Oct.  r,  1892.] 
THE  TROPICAL  AGRICULTURIST. 
269 
“what  is  the  nature  of  the  invention  ?" 
On  it  must  necessarily  depend  all  the  other 
issues,  particularly  the  fourth — did  the  defen- 
dants’ machine  infringe  the  plaintiff’s  patent  ? 
I take  it  for  granted  that  the  nature  of  the  plain- 
tiff's invention  is,  by  peculiar  mechanical  means 
and  contrivances  developed  in  a machine,  a manner 
of  rolling  tea  is  secured  to  be  substituted  for,  and 
made  to  resemble  tea  rolled  by  the  human  hands. 
If  this  is  so,  then  it  follows  that  we  may  assume  that 
the  direct  findings  of  the  District  Judge  involve  the 
further  finding  that  that  was  the  nature  of  the  in- 
vention of  which  the  plaintiff  was  the  patentee  in- 
ventor. The  District  Judge  has,  asl  have  said,  directly 
found  that  it  was  a new  and  useful  invention.  He 
also  has  found,  as  I have  said,  that  in  the  particular 
specified  in  the  first  issue,  the  defendants  have  not  in- 
fringed the  plaintiff’s  patent.  On  the  fourth  issue  Did 
the  defendants  infringe  the  plaintiff’s  patent  as  a whole? 
— the  learned  District  Judge  has  either  come  to  no 
distinct  finding  or,  if  I am  to  treat  what  he  has  said 
as  indicating  what  his  finding  should  have  been,  it 
was,  as  I shall  hereafter  show,  that  the  defendants’ 
machine  was  an  infringement  of  the  plaintiff’s  patent. 
I do  not  forget  that  under  the  20th  section  of  the 
Inventions  Ordinance  it  is  provided  that  in  suits  for 
infringements  the  plaintiff  shall  deliver  particulars 
of  the  breaches  complained  of  in  the  suit,  and  at 
the  trial  no  evidence  shall  be  given  in  support  of 
any  infringement  which  shall  not  be  contained  in  the 
particulars.  I do  not  understand  that  an  infringe- 
ment occurs  if  one  machine  is  made  on  the  pattern 
of  another,  or  if  one  part  of  a machine  is  adapted 
to  another,  unless  it  is  as  well  used  as  such  to  the 
plaintiff’s  damage ; it  is  the  use  of  the  machine  as 
well  as  the  making  of  it  to  which  the  words  “ particu- 
lars of  infringement  ” must  relate,  the  acts  of  making 
and  utilizing  which  entitle  the  plaintiff  to 
damages,  and  not  to  the  particular  parts  only 
of  one  machine  which  may  be  pirated  but 
not  utilized.  Now,  although  in  the  plaintiff’s 
particulars  he  asserted  that  the  machine  which 
the  defendants  imported  and  sold  possessed 
a peculiar  arrangement 
which  his  machine  possessed,  I cannot  understand  that 
he  was  thereby  restricted  to  show  only  in  that  respect 
that  his  patent  had  been  infringed.  Therefore,  besides 
the  particular  issue— Was  the  motion  transmitted  in  a 
particular  way  an  infringement  ? — there  was  as  well 
the  general  issue  stated  fourthly  by  the  District 
Judge— Had  the  defendants  infringed  the  plaintiff’s 
patent?— Had  they  made  and  sold  a machine  or 
machines  which  infringed  the  special  privileges  of 
the  plaintiff’s  machine?  Both  in  the  Court  below 
and  in  this  Court  in  appeal  the  defendants  laboured 
this  issue  and  endeavoured  to  show  that  their  machine 
was  an  improvement  upon  another  machine  used  in 
India  known  as  the  “Standard”  but  not  patented 
in  Ceylon.  It  is  authoritatively  said  “ that  provided 
the  particulars  of  breaches  give  the  defendants  a 
fair  idea  of  the  case  to  be  made  against 
him  they  will  be  sufficient  if  they  refer  to 
specific  claims  and  specify  certain  machines  of  the 
defendant  as  an  infringement  of  those  claims,  and 
it  is  not  necessary  that  they  should  state  by  re- 
ference to  page  and  lines  what  portion  of  the 
specification  has  been  infringed.”  I don’t  therefore 
think  that  either  party  can  now  treat  that  issue  as 
not  fairly  within  the  pleadings  ; they  both  consented 
to  it  being  raised  and  they  both  dealt  with  it  as 
embracing  the  contest  between  them.  Where  a 
question  arises  aq  to  the  infringement  of  a patent, 
the  substance  and  not  merely  the  form  of  the  in- 
vention will  be  looked  into  in  a Court  of  Justice, 
and  where  it  is  shown  that  two  machines  are  alike  in 
principle  and  that  the  construction  of  the  second 
machine  has  carried  the  principle  into  effect  by 
substituting  one  mechanical  equivalent  for  another, 
it  will  be  held  that  that  is  an  infringement.  (Thom 
v.  Worthing  Skating  Rink  Co.,  L.  R.  6 Ch.,  D 415; 
Adair  v.  Young  L.  R.  12  Ch.  21.)  I now  proceed  to  deal 
with  the  issues  as  contested  and  found.  I prefer 
taking  the  second  and  third  issues  first,  inverting 
their  arrangement  in  the  Court  below  which 
PUT  THE  CART  BEFORE  THE  HORSE 
— (2)  Was  the  plaintiff  the  first  and  true  inventor? 
