Oct.  i,  1892,] 
THE  TROPICAL  AGRICULTURIST. 
265 
THE  TEA  HOLLER  PATEJNT  CASE. 
JACKSON  V.  BROWN  AND  THE 
COLOMBO  COMMERCIAL  COMPANY. 
The]  case  of  Jackson  v.  Brown  and  the  Colombo 
Commercial  Company,  in  which  the  plaintiff  alleges 
that  defendants  have  embodied  in  their  Triple  Action 
Tea  Roller  certain  machinery  which  he  had  patented 
in  regard  to  his  Excelsior  Tea  Roller,  came  on  in 
appeal  before  the  Chief  Justice  and  Mr.  Justice 
Lawrie  in  the  Supreme  Court  on  the  8th  September. 
Messrs.  Advocates  Wendt  and  Sampayo  appearing 
for  the  plaintiff,  and  Messrs.  Dodwell  Browne, 
Dornhorst,  and  Hermann  Loos  for  the  defence. 
Opening  Speech  op  Counsel. 
Rising  at  11-30,  directly  after  the  Judges  had  taken 
their  seats,  Mr.  Wendt  said  that  he  might  state 
in  opening  that  both  sides  had  agreed  to  ac- 
cept a print  of  Mr.  J.  Kirby  Maynard’s  shorthand 
notes  of  the  proceedings  in  the  Court  below,  and  he 
desired  to  hand  this  print  in,  as  it  would  be  more 
handy  for  their  lordships  than  MSS. 
The  Chief  Justice  consented,  so  long  as  both 
parties  agreed. 
Adverting  to  the  libel  in  the  case,  Mr.  Wendt 
then  said  that  the  Court  would  observe  that  two 
defendants  were  sued,  one  being  Mr.  Brown  who 
took  out  the  specification  of  the  Triple  Action  Roller 
in  Ceylon ; the  other  being  the  Colombo  Commercial 
Company,  who  were  sued  as  they  were  alleged  to 
have  done  certain  acts  separately  tor  which  the 
plaintiff  had  a right  to  put  in  a claim.  The  allega- 
tion against  the  first  defendant  was  that  he  imported 
into  and  sold  in  Ceylon  the  alleged  infringements ; 
while  in  regard  to  the  Company  the  case  was  for 
importing,  using  and  s iling.  To  this  action  three 
Hues  of  defence  were  given  ; the  first  being  a con- 
tention that  the  procedure  should  not  have  been  by 
action  but  by  an  application  under  the  Patents  Or- 
dinance ; secondly  that  there  had  been  no  infringe- 
ment ; while,  thirdly,  there  were  denials  of  the  use- 
fulness, utility  and  novelty  of  that  whioh  plaintiff 
claimed  as  his  invention. 
The  Chief  Justice  The  objection  to  tli6  procedure 
must  be  a legal  objec'im,  by  demurrer. 
Mr.  Wendt  said  it  was  put  in  as  a matter  of 
law  based  on  new  averments  of  fact.  The  defendants 
objected  that  the  plaint  disclosed  no  cause  of  action 
— their  reasons  were  set  out— and  as  further  matter 
of  law  on  which  they  relied  for  their  defence  the 
defendants  went  on  to  say  that  on  the  24th  October 
1888  (the  Court  would  remember  that  the  date  of 
plaintiff’s  patent  was  1881)  His  Excellency  the  Go- 
vernor, with  the  advice  and  consent,  &o.  granted  to 
the  first  defendant  a patent  for  an  invention  for 
improvements  in  machinery  for  rolling  tea  leaf;  &o. 
Such  invention  had  always  been  known  as  Brown’s 
Triple  Action  Tea  Roller  and  possessed  utility,  so  it 
was  claimed,  far  superior  to  that  designed  by  the  plain- 
tiff. Certain  issues  had  also  been  agreed  upon,  as  would 
be  seen  in  the  record.  After  the  opening  of  the 
plaintiff’s  case  the  plaintiff  himself  with  his  witnesses 
were  called,  and,  on  behalf  of  the  defendants 
three  or  four  witnesses  were  called,  and  on  this 
the  learned  Judge  had  pronounced  the  judgment 
he  intended  to  lay  before  the  Court  that  day. 
Of  course,  the  most  material  thing  in  regard  to  the 
first  issue  raised  was  the  specification  of  the  plaintiff’s 
invention,  and  to  this  he  desired  first  to  direct  the 
attention  of  their  lordships,  He  also  wished  to 
refer  them  to  the  models  produced  in  Court, 
which  were  those  introduced  in  the  case  in  the 
lower  Court. 
Tne  Chief  Justice:— Are  they  worked  by  steam? 
Mr.  Wendt:  -No;  bv  band,  and  fortuuately  I am 
strong  enough  to  work  them  here.  The  one  marked  as 
the  Exoelsior  was  a model  of  the  machine  pateuted  by 
the  plaintiff  which  had  been  put  iu  and  agreed  to 
as  embodying  the  invention  patented. 
Messrs.  Browne  and  Dornhoest: — No,  no. 
