562 



NA TURE 



[April 14, 1898 



which is fully two-lhirds the size of the normal one, springs from 

 the inner side of the base of the inner movable finger, and is 

 sharply toothed on both sides, and directly opposable to the 

 outer finger. The normal digit is fully developed and curves out- 

 wards from the supernumerary one at a wide angle, the distance 

 between them being fully three-quarters of an inch at the points. 

 They move together, and permit an opening of about half an inch 

 between the supernumerary and the normal outer digit, so that 

 little or no inconvenience would be caused to the animal during 

 life. This specimen was caught by fishermen in the neighbour- 

 hood of Cumbrae, and was given to a Millport gentleman, Mr. 

 Liddle, who kindly handed it over to the Museum. 



Alexander Gray. 

 Millport Marine Biological Station, March 6. 



SCIENTIFIC EXPERTS AND PATENT CASES. 



WE have often had occasion to point out the many 

 disadvantages which are connected with the 

 present system of obtaining and using scientific evidence 

 m courts of law. The disadvantage which chiefly con- 

 cerns us is that science and men of science are at times 

 thereby drawn into and through mud of a most objection- 

 able quality ; but there are many others. 



We are glad to see that the matter has again been 

 brought to the front, and this time by the Lord Chan- 

 cellor himself, and that alterations in the present mode 

 of procedure are being discussed. 



We content ourselves this week by reproducing the 

 -following leading article in Wednesday's Times : — 



In the recent sittings of the Law Courts nothing has been 

 more remarkable than the large number of patent actions. 

 Certain inventions have been veritable gold mines to patent 

 lawyers, agents and experts. The bicycle is scarcely more 

 familiar in the streets and highways than in the Courts. We 

 could name patentees who are never out of litigation to protect 

 their menaced rights ; certain lamps, gas burners, and explo- 

 sives are always "going to the Lords." A very substantial 

 part of judicial lime is taken up in examining the rival claims 

 of inventors, and they are likely to ask for more. The history 

 of science is constantly illustrating the fact that the same ideas 

 are in many minds at the same time, that often it is an accident 

 whether A or B first propounds his suggestions, and that the 

 priority of one over the other may be a matter of a few months 

 or even days. That is a partial explanation 'of the multi- 

 titude of disputes as to bicycle tires, bicycle saddles, metal 

 rims, chains, and gear of all sorts. A further ex- 

 planation is to be found in the profits derivable from 

 patents as to articles used by hundreds of thousands. 

 Sometimes the Courts are called upon to decide between 

 two independent inventors. Just as often the fight is between 

 one who has an honest claim and another who wishes to levy 

 blackmail or to be bought out. The mode of determining such 

 actions is far from satisfactory. The Lord Chancellor, in a case 

 in the House of Lords which we reported the other day, gave 

 expression to a widespread opinion on this point. The case 

 turned on five or six lines in a specification relating to the tires 

 of bicycles ; but it occupied inordinate time both in the Court 

 below and in the Court of Appeal. " Having regard to the ex- 

 -travagant and extraordinary consumption of time which was in- 

 volved in the determination of this case," said the Lord Chan- 

 cellor, " witnesses of great eminence being called upon both 

 sides and evidence given which amounts in the book which I 

 hold in my hand to 500 printed quarto pages, it is no wonder 

 that, if a case so simple in its character is so protracted, there 

 is what is called a ' l)lock' in the Courts of law." So serious is 

 the state of things that the Lord Chancellor intimated that it 

 might be necessary to hand over to a special tribunal the trial of 

 cases for which the ordinary procedure seemed inapt. A well- 

 informed correspondent, Mr. W. L. Wise, in a letter which we 

 publish to-day, expresses much the same opinion in even stronger 

 terms. "The present state of things virtually amounts to a 

 denial of justice to all but those having the command of large 

 sums of money." This is an old complaint. Years ago the late 

 Master of the Rolls said, "There is something catching in 

 patent cases, which is that it makes everybody argue and ask 

 questions to an interminable extent. A patent case, with no 

 more difficult question to try than any other case, instead of 



lasting six hours, is invariably made to last six days, if not 

 twelve. I am sure there ought to be some remedy for it." In 

 Ehrlich i). Ihlee " the Court of Appeal took occasion to com- 

 plain of the " frightful mischief" caused by the prolixity of the 

 proceedings in patent actions. Mr. Wise suggests a remedy. 

