PATENTS.

Patents are to be interpreted as bargains between the inventor and the public.

"Lord Eldon lays down the principle so long ago as 1800. He says, patents are to be considered as bargains between the inventor and the public, to be judged of on the principles of good faith, by making a fair disclosure of the invention, and to be construed as other bargains. That is the principle which must be taken to be the sound principle.”—Neilson v. Harford (1841), Webs. Pat. Cas. 295, at p. 341, Alderson, B.

Patents, Designs and Trade Marks Act, 1883 (46 & 47 Vict. c. 57).

Sect. 27. "A patent shall have to all intents the like effect as against Her Majesty the Queen, her heirs and successors, as it has against a subject."

Sect. 45 (2). "Every patent granted before the commencement of this Act, or on an application then pending, shall remain unaffected by the provisions of this Act relating to patents binding the Crown, and to compulsory licences."

Specification.

A specification should be in the clearest and most unequivocal terms of which the subject is capable.

The interpretation of a specification is for the Court.

The specification is to be fairly supported by the Court.

The specification is to be interpreted like every other written instrument.

"I think that, as every patent is calculated to give a monopoly to the patentee, it is so far against the principles of law, and would be a reason against it, were it not for the advantages which the public derive from the communication of the invention after the expiration of the time for which the patent is granted. It is therefore incumbent on the patentee to give a specification of the invention in the clearest and most unequivocal terms of which the subject is capable. And if it appear that there is any unnecessary ambiguity affectedly introduced into the specification, or anything which tends to mislead the public, in that case the patent is

void."-Turner v. Winter (1787), 1 T. R. 602, at p. 605, Ashhurst, J.

"In the construction of a patent, the Court is bound to read the specification so as to support it, if it can fairly be done."-Russell v. Cowley (1835), 1 C. M. & R. 864, at p. 876, Parke, B.

"Then we come to the question itself, which depends on the proper construction to be put on the specification. It was contended that of this construction the jury were to judge. We are clearly of a different opinion. The construction of all written instruments belongs to the Court alone, whose duty it is to construe all such instruments as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the Court, either absolutely, if there be no words to be construed as words of art, or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally when those words or circumstances are necessarily referred to them. Unless this were

so, there would be no certainty in the law; for a misconstruction by the Court is the proper subject of redress in a Court of Error; but a misconstruction by the jury cannot be set right at all effectually." -Neilson v. Harford (1841), 8 M. & W. 806, at p. 823; 11 L. J. Ex. 20, at p. 25, Parke, B.

The specification ought to be construed according to its ordinary and proper sense, "unless there be something in the context to give it a different meaning, or unless the facts properly in evidence, and with reference to which the patent must be construed, should show that a different interpretation ought to be made."- Elliott v. Turner (1845), 2 C. B. 446, at p. 461; 15 L. J. C. P. 49, at p. 51, Parke, B.

"Is not the judge bound to know the meaning of all words in the English language, or, if they are used technically or scientifically, to inform his own mind by evidence, and then to determine the meaning?"-Hills v. The London Gaslight Co. (1857), 27 L. J. Ex. 60, at p. 63, Martin, B.

"Where the meaning of a document depends on facts dehors the document, those facts must be first ascertained, and then it is for the judge, no doubt, to determine the meaning."-Ibid., at p. 64, Bramwell, B.

"Where novelty or infringement depends merely on the construction of the specification, it is a pure question of law for the judge;

but where the consideration arises how far one machine, or a material part of one machine, imitates or resembles another in that which is the alleged invention, it generally becomes a mixed question of law and fact which must be left to the jury.”—Seed v. Higgins (1860), 8 H. L. Cas. 550, at p. 561; 30 L. J. Q. B. 314, Lord Campbell, L. C.

"It is true, as a proposition of law, that the construction of a specification (like the construction of all other written instruments) belongs to the Court; but the specification of an invention contains generally, if not always, some technical terms, some phrases of art, some description of processes, which require the light to be derived from what are called surrounding circumstances. It is, therefore, an admitted rule of law, that the explanation of the words or technical terms of art, the phrases used in commerce, and the proof and results of the processes which are described (and in a chemical patent the ascertainment of chemical equivalents), that all these are matters of fact upon which evidence may be given, contradictory testimony may be adduced, and upon which, undoubtedly, it is the province and right of the jury to decide. But when those portions of a specification are abstracted, and made the subject of evidence, and therefore brought within the province of the jury, the direction to be given to the jury with regard to the construction of the rest of the patent, which is conceived in ordinary language, must be a direction as to the meaning of the patent upon the hypothesis or the basis of the jury arriving at a certain conclusion with regard to the meaning of those terms, the signification of those phrases, the truth of those processes, and the result of the technical procedure described in the specification. And so the rule is given by Parke, B., in delivering the judgment of the Court of Exchequer in the case, I think, of Neilson v. Harford [(1841), 8 M. & W. 806; 11 L. J. Ex. 20]."--Hill v. Evans (1862), 4 De G. F. & J. 288, at pp. 293, 294; 31 L. J. Ch. 457, at p. 460, Lord Westbury, L. C.

