300

Analytical Digest of Cases: Law of Patents.
ANALYTICAL DIGEST OF CASES,
REPORTED IN ALL THE COURTS.

LAW OF PATENTS.

DISCLAIMER.

chanical equivalent, imitates a part of such combination which is new and useful, is guilty Grand Junction Railway Company, 5 Exch. R. of an infringement of the patent. Newton v.

331.

Admissible in evidence, though filed and enrolled after issue joined.-Title of patent in accordance with specification.-A count in a scire facias to repeal a patent granted to the defend- the infringement of a patent "for improve2. Construction of specification.-In case for ant" for improvements in instruments used for writing and marking, and in the construction ments in giving signals and sounding alarums of inkstands," contained suggestions (amongst transmitted through metallic circuits," the in distant places, by means of electric currents others) of want of novelty and utility in " certain part" of the said invention. The ob- the defendant had used and counterfeited the breaches alleged in the declaration were, that jections filed with the declaration, pursuant to said invention: the evidence was, that the dethe 5 & 6 Wm. 4, c. 83, s. 5, pointed out the fendant had used or counterfeited part only. sixth claim in the specification (amongst The specification described nine several imothers) as wanting novelty and being useless.. The pleas traversed all the suggestions in the

count.

a

IMPROVEMENTS ON KNOWN PROCESS.

A claim for a patent for improvements in the mode of doing something by a known process, is sufficient to entitle the claimant to a patent for his improvements, when applied either to the process as known at the time of the claim, or to the same process altered and improved by discoveries not known at the time of the claim, so long as it remains identical with regard to improvements claimed, and their application. Electric Telegraph Company v. Brett, 10 C. B. 838.

See Infringement.

INFRINGEMENT.

1. Combination of new and old materials. Where a patent is granted for a combination of several things, some of which are old and some new, the question of novelty depends upon whether that which is claimed in the spe

cification as a whole is new.

And a person who, by some chemical or me

provements: Held, that the declaration, in speaking of the said invention, was to be understood as charging the using or counterfeit ing of the said nine improvements, and that it was sufficiently proved by showing that one of

them had been used.

well in the title of the letters patent as in The patentees' invention was described, as the specification, as an invention of "improvein distant places by means of electric currents ments in giving signals and sounding alarums transmitted through metallic circuits." The defendant, it appeared, arrived at the same the earth to an extent nearly amounting to the results by using a circuit not wholly or continuously metallic throughout, but by using half, as the connecting medium between two portions of the metal. It appeared in evidence, that after the grant of the letters patent, it had wire through which the electric current rebeen discovered that a large portion of the turned to the battery might be dispensed with, wire which would have been joined by the by plunging into the earth the two ends of parts left out, the electric current passing from one end of the wire to the other as kept up: Held, that, though a circuit upon effectually as if a continuity of wire had been this principle would not be wholly metallic, yet, insomuch as it was so in all that part which formed the substance of the patentee's claim,-viz., that part which gave the signals, it amounted to an infringement of the patentees' right.

The patent was for an improved method of giving signals, by means of several wires and conveying needles pointing to letters. The defendant had used one wire, and had made signals by counting the deflections of a needle or needles, which was found by the jury to be a different system from that of the plaintiffs: Held, that, notwithstanding this finding, the plaintiffs were entitled to the verdict; for, that the specification showed that the patent was not for a system of giving signals, but for certain distinct and specified improvements, compre hending those in question,-the system being described only for the purpose of explaining the improvements claimed.

One of the patentees' improvements was de

Analytical Digest of Cases: Law of Patents.

301

scribed as an improvement "whereby a set of necessarily tend to destroy the design or combined conducting wires, as aforesaid, hav-tracing so obtained in the camera obscura." ing a voltaic battery, and a set of buttons or It then proceeded to give a description of the finger keys, and also a dial with vertical first operation,-preparing the silver surface of needles, for giving signals, as well as an appa- the plate; the concluding part of which diratus for sounding alarums at each end of the rected that nitric acid dissolved in water set, may also have duplicates of such dials, should be applied three different times, the with needles and apparatus for alarums, at inter- plate being each time sprinkled with pounce mediate places between the two ends, all such and lightly rubbed with cotton; addingduplicates operating simultaneously with each "When the plate is not intended for immeother, and with the two end dials and alarums, diate use or operation, the acid may be used to give like signals and to sound like alarums." only twice upon its surface after being exposed The jury found that "the sending of signals to heat: the first part of the operation, that is, to intermediate stations was new to the plain- the preparation as far as the second application tiffs," that is, was a new invention of the pa- of the acid, may be done at any time; this tentees: Held, that this was the fit subject of a will allow of a number of plates being kept patent; for, though it might be probable, à prepared up to the last slight operation: it is, priori, that a circuit having a distant coil could however, considered indispensable, that, just have intermediate ones also, which would ope- before the moment of using the plates in the rate in the same manner, still it was a matter camera, or the re-producing the design, to put of experiment that it could practically be done. at least once more some acid on the plate, and Held, also, that the patentees' claim was not to rub it lightly with pounce, as before stated; affected by the circumstance of the defendant's finally, the plate must be cleaned with cotton having improved upon it, so as to enable those from all pounce dust which may be on the surat the intermediate stations to send as well as face, or its edges." In a subsequent part of to receive communications. Electric Telegraph the specification, having described the second Company v. Brett, 10 C. B. 838. operation,-viz., the application of the iodine, See Improvement; Specification, 3. the inventor observed:-"After this second operation is completed, the plate is to be passed to the third operation, or that of the camera obscura; whenever it is possible, the one operation should immediately follow the

