1877 would not extend to justify this forcing that right of entry by force, or show of force. Section 37 of the Rent Lawp rovides the JAMSHEER remedy where the exercise of the right is opposed. SIRDAR AND Judgment. Even if it were assumed that the right to measure was not being wrongfully enforced, it would be necessary for the prisoners to account satisfactorily for the death of Nyazoodeen. His inter- AINSLIE, J. ference with the measurement and seizing the rod in the poleman's hands, which is admitted by the prosecution, and beyond which the prisoners have failed to prove anything, was no assault to justify the inflicting of death. It is obvious that, under the provisions of the Evidence Act, Section 105, an answer, setting up the right of private defence, must be supported by evidence, giving a full and true account of the transaction from which the charge against an accused person arises. No accused person can at the same time deny committing an act and justify it. The law does not admit of justification by putting forward hypothetical cases; it must be by proof of the actual facts. The appeal is dismissed. VOL I I 1877 August 9. KINMOND บ. JACKSON. KINMOND v. LAWRIE AND ANOTHER. [ORDINARY ORIGINAL CIVIL JURISDICTION.] KINMOND vs. JACKSON. KINMOND vs. LAWRIE AND ANOTHer. IN THE MATTER OF ACT XV OF 1859, and if a specification filed IN THE MATTER OF ACT XV OF 1859, and of a certain specification IN THE MATTER OF ACT XV OF 1859, and of a certain specification Suit for injunction-Patent combination-Machine-Improvements-Act The fact that a machine has been several times improved since the original patent was obtained is no argument against its being a useful invention within Section 25, Act XV of 1859. Cannington vs. Nuttal, Law Rep., 5 H. L., 205, followed as to the test of "novelty" in an invention. In deciding whether a machine, patented as an entire invention, is an imitation and piracy of another machine previously patented as an entire invention, the question is-Is the later patented machine substantially the same as the earlier one? The fact of considerable differences existing in the several parts of the two machines will not prevent the later machine from being as a whole a copy of the earlier one; even where an exclusive privilege might have been acquired had the alterations in the later machine been claimed as improvements on the earlier one. Clark vs. Adie, 2 App. Cas., 315, followed. Where a patent has been obtained for a machine which the patentee subsequently somewhat improves, a subsequent specification claiming the improved machine as a novel combination is bad, though the improvement might be claimed and protected as such. Where a new arrangement of the parts of a machine is claimed as an improvement, the arrangement must be clearly described in the specification. The mere substitution of one mechanical equivalent for another already in use will not be protected. Where a case of infringement of a patent has been made out, an injunction will follow as a matter of course. 1877 KINMOND v. JACKSON. v. LAWRIE AND A plaintiff cannot pray for an account of profits and for damages. KINMOND He must elect between the two remedies. If the plaintiff elects to take an account of the profits, such accounts will only be carried back to the period of one year before the filing of the plaint, in accordance with Act IX of 1871, Sch. II, Cl. 11 (See Limitation Act, 1877, Sch. II, Cl. 40). THIS HIS was a suit for an injunction to restrain the defendant Jackson from infringing an invention of the plaintiff's for the rolling of tea leaf, and the defendant Lawrie from selling such infringement; the plaintiff also prayed for an account and damages against both defendants. On the 15th of February 1877, Kinmond obtained two rules, calling on Jackson to show cause why a perpetual injunction should not be issued against him. Cross rules were obtained by Jackson on the 31st of May 1877. For Plaintiff: Bell, Branson, Evans, and Stokoe. For Defendant: Paul (A. G.,) Jackson, Agnew, and Orr. The facts of the case, which turned chiefly on the construction of the specifications, are sufficiently given in the judgments of the Court (GARTH, C.J., and MACPHERSON, J.) The following judgment of the Court on the rules obtained was delivered by GARTH, C. J.: These are four rules which have been issued under Sections 24 and 25 of Act XV of 1859, "An Act for granting exclusive privileges to Inventors." Mr. Kinmond, claiming to be the inventor of a tea-rolling machine, filed his specification under this Act on the 28th of December 1865. After this machine had been in use for some years, Mr. William Jackson, on the 25th of April 1873, filed a specification, claiming to be the inventor of another tea-rolling machine. On the 30th of December 1875 Kinmond filed another