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therefore, that the invention claimed is for the use of a particular metallic substance, viz. carburet of manganese in certain definite proportions, according to the weight of the steel under fusion, and that no such substance, nor any equivalent for it, known to be such at the date of the specification, was used by the defendant, I think that there was no evidence of infringement' (5 H. L. C. 505, 543).

On the trial of Muntz v. Foster (2 W. P. C. 96), an action brought for the infringement of a patent for an improved manufacture of metal plates for sheathing the bottoms of ships, it appeared that the patentee claimed the invention of an alloy of 60 per cent. of copper and 40 per cent. of zinc-the copper and zinc being of the best quality-which alloy could be rolled at a red heat into sheets that furnished a sheathing for ships which was more durable, under the corrosive action of salt water, than copper sheathing; whilst it oxidated sufficiently to keep the ship's bottom clean from barnacles and other things that impeded the ship's progress. A patent had been obtained in 1800, by one Collins, for a preparation of sundry materials, to be used chiefly for the preservation of shipping or for marine purposes, the specification of which described, amongst other things, a mixture of 100 parts copper and 80 parts zinc-i.e. 55 per cent. of copper and 44 per cent. of zinc-which was to be extended into proper form by rolling. The two inventions, on their faces, seemed to be substantially the same, but the following arguments were used to prove a difference. Collins stated that other metallic substances might be added to the alloy of copper and zinc; whereas Muntz alleged that foreign ingredients would destroy the value of his composition. Collins stated that a good composition might be made of 55 per cent. of copper and 44 per cent. of zine; whereas Muntz alleged that 60 per cent.

of copper and 40 per cent. of zinc were the precise proportions required to produce the best metal for sheathing, and that a variation of one or two parts of copper or zinc, on one side or the other, made a very material difference in the result. Again, it was alleged on the part of Muntz, that, at the time of Collins' invention, neither copper nor zinc existed of the purity required for the successful production of an alloy as suitable as Muntz's for ship-sheathing; and that before his invention it was not possible to obtain a metal which would roll hot or cold, and could at the same time serve for sheathing. The defendants alleged, that the sheathing made by them was the result of following the directions of Collins' specification. (As to this part of the case, however, Lord Lyndhurst, on the hearing of an appeal from an order of Knight Bruce, V. C., said he was satisfied that the object could not be accomplished by uniting ordinary copper and zine according to Collins' process. The defendants. must, therefore, have originally used, not the ordinary, but the purest quality of the two metals, or they must have purified them in the course of the process by some mode not suggested in Collins' specification. In one case the invasion of Muntz's invention was plain and direct; in the cther it was colourable and indirect.) Furthermore, witnesses stated that no person could make the compound material by following Collins' directions. The jury found a verdict for the plaintiff, the judge having taken a favourable view of Muntz's case in his address to the jury.

A man may invent improvements on a patented chemical process, by which improvements he may produce a better result in a simpler manner at less cost and with less waste, but if these are effected by equivalent operations known to be equivalent at the date of the patent, he will be deemed an infringer if he puts them.

in practice. Thus in the case of the Badische Anilin und Soda Fabrik v. Levinstein (Ch. D. June 27, 1883), an action brought for the infringement of a chemical patent, Mr. Justice Pearson said: The processes employed by the defendant are processes deserving of great praise, but they are simply processes which produce exactly the same results from the same materials which are produced under the patent. The same object is pursued, the same materials are employed, the same result is obtained. I cannot do otherwise than come to the conclusion that these processes are not an invention differing from the patented one.'

In those cases where the invention consists of the employment of a material composed of several ingredients, and the inventor has stated the most suitable proportions known to him, another person will not be allowed to evade the patent by employing somewhat different proportions. (Patent Type Founding Company v. Richard, Johns. 381.)

INFRINGEMENT BY DEALING IN ARTICLES MADE BY INFRINGING

A PATENT.

The sale by a dealer of articles made in infringement of a patent is itself an infringement, and it is not necessary for the patentee to prove that the dealer was aware of the articles having been surreptitiously made by a patented process (Wright v. Hitchcock, 5 Ex. 37; Davenport v. Rylands, L. R. 1 Eq. 303). And this is so whether such articles have been made in this country or have been imported from abroad (Walton v. Lavater, 8 C. B. N. s. 162; Elmslie v. Boursier, L. R. 9 Eq. 217; Von Heyden v. Neustadt, L. R. 14 Ch. D. 230; Burnett v. Tate, Q.B., April 27, 1883; La Société Anonyme des Manufactures de Glaces v. Tilghman's Patent Sand Blast Co., L. R. 25 Ch. D. 1). This will be so even

where the persons importing the patented articles are the licensees under a foreign patent obtained by the same inventor for the same invention as that secured by the British patent (see the two last cited cases). The circumstances, however, may be such that the patentee is bound to prove not only the sale, but that the article was not made and sold by himself or his agents (Betts v. Willmott, L. R. 6 Ch. 239; and see observation of Cotton, L. J., on this case in Société Anonyme, &c. v. Tilghman, &c. Company, L. R. 25, Ch. D. 1). In this case, a patentee having manufactories both in England and on the Continent, filed a bill against a druggist to restrain him from infringing his patent for metallic capsules, the infringement consisting of the sale of a bottle of French toilet vinegar having a capsule attached similar to those manufactured under the patent, but the bill was dismissed (and on appeal Lord Hatherley, C., upheld the Vice-Chancellor's decision) on the ground that the plaintiff had not shown that he had not himself sold through his house in Paris the very article the use of which he sought to prohibit. A sale of the article by the patentee in one country would imply a right to use it in another.

Proof of the sale of an article shown to have been made in the same way as that for which a patent has been obtained, such sale being without the leave, expressed or implied, of the patentee, is primâ facie evidence of an infringement (Gibson v. Brand, 1 W P. C. 630). But there must be proof that the article was made according to the patented method. Thus on the trial of an action for an infringement, a candle with a plaited wick, made by the defendant and sold at his manufactory, was produced to the jury as evidence that he had infringed the patent. It was held that, as the patent was not for the candle itself, but

for the mode of manufacturing it, the mere production of a candle similar to the plaintiff's was no evidence that it had been made by his patented method. It should have been shown how the candle had been made, seeing that it was quite possible the same result had been produced by a different method (Palmer v. Wagstaff, 8 Exch. 840; 9 Exch. 494).

But in Huddart v. Grimshaw (1 W. P. C. 91) it was held that the production of pieces of rope having the essential qualities of the patented article was primâ facie evidence of infringement. And in Hall v. Boot (1 W. P. C. 186) it was held that the sale of an article, which might during manufacture have been improved according to a patented process coupled with the fact of the necessary machine being in the defendant's possession, was sufficient evidence of infringement. (See also Davenport v. Richards, 3 L. T. N. s. 504.)

The point whether a mere exposure or offering for sale of a patented article amounts to an infringement, in the absence of proof of actual sale, seems to have been decided differently in the cases of Minter v. Williams (1 W. P. C. 137) and Oxley v. Holden (5 C. B. N. s. 667). In Muntz v. Foster (2 Web. P. C. 101), Tindal, C. J., held that the making of ten tons of metal sheathing was an infringement, although no sale was proved.

In Speckhart v. Campbell (Times,' March 13, 1884) it was held by the Court of Appeal that the defendant who was domiciled in Scotland had committed an infringement in England of the plaintiff's patent by buying in London articles made in infringement of the patent, and advertising them for sale in Scotland; and by sending to a Liverpool firm, in exchange for postage stamps, samples of the article, accompanied by a letter stating the price per gross.

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