Lapas attēli
PDF
ePub

same, that any person who, as grantee, assignee, or otherwise, hath obtained or who shall hereafter obtain letters patent, for the sole making, exercising, vending, or using of any invention, may, if he think fit, enter with the clerk of the patents of England, Scotland, or Ireland, respectively, as the case may be, having first obtained the leave of his majesty's attorney general or solicitor general in case of an English patent, of the lord advocate or solicitor general of Scotland in the case of a Scotch patent, or of his majesty's attorney general or solicitor general for Ireland in the case of an Irish patent, certified by bis fiat and signature, 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 as aforesaid, 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 said letters patent; and such disclaimer or memorandum of alteration being filed by the said clerk of the patents, and enrolled with the specification, shall be deemed and taken to be part of such letters patent or such specification in all courts whatever' : provided always, that any person may enter a caveat, in like manner as caveats are now used to be entered, against such disclaimer or alteration ; which

· The nature of the mischiefs to be remedied in this section will be very clearly understood by a reference to the extracts from the evidence of Mr. Taylor and Mr. Farey, given in this Appendix : they consisted mainly in the necessity under which inventors found themselves of keeping their inventions secret until the sealing of the patent, which, coupled with the difficulty of specifying correctly without the aid of experiments incompati. ble with the secrecy observed up to the time of sealing, and equally incompatible with the shortness of the time allowed for specifying after the seala ing, occasioned sometimes deficiencies in the specification, sometimes discrepancies between it and the title, either of which faults was sufficient to avoid the patent. It was held even before the passing of this act, that the inventor might embody in his specification any improvements which occurred to him between the periods of sealing the patent and enrolling the specification. Crossley v. Beverley, 9 B. & C. 63. But then the improvements must not have been such as to render the title in the patent inapplicable to the specification, for that would have been fatal to the rights of the patentee. (Smith's Epitome of Law relating to Pat. Ed. 1836. Lond.

P 42, n.]

caveat being so entered shall give the party entering the same a right to have notice of the application being heard by the attorney general, or solicitor general, or lord advocate, respectively : provided also, that no such disclaimer or alteration shall be receivable in evidence in any action or suit (save and except in any proceeding by scire facias) pending at the time when such disclaimer or alteration was enrolled, but in every such action or suit the original title and specification alone shall be given in evidence, and deemed and taken to be the title and specification of the invention for which the letters patent have been or shall have been granted : provided also, that it shall be lawful for the attorney general, or solicitor general, or lord advocate, before granting such fiat, to require the party applying for the same to advertise his disclaimer or alteration in such manner as to such attorney general, or solicitor general, or lord advocate shall seem right, and shall, if he so require such advertisement, certify in his fiat that the same has been duly made,

2. That 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 lhe 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 or bis assigns to petition bis 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 himself to be the first and original inventor, and being satisfied that such invention or part thereof had not been publicly and generally used before the date of such first letters patent, may report to his majesty their opinion that the prayer of such petition ought to be complied with, whereupon his majesty may, if he think fit, grant such prayer; and the said letters patent shall be available in law and equity to give to such petitioner the sole right of using, making, and vending such invention as against all persons whatsoever, any law, usage or custom to the contrary thereof notwithstanding : provided, that any person opposing such petition shall be entitled to be heard before the said judicial committee : provided also, that any person, party to any former suit or action touching such first letters patent, shall be entitled to have notice of such petition before presenting the same.

3. That if any action at law or any suit in equity for an account shall be brought in respect of any alleged infringement of such letters patent heretofore or hereafter granted, or any scire facias to repeal such letters patent, and if a verdict shall pass for the patentee or bis assigns, or if a final decree or decretal order shall be made for him or them, upon the merits of the suit, it shall be lawful for the judge before whom such action shall be tried to certify on the record, or the judge who shall make such decree or order to give a certificate under his hand, that the validity of the patent came in question before him, which record or certificate being given in evidence in any