Mr.  Wendt:— Well,  the  plaintiff  said  that  was  a 
model  and  it  bad  certainly  been  put  in  as  evidence 
Now,  a great  deal  of  time  was  spent  in  the  lower 
34 
Court  in  determining  what  was  the  “ oaae”  or 
“ jacket  ” so  ofti  n referred  to  in  plaintiff’s  speci- 
fication ; the  defendants  submitting  that  it  was  one 
inude  porti  n of  the  machine  which  plaintiff  only 
oilled  the  “lining”  of  the  jacket,  Mr.  Jackson  claim- 
ing that  the  whole  upper  structure  of  the  Roller  was 
the  “ case  ” cr  “ jacket.”  On  the  question  of  novelty; 
on  the  question  of  utility  ; in  fact  on  every  single 
question  but  the  question  of  infringement  the  Distriot 
Judge  had  found  for  the  appelant;  in  fact,  in 
one  part  of  his  judgment  his  reasons  would 
have  been  expected  to  be  followed  by  a pronounce- 
ment tbat  the  defendants  bad  infringed  the  plain- 
tiff’s patent.  However,  it  concluded  by  saying  quite 
the  contrary ; and  the  Distriot  Judge,  therefore, 
found  for  the  plait  tiff  on  every  point  but  this 
question  of  infringement,  and  here  he  found  that  the 
defendant’s  machine  was  not  an  infringement  of 
the  plaintiffs.  Now,  alth.  u.:h  this  was  so,  he  would 
briefly  n-fer  their  lordships  to  another  machine 
which  was  introduce,!  in  the  evidence  led  in  the 
Court  btlow  and  which  had  a very  material  bearing 
on  the  question  of  these  two  competing  machines 
now  before  the  Court.  This  was  the  machine  known 
as  the  Standard  Roller,  and  it  was  a machine  whioh 
was  patented  in  India  and  introduced  and  worked  in 
Ceylon  but  not  pateuted  here.  It  was,  therefore, 
open  to  anybody  to  a certain  extent  to  adopt 
the  principles  embodied  in  it;  not  being  patented  in 
Ceylon,  no  infringement  of  it  could  be  proseouted 
in  Ceylon;  but  what  the  plaintiff  contended  in  this 
present  action  was  that  tie  defendants  in  their  Triple 
Action  Roller  appropriated  a great  improvement  which 
plaintiff  made  in  his  Exoelsior  machine  over  his 
old  and  antiquated  Standard.  Finding  the  Standard 
was  defective  in  many  important  particulars  plaintiff 
improved  it  and  he  patented  the  improvement,  and 
this  was  the  patent  he  now  alleged  defendants  had 
infringed.  He  now  claimed  that  the  defendants 
could  not  adopt  that  improvement  without  con- 
fessing their  obligation  to  his  machine  and  making 
arrangements  for  obtaining  his  license  ; while  if  they 
embodied  the  improvement  without  his  license  they 
were  liable  for  infringement.  He  would  ask 
their  lordships  for  a brief  moment  to  look  at  the 
Standard  machine  and  observe  how  much  more  cum- 
brous it  looked  than  the  Exoelsior.  By  the  side  of 
it  the  Excelsior  looked  a model  of  simplicity.  Now, 
t.  c distinctive  principles  alleged  to  have  been  in- 
fringed iu  the  case  of  the  Excelsior  machine  did  not 
appear  in  the  Standard,  tbat  was  to  say,  there  was  no 
motion  communicated  to  the  upper  rolling  surface 
through  the  case  or  jacket  surrounding  it,  and  the 
improvement  effected  by  the  Excelsior  was  to  detaoh 
the  driving  mechanism  from  the  upper  rolling  surface 
and  attach  it  to  the  jacket  which  enclosed  the  upper 
rolling  surface  whereby  the  upper  rolling  surface  was 
left  free  to  move  up  aud  down  so  as  to  accommodate 
the  capacity  of  the  rolling  chamber,  so  to  speak,  to 
the  quantity  of  the  leaf  and  the  different  6tages  of 
its  rolling.  There  must  be  in  every  maobine  some  means 
of  confining  the  leaf;  that  was  supplied  by  the  case  or 
jacket;  then  there  must  also  be  some  means  of  contract- 
ing the  rolling  chamber  and  this  waB  done  in  the  Stan- 
dard by  sorewing  up  the  under  table  by  means  of  a 
chain  working  on  a pulley.  A cooly  had  to  stand 
at  the  top  and  work  up  the  table  as  the  tea  got 
rolled.  Another  objection  to  the  Standard  was  the 
difficulty  iu  regard  to  feeding  the  machine  with  leaf. 
Then  too,  in  the  case  of  a large  machine  the  case 
or  jacket  weighed  several  cwt. , and  as  it  was  pushed 
about  it  had  to  be  strengthened  by  metal  bands  to 
take  off  the  friction,  because  it  reeled  on  the  table. 
Another  objection  was  that  there  was  no  venti- 
lation for  the  leaf  in  the  tolling  chamber, 
while  oil  used  iu  lubricating  the  machine  often 
dropped  in  and  damaged  the  leaf.  These  were  some 
of  the  principal  objections.  Seeing  the  defeots  of 
this  maohino  and  also  reoognising  that  it  was  very 
expensive  both  to  work  and  to  make,  Mr.  Jackson 
patented  the  Excelsior  whioh  possessed  advantages 
not  only  in  point  of  cost  but  also  in  efficiency  and 
in  case  cf  working.  The  main  point  of  difference 
was  quite  dear;  the  upper  surfaoe  was  left  free  to 
