thereof dismiss action with costs.-Let the costs of the Defts of this application and of and occasioned by such amendment be their costs in any event and be borne by the Plts.-Haslam, &c. Co. v. Goodfellow, Kay, J., 2nd Dec. 1887, A. 1727.

24. Leave to amend Specification by way of Disclaimer and to use same as amended in Evidence.

UPON the appeal of the Plts from &c., and upon hearing counsel for the Appellants and for the Deft, Let the order dated &c. be varied, and as varied be as follows, that is to say, that the Plts be at liberty to apply at the Patent Office for leave to amend their specification filed in pursuance of their letters patent numbered &c., by way of disclaimer, and that the said specification when so amended as aforesaid be used in evidence on the hearing of this action, the Plts by their counsel waiving all claim for damages or relief in respect of infringements prior to the amendment of the said specification.-Liberty to Deft within fourteen days after notice of the amendments made in the said specification to amend their defence and particulars of objection.-Plts to pay costs of action up to this date on the lower scale.-Gaulard v. Lindsay, C. A., 1 Feb. 1888, A. 155.

DISCLAIMER PENDING ACTION.

After disclaimer, under 15 & 16 V. c. 83, s. 39, the Court would not entertain the question of enforcing an interdict previously granted, infringement of the patent as altered being matter for a new action: Dudgeon v. Thomson, 3 App. Cas. 34, 39.

By the Patents, &c. Act, 1883, s. 19, "in an action for infringement of a patent, and in a proceeding for revocation of a patent, the Court or a Judge may at any time order that the patentee shall, subject to such terms as to costs and otherwise as the Court or a Judge may impose, be at liberty to apply at the Patent Office for leave to amend his specification by way of disclaimer, and may direct that in the meantime the trial or hearing of the action shall be postponed."

This section applies to an action for infringement which was pending at the commencement of the Act (1st Jan. 1884): Singer v. Hasson, 50 L. T. N.S. 326; and does not affect the jurisdiction of the Master of the Rolls to allow an amendment in a specification filed under sects. 27 and 28 of 15 & 16 V. c. 83: Re Gore's Patent, 26 Ch. D. 105.

An action for infringement after judgment is not "pending" within sect. 18 of the Act of 1883 (providing for amendment of specification), and therefore in such a case that section is applicable, and an application may be made to the comptroller to amend the specification by way of disclaimer: Cropper v. Smith, 28 Ch. D. 148.

The fact that an action for threats under sect. 32 was not concluded, did not prevent the Court from exercising the powers of sect. 19 in a cross action for infringement: Re Hall, 21 Q. B. D. 137; and see now 51 & 52 V. c. 50,

s. 5.

In exercising the powers of the section, the Court has imposed the condition that the amended specification should not be receivable in evidence in the action: Bray v. Gardner, 34 Ch. Div. 668 (see Form 22, sup.); but in particular cases less stringent terms may be required: S. C. Thus, where the action had not proceeded beyond writ, the terms were that the Plts should pay Defts' party and party costs up to and consequent on disclaimer: Fusee Vesta Co. v. Bryant & May, 34 Ch. D. 458; and for a like order at a later stage of an action, see Haslam Foundry v. Goodfellow, 37 Ch. D. 118;

Form 23, sup.; and in Gaulard v. Lindsay, 38 Ch. Div. 38 (see Form 24, sup.), leave was granted to give the amended specification in evidence at the trial on terms of the Plts paying all costs down to leave given, and waiving damages for previous infringements and see Lang v. Whitcross Co., 62 L. T. N.S. 119. The Judge in Chambers has full discretion as to terms of amendment: Ib.

25. Judgment, after refusal of Motion for New Trial, for Injunction as to Patented Articles (Pulleys), and for delivery up of the Articles made by Deft, to be specified by Affidavit.

LET the Deft S. be restrained by injunction during the continuance of the letters patent, and any extension of the term thereof, from using or exercising &c., and from in any manner infringing the rights. and privileges granted by the said letters patent; Deft within seven days to specify by affidavit what apparatus constructed or arranged according to the said invention and improvements, or only colourably differing from those described in the said specification and drawing, have been manufactured by, or by the order or for the use of, the said Deft as in the (bill) mentioned, and are in the possession, custody, or power of the said Deft or his servants or agents; Deft within (seven) days after filing such affidavit to deliver up to the Plts all such pulleys or apparatus.-See Tangye v. Stott, V.-C. W., 12 Feb. 1866, B. 461.

26. Like Judgment after Trial without Jury as to Patented Skates, with Account of Sales and Profits-Discovery, Delivery up, or Destruction.

