manufacturing chemists from December 11, 1877, and in consideration thereof and of a fifth share of the goodwill and assets of the business to pay and he did pay to the defendant the sum of £5000.

2. The said fraud was as follows: The defendant by letters dated the 1st and 3rd of December, 1877, falsely and fraudulently represented to the plaintiff that his average yearly profits in the said business were £10,000, and that he had 500 customers in the said business.

3. The said average yearly profits did not exceed £800, and the number of customers did not exceed 40, as the defendant well knew when he made the said representations.

4. The plaintiff has paid the sum of £2000 in satisfaction of certain debts of the partnership.

The plaintiff claims :

(1) Rescission of the partnership contract, or a dissolution. (2) Accounts and inquiries.

(3) A receiver and manager.

(4) Payment of £7000 and interest.

(5) A declaration that the plaintiff is entitled to a lien or charge upon the partnership assets in respect of the said sums of £5000 and £2000, and of any other sums payable by him in respect of the partnership.

Patents (a).

Injunction, &c., for Infringement of Patent.

The defendant has infringed the plaintiff's patent, No. 14,084, granted for the term of 14 years from the 21st May,

(a) The law regarding patents for inventions is from December 31, 1883, regulated by the Statute 46 & 47 Vict. c. 57, by which it is provided in Section 5:

(1) An application for a patent must be made in the form set forth in the First Schedule to this Act, or in such other form as may be from time to time prescribed; and must be left at, or sent by post to, the Patent Office in the prescribed manner.

(2) An application must contain a declaration to the effect that the applicant is in possession of an invention, whereof he, or in the case of a joint application, one or more of the applicants, claims or claim to be the true and first inventor or inventors, and for which he or they desires

Patent Act of 1883.

Leading provisions

of the Patent Act, 1883.

1880, for certain improvements in the manufacture of iron and steel, whereof the plaintiff was the first inventor.

The plaintiff claims an injunction to restrain the defendant from further infringement and £100 damages.

Particulars of breaches are delivered herewith.

or desire to obtain a patent; and must be accompanied by either a provisional or complete specification.

(3) A provisional specification must describe the nature of the invention, and be accompanied by drawings, if required.

(5) A specification, whether provisional or complete, must commence with the title, and in the case of a complete specification, must end with a distinct statement of the invention claimed.

Sec. 6. The Comptroller shall refer every application to an examiner, who shall ascertain and report to the Comptroller whether the nature of the invention has been fairly described, and the application, specification, and drawings (if any) have been prepared in the prescribed manner and the title sufficiently indicates the subject-matter of the invention.

Sec. 7 (1) If the examiner reports that the nature of the invention is not fairly described, or that the application, specification, or drawings has not or have not been prepared in the prescribed manner, or that the title does not sufficiently indicate the subject-matter of the invention, the Comptroller may require that the application, specification, or drawings be amended before he proceeds with the application. (2) Where the Comptroller requires an amendment, the applicant may appeal from his decision to the law officer. (3) The law officer shall, if required, hear the applicant and the Comptroller, and may make an order determining whether and subject to what conditions, if any, the application shall be accepted. (4) The Comptroller shall, when an application has been accepted, give notice thereof to the applicant. (5) If after an application has been made, but before a patent has been sealed, an application is made, accompanied by a specification bearing the same or a similar title, it shall be the duty of the examiner to report to the Comptroller whether the specification appears to him to comprise the same invention, and if he reports in the affirmative, the Comptroller shall give notice to the applicants that he has so reported. (6) Where the examiner reports in the affirmative, the Comptroller may determine, subject to an appeal to the law officer, whether the invention comprised in both applications is the same, and if so, he may refuse to seal a patent on the application of the second applicant.

Sec. 11. Any person may at any time within two months from the date of the advertisement of the acceptance of a complete specification give notice at the Patent Office of opposition to the grant of the patent on the ground of the applicant having obtained the invention from him or from a person of whom he is the legal representative, or on the ground that the invention has been patented in this country, or on an application of prior date, or on the ground of an examiner having reported to the Comptroller that the specification appears to him to comprise the same invention as is comprised in a specification bearing the same or a similar title and accompanying a previous application, but on no other ground. (2) Where such notice is given the Comptroller shall give notice of the opposition to the applicant and shall, on the expiration of those two months, after hearing the applicant and the person so giving notice, if desirous of being heard, decide on the case, but subject to appeal to the law officer. (3) The law officer shall, if required, hear the applicant and any person so giving notice, and being in the opinion of the law officer entitled to be heard in opposition to the grant, and

Defence.

