Counsel for the Defenders-Duncan M'Neill, Esq., and Robert Whigham, Esq. Agents-Messrs. Scott, Rymer, and Scott.

Mr. Patrick Robertson stated the case of the pursuer to the Jury in a full and elaborate speech; and he pointed out, from models and plans, the novelty of the pursuer's invention, and the infringement of it alleged against the defenders.

The Dean of Faculty, on the same side, then called and examined Mr. Jardine, civil engineer, Dr. Andrew Fyfe, Mr. Baird, of Shotts Iron Company, Mr. Umpherston, millwright, Mr. W. Chambers, publisher, and Mr. R. Dawson, to prove the pursuer's case.

For the Defenders, Mr. Duncan M'Neill replied, and contended that the pursuer had failed entirely in establishing the affirmative of his own issue. And then he stated that the defenders would prove that what the pursuer alleged was his invention, was not his invention that it had been used and practised extensively in England and Scotland, long before the date of the pursuer's patent; and farther, that the patent was bad, because of its vagueness and inconsistency.

At the close of Mr. M'Neill's address, the Dean of Faculty objected that any use of the patent invention in England could not be admitted to affect a patent for Scotland; and that any extent of prior use in England being to Scotland in this question, a foreign country, was irrelevant.

Mr. Whigham, for the defenders, answered, that prior use and practice of an invention in England was, since the union of the two kingdoms, as fatal an objection to a Scotch as it would be to an English patent; that we were now one kingdom or realm, owed one allegiance, and enjoyed equal rights, privileges, and protection in all respects; and that for any one to take a patent for Scotland for that which the lieges had for years freely used and enjoyed in England, was inconsistent with the articles and whole spirit of the Union, as well as of the statute passed in the reign of James with reference to patents. But he stated, that the point had been decided, Roebuck v. Stirling, in 1774. The Court of Session then found a Scotch patent invalid, in respect of prior use in England of the same invention. The judgment assigned that as the sole reason for invalidating the patent; and, on an appeal by the patentee, the judgment was affirmed by the House of Lords. After the Dean of Faculty and Mr. M'Neill had also addressed the Court on the point, it was arranged, as it was then past six o'clock, that the case should be adjourned till next day, and till then his Lordship delayed giving judgment on the point. On Saturday, his Lordship delivered a clear and decided opinion, that the case of Roebuck was exactly in point; and that the evidence of prior use in England must be admitted; that there was no conflicting authority either in England or Scotland; and farther, that, on sound principle, there being now only one kingdom or realm, the objection could not be listened to without leading to the most anomalous consequences. His Lordship, therefore, allowed the evidence, tendered by the defenders, to be received; whereupon the Dean of Faculty lodged in process a minute for the pursuer, stating that the pursuer admitted the fact of prior use in England, and that the defenders were entitled (subject to the question of law) to a verdict, finding that the invention was not the original invention of the pursuer, and that, if the evidence was found to have been properly admitted which the defenders had tendered, and which was admitted to be sufficient, they were entitled to absolvitor from all the conclusions of the conjoined actions of interdict and declarator. The Jury therefore found for the defenders, that the machinery described in the pursuer's specification, was not the original invention of the pursuer.

COURT OF EXCHEQUER CHAMBER.

Before Baron Parke & a Special Jury,
May 4th. 1841.

NEILSON & OTHERS v. HARFORD & OTHErs.

This was an action for an infringement of a patent right, granted to the plaintiff in September,* 1828, "for the invention of an improved application of air to produce heat in flues, forges, and furnaces, when bellows, or other blowing apparatus, are required."

The counsel for the plaintiffs were Sir W. Follett and Mr. Fitzroy Kelly.— For the defendants-the Attorney-General, Sir F. Pollock, and Mr. Richards. Several witnesses were called to prove that the invention was new when the patent was obtained. Mr. Russell, a Fellow of the Royal Society of Edinburgh, being called, stated that he was well acquainted with the process of manufacturing iron, and gave, as his opinion, that the hot-air blast was not known previously to the date of the patent; he likewise testified to its usefulness. Other witnesses (amongst whom was Professor Daniel) gave their evidence, confirming the opinion of the former gentleman; but they did not agree as to the capability of an ordinary mechanic to make an apparatus from the description in the specification, available for the application of the hotair blast.

