was a case in which, if you find a verdict for the plaintiff, you A. D. 1835. would consider him entitled to more than nominal damages

establishing his right.

The question is, whether you are satisfied the defendant has made out his defence, because, in the first place, the plaintiff proves his patent. And then he gives, certainly, important evidence of its being a new invention; the evidence of Mr. Farey, who happens to have made use of the chair himself, and who probably may be known to you as a person very likely to have heard of any invention of this sort if it ever had been discovered before. The defendant's plea is, that the plaintiff was not the true and first inventor. Mr. Farey and some other gentlemen having given the same evidence on the part of the plaintiff, that there has been no such thing known before as this chair with self-adjusting leverage, the witnesses who are called on the part of the defendant all go to the same point to that extent, with the exception of this particular chair that was made by Mr. Brown for the defendant in the year 1829, and they say, although these chairs have not been in use, and although the principle has not generally been known, yet they undertake to satisfy you by direct evidence that this person Brown, in 1829, did make a chair so as to show the plaintiff was not the real inventor of the chair, the piracy of which is complained of; and if the defendant proves that to your satisfaction, although the plaintiff may actually have been the inventor, he would not in the sense of this patent be the first and true inventor, because another person in that case would have hit upon the same invention. You should be satisfied that the chairs which were made by Brown for Mower in 1829, were substantially the same as those for which the patent is claimed. If they were, then the patent has been taken out without proper foundation, because the discovery has been made before. But the defendant is to prove that, and the question is, has he proved it?

that it was not

Now the person who made these chairs, Brown, is not here as a witness; that should produce no prejudice either on one side or the other. I do not see any great addition he could have made to the defendant's case if he had been here, because that he made a chair of that description is perfectly clear. I cannot If an alleged conceive it would be very strong, even if he had said he had discovery be not pursued, the discovered this principle of the self-adjusting leverage, when it presumption is does not appear he claimed it, took out any patent for it, or made in a usethat his master did, or that there was any production of the ful form. article that could be beneficial to himself or Mr. Mower. It seems that is a very strong argument to show that in point of fact they had not made the discovery, at least how to make this principle available for general use, but the fact that he had made chairs of this description seems quite undoubted. There is a chair laid before you of Mr. Clark's, connected as it appears

Lord Denman, C. J., to the jury.

with a model that has been produced before you, which to a certain degree adopts some of the machinery that is necessary for a self-adjusting leverage to a chair. But then the question is, whether the chair is the same as the chair that the plaintiff's patent protects.

Now I thought it would turn very much on this, whether, in the first place, you are satisfied, that supposing that machinery was away which the witness described, the pad, the stop, and the spring, which the witnesses for the defendant say, made it necessary that the hand should be applied to give some assistance to the body; whether, supposing that that machinery had been away from Mr. Clark's chair, you are satisfied that would have been a chair with a self-adjusting leverage. I confess it appears to me, that is a little left in doubt, because I do not find that it ever was put into operation so as to test that fact. But supposing, in the second place, it would have been a chair with a self-adjusting leverage, if that encumbering additional part had been away, then the question is, whether the principle of self-adjustment was at all discovered or thought of at that time. Because, it seems to me, if that principle might have been deduced from the machinery of the chair that was made, but that it was so encumbered and connected with other machinery that nobody did make that discovery, or ever found out that The user of a they could have a chair with a self-adjusting leverage, by reason method or pin- of that or any other defect in the chair actually made; I confess will not it seems to me, that does not prevent this from being a new vitiate a subse- invention, when the plaintiff says, I have discovered, throwing aside every thing but this self-adjusting leverage itself, that will produce an effect, which I think a very beneficial one; and I cannot help thinking that must be a beneficial effect, because there are certain persons who are deprived of all strength, and who cannot help themselves at all, and who should not be called on to use a stop or spring, or to make any exertion whatever, who have, it seems, found very great comfort from the chair which applied this principle of self-adjusting leverage so as to make any exertion of their own unnecessary.

ciple in igno

rance,

quent patent.

