3 probably enable a ploughman utterly ignorant of the whole art to make a watch.' But this is only another mode of describing the general rule, that the object is to attain precision and identification of the particular article, so that the public may know it is ear-marked, and how much and how little is new. Or, as has been said, one object of a specification is to define the matter, so that the public may know with certainty what they may or may not do without incurring the risk of an action for an infringement. The generality of the patent may be made precise by the specification; but there must be no inconsistency or repugnance between them. The patent must not represent the party to be the inventor of the thing, and the specification show him to be the inventor of another thing; because perhaps if he had represented himself as the inventor of that other it might have been well known, that the thing was of no use, or was in common use, and he might not have obtained a grant as the inventor of it.5 And the specification will be construed, if possible, so as to be co-extensive with the new discovery. Thus, when the patent was for improvements in instruments used for writing and marking, and the specification described pens and pencils, this was held consistent. And the same consistency must exist between a provisional specification and a complete specification.8 Another maxim is, that the patentee must distinctly state, what is new and what is old. The patent must not be ambiguous, for if so it is void, being deemed a deceit practised on the crown.10 It must not be vague. Thus to state the ingredients used in making a pill without stating the proportions is a fatal uncertainty. And yet vagueness is not to be construed literally, unless it appears that the patent was purposely so expressed as to comprehend inventions not yet discovered.12 1 Harmar v Payne, Dav. P. C. 318. 2 Neilson v Harford, Webst. 8 Penn P. C. 331; Kay v Marshall, 1 M. & Cr. 373; 2 Webst. P. C. 39. 3 Gibson v Brand, 4 Scott, N. R. 890. 4 Cook v Pearce, 8 Q. B. 1044. 5 R. v Wheeler, 2 B. & Ald. 345. 6 Haworth v Hardcastle, 1 Webst. P. C. 480. 7 R. v Mill, 10 C. B. 379. v Bibby, L. R., 2 Ch. 132. B. 831. 10 Campion 4 B. & Ald. 541. 12 Cook v Pearce, 8 Q. 9 Holmes v L. & N. W. R. Co., 12 C. A mere nicety of grammar will not indeed be regarded, if a competent workman would not be misled by it; for a specification is not intended to compel a person to learn who is determined to misunderstand, but to direct one who is willing to understand.1 And when it is said, that an error in a specification, which any workman of ordinary skill and experience would perceive and correct, will not vitiate a patent, it must be understood of errors which appear upon the face of the specification or the drawings it refers to, or which would be at once discovered and corrected in following out the instructions given for any process or manufacture; and the reason is, because such errors cannot possibly mislead.2 There must also be good faith held by the patentee. It is the duty of a patentee to point out in his specification the plainest and most easy way of producing that for which he claims a monopoly, and to make the public acquainted with the mode which he himself adopted. If a person, on reading the specification, would be led to suppose a laborious process necessary to the production, the public are misled.3 For in a specification there must be the utmost good faith. Thus, to tell the public that "the finest and purest chemical white lead" was necessary, and it turned out, the best white lead that could be obtained in the shops in London would not do, but that a purer white lead, prepared only on the continent, would be required, then this last circumstance ought to be stated.* The specification, being often said to be the price, which the party who obtains the patent pays for it, it would be a bad bargain on the part of the public, if he were allowed to clothe his discovery and his description in characters so dark and so ambiguous, that no one could make the article from it, when the fourteen years expired; and if he should not have paid the price for which he enjoyed the exclusive privilege, but should have it in his own hands still for as long a period as he chooses. Therefore, it is always a proper answer, when a patent is set up, to say that "you have not so described it that it may be understood." 5 2 Westbury, L. C., 3 Savory v Price, 1 Ry. 5 Tindal. C. J., 1 Maule, J., Beard v Egerton, 8 C. B. 165. Simpson v Holliday, L. R., 1 H. L. 315. & M. 3. 4 Sturtz v De la Rue, 5 Russ. 327. Walton v Potter, 1 Webst. P. C. 595; 3 M. & Gr. 411. Registration of patents.