20. The Court of Exchequer said they would engraft a modification on the words of the Act, and read it as if it had been "part of the letters patent from thenceforth."(0)

In a subsequent case, in the Common Pleas, Jervis, C.J. said, if it had not been for the case of Perry v. Skinner, he should have thought it plain, upon reading the Act of Parliament, that the intention of the Legislature was to allow a specification to be amended at any time by a disclaimer; and that the disclaimer having been perfected after proper precautions taken, and terms imposed by the law officers, should be deemed part of the original specification in all courts whatever, except in actions pending at the time of its enrolment. He said he regretted that he was obliged, even indirectly, to question the decision in Perry v. Skinner.

Maule, J. thought that the inconvenience apprehended by the Court of Exchequer in Perry v. Skinner did not arise. The Act gives not an absolute power to any one to enter a disclaimer, but only a power to apply to the discretion of the Attorney or Solicitor General, who may grant or refuse leave to enter such disclaimer as he, acting judicially on behalf of the public, shall deem best for the public interest. That must be taken to be a provision made by the Legislature for the prevention of inconvenience as regards the public. In the case before the Court, he thought himself bound by the Act of Parliament to take the disclaimer to be part of the specification as from the date of the specification.(p)

It would seem that a second patent for the same invention, or an improvement upon it, taken out between the time of the filing the original specification and the date of the disclaimer of part of the invention described, can confer no rights on the second against the original patentee.(g)

21. The entry of a disclaimer to part of a specification does not necessarily admit that the patent is bad. The object of the disclaimer is not merely to set right the description of the alleged invention where it is known to be wrong, but to obviate any doubt that may arise on the specification; therefore the mere statement of a disclaimer upon the record does (0) Perry v. Skinner, 2 M. & W. 471.

Reg. v. Mill, 20 L. J. N. s. C. P. 16; 10 C.B. 379.

(q) Stocker v. Warner, 1 C. B. 148, 166. See Stead v. Carey, 1 C. B. 521.

not show that the patent, as originally granted, was void before the disclaimer.(r)

22. With regard to disclaimers entered after the 1st of October, 1852, by stat. 15 & 16 Vict. cap. 83, s. 39, no action shall be brought upon any letters patent in which, or on the specification of which, any disclaimer or memorandum of alteration shall have been filed in respect of any infringement committed prior to the filing of such disclaimer or memorandum of alteration, unless the law officer shall certify in his fiat that any such action may be brought notwithstanding the entry or filing of such disclaimer or memorandum of alteration. Sir John Romilly was never in the habit of allowing a disclaimer without imposing a condition that the patentee should bring no action for infringements prior to the disclaimer. (s)

23. The entry of a disclaimer need not be replied to a pleading alleging the want of novelty, or the like, on part of the invention. In a proceeding by scire facias to repeal a patent after issue joined, the defendant procured to be enrolled a disclaimer of some of the claims in the specification. The Court held that the disclaimer, though enrolled after issue joined, was admissible for the defendant, and was to be read as part of the original specification put in by the prosecutor.(t)

24. The following case has occurred as to the costs in case of a disclaimers pending a scire facias. Pending a scire facias to repeal a patent, the patentee disclaimed a part of his invention under 5 & 6 Wm. 4, cap. 83, s. 1; the prosecutor still proceeded, and ultimately failed. Sir John Romilly said, that a patentee who disclaimed must take the consequence of having it assumed, in the absence of evidence, that the patent was invalid previous to the disclaimer. But he thought that after the disclaimer the prosecutor was bound to know that the patent was good, and ought then to have discontinued the action. By consent he would so order the taxation, otherwise he could only give leave to the patentee to put the bond in suit, to enable him to recover the subsequent costs. (u) Stocker v. Warner, 1 C. B. 148.

See 14 Beav. 314; Report on Patents, 1851.

Reg. v. Mill, 20 L. J. N. s. C. P. 16; 10 C.B. 379. (u) Reg. v. Mill, 14 Beav. 312.

SECTION III.-AMENDMENT AT COMMON LAW.