The evidence runs into considerable length, but the facts are pretty simple on the whole, and I will recapitulate their general nature. A chair is made by Mr. Mower's workman in 1829; that chair has the principle of the reclining back to a certain extent raising the seat in front; it is connected with what is called a rack below, which makes it necessary that a spring should be touched in front to detach it from the catch of the rack; that is the first thing necessary to its going back; and in order to its coming forward, it is necessary the party should extend his hand and take hold of the pad, and should draw himself to a certain degree forward. All the witnesses concur in that to a certain degree: Mr. Newton says, without that pad, the self-adjusting leverage would have operated in

this chair, but it certainly does not appear that that leverage A. D. 1835. was so applied to it, or that any chair was ever made without some additional matter which prevented the self-adjusting leverage from having that operation. So that you will have to say on that general description of the case, whether you are satisfied that the self-adjusting leverage was in that chair at all, and if it was, whether you are satisfied that it could not act by reason of what was otherwise connected with it, and then, whether you think that any person discovered that self-adjusting principle from the chair that was formed at that time. It is quite The inaccurate indifferent whether the word 'self-adjusting is the correct de- use of a word, if scription of the thing. It seems to describe it so that no man be clear, is imcan doubt what it is, namely, that one part of the body is to counterbalance the effect of the other part on the two different parts of the chair (a).

*

*

*

* (b)

Now, the questions that I have to leave to you are:-Would it have been a chair with a self-adjusting leverage if those encumbrances had been away?—did those encumbrances prevent its being so, and was this principle of self-adjusting leverage discovered at the time that chair was made, or is it entirely a new discovery made by the plaintiff ?

what is intended

material.

The jury found as follows:-That the chair made by Brown Special verdict. would have acted so as to produce the equilibrium by a selfadjusting leverage, if the spring and the other things had not been attached to the chair, that is, if it had not been for the encumbering of bad machinery. That Mr. Brown was the inventor, but that Mr. Brown was ignorant of the practical use it might be turned to, and that Mr. Minter was the author of the practical purposes of the thing, although Mr. Brown was the original inventor, but was ignorant of the principle of the machine; in fact, that the other machinery attached to Brown's chair prevented the self-adjusting leverage from producing equilibrium.

The learned judge directed a verdict for the plaintiff; with liberty for the defendant to move to enter a nonsuit.

(a) The test here proposed, and the recognition of the same principle in Derosne v. Fairie, post 157, qualify the doctrine as laid down and upheld by the court, in

R. v. Metcalf.

In that case the letters patent were for a " tapering brush," and it appeared from the specification, that the brush differed from the common brush only in having the bristles left of an unequal length, instead of being cut down so that the surface of the brush should be level, all the bristles being as nearly as possible of the same length.

Lord Ellenborough, C.J.: Tapering means gradually converging to a point. According to the specification, the bristles would be of unequal length, but there would be no tapering to a point,

which the description assumes. If the word tapering be used in its general sense, the description is defective, there is no converging to a point. If the term has had a different meaning annexed to it by the usage of the trade, it may be received in its perverted sense."

The defendant being unable to supply any such evidence, there was a verdict for the crown. 2 Stark. 249.

It is, however, material to observe, that in this case, the inaccurate term being recited in the letters patent, might be considered as leading directly to a false suggestion. See ante, 42, n.

(b) The learned judge commented at considerable length on the evidence with respect to Brown's chair.

Motion for nonsuit.

May 5, 1837.