REPEALING PATENT.

Sci. fa.-Plea in abatement.—Assignment of share. In sci. fa. against A. and B. to repeal a patent granted to A. and B., A. cannot plead in abatement that B. assigned all his share and interest in the patent to A., before the writ was sued out, and has not since had any interest

therein.

If,

Per Lord Campbell, C. J., and Erle, J. in fact, the party having no interest was joined in order that he might collusively prejudice the other defendant, application should be made to the Court for remedy, as against an abuse of process. Regina v. Betts, 15 Q. B. 540.

SPECIFICATION.

66 a new

other."

Held, that, taking the whole specification tion of acid, was not to be understood to be a together, the direction as to the third applicadirection to apply the acid after the second iodine, which, it was proved, would render operation,-viz., the coating the plate with the whole process abortive, but to apply it as part of the first operation; and that the specification gave sufficient information to an operator of reasonable skill. Beard v. Egerton, 8 C. B. 165.

Cases cited in the judgment: Russell v. Cowley, 1 C. M. & R. 864; Neilson v. Harford, 8 M. & W. 825; M'Alpine v. Mangnall, 3 C. B.

496.

2. Construction of.-In the construction of a specification, the whole instrument must be taken together, and a fair and reasonable interpretation given to the words used in it. Beard v. Egerton, 8 C. B. 165.

1. Description of mode of conducting operation.-A specification of a patent for and improved method of obtaining the spontaneous re-production of all the images received on the focus of the camera obscura," in describing the process, stated it to be divided into five operations:-"The first consists in polishing and cleaning the silver surface of the plate, in order to properly prepare or qualify it for receiving the sensitive layer or 3. Combination of new and old machinery.— coating (iodine) upon which the action of the Infringement.-In the specification of a palight traces the design; the second operation tent for " improvements in looms for weavis, the applying that sensitive layer or coating ing," the plaintiff declared that his improveto the silver surface; the third, in submitting ments applied to that class of machinery in the camera obscura the prepared surface or called power-looms, and consisted in a novel plate to the action of the light, so that it may arrangement of mechanism, designed for the receive the images; the fourth, in bringing purpose of instantly stopping the whole of out or making appear the image, picture, or the working parts of the loom whenever the representation, which is not visible when the shuttle stops in the shed." He then described plate is first taken out of the camera obscura; the manner in which that was done in ordinary the fifth and last operation is, that of removing looms, and proceeded thus :-"The principal the sensitive layer or coating, which would defect in this arrangement, and which my imcontinue to be affected and undergo different provement is intended to obviate, is the frechanges from the action of light,-this would quent breakage of the different parts of the

Analytical Digest of Cases: Law of Patents.-Bankruptcy and Insolvency.

Analytical Digest of Cases: Bankruptcy and Insolvency.

the does not apply to bills of sale which convey property absolutely, but only to an executory bill of sale. Hardy v. Tingey, 5 Exch. R. 294.

CERTIFICATE.

Taking bankrupt in execution under 12 & 13 Vict. c. 105, s. 257.-Refusing certificate of conformity.-Second certificate for execution under same order.-When the Court of Bankruptcy has, on the bankrupt's last examination, made an order refusing a certificate of conformity under Stat. 12 & 13 Vict. c. 106, s. 256, and a certificate has been thereupon granted to the creditor for the purpose of taking the bankrupt in execution under sect. 257, this Court will not inquire whether the order was made under circumstances bringing the case properly within one of the grounds of refusal

stated in sect. 256.

DEBTORS' ARRANGEMENT ACT.

