it leaves the riffles is subjected to the action of the water on the H. C. OF A. smooth portion of the table and the final separation of the mineral from the gangue effected. 1906. N. GUTH WILFLEY ORE CONCENTRA LTD. "2. A transversely inclined concentrating table having a number RIDGE LTD. of longitudinal riffles extending a portion of the table's length from the head towards the foot, said riffles being of unequal length, the uppermost being the shortest while the other riffles increase in length from the upper edge to the lower edge of the table, the table having a plain or unriffled portion lying at the extremities of the riffles and adapted to receive the material caught by the riffles." "7. The combination of a transversely inclined concentrating table having a series of riffles extending longitudinally from the head towards the tail of the table, said riffles being of unequal length, the uppermost being the shortest and the riffles increasing in length from the upper to the lower edge of the table, the table being provided with a plain or unriffled portion of suitable area located at the extremities of the riffles, means for feeding the material to the upper portion of the table's head, means for discharging water on the upper edge of the table, and suitable means for imparting to the table a longitudinally reciprocating movement of a character adapted to move the material from the head toward the tail of the table." The description in the "Engineering and Mining Journal of New York," which was headed "The Wilfley Concentrating Table,” and was illustrated by two pictures referred to in the letterpress as Fig. 1 and Fig. 2, was as follows: "The accompanying illustration shows a new form of concentrator known as the Wilfley Concentrating table, which is made by the Mine and Smelter Supply Company, of Denver, Colo. The engraving shows the table flat, without supports, Fig. 1 representing the table and Fig. 2 the movement. It may, of course, be set on a frame at any height desired. The concentrator is a flat table 7 x 16 ft., resting on rollers, and is operated by an eccentric. This gives a jerking motion, which carries heavy material to the bottom of the bed, then forward to the head end of the table. The pulp is supplied through a feed box, which extends the whole length of the table, and is divided in such a way as to feed pulp at one 1906. RIDGE LTD. V. CONCENTRA CATE LTD. off. H. C. OF A. end and clear water at the other end, where the concentrators pass It is claimed that by this arrangement there is a clean N. GUTH heading, so that the operator can always see what the table is doing, and that all the material is kept constantly under water WILFLEY ORE and never exposed to the air. It is claimed for this table that the TOR SYNDI- loss of material in the slimes, which often occurs, is prevented. "The silica passes across the table (it being slightly inclined) and off at the side, in doing which it passes over tapered cleats, the result being that coarse silica passes off first, then as material is jerked forward and toward the upper end the fine silica rises to the surface and is carried off next. In this way the table acts as a sizer to a certain extent. If ore is put on a table or into any receptacle and thoroughly shaken, the coarse and fine concentrates and fine silica will go to the bottom, and the difficulty usually experienced in concentrating is to remove fine silica without large losses. A description of the cleats will further illustrate the point. The table is covered with linoleum on which are nailed from two to seven cleats, which are about in. high at the tail end of the table and taper to a feather edge toward the head end. The first cleat is put on the lower edge of the table and runs up to within 2 ft. of the head end; the other cleats are shorter and shorter as they cross the table toward the feed box making the last cleat about 4 ft. long. The pulp is fed on the table as near the tail end as possible, and the jerking motion sends the concentrates to the bottom, and at the same time moves them toward the head end. When concentration commences the coarse silica passes over the high end of the cleats, and as the ore moves forward finer silica rises as the height of the cleats decreases and passes off. This is done without materially disturbing the bed of concentrates which moves forward and around the end of the cleats until a sufficient quantity collects to go straight forward and off the head-end. The space left between the end of the first strip and the head of the table allows middlings to pass into a long trough on the side and pass to the wheel conveyor at the extreme tail end, where it is elevated and passed over the table into the feed box to be retreated." The further facts appear in the judgments. The action was heard by Hood J., who held that there had been 1906. no prior publication of the plaintiffs' patent, and that there had H. C. OF A. He been an infringement of that patent by the defendants. therefore gave judgment for the plaintiffs with costs: Wilfley Ore Concentrator Syndicate Ltd. v. N. Guthridge Ltd. (1). N. GUTH RIDGE LTD. From this judgment the plaintiffs now appealed to the High WILFLEY ORE Court. Irvine, for the appellants. The issues were, first, whether the invention was new having regard to the common knowledge in Victoria and to the information contained in the "Engineering and Mining Journal of New York," and, secondly, whether there was an infringement. On the question of infringement, if the learned Judge's reading of the plaintiffs' specification is right, it is not proposed to argue that the facts do not support his conclusion. As to the first issue the learned Judge has made a fundamental mistake. He has treated the question of anticipation as being purely one of fact. The true rule as to paper anticipations is that the construction of the