in the purification of gas by employing lime purifiers, whereby the contents of purifiers might be converted into sulphide of calcium, for the purpose of purifying the gas from certain compounds of sulphur, with which sulphide of calcium combines. The defendants had used lime purifiers before the patent, but not so much lime. This was held not the subject of a patent, being merely a useful working direction on the old
process. Badishe Anilien und Seda Fabrik v. Levenstein, W.N. 1883, p. 134.
The plaintiff was a patentee of a chemical process. The defendant's process had the same ingredients, producing the same result, but probably cheaper and more simple. It was not, however, held a new discovery and the subject of a patent itself.
4. A new application of a known subject or invention to a 4: New applicanew subject not analogous to the old application.
This can be the subject of a patent, but the question is “ Whether the new application lies so much out of the track of the former use as not naturally to suggest itself to a person turning his mind to the subject, but to require some application of thought or study” (per Lord Chelmsford, in Penn v. Bibby, L.R. 2 Ch. 136 (1866), where he quotes the criterion given by Lord Campbell on the subject in Brook v. Aston, 8 E. & B. 485 (1857) : “ That a patent may be valid for the application of an old invention to a new purpose ; but to make it valid there must be some novelty in the application.” Also the rule laid down by Cockburn, C.J., in Harwood v. Great Northern Railway Co., 2 B. & S. 208 (1860), in these cases : “Now although the authorities establish the proposition that the same means, apparatus, or mechanical contrivance cannot be applied to the same purpose, or to purposes so nearly cognate and similar as that the application of it in the one case naturally leads to the application of it when required in some other, still the question in every case is one of degree, whether the amount of affinity or similarity which exists between the two purposes is such that they are substantially the same; and that determines whether the invention is sufficiently meritorious to be deserving of a
Seed v. Higgins, 8 H.L.Ca. 550 (1860).
The application of centrifugal force by means of a weight acting on a presser, so as to cause it to press against a bobbin in a machine for roving cotton.
An improvement in bearings and bushes for the shafts of screw and submerged propellers. The only old application was the use in water-wheels and grindstones, but the bearings were of totally different character; so the application was held essentially
different, and the patent upheld. Where a well-known thing is applied to an analogous purpose it is not the subject of a patent.
Lord Abinger, C.B., in Loshv. Hague, 1 Web.P.R.208 (1838), on this point said: “The law on the subject is this, that you cannot have a patent for applying a well-known thing which might be applied to 50,000 different purposes, for applying it to an operation which is extremely analogous to what has been done hefore."
In that case the application of certain constructed wheels made before railroads were known, to railroads afterwards, was held no subject of a patent.
Bush v. Fox, 5 H.L.Ca. 707 (1856).
A patent for a means and apparatus for working under water in order to produce excavations and building foundations for lighthouses and piers. There had been a previous patent for an apparatus to facilitate excavating, sinking and mining. Held these being substantially the same, the patent was not
good. Patent Bottle Envelope Co. v. Seymer, 28 L.J.C.P. 22 (1858).
A patent for manufacture of cases or envelopes for covering bottles. It was held there could be no patent for a mere application of a model of a bottle to make
the envelope of the required form. Brook v. Aston, 28 L.J.Q.B. 175 (1859).
There had been a patent for a process of strengthening and polishing linen and cotton yarns by means of friction brushes. The defendant sought to establish a patent for applying the same process to woollen yarns. It was held the application was too similar
and not the subject of a patent. Thompson v. James, 32 Beav. 570 (1863).
Hoops of whalebone and other substances, suspended from the waist, and forming a petticoat, had been long known and used by ladies. The plaintiff took out a patent for using for the same purpose hoops of steel watch springs, which was held not to be the subject of
a patent. Harwood v. Great Northern Railway Co., 35 L.J.Q.B. 27 (1865).
Where grooved fish-plates having been used before for fastening the scarf-joints of timbers, a patent was taken out for their application to fastening the buttjoints of iron rails, it was held the patent was bad, because it claimed an application to an analogous
purpose. Jordan v. Moore, L.R. I C.P. 624 (1866).
A patent for the construction of ships with an iron frame, combined with an external covering of timber planking for the sides, was held void, as the combina
tion of iron and timber in ships was already known. White v. Toms, 37 L.J.Ch. 204 (1867).
Ladies' mourning bonnet and hat falls having been previously made with ornamental folds on the outside only, so that when turned
up a wrong
side exposed, the plaintiff patented an improved mode of
making both sides alike. Held not the subject of a
The prior use of wool for making up ladies' headdresses and upholstery was known before. The plaintiff took out a patent for the use of animal fibre and Russian wool for the manufacture of artificial hair for ladies' head-dresses and frizettes. Held not a subject for a patent.
Novelty is an essential to every manner of invention, otherwise the patent will fail, the Statute of 21 Jac. I. c. 3, s. 6, enacting that it must be “a new manufacture within the realm.”
1. A prior public user; or 2, a prior publication in a specification, book, or journal, of an invention before patent granted, will invalidate a patent for such invention.
In Plimpton v. Malcolmson, L.R. 3 Ch.D. 557 (1876), Jessel, M.R., gives the reasons for this, saying: “The invention must not have been made known in such a way as to become part of the common knowledge, or of the public
stock of information. .. When you say a thing is known Common know. to the public and part of the common knowledge . ledge, what.
what is meant is, that if it is a manufacture connected with a particular trade, the people in the trade shall know something about it; if it is a thing connected with a chemical invention, people conversant with chemistry shall know something of it. You need not show that the bulk, or even a large number of those people knew it. If a sufficient number knew it, or if the communication is such that a sufficient number may be presumed or assumed to know it,
, that will do. .... You may show the thing was known because it was used and brought into practice. But you may show they knew it in another way—that it was published or made known to the public-I use the word published in that sense. How made known to the public? It has been held that, if it is a specification—certainly a modern specification—which had been enrolled in the Patent Office, and not published besides, that will do. And it has also been held that, as a common rule, if the description has been printed in England, and published in England, in a book which circulates in England, that will do.”
And in Stead v. Williams, 2 Web. P.R. 142 (1843), it is laid down: “ The question is whether there has been such