V.-C. M. 1870 v. charcoal, although it was notorious to everyone that at the date of the patent almost every conceivable liquid, except syrup, had been filtered through charcoal. Again, in Bolton v. Bull (1) a patent RUSHTON was sustained for applying a wooden covering to a steam cylinder, to keep in the heat; and in Elliot v. Aston (2) a patent for using known fabrics by known means producing a known manufacture was held to be good. [They also referred to Brook v. Aston (3), Harwood v. Great Northern Railway Company (4), and Fox v. Dellestable (5), and distinguished them from the present case.] Mr. Grove, Q.C., Mr. Aston, and Mr. A. E. Miller, for the Defendants: The Plaintiff's specification is far too extensive, and the patent cannot be sustained. The claim is not only for the use of Russian wool in the manufacture of ladies' head-dresses, but it is for every other purpose for which ordinary and curled hair are required, and he not only claims Russian wool, or wool of a coarse texture, but any animal fibre, though he prefers Russian wool. To support this patent the Plaintiff must shew that it is valid for all the purposes claimed. But he claims a patent also for the use of wool in stuffing furniture, when it is well known that the material has been always used for that purpose. The patent, therefore, is for the application of every species of fibre for every kind of purpose. A man has no right to embarrass the public and to hamper trade by claiming in his patent more than he is entitled to use. It is admitted that the process set out in the specification for dyeing the wool has been used at all times for the same purpose. If the claim is for common wool and every other fibre the patent is bad; if it is for Russian tops only, then the specification extends beyond what is claimed. The cases of Brook v. Aston, Harwood v. Great Northern Railway Company, and Fox v. Dellestable, are all authorities opposed to the Plaintiff's claim. In Brook v. Aston the claim was for burnishing and hardening the surface of fibre which had been previously swelled and enlarged, and it was held that (1) 3 Ves. 140. (3) 8 E. & B. 478. (2) 1 Webst. Pat. Cas. 222. CRAWLEY. V.-C. M. 1870 RUSHTON v CRAWLEY. the specification was bad, as it claimed what was merely the application of old machinery in an old manner to an analogous subject, and that this could not be the subject of a patent, and it was therefore invalid. In Harwood v. Great Northern Railway Company (1) it was held that a slight difference in the mode of application was not sufficient to support a patent; nor would it be sufficient to take a well known mechanical contrivance and apply it to a subject to which it had not before been applied; and in Fox v. Dellestable (2) the rule was laid down by this Court that an invention which was neither novel nor important could not be the subject of a patent. Jordan v. Moore (3) is also an authority in opposition to the Plaintiff's claim, where it was decided that the combination of iron and timber in the construction of ships, being already well known and commonly used, a patent for a peculiar combination of these two materials could not be maintained; and in Brunton v. Hawkes (4) a patent for the construction of anchors was held to be bad on similar grounds. To support a patent for the application of a known substance or material to a known purpose, it must be shewn that skill and ingenuity have been employed in the adaptation. Upon the subject of prior user, we shall shew from the evidence that horse hair, mohair, and wool, were all used in the fabrication of artificial hair before the date of this patent. The Defendants' witnesses were then cross-examined in Court, and having proved distinctly that these different articles had been used by the Defendants themselves and by other persons in the trade long before the patent was obtained, Mr. Glasse said it would be useless in the face of this evidence to contend any longer that there had not been a prior user of Russian wool in the manufacture of the articles in question. SIR R. MALINS, V.C. :— This case has occupied considerable time, and it raises some questions of great importance on the patent law as affecting mercantile interests. I do not think I should be justified in simply (1) 11 H. L. C. 654. (3) Law Rep. 1 C. P. 624. dismissing the bill without stating my reasons, because, while on the one hand it is of the highest importance, in the present state of the law, that patent rights should be preserved and protected for those who introduce really valuable inventions and improvements, on the other hand, it is equally important to the public that they should not be hampered by persons taking out patents for frivolous articles; patents for things which are not properly the subject of a patent, but merely for the employment of a different material, in order to produce the same result. This patent is, in my opinion, so vicious in every point of view that I should not have heard the Defendants' case, but that I thought, upon the whole, it would be more satisfactory, not only to myself, but to the administration of justice, that the case should fail both upon technical grounds and upon the ground of prior user if there was sufficient evidence of the fact. Now, upon the Plaintiff's case, I agree with the rule stated and laid down by Mr. Grove in his opening for the defence, that the public must be told in very distinct language in every specification what are the articles they may use and what they may not