LET the Deft, his servants &c., be restrained by injunction during the continuance of the said letters patent granted to N., dated &c., from using or exercising, or causing or permitting to be used or exercised, the invention described in the hereinbefore-mentioned specification and drawings of the said N., and from selling, letting for hire, or making any profitable use, or permitting the sale, letting for hire, or profitable use of any roller or runner skates not made by the Plt or his licensees, and having applied thereto rollers or runners in manner described, and for the purposes mentioned in the said specification, or fitted with any apparatus for causing the skate to run in a curved line in the manner described in the said specification and drawings, or differing therefrom only colourably, and by the substitution of mere mechanical equivalents; And Let an account be taken of all roller skates being the same as the skates sold by the Deft to G. as in the pleadings mentioned, or otherwise made in infringement of the said letters patent, which have been manufactured, or sold, or let for hire, by or by the order, or for the use or profit of the Deft, and also of the gains and profits made by the Deft by reason of such manufacture, sale, or letting for hire; And Let the Deft within (seven) days after the service upon him of the chief clerk's certificate of the result of such account, pay to the Plt the amount of such gains and profits; And Let

the Deft forthwith upon oath deliver up to the Plt, or break up, or otherwise render unfit for use all roller skates, or parts of roller skates so manufactured, or let for hire, by or by the order or for the use of the Deft in infringement of the said letters patent as aforesaid, which are in the possession, custody, or power of the Deft or his servants or agents.-Deft to pay to the Plt costs of suit.—Plimpton v. Malcolmson, M. R., 28 Jan. 1876, B. 381.

27. Inquiry to ascertain Profits of User.

THE application of the Plt, which upon hearing &c., in Chambers, was adjourned &c., and upon hearing counsel for the Plt and the Deft; And this Court being of opinion that for the purpose of ascertaining the profits made by reason of the use of the Plt's invention pursuant to the said judgment it is necessary to inquire what was the cost of forging iron and steel forgings manufactured by the Deft prior to the use of the said invention, and also what was the cost of forging like forgings manufactured by the Deft during such use; Let the Deft, on or before &c., bring in a further and better account, giving such information accordingly.-Siddell v. Vickers, Kekewich, J., 22 June, 1889, B. 906; S. C., 61 L. T. N.S. 233.

28. Inquiry as to Articles in Defts' Possession, and Direction for their Destruction.

LET an inquiry be made whether the Defts or any of them have in their possession or power any or what articles manufactured in violation of Plt's patent; And Let all articles which shall be certified to have been so manufactured, and to be in the possession of the Defts or any of them, be destroyed in the presence of C. the Plt's manager, and K. the Defts' manager, and the respective solrs of the Plt and Defts.-Betts v. De Vitre, V.-C. W., 25 Jan. 1865, A. 119.

29. Order for Discovery by Defts of the Names and Addresses of their Customers, after Judgment for perpetual Injunction, in aid of Inquiry as to Damages.

UPON the application of the Plt &c., it is ordered that the Defts do within four days after service of this order make and file an affidavit or affidavits stating the number of brick-cutting machines made or caused to be made by them since &c., the date of the Plt's letters patent mentioned &c., and the names and addresses of the persons to whom the same respectively have been sold, or for whom the same have been purchased (and the names of the agents concerned in the transactions), and the number of the machines now in course of construction, and of the licences granted by the said Defts or either of them, to any persons to make or use the said machines, with the names and addresses of the said persons to whom such licences have been

granted, and the number of licences granted by the Defts, or either of them, to any persons to use the said machines, together with their names and addresses, and the places where the said machines are respectively licensed to be used, and the amount of royalties received and to be received by or for the use of the said Defts, or either of them, for the granting of such licences in respect thereof.-Murray v. Clayton, V.-C. B., in Chambers, 16 July, 1872, B. 1998 (varied by V.-C. in Court, 16th Nov. 1872, B. 2947, by striking out the words"and the names of the agents concerned in the transactions:" L. R. 15 Eq. 115).

30. Inquiry as to Damages in Patent Case.

An inquiry what sum of money is fit to be awarded to the Plt to be paid by the Defts in respect of any damage sustained by the Plt from the sale or use by the Defts of the Plt's said invention, or any apparatus in imitation of or being only a colourable deviation from the Plt's said invention.-Defts to pay to the Plt - such sum of money as upon such inquiry shall be found fit to be awarded to the Plt for such compensation as aforesaid, within twenty-one days after the filing of the chief clerk's certificate of the result of the said inquiry. -Cunningham v. Colling, V.-C. W., 20 Dec. 1864, A. 2508.

That Plt, according to recent decisions of the House of Lords, is not entitled both to an account of profits and compensation in damages, see Notes, inf.