The Attorney-General contended that Mr. Neilson, in his specification, misled the public as to the size, and did not state the shape of the vessel in which the air was to be heated; that he did not point out the tubular form used by the defendant; but contemplated passing the air through the furnace in a current, as was evident from his using only one vessel for heating the air, and then forcing it into the fire through a pipe or aperture.

The learned Judge then proceeded to sum up. He said the patent appeared to have been originally granted to Mr. Neilson alone, but had been subsequently assigned by him to two other gentlemen, who were now plaintiffs with him in this action. The declaration stated that there was a proviso in the patent that it should particularly describe the invention to be enrolled. He (the learned judge) would express his opinion on the law of the case, and it would be for the Jury to deal with the matters of fact. The first objection was, that the defendants were not guilty of the infringement: secondly, that Mr. Neilson was not the original discoverer of this invention; thirdly, that it was not a new invention, and that the plaintiff was not entitled to the benefit of it because it was known before; fourthly, that the specification was in a certain form which did not truly and accurately describe the nature of the invention, so as to satisfy the proviso on which the letters patent were granted; and fifthly, that the invention so specified had not been of any public use or benefit whatever.

In the first place, then, let them examine whether there had been any infringement of the patent, and he apprehended that there could be no doubt there had, if the specification was free from the objections taken to it. Unquestionably, what the defendants had done was a great improvement on the original invention, but that did not render it the less an infringement. The second objection was, that the patentee was not the true and first inventor of a mode of applying hot air. Now, it appeared, upon the evidence, that none of the witnesses for the plaintiff were aware of any invention similar to this.

For Specification of the Patent, see Vol. VII., Second Series, page 20.

The next plea which they came to, was the important one as regarded the specification, and it would be necessary for him to draw the attention of the Jury to this part of the case particularly. It was contended by the AttorneyGeneral, that the title of the patent rendered it void, because no one would know that it was applicable to the purposes to which the apparatus, now complained of, was applied. His (the Judge's) opinion at present was, that the title of the patent was not defective, and it did not appear to him that the generality of the title would make it bad, and there was no evidence in the case to show that it was not the patentee's own discovery.

As regarded the specification, his impression of the meaning of the part of the specification which related to this point was, that the patentee claimed the invention of heating air in any vessel of any size, providing it was a close vessel, and placed between the blowing apparatus and the fire, forge, or furnace. But when the patentee stated that the form or shape of the vessel was immaterial to the effect required to be produced, he (the Judge) considered that statement an incorrect and untrue one, and, consequently, the patent could not be valid. Nevertheless, he would leave the question to the Jury, but he feared that they could not allow competent and skilful persons to correct the mistakes in the specification. It was true that some effect might be produced by a vessel of any size, but the amount of effect depended entirely on the size of the vessel; and this, in his opinion, was a great defect in the patent, and formed a fatal objection to the specification. It was also contended that the patent was void, because the mode of constructing the vessel was not clearly pointed out. The patentee, however, claimed the invention of the mode of heating the blast in a vessel exposed to heat, and the specification stated that a person of competent knowledge and ordinary skill would construct such a vessel as would be necessary for the forging of iron. At first sight it would appear the patentee had supposed that in order to answer in blast furnaces, it was only necessary to increase the size. Now, if the Jury were of opinion a person of ordinary skill would adopt this mode by merely looking at the specification, then the specification, as regarded this question, was good, and the objection must fail. They had the evidence certainly before them of one person trying a square box, although they had the evidence of several eminent men to show that it would not answer. One of the gentlemen examined, had told them that in order to adapt the hot blast to the furnace, it would be necessary to introduce a different kind of tuyère, as the tuyères formerly used were liable to be burnt. Now, the specification omitted to mention water tuyères or other protection, and if it was the opinion of the Jury that these tuyères were necessary, then the specification was void, and the objection was a good one. The first witness was Mr. Russell, who was a scientific gentleman, and he said that a judicious person, such as he would select, would be able, under the patent, to make an efficacious apparatus; but the phrase "judicious" persons such as he would select, implied that it required something more than ordinary skill. The last witness (Mr. Cooper) admitted the necessity of the water tuyère to bring the invention to the highest state of perfection; and he also stated that a man might be required to make many experiments before he could bring the apparatus to its present state of completeness. If the Jury were of opinion that a man of ordinary skill would be enabled, under the patent, to construct a valuable apparatus, the specification would not be insufficient. Sir William Follett submitted that the point, as regarded the form and size of vessel to be used, was not contained in the objections furnished to the plaintiffs by the defendants, and it could not therefore be entertained. He (Baron Parke) differed in opinion from Sir William Follett. He considered that the fourth objection, which set forth "that the specification was in a form which did not truly and accurately describe the nature of the invention, so as to satisfy the proviso on which the letters patent were granted,"

was conclusive on this point. The learned Judge then said, that he would put the first question as a matter of form, as it involved a point of law which would remain to be argued and decided elsewhere. He would, therefore, ask the Jury,-Were they of opinion that the shape and form of the vessel were material?

