July 9, 1870.] 
THE PHARMACEUTICAL JOURNAL. 
33 
one bottle from each defendant, each bottle bearing Mr. 
Rimmel’s labels and a capsule impressed “ E. Rimmel, 
London and Paris, Perfumer,” within a bead border. 
The Vice-Chancellor , at the close of the plaintiff’s case, 
said,— 
In this case the plaintiff, Mr. Betts, has filed his bill 
against Mr. Willmott, asking an injunction to restrain 
the defendant from further infringing his invention, 
from using his invention in this country, and for the 
consequential damages. It is said, and said with truth, 
that according to the practice of this Court the scienter 
is not material, that a patentee has a right to file his bill 
against a person who has innocently infringed his pa¬ 
tent, that he is entitled to take legal proceedings at all 
events. But I am not prepared to hold that every user 
of letters patent by a person necessarily entitles the pa¬ 
tentee not to bring an action in the County Court, but 
to file his bill in this Court. I think one must look at 
the circumstances under which, and the extent to which 
the infringement has taken place, and the conduct of the 
plaintiff and de endant, before one sanctions such a bill. 
If it is to be carried to the strict length, it seems im¬ 
possible to draw a line which would prevent a man being 
entitled to file his bill against every gentleman who, in 
this particular case for instance, has a bottle of wine 
accidentally covered with a capsule in his cellar; I think 
there is a difference between that case and the case of a 
person selling articles for profit. If this had been the 
case of a sale of these capsules for profit, it would have 
been a different thing, because, in that case, the person 
would have been selling the metal, and I should have 
been disposed to interfere, or if the person were using 
the capsules to a large extent himself. 
But I understand all the evidence here is, that a per¬ 
son in the employ of the plaintiff went into the shop of 
the defendant, and bought there a bottle of a manufac¬ 
tured article, called Bimmers Toilet Vinegar, the cork 
of which bottle was covered with a capsule. He bought 
only one bottle with a capsule on. The probability is, 
that the defendant had sold other bottles, perhaps he 
had sold a few dozen bottles in the course of his trade; 
but he says he had not the remotest idea he was doing 
anything in violation of the plaintiff’s patent; that he 
bought this in the way of trade from the wholesale 
dealer, and sold it perfectly innocently ; and the plain¬ 
tiff was informed by the article itself who the person 
was from whom this innocent vendor obtained it. Under 
those circumstances, it appears to me, he ought to have 
given the defendant notice that it "was an infringement, 
and told him not to do so any more ; and if he found he 
was doing it afterwards, he might very well have filed 
his bill against him, or if the defendant had refused to 
discover from whom he bought the article. But, no 
doubt, this defendant would at once have told him, “ I 
got this from Mr. Rimmel; and if Mr. Rimmel is wrong, 
I will not sell any more, I do not wish to run the risk of 
a Chancery suit with Mr. Betts.” Probably that would 
have been the case if he had applied to him. But the 
application he received was this, which does not seem to 
me to be the right way of dealing with a case of this 
kind. He says, “ I received from Mr. Kent, the 
plaintiff’s solicitor, a letter dated 10th July, stating that 
he was instructed by the plaintiff to commence proceed¬ 
ings against me for an infringement of his letters patent, 
by the use and sale of metallic capsules on bottles, 
which capsules had not been made by the plaintiff, but 
of precisely similar materials.” To which defendant 
writes:—“ I have received a letter from you informing 
me that I have infringed the patent of Betts’ Metallic 
Capsules. Now, as I have never capsuled, or caused to 
be capsuled, any bottle or pot in my establishment, per¬ 
haps you will have the goodness to let me know in what 
way I have infringed the patent.” To which the answer 
is:—“ I beg to state that the sale by you of the capsules 
on bottles is the infringement complained of. Any 
person supplying you is equally liable, and the time will 
come when you will be interrogated as to who has sup¬ 
plied you, when, and in what quantities.” Thereupon, 
without any further intimations, upon the same 12th of 
July, on which that answer is made, the bill is served on 
this defendant. It does appear to me that that was a 
very violent and oppressive mode of proceeding against 
this defendant and the others. It is not justified by this 
observation that, unless you file bills against every re¬ 
tail dealer, you cannot maintain your patent. I do not 
know whether I should have been able to dismiss the 
bill with costs, though I think I should have tried to do 
so, if it had not been for what appears an equally un¬ 
usual course on the part of the defendant,—instead of 
saying, “ I really did it innocently; I do not wish to 
litigate your patent;” instead of relying entirely on 
the facts of the case, the defendant puts in an answer, 
in which he submits whether the patent is a good one or 
not. Relying on what he then supposed to be the then 
state of the law, he takes upon himself to litigate the 
thing, by raising upon a concise statement, which is al¬ 
most a cross bill, the very fact of the invalidity of the 
patent, and he files that statement, and bases interroga¬ 
tories upon it. 
Under those circumstances, it appears to me that 
neither side has conducted himself in a way which en¬ 
titles him to the costs of these proceedings; and the 
order I propose to make is, to declare that the patent 
having expired, and the Court being satisfied that the 
infringement by the defendant was innocent, accidental, 
and trivial, and not such as to have produced any sub¬ 
stantial damage to the plaintiff, stay all further proceed¬ 
ings. 
Mr. Kay .—Your Honour has not heard our evidence. 
We have proved distinctly there is no infringement. 
The Vice-Chancellor. —Do you mean to say that this 
capsule is not made according to Betts’ patent? 
Mr. Kay. —Certainly; there is no evidence of it. 
The Vice-Chancellor. —I think there is, unless you 
have strong affirmative proof that it is not. 
Mr. Kay. —We have cross-examined him , and put the 
article into his hands, and he cannot say whether it is 
his or not. 
The Vice-Chancellor. —He said he could not tell with¬ 
out a microscope. 
Mr. Kay. —No ; he could not tell at all. 
The Vice-Chancellor. —Did you put the capsule into his 
hand which was bought ? 
Mr. Eddis. —Yes. 
The Vice-Chancellor. —Was there any mark upon it ? 
Mr. Kay. —There was no mark upon it at all. 
The Vice-Chancellor. —Is there the microscopical mark 
upon it ? He swears distinctly it is not his metal, but 
made of the same material. 
Mr. Kay. —If your Honour had heard the cross-exa¬ 
mination, you would find it perfectly impossible to main¬ 
tain any case of infringement. He does not know his 
own material, and he cannot distinguish between one 
made by him and anybody else, and he says there is no 
process which he knows of to enable him to distinguish 
the things made by him from those made by anybody 
else. The whole of his evidence has gone to an attempt 
to make out a case of infringement, which has failed in 
toto. 
The Vice-Chancellor. —I did not know you denied the 
infringement. 
Mr. Kay. —Yes, and I am perfectly ready to open the 
whole case to your Honour, rather than be saddled with 
our costs of this suit. 
The Vice-Chancellor. —I think you must. 
Mr. Kay then proceeded to read the plaintiff’s cross- 
examination, but he had only in part done so when the 
Court rose. It contained passages— 
“ I have a manufactory in Paris, that is Espinasse’s.” 
“ I believe the Paris house supplied Rimmel with a 
great many capsules at one time.” 
“ I will not swear whether the capsules supplied to 