303

1. Form of certificate under.-A certificate under the Debtors' Arrangement Act (7 & 8 Vict. c. 70, s. 13), must certify the filing of the petition, and not merely that a resolution or agreement was duly assented to, and approved, and filed by the Commissioner.

Quære, whether a certificate under this Act

requires confirmation, or whether a plea setting-up such a certificate, need show that the debt is not of the excepted classes mentioned in section 2? Temple v. Sleigh, 9 C. B. 348.

2. Under 12 & 13 Vict. c. 106, s. 224.Pleading. The 224th section of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, makes a deed of arrangement, if executed by or on behalf of six-sevenths in number and value of the creditors of the trader, under certain circumstances, binding on the whole body: Although the order itself states the certifi- Held, that a plea setting forth a deed of that cate to have been refused because the bank- description, and stating that the creditors who rupt "concealed of his property," executed it were some more than six-sevenths, to whereas the offence described in sect. 256 is, wit, nine-tenths in number and value," was concealing with intent to diminish the divi- sufficient, on special demurrer, and not open dend or give an undue preference. to the objection of argumentativeness or immateriality. Stewart v. Collins, 10 C. B. 634.

After the bankrupt has been imprisoned on certificate granted to a creditor under such order of the Court of Bankruptcy, and discharged, another creditor may obtain and enforce a certificate under the same order.

It is no objection to the creditor's certificate that the application for it was made without notice to the bankrupt, and not at a public meeting. For the granting of such certificate is only a ministerial act. In re Cowgill, 16

Q. B. 336.

CERTIFICATE FOR PROTECTION.

Under Stat. 7 & 8 Vict. c. 70.-Where, under Stat. 7 & 8 Vict. c. 70, creditors have accepted a petitioning debtor's proposal, and this has been certified by a Commissioner in Bankruptcy, and he has indorsed a protection on the certificate under sect. 6, this only protects from arrest, and cannot be pleaded in bar of an action brought by a creditor who has had notice. Blackford v. Hill, 15 Q. B. 116.

COMPOSITION WITH CREDITORS.

66

3. Certificate of protection from arrest.The certificate given to a petitioning trader, under the 12 & 13 Vict. c. 106. s. 216, only protects him from arrest at the suit of persons being creditors at the date of the petition, and who have received the notices required by that Act.

Therefore, where the acceptor of a bill of exchange petitioned under the arrangement clauses of that Act, and gave the requisite notice to the drawer, whom he supposed to be the holder of the bill: Held, that the certificate did not protect him from execution on a judgment in an action by an indorsee of the bill. Levy v. Horne, 5 Exch. R. 257.

DISCHARGE.

1. Proof of plea of.-The averment in a plea, that the defendant offered and agreed 1. What debts discharged.—Costs of action with the plaintiff and divers of the said other pending, the verdict being obtained on day of creditors (the plea having previously stated discharge.—The adjudication of the Commisthat the defendant was indebted to the plaintiff and divers other persons), "to pay to them respectively, and that the plaintiff and the said last mentioned other creditors agreed together to accept a certain composition for the payment of the defendant's debts,-is satisfied by proof of some of the creditors having entered into that agreement. Norman v. Thompson, 4

Exch. R. 755,

2. Construction of agreement. ment entered into between a debtor and any number of his creditors less than the whole number, to take a composition for their debts, is binding upon those who enter into the agreement. Norman v. Thompson, 4 Exch. R. 755.

sioner under the Insolvent Debtors' Act, 1 & 2 Vict. c. 110, s. 90, discharges the insolvent from all debts due or growing due at the time of the petition, to creditors, or to persons claiming to be creditors.

An insolvent inserted in his schedule the name of A., in whose hands he had placed two bills of exchange for the purpose of their being discounted. After the schedule was filed, he discovered that A. had indorsed the bills to B., and accordingly obtained leave to amend the schedule by inserting B.'s name therein, stating the circumstances under which the B. sued the inbills came to B.'s hands. solvent on the bills, and obtained a verdict at the assizes against him on the morning of

304

Analytical Digest of Cases: Bankruptcy and Insolvency.

the day on which the order of adjudication situation, as if they were actually the goods of

was made, and proceeded thereon to judgment and execution: Held, that the insolvent was entitled to be discharged as to the action, both in respect of debt and costs,-although the costs were incurred after the filing of the petition. Berry v. Irwin, 8 C. B. 532.

the bankrupt, so as to vest them at once, by the bankruptcy, in the assignees, independently of any election on their part, other than their acceptance of the office of assignee: but by a transfer which is a fraudulent preference, the property vests in the transferree, subject to be divested by the assignees, at their election, and the title of transferree is perfect, except so far as it is avoided by the assignees.

