319 



PATENT. 



PATENT. 



830 



Islands, and the Isle of Man, and (if the warrant so direct) within the 

 colonies, for the full term of fourteen years, is completed. A patent 

 right may, however, at the option of the patentee, be limited to a pre- 

 liminary period of three, and successive periods of four and seven years, 

 in which case the amount of the fees is also distributed. The letters- 

 patent always contain a proviso to the effect that, if the " complete 

 specification " already filed does not particularly describe the nature of 

 the invention and the mode of applying it, or, supposing no such 

 specification to_ have been yet filed, then, if the applicant does not 

 within a limited' period file such a specification in the Court of Chancery, 

 the grant in the letters-patent contained shall be void. The object of 

 the specification thus required, is to put the public in full possession of 

 the inventor's secret, so that any person may be in a condition to avail 

 himself of it, when the period of exclusive privilege has expired. To 

 prevent this object from being defeated by an evasive or careless 

 description, the proviso is construed with great strictness by the courts 

 of law ; and it is held to be infringed, and the letters-patent to be 

 consequently void, whenever the specification is in any part of it 

 materially false or defective. The principal rules on this subject are 

 as follows : In describing the nature of the invention, the specification 

 must, in the first place, correspond with the title of the patent, for 

 its office is to set forth with more particularity the subject already 

 indicated in the patent itself; and if one thing be claimed by the 

 patent, and another by the specification, the grant is void. It is 

 also an objection to the specification, if it should cover too much ; that 

 is, include in its claim of new invention anything which in fact has 

 been already known and practised ; and therefore if the entire article 

 for which the patent has been taken out comprises some known process 

 in connection with others that are new, the claim should be made in 

 such form as to apply to the latter only, and to disclaim the former ; or 

 if the combination of several known things happen to be the only 

 novelty, it is to the combination only that the claim should be pointed. 

 As to the description of the manner of performance or production, 

 the general rule is, that it should be such as to enable workmen or 

 other qualified persons of ordinary skill to make the patent article at 

 the expiration of the term, by simply following the directions given, 

 without resorting to contrivances of their own. In addition to which 

 we may remark, that no circumstance can be safely passed over in this 

 description which is advantageous, whether absolutely essential or not, 

 in the conduct of the process ; and that if several methods are stated, 

 the specification will be defective if either of them be found to fail in 

 effecting the promised result. 



The following are a few instances of patents being lost through 

 defective titles : 



In the case of King v. Metcalfe (2 Starkie, N.P.C., 249), the subject 

 of the patent was a hair-brush, in which the hairs were of unequal 

 length : in t!ie title it was described as a " tapering brush," which was 

 considered as intended to mislead the public, as not being a description 

 of the subject of the patent, and it was annulled accordingly. In 

 Cochrane r. Smethurst (K. B., 1 Starkie, 205), the patent was for a 

 certain lamp, but the title called it an " Improved Method of Lighting 

 Cities, Towns, and Villages." The patent in this case was held to be 

 void, as the specification only described a new lamp, and not an 

 " improved method of lighting " at all ; and it was also objected, that 

 as it was equally applicable to lighthouses, harbours, shipping, 4c., the 

 title was otherwise imperfect. If the title had been for an " Improved 

 Lamp " or an " Improvement on Lamps," the patent would have been 

 valid. In the case of Ring r. Wheeler, the patent set forth in its title 

 a " New and Improved Mode of Drying and Preparing Malt," whereas 

 the specification described a method of re-burning malt which had 

 already been made, so as to produce a colouring matter for beer and 

 other liquors. Now it is evident that if any one had intended to take 

 out a patent for producing colouring matter, he would never have 

 collected from this title that the patent was likely to interfere with his 

 invention. In the case of Bloxam r. Elsee (6 Barn. & Cress., 169 and 

 178), the title of a patent which came in question was " A Machine 

 for making Paper in Single Sheets, without Seam or Joining, from 1 to 

 12 feet and upwards in width, and from 1 to 45 feet and upwards in 

 length." The specification, however, described a machine only capable 

 of producing paper of one width or to a certain width. Now if an 

 inventor who thought of taking a patent for a machine to make paper 

 of a greater width than 12 feet had looked at the title only of this 

 patent, he would have supposed that such a patent already existed ; 

 but if he had inspected the specification, he would have found that it 

 did not bear out the title, as the machine therein described was not 

 capable of making paper of a width greater than 12 feet. The patent 

 then was invalid, as the title comprised more than the specification. 

 This is the most common error that patentees fall into. Jessop's case, 

 cited during the trial of Boulton and Watt against Bull, in 1795, by 

 Mr. Justice Buller, is another instance. A patent was taken out for a 

 " New Watch," whereas the specification only described a particular 

 movement in a watch, which was the real invention, and the patent 

 was therefore void. 



