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the United States, as the specification is drawn up before the patent is made out, the above rule is not applicable. 79

Sec. IX.-REFERENCE IN THE SPECIFICATION TO

DRAWINGS.

The third section of the act of Congress of 1793, after prescribing the requisites of the specification, provides that the inventor shall accompany it “with drawings and written references, where the nature of the case admits of drawings.” The act of 1836, s. 6, contains the same provision, correcting the phraseology merely by saying “ drawing or drawings,” which does not alter the construction.

The drawings are a part of the specification where they are referred to in it, $“ and may help and make good a specification which would otherwise be defective.'

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trine, Lord Tenterden remarks that time is given for enrolling the specification, for the purpose of allowing the inventor an opportunity to perfect bis invention.

7: “ Near the end of the reign of Queen Anne, it became the custom to insert a proviso into all patents to require the patentee to execute a complete specification of the invention for which the patent was granted, and also to enroll the same in the court of chancery within a specified time. Before that time the patentee was not called upon for any specification.” Mr. Savery's patent of 1698, for some kind of fire engine, had no such clause. Rep. of Com. of House of Com. 1829, App. p. 170. Mr. Farey's Papers.

80 Earle v. Sawyer, 4 Mass. R. 1. See supra c. 10. 81 Kent's Com. v. 2, p. 270.

The English and American jurisprudence coincide in this doctrine. Where it was, in 1825, objected to a specification that there was some little obscurity in it, and that it contained French terms, Abbott C. J. said, that the inventor of a machine was not tied down to make such a specification, as, by words only, would enable a skilful mechanic to make the machine, but he is to be allowed to call in aid the drawings which he annexes to the specification; and if, by a comparison of the words and the drawings, the one will explain the other sufficiently to enable a skilful mechanic to perform the work, such a specification is sufficient."82

So in a previous trial, in 1820, on Brunton's patent for chain cable's anchors and windlasses, where it was objected that the dimenions of the stay of the link were not described in words, Abbott, C. J. said to the jury, “If a drawing or figure will enable a workman of competent skill to construct the improvement, it is as good as any written description."83

So Lord Ellenborough, in 1816, said to the jury, on the subject of distinguishing what was claimed; “ The inventor should say, "My improvement consists in this,'describing it in words if he can, if not, by reference to figures.

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82 Bloxam v. Elsee, 1 Carr. & P. 558.

83 Brunton v. Hawkes and another. Rep. of Comm. of House of Com. 1829, p. 206. App. Mr. Farey's notes.

84 Macfarlane v. Price, 1 Stark. R. 199.

Lord Eldon says, the inventor may, if he chooses, annex to his specification a picture or model descriptive of it; but then, he adds, what is inconsistent with the opinion of other English judges above cited, and what is clearly not law in the United States; “his specification must be in itself sufficient, or I apprehend it will be bad.”65

In Earle v. Sawyer,46 Mr. Justice Story said, “it was argued, that, by the very terms of the patent act, there must be a written description (without any reference to drawings) in such full, clear and exact terms, as to distinguish the things patented from all other things; and that, in case of a machine, the act requires drawings in addition thereto. For this position, the case of Fox ex parte,87 before Lord Eldon, has been cited. As I understand the language of Lord Eldon, it is not intended to assert the doctrine for which it is cited. It means that the specification must in itself be sufficient, and that the mere annexation of a picture or model will not help any defect in the specification. This may be true, where such picture or model is not referred to, as constituting a part of the specification itself. But if the explanations of the specification call for the drawings, and refer to them as a component part in

85 Fox ex parte, 1 Ves. & B. 67. 86 4 Mason, 9. 87 1 Ves. & B. 67.

the description, they are just as much a part of the specification, as if they were placed in the body of the specification. Indeed, in many cases, it would be impracticable to give a full and accurate description of the form, adjustments and apparatus of very nice and delicate machinery, without drawings of some of the parts, as every thing might depend on size, position and peculiar shape. Lord Eldon could not have meant, that if drawings and figures were necessary to a full description of a machine in the specification, there was still some stubborn rule of law prohibiting it. That would be to require the end and yet to refuse the means."

“ The question must, after all, be decided by our own law on this subject. The st. 1793, c. 156, § 3, requires that the inventor “shall deliver a written description of his invention, &c.; and he shall accompany the whole with drawings and written references, where the nature of the case admits of drawings," &c. This is an explicit direction to annex drawings, where the nature of the case admits of them, with written references; and when so annexed, they become part of the written description required by the act. They may be indispensable to distinguish the thing patented from other things before known. Surely then the act could not intend studiously to exclude them as part of the written description. That would be to require the end and deny the means.'

It was held by the King's Bench, in England, that a specification in a former patent might be referred to in a subsequent one, so as to be made a part of it.88

But specimens and models, deposited in the patent office, cannot be resorted to for the

purpose

of

supplying any defect in the specification.

Sec. X.-CONSEQUENCES OF A DEFECT IN THE SPECI

FICATION.

Before the British act of 5 and 6 Wm. IV. c. 83, (1835,) the consequence of a defect in the specification, in England, was an absolute loss of the privilege of the patent right. By the first section of that act, the patentee or his assignee “may, with the leave of the attorney or solicitor general, enter a disclaimer of any part of either the title of the invention or of the specification, stating the reason for such disclaimer, or may, with such leave, enter a memorandum of any alteration in the said title or specification, not being such disclaimer, or such alteration as shall extend the exclusive right granted by the patent;" and such disclaimer or memorandum is thereafter to be considered a part of the title or specification.

89

88 Harmar v. Playne, 10 East, 101. Supra, s. 7, p. 270. 89 This act was introduced by Lord Brougham, and is the result of

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