1817.] 



THE CIVIL ENGINEER AND ARCHITECT'S JOURNAL. 



107 



tion of a Patent for Invention. Mr. Spence Ikis divided liis volume 

 into tivo parts, wliich togetlier occupy about 180 pages. The first 

 division treats of tile dt'fects of claims by wliicli a patent is invalid, ited; 

 tile secund of the conditions necessary to establish the specification 

 secure against all attacks. The first division is prefaced by an intro- 

 duction, in vv'iich Mr. Spence gives the following definition of a patent- 

 able invention : — 



" It must Lie remembered that every invention has its birth at a given 

 period iu tlie progress of manufaclures : that it takes up ceriain defects 

 and proposes a pfan for iheir remedy. This is the meaning of a patentable 

 invention. In ileliriing Ilie true scope therefore of a particular subject 

 matter of a patent, due attention must be paid to this its essential charac- 

 teristic, viz. : that it leads us a step on the road to perfection iu the branch 

 of manufactures to which it belongs. Hence the necessity for clearly dc- 

 terminuig in the specification the exact position which the invention occu- 

 pies iu the march of improvement." 



This definition appears to ns loo limited, in ismuch as it excludes 

 all inventions founded on an entirely new principle; a patentable in- 

 vention must be either something tangible, or some specified method 

 of manufacture, the object of which is to produce something useful to 

 society. 



"Public user," is generally the claim advanced against patent right: 

 on this subject Mr. Spence is particularly clear and copious. In a 

 country like Gre.it Britain, where the minds of men are constantly on 

 the stretch to perfect the various departments of manufacturing art, 

 inventions the same nearly in substance will often occur simultaneously 

 or in succession to various persons. The question how f.ir an inven- 

 tion for which a patent is sought has been previously employed is 

 consequently often extremely difficult to be settled ; experiments in- 

 stituted for the purpose of obtaining a result which another, and per- 

 haps, more lucky individual has at once arrived at, are frequently so 

 like "public user," that the jury is deceived by their resemblance. 

 Mr. Spence has extracted from the Reports one or two instances of 

 the kind, and his comments upon them are worthy the attention of all 

 patentees. Previous publication in a printed work of general circula- 

 tion is another disqualifying fact — and the second treated of in Mr. 

 Spence's work. Lastly, previous specification, on which subject we 

 extract the following observations. 



" But iu applying this principle to practical cases, it is easy to see that 

 the question mamly turns upon the legal sufficiency of the said specilicta- 

 tion : so lliat although evidence of public knowledge and public user is 

 not required (as we have seen) in principle, yet m practice it is found es- 

 sential from its bearing upon the question of sufficiency ; for if the descrip- 

 tion of an iiiveutiun contained in an iurolled specification be uniutelligible 

 or impracticable, there is no disclosure of a perfected iuveution. Now 

 public ignorance and non-user are some evidence of this ; inasmuch as 

 they give rise to the supposition that the specified plan did not answer its 

 purpose, and for tiiat reason did not come into use, nor become publicly 

 known. Hence it usually occurs that when a patent is alleged to have 

 been anticipated by a former specification, the patentee rests his case upon 

 his evidence of public ignorance and non-user, unless he is quite satisfied 

 that there is no material correspondence between the two inventions, the 

 latter consideration iu such case aflording ample grounds of defence against 

 such attack. It is a source of increasing difficulty to the patentee that 

 specifications are constantly being inrolled which may not attract public 

 attention ; there are also many in years past which are not known to the 

 public in any practical sense, and are probably by no means easy of refe- 

 rence, owing to the vagueness and nnsuiiableuess of their patents' titles : 

 and yet these specifications when discovered are to be assumed as pub- 

 lishing to the world whatever they contain. According the legislature, 

 sensible of the discrepancy between the principle of law that the inrolled 

 specification renders public whatever it contains, and the actual fact, sen- 

 sible also of the occasional hardship to which such discrepancy exposes 

 the patentee, has devised measures tor his relief, with the view, it would 

 appear, of maintaining the said principle in its general applicability, but 

 preventing it from pressing with undue weight iu individual cases. The 

 measures for relief specially alluded to are those contained in the act 5 and 

 6 Will. iV. c. »3." 



In the next division, we find good faith insisted on, as the first and 

 most necessary qualities of the specification. As, by the nature of a 

 patent, tlie public are restricted from benefitting themselves by an 

 invention, without duly re^'ompensing the inventor, it is but just that 

 the exact extent of the invention should be clearly known, lest the 

 inventor be rewarded for more than is his due. There is another 

 reason, too, why the specification should be clear and accurate — and 

 that is, that the public may not be deceived as to the value of the 

 thing protected, and thus be deluded into combining with the patentee 

 to carry out an useless project. The next point to be observed is the 

 order of the specification ; — on this subject, as a rem irkable instance 

 of Uie perspicuity of our author, we shall quote, from p. 7S, the fol- 

 lowing passage : — 



" But we come now to that part of the specification which in u sense may 



be said to be the most important of all : the part referred lo is the claim. 

 It is here that the essence, principle or spirit of the invention is stated in 

 the most distinct terms. The whole of the furegoiiig matter is here suruiued 

 up and resolved into its one idea. All the previous description of circum- 

 stance comes now lo be seen only as afiorcliiig a clue to the right inter- 

 pretation of this final definition of the essential character of the invention. 