31. The like Inquiry.

Inquiry whether any and what damages have been sustained or incurred by the Plt, and to what amount, by reason of the Defts' infringement of the said patent.-Adjourn further consideration.-Betts v. Noel, V.-C. W., 18 Nov. 1869, A. 946.

32. Certificate (embodied in Judgment) that Validity of Patent was in Question at the Trial-Patents, &c. Act, 1883, s. 31.

AND this Court certifies, pursuant to the 31st section of the Patents, Designs, and Trade Marks Act, 1883, that upon the trial of this action the validity of the Plt's letters patent, No. dated &c., came into question.

33. Like Certificate as to Proof of Particulars of Breaches-Patents, &c. Act, 1883, s. 29.

AND this Court certifies, pursuant to the 29th section of the Patents, Designs, and Trade Marks Act, 1883, that in the trial of this action the Plt proved the particulars of breaches delivered by him.

HEARING OF ACTION.

As to the procedure on hearing in camera where the Deft denies infringement, but objects to state in open Court the process he actually adopts, on

the ground that it is the subject of a valuable secret, of the benefit of which he would be deprived by disclosure, see Badische, &c. Fabrik v. Levinstein, 24 Ch. D. 156.

Where there is contradictory evidence on a scientific point, the Court is at liberty to obtain independent scientific assistance to give advice upon which the judgment may be founded: S. C.

An objection for want of parties ought not to be postponed to the hearing when no impediment exists to raising it earlier: Sheehan v. G. E. Ry. Co., 16 Ch. D. 59.

On dismissing action, the Court declined to insert a declaration of infringement" if the patent were valid": Blakey v. Latham, W. N. (88) 126.

As to the position of third parties in an action for infringement of patent, see Edison v. Swan United Electric Co., 41 Ch. Div. 28.

As to giving certificate as to validity of patent being called in question, and as to reasonableness of particulars of breaches and objection, v. p. 570.

ACCOUNT OR DAMAGES.

It is now conclusively settled that a patentee is not entitled, since 21 & 22 V. c. 27, both to an account of profits (which amounts to a condonation of the infringement) and an inquiry as to damages, but must elect which he will take: De Vitre v. Betts, L. R. 6 H. L. 319; Neilson v. Betts, L. R. 5 H. L. 1; Needham v. Oxley, 11 W. R. 852; United Horse Shoe Co. v. Stewart, 13 App. Cas. 401; Watson v. Holliday, 30 W. R. 747.

In Hill v. Evans, Jan. 29, 1862, A. 293, it appears that the order was for an injunction, an account of profits, "and of such other compensation as is fit to be awarded in respect of such making, use, and exercise"; but according to the report of this case (4 D. F. & J. 288), the account was directed unless the Plt preferred liberty to bring an action for damages.

And see Betts v. Vitre, 11 Jur. N.S. 9, where it was said that if the Plt chose to waive the account of profits, he was to be at liberty to proceed at law for damages; though in Betts v. Neilson, 3 Ch. 429, the right of Plt to the double relief had been affirmed on the authority of the decree in Hill v. Evans, sup.

At law damages were considered as compensation for the loss of profits prior to the action: see Holland v. Fox, 3 El. & Bl. 977, where after final judgment, the account of profits was limited to profits made by Deft pending the action, and after notice that such account would be required: Vidi v. Smith, Ib. 969, where the account directed, pending the action of all future sales by Deft, was "on condition of Plt agreeing to waive all claim for more than nominal damages at the trial of the action, and on condition of, in case verdict and judgment were for Defts, Plt undertaking to pay to Defts the expense of keeping such account."

And see Walton v. Lavater, 8 C. B. N.S. 162; Elwood v. Christy, 18 C. B. N.S. 498, for form of rule or order for account at law.

After judgment restraining infringement, with inquiry as to damages, there is no power to direct a trial by jury on the question of damages: American Braided Wire Co. v. Thompson, 5 Rep. Pat. Cas. 538.

Where sales have been made by the Defts, and the Plts have reduced their prices in consequence of such competition, the measure of damages to the Plts is the amount of profits which would have been made by them if all the sales had been made by them at original prices, after making allowance for the increased sales attributable to the connection and exertions of the Defts, and to the reduction in prices: American Braided Wire Co. v. Thomson, 44 Ch. Div. 274; distinguishing United Horse Shoe Co. v. Stewart, 13 App. Cas. 401, where the reduction of prices was due to the competition of others besides the Defts, and therefore the Plts were not entitled to additional damages in respect of the reduction.

Defts are not entitled to set off the value of infringing articles delivered up after judgment, nor sums recovered in previous actions by Plts from manufacturers from whom the Defts bought: United Telephone Co. v. Walker, 56 L. T. N.S. 508.

Where Deft admitted some infringements and denied others, on the Plt moving for judgment on admissions the inquiry was confined to damages