sy 
“* Infringement of Patents. 
‘*57. An action or other proceeding for infringement of a 
patent shall not after the commencement of this act be com- 
menced in any of Her Majesty’s Courts of Justice in England, 
_ *58. For the purposes of this act a person is deemed to 
‘infringe a patent if he copies altogether or in part the invention 
of a patentee with the view of effecting the same or a like 
object, and fails to establish any of the pleas allowed by this 
act in a proceeding for infringement. 
‘*59,.—(1) A patentee may complain of any infringement of 
his patent to the commissioners. 
‘*(2) The complaint shall be heard and determined by the 
commissioner (other than the legal commissioner) who is best 
acquainted with the subject-matter of the complaint, assisted 
by a legal assessor to be appointed for the purpose by the 
commissioners. 
*¢(3) An appeal shall lie from the decision of the tribunal thus 
constituted to the three commissioners, who shall hear the com- 
plaint de ove, and their decision shall be final. 
“*(4) The commissioner.or commissioners sitting to hear any 
complaint may decide all questions of law and fact, &c. 
**60. The pleas allowed by this act in a proceeding under this 
Act for infringement of a patent are— 
‘*That the particular matters alleged to be infringed do not 
-show sufficient invention to justify the grant of a patent, or are 
not new within the meaning of this act; 
““That the patentee is not the -rue inventor of the invention, 
or of so much of it as is alleged to be infringed ; 
_ ‘*That the matters complained of do not amount to infringe- 
ment ; 
‘That the claim of the patentee as respects the matters com- 
plained of is not stated with sufficient clearness ; 
‘That the specification is, as respects the matters complained 
of, incomplete or misleading ; 
‘*That the patentee, as respects any matter complained of, 
withheld that which he knew to be a better description than 
that given in the specification,” 
. . . . . . . . . 
In commenting upon the aboye extracts it may be remarked 
that one main object of this bill appears to be to raise ‘‘ experts” 
to the dignity and duties of the judicial bench. It is some- 
thing quite new in the legal history of this country to make a 
man a judge because he has been frequently examined in court 
-as a witness, and has shown considerable skill in baffling a 
hostile counsel. 
The originality of such a proposal cannot be disputed, and 
accordingly the advocates of the present bill are justified in 
stating that it ‘‘ provides for the trial of patent cases in an 
entirely new #anmer.” What that manner is will be understood 
by referring to some clauses in the bill, the provisions of which 
are admirably non-legal in th: ir phraseology. 
By Section 57, ‘‘ An action or other proceeding for infringe- 
ment of a patent shall not, after the commencement of this act, 
be commenced ” (in the only place where it can be brought, viz.) 
‘in any of Her Majesty’s courts of justice in England.” 
By Section 59, ‘‘ A patentee may complain of any infringe- 
ment of his patent to the commissioners.” 
Who then are to be the commissioners who are to stand in 
the place of the Lord Chancellor, the Master of the Rolls, and 
the law officers of the Crown, and who are to assume the 
functions of Judges of the High Court in ruthless disregard of 
the operation of the existing law ? 
By Section 8 they are to be three persons, *‘of whom one shall 
be exferienced in engineering, one shall be experienced in 
chemistry, and one shall be exferienced in the law.” That is to 
say, they shall consist of two experts and a barrister. 
To them the trial of all actions for the infringement of patents 
is to be relegated, but the proceeding is not to be called an 
action, it is to be ‘a complaint,” and pleas only are to be raised 
by the defendant. It is here that the reformers, assisted by their 
barrister, show a wonderful capacity for disintegrating the law of 
patents: 
They begin by defining the subject matter of a patent. This 
opens an opportunity for a display of strength, and they com- 
placently remark that ‘‘at present the ancient definition of the 
Statute of Monopolies is in force, but, as a matter of fact, the 
question of subject matter depends wholly on the decision of the 
courts.” 
This is true, for we have from the period of James I., and 
NATURE 
31 
especially since the invention of the steam-engine, a series of 
judgments which have enunciated with remarkable clearness and 
force the principles which should guide the courts in dealing with 
any future patent wherein it may be dcubtful whether or not the 
thing patented is the proper subject for a patent right. 
But instead of deciding any new case upon principle, our 
reformers give us a definition, or rather they give four defini- 
tions, the third of which is large enough to swallow all the rest, 
and would probably satisfy the most ardent inventor, 
Hereafter the subject of a patent shall be 
“* Any method of producing any result,” 
In spite of the protection afforded by the able Commis- 
sioners and their far-reaching staff of examiners, it may be 
doubted whether the public will feel quite safe in allowing 
monopolies to grow under the light of this definition. It may 
seem perhaps a little too general, it may include a few things 
more than the reformers have dreamed of, 
Next, as to priority of invention :— 
According to the Statute of Monopolies, patents may be 
granted for fourteen years for the ‘‘sole working or making of 
any manner of new manufacture within the realm to the true and 
jirst inventor and inventors of such manufactures which others at 
the time of making such letters patent shall not use,” &c. 
Hitherto a patentee must be the jist inventor of the invention 
for which a ;atent is granted. Hereafter this distinction is 
abolished. ‘‘ An invention is to be deemed zew which has not 
been published or publicly used in the United Kingdom within 
thirty years immediately preceding the date of the application,” 
Lord Westbury has laid down ‘‘that the prior knowledge of 
an invention to avoid a patent must be such a knowledge as will 
enable the public to perceive the very di covery and to carry the 
invention into practice.” 
But inventions are now to be swept away by neglect and 
disuse. A process of de-publication is originated, whereby after 
thirty years neglect an invention may be deemed never to have 
been published, and the books wherein it has been described 
may be regarded as non-existent. 
It has been a maxim of the law that when the public have 
once become possessed of an invention by lawful means, the 
right to use it can never be taken away from them, All this is 
done away with. 
In what manner the promoters of this bill intend to work out 
their scheme of giving new birth to old inventions can hardly be 
understood from the above definition of a new invention, but 
the clause would appear to lead to endless confusion and 
uncertainty, 
Next, as to infringement :— 
By Section 58 ‘‘a person is deemed to infringe a patent if he 
copies altogether or in part the invention of a patentee with 
a view of effecting the same or a like object, and fails to 
establish any of the pleas allowed by this act in a proceeding 
for infringement.” 
The pleas are quoted in our extract from the bill, and a 
defendant may plead :— 
“That the claim of the patentee as respects the matters com- 
plained of is not stated with sufficient clearness.” 
At present, as Lord Justice James has pointed out, there is 
nothing in the Statute of Monopolies or the patent law which 
says anything about claims. The legitimate object of a claim 
is the protection of the patentee, and a specification may be 
perfectly good without any claim at all, If there be a claim, 
the specification and claim are read together, and the claim 
must be construed with reference to the whole context of the 
specificaticn. 
According to the old practice a defendant would plead that 
the specification (whereof the claim, if there be one, forms a 
part) is insufficient. 
According to the propcsed bill the plea is to take the form :— 
That the c/aznz is not stated with szjfficient clearness, A plea to 
the sufficiency of clearness is :omewhat embarrassing to a lawyer, 
Has it any meaning? and if so, what does it mean? The clear- 
ness which satisfied the patentee when he applied for his patent 
may not be sufficient to satisfy the commissioners when they 
are sitting in judgment. There may be some amount of clear- 
ness, but not enough. In the end, a patent may be wrecked on 
a mere verbal criticism, the very thing which the courts of law 
now set their faces against. 
The infringement of a patent ody takes place when a man 
copies the invention forming the subject-matter thereof. To 
limit an act of infringement in this way is absurd, and would 