 The claim rightly understood is in fact tlie specification: but then in order 

 that it may be rightly understood reference must be had to the antecedent 

 matter: and it may indeed be said that the intelligibility of the wlnde spe- 

 cification greatly depends upon the particular interpretation of the claim 

 which is suggested by such reference. It would be comparatively easy to 

 discover what construction to put upon the claim provided all the former 

 portions of the specification plainly referred to the main idea contemplated 

 by the invention, but such construction becomes a tlifficult matter when in- 

 consistencies are found to exist on a comparison of some statements with 

 others. So far as ditficnlties of this kind can be overcome, they are some- 

 times obviated by stating the claim first in a negative form It is well to 

 calculate upon every objection being raised to the specification that human 

 ingeuuiiy can devise: and accordingly it maybe foreseen that the true, 

 distinct nature of tlie invention is left open to misconstruction by a mere 

 statement of what it is, since it may appear to be not only that, but some- 

 thing more also, (probably of a prejudicial character) unless guarded from 

 such construction by a suitable negation. This course is particularly ad- 

 visable when the patent is for a new combination of materials or processes, 

 which in their separate form are old or not open to be claimed. Crane's 

 patent is a case in point. It is described as consisting in ' the application 

 of anthracite or stone-coal, combined with a hot-air blast in the smelting 

 or manufacture of iron from iron-stone, mine or ore.' Now the patentee in 

 this case, feeling that the ground to be occupied by his invention is narrow, 

 proceeds in his specification very carefully to lay such a foundation as vvi'l 

 lead to a right apprehension of his real subject-matter. He shows, that is, 

 the importance in a commercial point of view of using the stone-coal in the 

 manufacture of iron : and thence infers that the abandonment of the article 

 after use (which he cites as a known fact) was owing to some imperfectiou 

 in the means employed to adapt it to the purpose. He accordingly gives 

 instructions as to a practical mode of applying it to this use, the essential 

 feature in which is the adaptation thereto, and combination therewith, of 

 the hot-air blast. And after describing the mode by which he had sctnally 

 accomplished his purpose, he says : — ' I would have it understood that I 

 do not claim the using of a hot air blast separately in the smelting and 

 manufacture of iron, as of my invention, when uncombiued with the appli- 

 cation of anthracite, or stone-coal and culm : nor do I claim the applica- 

 tion of anthracite or stone coal in the manufacture or smelling of iron, when 

 unconibined with the using of hot-air blast. But what I do claim as my 

 invention is the application of anthracite or stone-coal and culm, combined 

 with the using of hot-air blast in the smelting and manufacture of iron from 

 iron-stone, mine or ore, as above described.' 



" The claim being iu this form anticipites any objection that might be 

 raised on the ground of interference with the hot-air blast patent of Neil- 

 son, except that Crane muit take a license from him to use that part of the 

 combination. It also avoids the objection of including what was known 

 to be old in the manufacture of iron, so far as a series of (it would appear 

 unsuccessful) efforts to make stone-coal available for the purpose coufd 

 render it so. But it likewise sets at rest all uncertainty as to the real 

 subject-matter of the patent by the positive form in which the claim is 

 slated. So that the whole effect of the claim may be stated as follows: — 

 ' Although the patent is not for the use of hotair by itself (that is Neil- 

 sou's) nor for the application of anthracite or stone-coal without the use of 

 hot-air blast (that has been tried and has failed), yet it is for the applica- 

 tion of anthracite or stone-coal combined with the use of hot-air blast for 

 the manufacture of iron.' .\iid the only question that arises on the claim 

 so stated is whether the subject-matter of a patent can stand upon such 

 narrow ground. To this question the Court of Common Pleas answered 

 in the affirmative — such opinion, iu this case, resting upon the fact that the 

 balance of evidence at the trial showed a substantive effect to have resulted 

 from the combination, viz., an improved quality of iron at a diminished cost 

 of production. It would seem that before tlie date of this patent the ap- 

 plication of anthracite o.i stone-coal to the manufacture of irou was felt to 

 a desideratum, but one which was not attained : the patentee, however, 

 succeeded in produciug better irou ai a cheaper rale by the use of tliis arti- 

 cle. To what cause then is his success atiributable? The essential dif- 

 ference between his mode of operation and that practised by his predeces- 

 sors was, that whereas they used stone-coal uncombiued with a hot-air 

 blast, he used it iu combination therewith, and this being the only essential 

 distinction between the two modes, to such is ascribed the diBerence of 

 result." 



The next two chapters, on the language and description of the 

 specification, have reference to subjects of scarcely less importance 

 than that on the order of the specification. We shall conclude our 

 notice of the work by quoting from the final and recapitulatory chap- 

 ter, the following admirable piece of advice, which all patentees 

 would do well to consider: — 



" The argument of the section of good faith is as follows : the general 

 form and constitution of society, with its laws and orders, have come down 

 to us through past aaes wilh the authority of divine sanction ; it is there- 

 fore the duty (as well as interest) of all who enjoy the protection of the 

 law to uphold its integrity by honest coaipliauce with its tuactraems iuthe 



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