 He points out that the Comptroller-General of Patents or his 

 deputy determines questions not unlike the questions of infringe- 

 ment which come before the Courts ; and he trusts that, if the 

 staff of the Patent Office were strengthened, a tribunal more 

 economical, expeditious, and not less fit than the present would 

 be found. An appeal lies to the law officers ; 'and it is a 

 recommendation to the suggested system, in the eyes of our cor- 

 respondent, that at all stages patent agents may appear for the 

 parties. 



We have our doubts about the efficacy or success of this re- 

 commendation, though certainly not on the ground that patent 

 agents, whom the Legislature, has very properly recognised, 

 would have a larger field than is now theirs. We should be 

 glad to see them invested with more privileges, and corres- 

 ponding responsibilities when they proved ignorant and careless. 

 But such a tribunal would not satisfy patentees, who are the 

 most pugnacibus and persevering of litigants. Beaten in one 

 Court, they will resort to another ; if they at last acquiesce in 

 the decision of the House of Lords, it is only because there is 

 no tribunal above it. Such are the uncertainties necessarily 

 attending many of the disputes, and, above all, such are the 

 rewards that come with success in patent actions, that every 

 weapon is, and always will be, used in the fight. It is not to be 

 expected that, to take two examples at random, the parties to 

 the litigation before Mr. Justice Wills in 1896 and 1897 '" " The 

 Incandescent Gas Light Company v. the De Mare Incan- 

 descent Gas Light System" and' ' The Pneumatic Tyre Company 

 V. the Ixion Pneumatic Tyre Company" would be content 

 with the decision of a few officials of the Patent Office. In the 

 great majority of the cases referred to by the Lord Chancellor 

 and by our correspondent much money is at stake ; and the 

 parties will spare no expense to gain their point. 



A more plausible suggestion is that the evidence should not 

 be left, as it now is, solely to the discretion of the parties ; that 

 the Judge should nominate some experts — if possible one in 

 whom all have confidence — to report on the invention and the 

 question of novelty, validity, or infringement ; and that he 

 should be guided by the report unless it was shown to be 

 erroneous. This would prevent the competition, so common 

 and so ruinous to poor litigants, in the production of expert 

 evidence. It is no small recommendation of this suggestion 

 that under other systems of law it is adopted and is found to 

 answer. There is, however, some force in one criticism — 

 Where, in many cases, is a truly impartial expert to be found? 

 If the question is one of great importance, a scientific witness 

 of eminence has probably in his writings or in some discussion 

 committed himself, directly or indirectly, to an opinion on one 

 or more of the points involved. To take an actual instance, 

 it would have been difficult in the recent litigation between the 

 Maxim-Nordenfelt Company and Sir William Anderson to have 

 found a chemist whose report on the properties of the 

 explosives under consideration would have been accepted as 

 prima facie valid. Good might come of a special tribunal framed 

 on the lines of the Commercial Court. But sometimes what is im- 

 peratively needed is the unbiased opinion of an intelligent 

 outsider with no theories about physics. One point of delicacy 

 is rarely touched by the critics of the existing system. It must 

 be present to them all. In some professions a traditional sense 

 of honour prevails to which all must conform, or appear to do 

 so, and which prevents open and flagrant deviations from recti- 

 tude. Among doctors, for example, there are black sheep ; but 

 they keep well out of sight. It is notorious that, even in cases 

 in which life and death are at stake, or when there happens 

 to be a temptation to .speak loosely, it is rare to find a doctor 

 giving evidence in favour of theories which his brethren 

 would scout as manifestly absurd. Could as much be said of 

 the testimony of scientific experts in patent actions? There 

 may be countries in which such witnesses never overstate the 

 case and never sell their opinion. Ours is not one of them. 

 Many scientific witnesses who ought to know better have 

 acquired a very bad habit ; they have come to regard themselves 

 as advocates — in the witness-box. It seems a poor palliation of 

 a real evil to press on scientific experts — some do not need that 

 counsel— a loftier notion of their function than befogging the 

 Judge or finding more or less plausible reasons for what they 

 know to be untenable and absurd. 



NO. 1485, VOL. 57] 