use. Therefore, if a man makes a discovery, and, instead of limiting himself in his specification to that which properly is the discovery (if it be one), makes his specification too extensive, and claims more than he is entitled to claim, that is calculated to embarrass the public, and is, I apprehend, a fatal objection to the patent. In this case the Plaintiff first took out a patent, in 1865, for the manufacture of chignons from mohair, but afterwards he or his assignees, finding the patent could not be sustained, very wisely allowed it to expire. Therefore, even if it had been properly the subject of a patent, it would have become the property of the public by the course which he, or those claiming under him, adopted. Now I think it is perfectly clear, from the evidence, that this Plaintiff must have known that long before 1865 mohair, or wool from the Angola goat, had been extensively used in the manufacture of these articles. It is, therefore, an instance of a man who endeavours to get an advantage of the public in general by taking out a patent; for there is a considerable portion of the public V.-C. M. 1870 RUSHTON v. CRAWLEY. V.-C. M. 1870 RUSHTON บ. CRAWLEY. who are very much alarmed by the claims of patentees, and would rather submit to those claims than be exposed to a troublesome and expensive litigation. The particular kind of wool he has selected for his present patent is Russian tops. It is attempted to be made out that he claims a patent only for Russian tops, but it is distinctly proved in evidence that Russian wool, or "Russian tops," as they are called, is nothing more than the lowest class of wool. What he claims is, "the use and application of wool;" that is, of all kinds of wool," and particularly that kind known as Russian tops, or other similar wools or fibre, in the manufacture of artificial hair in imitation of human hair." And not only does he claim it for that purpose, but also for the "manufacture of crisped or curled hair for furniture, upholstery, and other like purposes." If any validity can be given to this patent, wool cannot be used. without the consent of the Plaintiff for any of the purposes for which it has been used long before any man in this Court was born, or his grandfather before him. Here he makes an exclusive claim to the use and application of wool. The witnesses, in cross-examination, have proved beyond doubt that it has been the common course of the trade to make these things from wool of all kinds for certainly the last fourteen or fifteen years. Now, can anything be more unjustifiable, under these circumstances, than that a man, because he introduces what he thinks is a new article, is, without inquiry, to rush to the Patent Office and take out a patent, and make an extensive specification, and thereby embarrass the conduct of trade, so that these gentlemen, the Defendants, find themselves interrupted in the course of their business by a bill filed against them, and are dragged into the Court of Chancery, and put to very considerable expense, and all because the Plaintiff has chosen to speculate upon the forbearance of the public, and has taken out a patent for that which is not properly the subject of a patent, and which was in common use long before he was born? I cannot part with the case without expressing my opinion that this is not the subject of a patent at all. It is a gross violation of the privilege conferred upon inventors for a person to take out a patent for a known article which has been used for years, because he finds he can produce a thing cheaper or better by a new material, or to suppose that directly he uses the new material it can be a subject for a patent. Suppose any one should discover some other well known material for making these things, such as paper, is he to take out a patent for it? and afterwards some one else should find out they could be made of straw, is he also to have a patent? So far as my opinion goes, and I desire it to be distinctly understood, the use of a new material to produce a known article is not the subject of a patent, but there must be some invention, something really new, something more valuable to the public than the simple use of a new material to produce a known article. I do not think it necessary to go through the various authorities which were cited. The case of Crane v. Price (1) was a patent for the use of anthracite coal. The patent was established, but it is now generally considered that such a case would not succeed in the present day. The case of Brook v. Aston (2) is conclusive against the Plaintiff. That was a patent for simply using some machinery for wool which had been previously used for linen, yarn, or cotton. That, therefore, was using the same thing for a new material; this is using a new material for an old thing, according to the statement of the Plaintiff. But it turns out from the evidence that it is not a new material, but a perfectly old material. Assuming, however, that it was new, and that wool had never been used before for making these articles, upon that assumption, in my opinion, the patent would be wholly void. Therefore, upon every ground, this case entirely fails. I think the Plaintiff's conduct wholly unjustifiable in dragging the Defendants before the Court. The only justice I can do them is to dismiss this bill, and to dismiss it with costs. Solicitor for the Plaintiff: Mr. Alderson Turner. Solicitors for the Defendants: Messrs. Venning, Robins, & Venning. (2) 8 E. & B, 478. (1) 4 Man & G. 580. |