After a short consultation, the foreman said the Jury did not doubt it. Baron Parke said he thought they could not. The next question was,Did they think that a man of common understanding and ordinary skill, and possessing a knowledge of the old blowing apparatus, would be able to construct an apparatus, according to the specification, that would be productive of such benefits as would make it worth while to incur the expense of adopting the principle?

The Jury replied, that they were of opinion that a person of ordinary ability, and acquainted with the ordinary blowing machinery, would be able to construct an efficacious apparatus under the specification.

His Lordship said, the next question was,-Whether they believed that a person of ordinary skill, and acquainted with the air-heating apparatus, would correct the error in the specification, which stated that the form and shape of the air-vessel were not material?

The Jury answered, that such a person would, in their opinion, correct the error.

The Jury next found, that Mr. Neilson was the first and true inventor. Thus finding for the plaintiffs on the four principal issues, which would have the effect of establishing his right to the patent; but finding for the defendants, by the direction of the learned Judge, on the point regarding the variance in the specification, with leave to the plaintiffs' counsel to move the court above to have a verdict entered for the plaintiffs.

List of Patents

That have passed the Great Seal of IRELAND, from the 17th April to the 17th of May, 1841, inclusive.

James Jamieson Cordes and Edward Locke, of Newport, in the county of Monmouth, for a new rotary engine.-Sealed 4th May..

John Grylls, of Cumberland-street, Portsea, for improvements in machinery used for raising and lowering weights.-Sealed 4th May.

George Dacres Paterson, of Truro, Cornwall, Esq., for an improvement in curvilinear turning, that is to say, "a rest," adapted for cutting out wooden bowls, and a self-acting slide rest for other kinds of curvilinear turning. -Sealed 18th May. James Johnson, of Glasgow, Gent., for certain improvements in machinery for themanufacture of frame-work knitting, commonly called hosiery; and for certain improvements in such frame-work knitting or hosiery.-Sealed 18th May.

VOL. XVIII.

20

List of Patents

Granted for SCOTLAND, subsequent to April 22nd, 1841.

To Ezra Jenks Coates, of Bread-street, Cheapside, in the city of London, merchant, for improvements in the forging of bolts, spikes, and nails,-being a communication from a foreigner, residing abroad.-Sealed 28th April.

John Watson, of Glasgow, in the Kingdom of Scotland, merchant, for improvements in printing fabrics, where discharging presses are used.-Sealed 28th April.

John Haughton, of Liverpool, Clerk, M. A., for improvements in the means employed for preventing railway accidents resulting from one train overtaking another.-Sealed 28th April. James Ransome and Charles Man, of Ipswich, in the county of Suffolk, machine-makers, for improvements in the manufacture of railway chairs, railway and other pins or bolts, and in wood fastenings, and trenails.-Sealed 28th April. Peter Fairbairn, of Leeds, in the county of York, engineer, and William Suttill, of the Town of Newcastle-upon-Tyne, flax spinner, for certain improvements in drawing flax, hemp, wool, silk, and other fibrous substances.-Sealed 28th April. William Newton, of the Office for Patents, 66, Chancery-lane, in the county of Middlesex, civil engineer, for improvements in spinning and twisting cotton and other materials capable of being spun and twisted,-being a communication from abroad. -Sealed 30th April.

Thomas Robinson, of Wilmington-square, in the county of Middlesex, gent., for improvements in drying wool, cotton, and other fibrous materials, in the manufactured and unmanufactured state, being a communication from abroad.-Sealed 30th April.

Lancelot Powell, of Clydach Works, in the county of Brecon, iron-master, and Robert Ellis, of Clydach aforesaid, agent, for improvements in the manufacture of iron.-Sealed 5th May.