document which is alleged to be an anticipation is primarily for the Court. In construing the document the Court may properly rely on evidence dehors the document for two purposes, first, in order to place itself in the position of a person skilled in the art to which the invention relates, or, in other words, to ascertain the common knowledge at the time of the alleged anticipation, and secondly, for the purpose of explaining the terms of art and the processes referred to: Anglo-American Brush Electric Light Corporation v. King, Brown & Co. (2); Hills v. Evans (3). There is no doubt as to the identity of the invention intended to be described by the paper anticipation and that described by the plaintiffs' specification, and the only question is as to the sufficiency of the description in the paper anticipation. That question is one for the Court: Betts v. Menzies (4); Edmunds on Patents, 2nd. ed., p. 207. See also Betts v. Neilson (5); Neilson v. Harford (6); Hills v. London Gaslight Co. (7); United Telephone Co. v. Bassano (8): Boyd v. Horrocks (9); Gadd v. Mayor &c. of (1) (1906) V. L. R., 210. (2) (1892) A.C., 367. (4) 10 H.L.C., 117, at p. 134. (6) 8 M. & W., 806. (7) 29 L.J. Ex., 409. at p. 416. CONCENTRA TOR SYNDI CATE LTD. 1906. H. C. OF A. Manchester (1); Brooks v. Steele (2). Those being the principles of law applicable to an alleged paper anticipation, the evidence of experts as to the meaning of the document is inadmissible, and the Court is at liberty to form its own opinion as to the meaning. N. GCT RIDGE LTD. 22. WILFLEY ORE Coldham and Macfarlan, for the respondents. The issue is, was the plaintiffs' invention novel? That is a question of fact. The alleged paper anticipation is set up as proof of want of novelty, the burden of that proof being on the defendants. It is undoubtedly the duty of the Court to interpret the document which is alleged to be an anticipation. If there is a jury, the Court should tell them what the document means. But it would be for the jury to say what effect, having regard to the common knowledge at the time, the document would have on the minds of the persons to whom it was addressed. That is to say, it is a question for a jury whether, to the minds of reasonable men, the paper anticipation would disclose the invention. Where the paper anticipation and the specification of the invention are in practically the same words, then in the result the only question left is one for the Court. But the question of identity is one of fact for the jury. Here the paper anticipation and the specification of the respondents' patent are not in the same words. Whether the document as interpreted by the Court would disclose to competent persons the patented invention is a proper matter for evidence, and this Court should not disturb the Judge's findings, for there was ample evidence to support them. [Counsel also referred to Hill v. Thompson (3); Cornish v. Keene (4); Bush v. Fox (5); Hills v. London Gaslight Co. (6); Booth v. Kennard (7); British Dynamite Co. v. Krebs (8); Plimpton v. Malcolmson (9); Lyon v. Goddard (10); Willmann v. Peterson (11); Savage v. D. B. Harris & Sons (12); Frost on Patents, 2nd ed., 131; Hayward v. Hamilton (13).] Irvine in reply. (1) 9 R. P.C., 516, at p. 532. (5) 5 H.L.C., 707. (6) 5 H. & N., 312; 29 L.J. Ex., 409. Cur, adv. vult. (8) 13 R.P.C., 190. (13) Johns. Pat. Man., 245. 1906. N. GUTH v. RIDGe Ltd. WILFLEY ORE CONCENTRA TOR SYNDI- Griffith C.J. GRIFFITH C.J. This is an action brought by the respondents H. C. OF A. against the appellants for infringement of the plaintiffs' patent, which is described as a patent for " Improvements in ore concentrators." The defence was a denial of the novelty of the invention, and a denial of infringement. The novelty is impeached on the ground that, before the granting of the patent, a description of the identical invention had been published in a periodical circulating in Victoria. The case is not, as frequently happens, one of an alleged anticipation of an invention by the specification of a prior invention; but in this case, the publication under consideration is a description of the very invention itself. But, the plaintiffs say, the attempt to describe it was so poor that it was ineffectual, and it did not have the result of adding anything to the store of common knowledge in respect of the improvements supposed to be introduced by this invention. The principles to be applied in determining whether a patent is void on the ground of anticipation are laid down very clearly in cases decided in the House of Lords. Of course the fundamental principle is that a patent can only be granted for a new invention, because, if the subject matter of the invention is already the property of the public, it would be very unfair to give the monopoly to one person in respect of what is already in the possession of the whole community. Lord Westbury L.C. in the case of Betts v. Menzies (1), thus stated the rule for determining whether a prior publication has been such as to invalidate a subsequent patent:"I pass on to the next conclusion which is involved in the answer of the learned Judges to your Lordships' question, and that conclusion, I think, is also of great importance to the law of patents, because it results from that opinion that an antecedent specification ought not to be held to be an anticipation of a subsequent discovery, unless you have ascertained that the antecedent specification discloses a practicable mode of producing the result which is the effect of the subsequent discovery. Here we attain at length to a certain undoubted and useful rule. For the law laid down, with regard to the interpretation of a subsequent specification, is equally applicable to the construction to be put upon publications or treatises previously given to the world, and which are frequently (1) 10 H.L.C., 117, at p. 154. VOL. III. 42 |