specification as inventor of another tea-rolling machine. On the 9th of No 1877 August 9. Judgment. GARTH, C.J. 1877 vember 1876 a second specification was filed by Jackson, as the KINMOND inventor of another tea-rolling machine, and on the 17th of March 1877 Kinmond filed a third specification. v. JACKSON. KINMOND บ. ANOTHER. On the 15th of February last Kinmond obtained a rule under the above Sections, calling upon Jackson to shew cause why it LAWRIE AND should not be declared, that no exclusive privilege had been acquired by him under his first specification, by reason of certain Judgment. objections, mentioned in the rule; and on the same day he GARTH, C.J. obtained a similar rule to invalidate Jackson's rights under his second specification. On the 31st of May Jackson obtained a rule of the same kind against Kinmond to invalidate his rights under his first specification; and another similar rule on the same day, as regards his second and third specifications. These rules have now been heard at considerable length, each being dealt with separately, though the affidavits used in support of or against each have been by consent used generally as evidence in all the rules; and we are glad to take this opportunity of saying that we are much indebted to the learned counsel on both sides for the very able assistance which they have rendered to the Court, in this difficult and somewhat novel proceeding. The first important point, which we have had to consider, is the validity of Kinmond's first specification. It is contended that it was bad because his invention was neither useful nor new; and it has been pressed upon us that the question of utility must depend upon whether it was useful or not at the time of the rule being granted, and not when the patent was obtained. The use of the word "is" in the 24th and 25th Sections, when dealing with the question of utility, as contrasted with the word "was," when dealing with the question of novelty, is relied on as supporting this argument, but if an invention is useful, of "utility," within the meaning of the Act, when the specification is filed, we fail to see how it can be said to have ceased to be of utility subsequently, merely because improvements have been made in it. And we find as a fact that Kinmond's first machine is of as much utility now as it was when he filed his specification. Upon the question whether Kinmond's invention was useful at the time he filed his petition and specification in 1865, we have 1877 v. JACKSON. KINMOND no hesitation in saying that it was so. It was practically found to be of great utility, and was used for years in many tea gardens, KINMOND including one in which Mr. Jackson himself was employed. As we have already said, the fact that improvements have since been made in the original machine, and that the improved machine works better than the original one, in no degree shews that the LAWRIE AND latter is not now, or that it was not at the time when the specification was filed, useful. We also think that this invention was novel. Various earlier attempts had been made to produce a machine which would obviate the expense and delay of rolling tea leaves by hand labor, but Kinmond's was the first which was of any practical utility. And although some of the ideas, which are disclosed in his first specification, are to be found more or less developed in one or other of the earlier attempts, Kinmond's machine as a whole, as a combination, certainly was novel. The language of the Lord Chancellor Hatherley, in the case of Cannington ts. Nuttall, Law Rep., 5 H. L., 205, applies exactly to the instance before us :-"The skill and ingenuity of the inventor are shewn in the application of well-known principles." Few things come to be known now in the shape of new principles; but the object of an invention generally is the applying of well-known principles to the achievement of a practical result not yet achieved. And I take it that the test of novelty is this: Is the product which is the result of the apparatus for which an inventor claims letters-patent, effectively obtained by any of the separate portions of the apparatus which you have now combined into one valuable whole, for the purpose of effecting the object you have in view?' Applying these words to Kinmond's first machine, we think that, upon the evidence before us, it is plain that the desirable end of rolling tea by machinery had not been effectively obtained until Kinmond hit upon the mode of achieving the object by his invention. Gibbon's machine and Shipp's machine have in particular been relied on, as depriving Kinmond's invention of the merit of novelty. But these machines were neither of them of any practical utility; and, moreover, neither bears any real resemblance to Kinmond's, v. ANOTHER. Judgment. GARTH, C.J. |