| Hitherto, if an inventor could have managed to use his discovery in such a manner as to enjoy the benefit of it without laying his process open to discovery, he might have enjoyed all the advantages of a patentee without obtaining a patent, and of course without putting the public in possession of his discovery through the medium of a specification; and yet although the same idea might subsequently occur to some other person, who might be anxious to obtain a patent for it, the previous user by the first discoverer would have been sufficient to prevent the grant or to avoid the instrument if granted, so that the public would have been altogether deprived of the advantage arising from a specification. A singular instance of this kind of mischief seems to have occurred in Mr. Watt's case, whose specification, though upheld by the courts, is stated in the evidence before the select committee to have been totally useless and unintelligible in practice. The consequence of which was, that the enjoyment of Mr. Watt's exclusive privileges continued for nearly thirty years after the expiration of the patent. (Smith's Epitome of Law relating to Pat. Ed. 1835. Lond. p. 44, n.)

other suit or action whatever touching such patent, if a verdict shall pass, or decree or decretal order be made, in favor of such patentee or bis assigns, he or they shall receive treble costs in such suit or action, to be taxed at three times the taxed costs, unless the judge making such second or other decree or order, or trying such second or other action, shall certify that he ought not to have such treble costs.

4. That if any person who now hath or shall hereafter obtain any letters patent as aforesaid, shall advertise in the London Gazette three times, and in three London papers, and three times in some country paper published in the town where or near to which he carried on any manufacture of any thing made according to his specification, or near to or in which he resides, in case he carried on no such manufacture, or published in the county where he carries on such manufacture, or where he lives, in case there shall not be any paper published in such town, that he intends to apply to his majesty in council for a prolongation of his term of sole using and vending his invention, and shall petition his majesty in council to that effect, it shall be lawful for any person to enter a caveat at the council office ; and if bis majesty shall refer the consideration of such petition to the judicial committee of the privy council, and notice shall first be by him given to any person or persons who shall have entered such caveats, the petitioner shall be heard by his counsel and witnesses to prove bis case, and the persons entering caveats shall likewise be heard by their counsel and witnesses ; whereupon, and upon hearing and inquiring of the whole matter, the judicial committee may report to his majesty that a further extension of the term in the said letters patent should be granted, not exceeding seven years; and his majesty is hereby authorized and empowered, if he shall think fit, to grant new letters patent for the said invention for a term not exceeding seven years after the expiration of the first term, any law, custom, or usage to the contrary in anywise notwithstanding: provided that no such extension shall be granted, if the application by petition shall not be made and prosecuted with

effect before the expiration of the term originally granted in such letters patent.'

5. That in any action brought against any person for infringing any letters patent, the defendant on pleading thereto shall give to the plaintiff, and in any scire facias to repeal such letters patent the plaintiff shall file with his declaration, a notice of any objections on which he means to rely at the trial of such action, and no objection shall be allowed to be made in behalf of such defendant or plaintiff respectively at such trial, unless he prove the objections stated in such notice : provided always, that it shall and may be lawful for any judge at chambers, on sunmons served by such defendant or plaintiff on such plaintiff or defendant respectively, to show cause why he should not be allowed to offer other objections whereof notice shall not have been given as aforesaid, to give leave to offer such objections, on such terms as to such judge shall seem fit.

6. That in any action brought for infringing the right granted by any letters patent, in taxing the costs thereof regard shall be had to the part of such case which has been proved at the trial, which shall be certified by the judge before whom the same shall be had, and the costs of each part of the case shall be given according as either party has succeeded or failed therein, regard being had to the notice of objections, as well as the counts in the declaration, and without regard to the general result of the trial.

7. That if any person shall write, paint, or print, or mould, cast, or carve, or engrave or stamp, upon any thing made, used, or sold by him, for the sole making or selling of which he hath pot or shall not have obtained letters patent, the name or any invitation of the name of any

other
person

who hath or shall have obtained letters patent for the sole making and vending of such thing, without leave in writing of such patentee or his assigns, or if any person shall upon such thing, not having been purchased from the patentee or some person who purchased it from or under such patentee, or not having had the license or

Heretofore a patent could only have been prolonged by act of parliament.

« iepriekšējāTurpināt »