The defendant says that:

1. The defendant did not infringe the patent.

2. The invention was not new.

3. The plaintiff was not the first or true inventor.

shall determine whether the grant ought or ought not to be made. (4) Leading The law officer may, if he thinks fit, obtain the assistance of an expert, provisions who shall be paid such remuneration as the law officer, with the consent of the Pa of the Treasury, shall appoint. tent Act,

Sec. 28 (1) In an action or proceeding for infringement or revocation of a patent, the Court may, if it thinks fit, and shall on the request of either of the parties to the proceeding, call in the aid of an assessor specially qualified and try and hear the case wholly or partially with his assistance; the action shall be tried without a jury unless the Court shall otherwise direct. (2) The Court of Appeal or the Judicial Committee of the Privy Council may, if they see fit, in any proceeding before them respectively, call in the aid of an assessor as aforesaid. (3) The remuneration, if any, to be paid to an assessor under this section, shall be determined by the Court, or the Court of Appeal, or Judicial Committee as the case may, and be paid in the same manner as the other expenses of the execution of this Act.

Sec. 29 (1) In an action for infringement of a patent the plaintiff must deliver with his statement of claim, or by order of the Court or the Judge at any subsequent time particulars of the breaches complained of. (2) The defendant must deliver with his statement of defence, or by order of the Court or a Judge at any subsequent time, particulars of any objections on which he relies in support thereof. (3) If the defendant disputes the validity of the patent, the particulars delivered by him must state on what grounds he disputes it, and if one of those grounds is want of novelty, must state the time and place of the previous publication or user alleged by him. (4) At the hearing no evidence shall, except by leave of the Court or a Judge, be admitted in proof of any alleged infringement or objection of which particulars are not so delivered. (5) Particulars delivered may be from time to time amended by leave of the Court or a Judge. (6) On taxation of costs regard shall be had to the particulars delivered by the plaintiff and by the defendant, and they respectively shall not be allowed any costs in respect of any particular delivered by them unless the same is certified by the Court or a Judge to have been proven or to have been reasonable and proper without regard to the general costs of the case.

Sec. 30. In an action for infringement of a patent the Court or a Judge may on the application of either party make such order for an injunc tion, inspection, or account, and impose such terms and give such directions respecting the same and the proceedings thereon as the Court or a Judge may see fit.

Sec. 31. In an action for infringement of a patent, the Court or a Judge may certify that the validity of the patent came in question, and if the Court or Judge so certifies then in any subsequent action for infringement the plaintiff in that action on obtaining a final order or judgment in his favour shall have his full costs, charges, and expenses as between solicitor and client, unless the Court or Judge trying the action certifies that he ought not to have the same.

Sec. 32. Where any person claiming to be the patentee of an invention by circulars, advertisements, or otherwise threatens any other person with

1883.

What

amounts to an in

fringment of patent rights.

The Crown cannot be guilty of an infringe

ment.

Defences: (1) A denial of breach.

(2) Prior

use of the patented

article-no

novelty.

4. The invention was not useful.

5. [Denial of any other matter of fact affecting the validity of the patent.]

Particulars of objections are delivered herewith.

any legal proceedings or liability in respect of any alleged manufacture, use, sale, or purchase of the invention, any person or persons aggrieved thereby may bring an action against him, and may obtain an injunction against the continuance of such threats, and may recover such damage (if any) as may have been sustained thereby, if the alleged manufac ture, use, sale, or purchase to which the threats related was not in fact an infringement of any legal rights of the person making such threats: Provided that this section shall not apply if the person making such threats with due diligence commences and prosecutes an action for infringement of his patent.

In questions whether there has been a violation of a patent, the existence of an intention to violate it is immaterial. (Stead v. Anderson, 4 C. B. 806.) Proof that the defendant sold the patented article without evidence of his having made it or procured it to be made was held sufficient to warrant a jury in finding that an infringement had been committed. (Wallon v. Lavater, 29 L. J. C. P. 275.) So the selling articles made by the patented machine, even though the defendant did not know of the patent. (Wright v. Hitchcock, L. R. 5 Ex. 37.) The plaintiff must prove, where the breach is denied that the article was not made by him or his agent. (Betts v. Willmott, L. R. 6 Ch. 239.)

It is no defence that the defendant's servants had in the course of their business committed the infringement contrary to his express direc tions. (Betts v. De Vitre, L. R. 3 Ch. 429.)

To import the patented article from abroad when the patent did not extend beyond England is an infringement. (Elmslee v. Boursier, L. R. 9 Eq. 217.) Even in such circumstances the transitory resting of the patented article iu England was held to be an infringement. (Betts v. Neilson, L. R. 3 Ch. 429; affirm. L. R. 5 H. L. 1.)