invention con

back and seat of

the seat acts as a

before, al

encumbered by

In the ensuing term Talfourd, Serj., obtained a rule for a nonsuit, on the ground that the finding of the jury showed the plaintiff's invention to be an improvement on the application of the principle of the self-adjusting leverage; whereas the specification claims every application of the self-adjusting leverage (c). Lord DENMAN, C.J.: (d) An action between the same parties A claim, that the has already been decided by the Court of Exchequer, in which the sists" in the ap- patent claimed by the plaintiff was deemed good and valid. plication of a But on the trial in this court an entirely new fact was given in self-adjusting leverage to the evidence, and affirmed by the verdict of the jury, namely, that a a chair, whereby chair very closely resembling that made by the plaintiff's patent the weight on had been made and sold before that patent was taken out. counterbalance The words of the jury were these: "We are of opinion that to the pressure Brown was the inventor of the machine, and found out the on the back," is bad, if it appear principle, but not the practical purpose to which it is now that a chair on applied; we think that Minter (the plaintiff) made that disthe same principle had been covery. "This statement might not be fatal to the plaintiff's made and sold title if his invention were truly set forth in the specification, but though the ope- the issue in this cause being simply, whether the plaintiff did ration of it was thereby particularly describe and ascertain the nature of the additional ma- said invention, we find it needful to examine the terms of it. chinery. Now the patent is taken out for "an improvement in the claim for an im- construction, making, or manufacturing of chairs;" the method provement on such application of making the machine, and the way in which it acts, are then would have been fully described, without any mention of any of the means emgood. ployed in Brown's chair. The specification thus concludes: what I claim as my invention is, the application of a selfadjusting leverage to the back and seat of a chair, whereby the weight on the seat acts as a counterbalance to the pressure against the back of such chair as above described." Now it was perfectly clear upon the evidence that this description applies to Brown's chair, though that was encumbered with some additional machinery. The specification, therefore, claimed more than the plaintiff had invented, and would have actually precluded Brown from continuing to make the same chair that he had made before the patentee's discovery. We are far from thinking that the patentee might not have established his title by showing that a part of Brown's chair could have effected that for which the whole was designed. But his claim is not for an improvement upon Brown's leverage, but for a leverage so described that the description comprehended Brown's. We are, therefore, of opinion that the patent cannot be sustained, and a nonsuit must be entered.

Semble, that a

Rule for nonsuit absolute.

(c) See ante, 134, in Minter v. Wells and Hart, as to the invention claimed.

(d) The case was argued in Hilary Term, 1837, before Lord Denman, C.J., Patteson & Williams, Js. The cases of Dollond's patent, ante 43, and Jones

v. Pearse, ante 126, were cited in support of the argument, that it is not the making a discovery, but the successful introduction of it, which constitutes such a user as will vitiate a subsequent patent. 6 Ad. & E. 741.

JUPE'S PATENT.

Letters patent to Robert Jupe, 11th March, 5 W. 4, for “An Title. improved expanding table.”

The object of my invention or improvement is, so to construct Specification. an expanding table, that the sections which compose the surface of the original or unexpanded table may be caused to diverge from a common centre, so that the table may be enlarged or expanded by inserting leaves or pieces in the openings or spaces caused by the divergence of the sections from the common centre. Having thus generally stated the nature of the invention, and the object to be obtained, I would remark, that there are various mechanical arrangements by which the invention may be performed, depending partly on the taste of the individual for whom a table is to be constructed. I therefore propose to describe the different arrangements of parts which I have made, and find to answer, and which from experience I can state will give full effect to my invention or improvement. But my improvement is applicable not only to the precise arrangements hereinafter shown and described, but to various other forms of the same table, provided the property of expanding the surface of the original table, by causing the sections to diverge from a common centre, be retained, and the table be enlarged or expanded by inserting leaves or filling pieces in the spaces caused by such divergence, in the manner hereinafter mentioned. These different forms or shapes must depend on taste, and so must also the details of the mechanical arrangements which govern and retain the sections of the surface of the table securely to the desired positions, and carry my improvement into effect. * * (a) Having thus described the nature of my invention, and the Claim. manner of carrying the same into effect, I would remark, that I do not claim the various parts separately of which the same is composed; nor do I confine myself to the precise manner of moving the sections (a a) of the surface of the table. But I do declare that my invention of an improved expanding table consists in constructing the same, so that the sections (a a) of which the original or unexpanded table is composed, may diverge from a common centre, and the table be enlarged or expanded by inserting leaves or pieces in the openings or spaces caused by the divergence as hereinbefore described.

Here followed a description of the drawings, which showed, by twenty-two figures, various kinds of expanded and unexpanded tables, and the apparatus by which the expansion was to be effected.

In witness, &c.

The specification, with a plate of the drawings, is published in the Repertory of Patent Inventions

for Feb. 1837.