Patentees sometimes render their patents invalid by claiming too 

 much; thus, after describing one substance or process which will 

 answer a certain purpose, they often conclude by some such expression 

 as, " or any other fit and proper means." The following is an instance 

 in which a patent was set aside by such an expression. In specifying 



a machine for drying paper by passing it against heated rollers by 

 means of an endless fabric, the inventor, after describing one sort of 

 fabric, the only one in fact which he used, went on to say that any 

 other fit and proper material might be used. Now if he used any 

 other means of effecting his object, such means should have been 

 distinctly described. This alone rendered his specification incomplete ; 

 but, besides this, it was proved that no other fabric would answer the 

 purpose, or rather that no other was known, and the patent was 

 annulled accordingly. 



The patentee may describe his invention just as he pleases, and he 

 may illustrate such description by drawings or not ; but he should be 

 careful to use words in their most common acceptation, or if some 

 technical use should have perverted their meaning, he should make it 

 appear distinctly that he intends them to be taken in such perverted 

 sense. 



An honest and valid title may be stated in a few words to be 

 a description of the precise object of the invention in the most simple 

 language. 



A patent right is assignable ; and the assignment of it must be in 

 writing, under hand and seal. It is of course personal property, and as 

 such passes by will. The patentee may, without alienation of his 

 entire interest, grant deeds of licence to other persons to manufacture 

 the article. 



In favour of patentees who have not reaped the full benefit of their 

 inventions, the legislature has frequently interfered, by passing private 

 Acts of Parliament to secure them the continuance of their privileges 

 for a further term of years, in addition to that first limited by the 

 letters-patent. But a less costly mode of relief is now provided ; and 

 where the invention is meritorious, and the parties interested have 

 done all in their power to bring it out and to turn it to advantage, 

 but owing to circumstances beyond their control they have been unable 

 to obtain an adequate remuneration, they may now apply by petition 

 to Her Majesty in council for a prolongation of the existing term ; and 

 if, upon consideration of the whole matter, and after hearing any 

 party who may choose to enter a " caveat," the judicial committee of 

 the privy council shall report in favour of the application, Her Majesty 

 is empowered to grant to such patentee (or to his assigns, or to both 

 conjointly, as the case may be) new letters-patent, for any term not 

 exceeding fourteen years after the expiration of the first. 



If a patent right be infringed the inventor has his remedy, by action, 

 to recover damages for the injury sustained ; and may in such action, 

 by application to the superior court in which it is brought, obtain an 

 order for restraining the wrong-doer from the further use of the inven- 

 tion, and compelling him to account for the profits which he may have 

 already derived from a sale of the article ; an order which may also be in 

 some cases obtained without resorting to an action, by application to the 

 Court of Chancery. Penalties, moreover, are imposed upon persons who 

 without licence use the name, stamp, or mark of a patentee. An action 

 or suit for infringement of patent may be successfully resisted, either on 

 the ground that no infringement has in fact taken place, or that the 

 patent is void; and such invalidity may be established either by 

 showing that the article was not a fit subject for a patent, or that the 

 patentee was not the first inventor, or that the specification was 

 insufficient. Nor is this the only method of defeating claims founded 

 on an illegal grant of patent right ; for whether there be any complaint 

 of infringement or not, it is competent to the Queen (or to any subject 

 of the realm in the Queen's name, by leave of the attorney-general) 

 to institute a proceeding called srire facias, for the formal impeachment 

 of the patent ; upon which, if the patent be found open to any of the 

 objections above enumerated, or to any other sufficient legal exception, 

 it will be cancelled. 



For the protection of patentees, .several other provisions, of great 

 importance have been enacted. First, in the case where, after a patent 

 has been granted to a person believing himself to be the first inventor, 

 it is discovered that some other person had in fact preceded him in the 

 use of the invention, though the article was, at the time of the grant, 

 not generally known to the public, the patentee or his assigns may 

 petition Her Majesty in council for a new grant, or a confirmation of 

 the existing one ; and if the judicial committee of the privy council, 

 upon investigation of the case, report in his favour, such petition may 

 be granted. Again, if any error be discovered in the title or specifica- 

 tion, the patentee or his assigns may rectify it for the future by filing 

 in the proper office in chancery a diiclaimer of any part of the title 

 or specification, or a memorandum of any alteration therein that does 

 not operate as an extension of the patent right. 



The statutes relating to patents are the Statute of Monopolies above 

 mentioned ; and of more recent date, the 5 & 6 Will. IV., c. 83 ; 2 & 3 

 Viet., c. 67 ; 7 & 8 Viet., c. 69 ; 15 & 16 Viet., c. 83 (which introduced 

 very great and very beneficial alterations hi the proceedings relating to 

 patents, and is styled " The Patent Law Amendment Act, 1852") ; the 

 16 & 17 Viet, cc. 5 and 115; and lastly, the 22 Viet. c. 13, which 

 provides for keeping secret in certain cases the particulars of inventions 

 of instruments and munitions of war. 



The fees payable upon the grant of a patent for the full term of 

 fourteen years are about 1 75/. 



See, upon the law of patents, Stephen's ' Commentaries,' vol. ii. p. 25 

 et teq., where the statutory and case law is completely and succinctly 

 collected. 