"The construction of a specification, like other written documents, is for the Court. If the terms used require explanation, as being terms of art or of scientific use, explanatory evidence must be given, and with its aid the Court proceeds to the office of construction."-Simpson v. Holliday (1866), L. R. 1 H. L. 315, at p. 320; 35 L. J. Ch. 811, at p. 816, Lord Chelmsford, L. C.

"With respect to the rules that govern the construction of specifications, they are the ordinary rules for the interpretation of written instruments, having regard especially to the fact that the

specification must clearly fulfil the obligation imposed on the patentee by the proviso contained in all letters patents, viz., that the grant shall be void if the patentee shall not particularly describe and ascertain the nature of his invention, and in what manner the same is to be performed. It is therefore made a settled rule, that the specification must be so expressed as to be perfectly intelligible to a workman of ordinary knowledge, and it must follow that, if there be any obscurity or ambiguity in the specification which is likely to mislead, this ought not to be helped by any refined or secondary interpretation of the language."Simpson v. Holliday (1866), 13 W. R. 577, at p. 578; L. R. 1 H. L. 315; 35 L. J. Ch. 811, at p. 817, Lord Cranworth.

"I do not think that the proper way of dealing with this question [whether the claim was too large] is to look first at the claims, and then see what the full description of the invention is but rather first to read the description of the invention, in order that your mind may be prepared for what it is the inventor is about to claim."-Arnold v. Bradbury (1871), L. R. 6 Ch. 706, at p. 712, Lord Hatherley, L. C. (cited by Lord Esher, M. R., in Edison Bell Phonograph Corporation v. Smith and Young (1894), 11 R. P. C. 389, at pp. 395, 396).

"In the construction of a specification it appears to me that it ought not to be subjected to what has been called a benign interpretation or to a strict one. The language should be construed according to its ordinary meaning-the understanding of technical words being, of course, confined to those who are conversant with the subject-matter of the invention—and if the specification is thus sufficiently intelligible, it performs all that is required of it.”Harrison v. Anderston Foundry Co. (1876), 1 App. Cas. 574, at p. 581, Lord Chelmsford.

"It cannot be effectually contended that there is any principle to be applied to the construction of specifications which differs from that applicable to the construction of every written instrument whatever. Of course, in ascertaining the meaning of words, you endeavour to put yourself as much as possible in the position of the person using them."-Adie v. Clark (1876), 3 Ch. D. 134 at p. 143, James, L. J., delivering the judgment of the Court (James, L. J., Mellish, L. J., and Baggallay, J. A.).

"In construing the specification, we must construe it like all written documents, taking the words and seeing what is the meaning of those words when applied to the subject-matter; and in the

case of a specification, which is addressed not to the world at large, but to a particular class, for instance, skilled mechanicians, possessing a certain amount of knowledge, it is material for the tribunal to put itself in the position of such a class, namely, skilled mechanicians, and to see what the words of the specification mean when applied to such a subject as skilled mechanicians would know, and, as the tribunal has now, by the admission of evidence or otherwise, put itself in a position to understand, and then to say what the words of the specification mean when applied to such a subjectmatter."-Clark v. Adie, No. 2 (1877), 2 App. Cas. 423, at pp. 436, 437; 46 L. J. Ch. 598, at p. 607, Lord Blackburn.

"I have remarked before, in the case of Hincks and Son v. Safety Lighting Co. [(1876), 4 Ch. D. 607, at p. 612; 46 L. J. Ch. 185, at p. 187], that it is the duty of the judge to construe a specification fairly, with a judicial anxiety to support a really useful invention, if it can be supported upon a reasonable interpretation of the patent; or, as Mr. Aston said, that a judge is not to be astute to find flaws in small matters in a specification with a view to overthrow it."-Plimpton v. Spiller (1877), 6 Ch. D. 412, at p. 422, Jessel, M. R.

"I apprehend the duty of the Court is fairly and truly to construe the specification, neither favouring the one side nor the other, -neither putting an unfair gloss or construction upon the specification for the purpose of saving a patent if it is said that the patent is void, nor putting an unfair gloss or construction upon it in order to extend the patent and make it take in something which you may think was an unhandsome taking of the fruits of his invention from the patentee if it is not really an infringement of the patent." -Dudgeon v. Thomson (1877), 3 App. Cas. 34, at pp. 53, 54, Lord Blackburn.

"We ought if possible to construe a claim so as to support a patent."-Needham v. Johnson (1884), 1 R. P. C. 49, at p. 55, Brett, M. R.

"If any patent is capable of more constructions than one, the general rule would be applied that you would put upon it that construction which makes it a valid patent, rather than a construction which renders it invalid."-Ibid., at p. 58, Lindley, L. J.

"It (the specification) ought to be construed, like any other legal document, as a whole. It certainly ought not to be construed malevolently-I will not say it ought to be construed benevolently; I do say it ought to be construed fairly. It must