(3)  Was  the  invention  new?  The  learned  District  Judge 
has  found  both  these  issues  in  plaintiffs  favour,  and 
I don’t  think  we  are  prepared  to  say  that  finding  was 
wrong.  We  may  here  revert  to  our  Patent  Ordinance 
again.  In  the  interpretation  clause  (36)  “ the  word 
inventor”  when  not  used  in  conjunction  with  the 
word  “ actual’ ’ shall  include  the  importer  of  an  in- 
vention not  publicly  known  or  used  in  Ceylon  or  by 
section  17,  an  invention  shall  be  deemed  “a  new  in- 
vention within  the  meaning  of  this  Ordinance  if  it 
shall  not  before  the  time  of  applying  for  leave  to 
file  the  application,  have  been  publicly  used  in  Ceylon.” 
In  the  words  of  an  old  authority  “ if  the  invention 
be  new  in  England,  a patent  may  be  granted  though 
the  thing  was  practised  beyond  the  sea  before,  for 
the  statute  speaks  of  new  manufactures  within  this 
realm,  so  that  if  it  be  new  here  it  is  within  the  statute, 
for  act  intended  to  encourage  new  devices  useful  to  the 
kingdom  and  whether  learned  by  travel  or  by  study,  it 
is  the  same  thing.”  The  machine  called  the  “Stan- 
dard” had  never  been  patented  here  ; the  necessity 
for  such  machines  must  necessarily  have  existed 
only  in  connection  with 
THE  TEA  INDUSTRY  OF  VERY  MODERN  DAYS 
and  there  is  nothing  to  show  that  any  such  machine 
had  been  publicly  used  in  Ceylon  before.  The 
“Excelsior”  certainly  contained  principles  and 
combinations  of  principles  of  a distinct  character 
from,  but  used  to  produce  the  same  effect,  as  in 
the  “ Standard,”  but  novel  as  regards  the  “Excelsior” 
and  I do  not  doubt  that  the  plaintiff’s  patent  was 
for  a new  machine  in  Ceylon  as  developed  in  the 
“Excelsior,”  and  that  he  was  protected  by  his  patent 
in  the  substance  of  his  invention  as  well  as  in  the 
particular  novelty  of  any  portion  of  it,  and  these 
two  issues  have  been  properly  decided  in  the  affirmative. 
I may  pass  over  the  issue  of  utility : the  fact  of 
its  being  in  demand  for  the  purposes  for  which  it 
is  intended,  may  be  accepted  as  proof  of  its  utility. 
Then  we  come  to  the 
ALL-IMPORTANT 
first  issue — what  is  the  nature  of  the  plaintiff’s 
invention?  I cannot  answer  this  question,  other 
than  I have  already  done,  viz.  that  by  a 
combination  of  mechanical  appliances  and 
apt  arrangement  in  a machine,  amongst  which  is 
a case  or  jacket  and  two  corrugated  surfaces,  top 
and  bottom,  acting  on  each  other  horizontally,  one 
of  which  is  confined  within  the  case  or  jacket,  the 
driving  power  being  by  any  motive  force  acting  upon 
wheels  and  cranks,  to  obtain  as  nearly  .as  possible, 
by  a machine,  the  result  on  tea  leaves  submitted 
to  the  machine,  which  is  obtained  in  China  by  the 
manual  process  of  passing  or  rolling  the  leaves  through 
the  palms  of  the  human  hands.  One  of  the 
PRINCIPAL  NOVELTIES 
which  the  plaintiff  claims  in  his  specification  is  the 
arrangement  of  transmitting  motion  to  the  top  rolling 
surface  through  the  case  or  jacket  surrounding  it, 
whereby  such  rolling  surface  is  left  free  as  regards 
vertical  movement  from  the  mechanism  operating 
it  ; and  one  of  the  issue,  perhaps  the  issue  most 
strongly  contested  was— does  the  defendants’ machine 
infringe  this  particular  novelty  ? The  learned  District 
Judge  has,  in  our  opinion,  fallen  into  error  on  this 
point  more  perhaps  from  a too  literal  reliance  on  what 
the  scientific  witnesses  said  rather  than  from  the 
actual  bearing  of  the  evidence  itself.  Both  Major 
Day  and  Lieut.  Brown  refer  to  the  plate  or  band  en- 
circling the  case  as  the  connecting  rod,  although  any- 
thing less  like  a rod  than  the  bit  of  iron  in  question 
it  would  be  difficult  to  imagine,  but  in  the  language  of 
specialists  it  is  easy  to  understand  that  the  name  is 
applied  to  it  because  of  the  function  it  performs,  and  I 
do  not  understand  these  witnesses  to  say  that  because 
this  plate  performs  the  part  in  mechanies  which  is 
assigned  to  a connecting  rod,  that  therefore  every- 
thing connected  with  it  can  only  be  called  a con- 
necting rod,  and  that  it  is  not  possible  to  speak  of 
“ case  or  jacket " as  including  the  four-sided  bos  fjcom 