The Crown is not bound by letters patent, and consequently cannot be guilty of an infringement. (Feather v. The Queen, 35 L. J. Q. B. 200.) This does not apply to contractors under the Crown. (Thomas v. The Queen, L. R. 3 10 Q. B. 131.) When a patent has been prolonged, it has been usual to insert a condition reserving the rights of the Crown. (Re Napier's Patent, 6 App. Cas. 174.)

Measure of damages.]--If the plaintiff has been in the habit of licensing the use of the invention for a fixed royalty, such royalty will be the measure of damages for the infringement of the patent, unless perhaps he has been in the habit of charging infringers with a higher royalty, in which case the higher royalty may be given as damages. (Penn v. Jack, L. R. 5 Eq. 81.)

Defences.]-Besides the denial of breach, as to which the preceding authorities will be found useful, the defendant may raise the following defences among others :

Denial of novelty.]-Prior use of the patented article, even though not general, if the use was not secret, will avoid the patent. (Carpenter v. Smith, 9 M. & W. 300; Patterson v. Gas Co., 3 App. Cas. 239.) If the prior use was public, it does not matter that the person using it made a secret of the process. (Heath v. Smith, 23 L. J. Q. B. 166.) It is not necessary in order to invalidate the patent to show that the article had been previously manufactured for sale. (Betts v. Neilson, supra.) The exhibition of a useless machine which turns out a failure will not affect the right of a patentee, who subsequently makes a useful machine,

Action by Assignee of a Patent against an Infringer for an
Injunction and an Account of Profits.

1. On the 1st of January, 1883, a patent, No. 79,767, was duly granted under the Great Seal to A. B. for the term of 14 years from the same day, for certain improvements in the

though somewhat similar to the former useless one. (Murray v. Clayton, L. R. 7 Ch. 570.)

The application of an old contrivance to a purpose similar or analogous What to that to which it was formerly applied, is not sufficient to sustain a amounts to patent. (Harwood v. Great Northern Ry. Co., 31 L. J. Q. B. 198, and novelty. 35 L. J. Q. B. 27 ; Jordan v. Moore, L. R. 1 C. P. 624; Parkes v. Stevens, L. R. 8 Eq. 358; affirm. L. R. 5 Ch. 36.) However the application of an old contrivance or machine to a purpose so different from that to which it was before applied, that the application would not obviously suggest itself, may be the subject of a valid patent. (Penn v. Bibby, L. R. 2 Ch. 127; Arnold v. Bradbury, L. R. 6 Ch. 706; Cannington v. Nuttall, L. R. 5 H. L. 205.)

Insufficiency of specification.]—The omission of any part of the pro- (3) The invisional specification of a patent out of the complete specification will sufficiency not vitiate the patent if there be no fraud, and the effect of the remainder of the is not affected by the omission. (Penn v. Bibby, L. R. 2 Ch. 127, 133; specificaThomas v. Welch, L. R. 1 C. P. 192.) Under the old law it was held tion. that if there be a departure in the complete from the provisional specification, the patent is bad. (Penn v. Bibby, supra.) A specification which professes to effect the proposed object by either of two ways is bad, if it is shown that the object can only be effected by one of them (R. v. Cutler, 14 Q. B. 372, n.); even though a competent workman would adopt the effectual way. (Samson v. Holliday, L. R. 1 H. L. 315.) As to the construction of the specification, see Weymann v. Corcoran, 13 Ch. Div. 65.

Non-registration.]-Where a patent has been assigned and the de- (4) Where fendant denies the assignment, the plaintiff must show that the assign- assignment ment has been registered pursuant to 15 & 16 Vict. c. 83, s. 35, for until in quesregistration the title remains in the assignor. But the assignee may sue tion, want the assignor for an infringement before registration. (Hassal v. Wright, of registraL. R. 10 Eq. 509.) The registration relates back to the date of the assign- tion. ment so as to include interim infringements. (Ib.)

RENEWAL.

The statute 46 & 47 Vict. c. 57, s. 25, preserves the jurisdiction of the Judicial Committee over applications for renewals. As to the conditions on which a further time may be granted to a patentee, see In re Adair's Patent, 6 App. Cas. 176.

Under the Patent Law Amendment Act, 1852, s. 43, when, at the time, the Court was of opinion that there had been an infringement of the patent by the defendant, but held as a legal ground that the patent was void, it refused to give the plaintiff a certificate that breaches of the patent by the defendant had been proved. (United Telephone Co. v. Harrison & Co., 21 Ch. Div. 720.)

Before the new Act it was held (IIlsey v. Brotherhood, 19 Ch. Div. 386) that the holder of a patent, the validity of which is not impeached,