2. Excepted debts.-By an order of adjudication by a Commissioner of the Insolvent Debtors' Court, purporting to be made pursuant to the 1 & 2 Vict. c. 110, ss. 76, 78, the The commencement of an action of trover, prisoner was adjudged to be discharged as to which may be abandoned at any time, and all the debts in his schedule at the expiration of which assumes that the goods came into the six months from the date of the vesting order, possession of the defendant lawfully, cannot, except as to four debts, which the Commissioner without more, be taken to be an election on the found to have been contracted by means of a part of the assignees to avoid the transfer. breach of trust, and as to which the prisoner Where, therefore, goods had been transferred was ordered to be discharged at the expiration by a trader before his bankruptcy, by an inof 16 months from the date of the vesting strument which the jury found to be fraudulent order: Held, that, whether the Commissioner had or had not jurisdiction to make the latter part of the order, the first part was no discharge as to the four excepted debts. Exparte Violett, 10 C. B. 891.

ENTRY OF SUGGESTION.

Proof by plaintiff for costs in action, under fiat against defendant.-The plaintiff obtained a verdict and judgment for 500l. damages, and 1351. 6s. costs: the defendant afterwards became bankrupt, and the plaintiff proved under the fiat for the costs only. The Court refused to enter a suggestion of the proof upon the roll,--there being no precedent, and in the opinion of the Court, no necessity for it. Sainter v. Fergusson, 8 C. B. 619.

EXAMINATION.

Withdrawal of opposition to last examination.-Validity of security.-A security given by a bankrupt to a creditor, on consideration of his forbearing to oppose the bankrupt's last examination, is not void under the 12 & 13 Vict. c. 106, s. 202. Taylor v. Wilson, 5

Exch. R. 251.

EXECUTION.

preference, and the transferree had, after the bankruptcy, and after the appointment of assignees, brought an action for an illegal and excessive distress upon the goods, which were the subject of the conveyance: Held, that, the assignees having not otherwise asserted their right to the goods than by commencing an action of trover to recover them,-it was not title under "not possessed." Newnham v. competent to the defendants to set up their Stevenson, 10 C. B. 713.

ISSUING OF FIAT.

1. Date. A fiat in bankruptcy, granted by the Lord Chancellor, was delivered by him to his Secretary of Bankrupts, to be transmitted by post to the Commissioners of Bankruptcy in the country. The secretary accordingly put the fiat into the post-office, in pursuance of the order given: Held, that the delivery of the fiat by the Lord Chancellor to the secretary was not the true "date and issuing of the fiat" within the 2 & 3 Vict. c. 29, so as to protect an execution levied after such delivery. Freeman v.

Whitaker, 4 Exch. R. 834.

2. Under 5 & 6 Vict. c. 122, s. 4.-The 5 & 6 Vict. c. 122, s. 4, enacts, that fiats in bankOn judgment signed under Judge's order, ruptcy shall be issued and transmitted by the within protection of 1 Wm. 4, c. 7, s. 7.-After Lord Chancellor's Secretary of Bankrupts, in declaration, in an action adversely brought, such manner as the Lord Chancellor shall by and without collusion, the defendant consented any order direct. The Lord Chancellor, by to a Judge's order for payment of debt and an order, directed that every fiat directed to costs forthwith, the plaintiff to be at liberty, in any district Court of Bankruptcy should forthcase of default, to sign judgment and issue with be sent through the General Post-office execution for the amount: Held, that a judg-to the deputy registrars of such district Court. ment signed thereon was a judgment by nil A fiat in bankruptcy having been signed by dicit, and within the protection of the 1 Wm. the Lord Chancellor, and sent to the office of 4, c. 7, s. 7. Bell v. Bidgood, 8 C. B. 763.

FRAUDULENT COMPOSITION.

the Secretary of Bankrupts, was by him duly put into the post, and arrived at the district Recovery of money paid as price of procur-issued at the moment it was put into the post. Court on the following day: Held, that the fiat ing. Whether a debtor paying money down to a creditor before he enters into a composition, as the price of procuring a fraud on his other creditors, may recover back the money,quære. Higgins v. Pitt, 4 Exch. R. 312.

FRAUDULENT PREFERENCE.

The effect of bankruptcy upon a fraudulent preference, is not to put the goods in the same

Hernaman v. Coryton, 5 Exch. R. 453.

JUDGE'S ORder.

1. Judgment by confession.-A Judge's order, made by consent, for immediate judg ment and execution, is a "judgment by confession" within the 108th section of the 6 Geo. 4, c. 16.