25. The Lord Chancellor has no power to alter the date of a patent which had been dated as of the day of the delivery of the privy seal bill, and not, as the patentee supposed, as of the day when the order for sealing was made and the seal affixed, though, in consequence of such mistake, the patentee did not enrol his specification until the four months limited in the patent for that purpose had expired. (x)

66

26. But clerical errors may be amended at common law. Where a clerical error was made, the word recovering" having been written instead of the word "covering" fibres in the Queen's warrant, and the error was copied in the Queen's bill, the Signet bill, the Privy Seal bill, and the letters patent and enrolment, the error having been corrected in the Queen's warrant and the Privy Seal bill, the Lord Chancellor and Master of the Rolls, by a joint order, directed the letters patent to be altered and resealed, and the enrolment altered to correspond with the amended letters patent, on the terms that the patentee should abandon and pay the costs of all actions then pending, and that no action should be brought for any infringement before the resealing. (y) The date of the patent was not altered.

27. With regard to erroneous enrolments, the Master of the Rolls has no authority to make any alteration in the enrolment of a patent or specification, except for the purpose of correcting mere verbal or clerical errors, proved to have arisen from mistake or inadvertence. The enrolment must correspond strictly with the patent. The title of the party derived from the Crown rests on the letters patent only, and the enrolment only permitted to be used for the purpose of showing what the grant is. He has no jurisdiction to remove an erroneous claim. (z)

28. Clerical errors and errors of mistake appear to have been always amendable at common law. (a) In Whitehouse's

(x) Ex parte Beck, 1 Bro. C. C. 578; Webst. P. C. 430, n. (y) Nickels's patent, Webst. P. C. 656, 664. See also Anon. Webst. P. C. 663, cited by Lord Cottenham. See Nickels v. Ross, 8 C. B. 673. Sharp's patent, Ex parte Wordsworth, Webst. P. C. 641.

(a) Webst. P. C. 657, n.

patent, the word "wire" having, by a clerical error, been written in the enrolment instead of "fire," the enrolment was amended by Lord Gifford. (b)

29. In every case that has occurred, it has plainly been intended to do no more than amend mere slips or clerical errors made by the parties or the agents of the parties; and not only has strict evidence of error been required, but in order to enable any third party to dispute the validity of the amendment and of the order, it has been directed that the order itself should be indorsed on the enrolment. (c)

30. No alteration of an enrolment of letters patent will be permitted which could make the enrolment differ from the original letters patent.

(b) Whitehouse's patent, Webst. P. C. 648, 649, note m. See also Redmund's case, 5 Russ. 44, cited by Lord Langdale; Sharp's case, Webst. P. C. 649; Rubery's patent, Webst. P. C. 649, note m.

(c) Nickel's patent, Webst. P. C. 650, 656; Turn. & Phil. 48.

CHAPTER XIV.

Confirmation and Extension of Patent.

SECTION I.-CONFIRMATION.

1. IT sometimes happens that the patentee is a true inventor, and believed himself to be the first inventor, yet, by reason of some other person having invented or used the same thing before the date of his patent, without his knowledge, his patent could not have been supported, though he has been the first person to bring the invention into use in this country. This led to hardships. A man who had brought to perfection an invention of great public utility, was liable to have his patent defeated, by evidence of former forgotten discoveries which had never led to any practical result.

2. By stat. 5 & 6 Wm. 4, cap. 83, s. 2, if in any suit or action it shall be proved, or specially found by the verdict of a jury, that any person who shall have obtained letters patent for any invention or supposed invention, was not the first inventor thereof or of some part thereof, by reason of some other person or persons having invented or used the same or some part thereof, before the date of such letters patent; or if such patentee or his assigns shall discover that some other person had, unknown to such patentee, invented or used the same, or some part thereof, before the date of such letters patent, it shall and may be lawful for such patentee and his assigns to petition his Majesty in council to confirm the said letters patent, or to grant new letters patent; the matter of which petition shall be heard before the Judicial Committee of the Privy Council; and such committee, upon examining the said matter, and being satisfied that such patentee believed