-For the convenience of the public a register of patents is kept open to inspection, so as to inform all who are concerned who is the inventor, and if the patent has been assigned, who is the assignee.1 And entries may be expunged, if fraudulently made.' When several persons jointly obtain letters patent, there is no implied contract, that no one of them shall use the invention without the consent of the others, or if he does that, that he shall use it for their joint benefit. And there is nothing now to prevent more than 12 persons having a legal and beneficial interest in a patent. In the case of joint owners, there is no necessary partnership in the working of the patent arising out of the mere authorship, for each may work it in his own right, and neither can compel the other to concur in granting licences to third parties to use it.5 Yet, if one joint owner were to sell patented articles at a nominal price, and so injure the other owner's right, an action for this depreciation may be competent. When the owner of a patent manufactures and sells the patent article in a foreign country, as well as in England, the sale in one country implies a licence to use it in the other. But if he has assigned his patent in either country, the article cannot be sold so as to defeat the rights of the assignee." Assignment of patent rights.-Though the inventor of a patentable invention has a certain capacity to take out the patent, yet before that step the species of interest in the subject-matter is not assignable because it does not exist. It is true he may covenant to take out the patent or to assign the patent when completed. When the patent is obtained and exists, it is treated much the same as a chattel, and on bankruptcy it passes to the creditor's trustee. And it is the same where the patent was taken out after an act of bankruptcy, and before the bankrupt has obtained his discharge.8 On the sale of a patent there is no implied warranty, that the invention was new or was 1 15 & 16 Vic. c. 83, §§ 34, 35. 2 Morey's Patent, 25 Beav. 581; Horsley's Patent, L. R., 8 Eq. 475. 3 Mathers Green, L. R., 1 Ch. 29. 15 & 16 Vic. c. 83, § 36. 5 Elgie v Webster, 5 M. & W. 518; Ridgway v Phillips, 1 C. M. & R. 415. 6 Betts Willmot, L. R., 6 Ch. 239. 7 Hesse v Stevenson, 3 B. & P. 565. 8 Ibid. a manufacture within the statute of James I., but merely that Her Majesty had granted the letters patent to the seller which he proposed to assign; for the purchaser has the same means of ascertaining the validity of the patent as the vendor. Distinction between assignment and licence to use.The distinction between an assignment and a licence is difficult to maintain when no place is defined for the licence to operate; the two rights then practically coincide. And whether a licence is to be construed as a personal privilege in the licensee, or is assignable, must depend on the words of the grant. There is no particular form for passing a licence, but licensing a person and his assigns is licensing him and all whom he may license. A licence is not really assignable, and it acts only as an estoppel between the parties. It is an excuse for an infringement. And a verbal agreement to pay a royalty on all machines supplied to D, for his own use or the use of others, was construed as a valid licence.1 Relation between patentee and his licensee-When a licence has been granted for a rent, and the licensee discovers that the patent is invalid, it depends on the nature of the contract between them, whether the licensee is estopped from denying the title of the patentee; for if not he may set up the invalidity of title as an answer to an action for rent, or for the infringement, or for an injunction. Sometimes, after a licensee has paid a rent, he is not estopped from setting up the invalidity of the patent as an answer to the action, or to further demands if the consideration had wholly failed. If the licence is by deed, then if the licensee uses the patent, he cannot set up the defence that the invention is worthless, or of no possible utility, and was not new; and that the patentee was not the first inventor. And the relation between patentee and licensee in the matter of the latter being permitted to 1 Smith Neale, 2 C. B., N. S. 567. 2 Protheroe v May, 1 Webst. P. C. 415; 5 M. & W. 675. 3 Bower v Hodges, 13 C. B. 765; Dixon, 10 H. L. C. 293. 22 L. J., C. P. 198. 4 Crossley 5 Bowman v Taylor, 2 A. & E. 278; Warwick v Hooper, 3 Mac. & G. 60; Jones v Lees, 1 H. & N. 189. 6 Chanter v Leese, 5 M. & W. 698. 7 Smith v Scott, 6 C. B., N. S. 771; Noton v Brooks, 7 H. & N. 499. deny the former's title has been held to be strictly analogous to the relation between landlord and tenant.1 The doctrine, that a patentee may abandon his patent is recognised on the same principles as govern other property. If he stand by and allow third parties to use his property as if it were their own, and thereby mislead them into expense which he might have prevented at any moment, this is deemed a reason for a court not assisting him by an injunction. And where a patentee granted a licence which was worked several years, and the licensee paid 4251. when the patent turned out to be not new, the court held that the licensee could not recover this money, because the licensee had the enjoyment of what he stipulated for. He was like the man who leases land and pays rent, and is then evicted, and who cannot recover back his rent while he had taken the fruits of the land." Infringement of patent-The main thing secured by a patent being the exclusive privilege of making the article for sale, it follows, that any making of the thing without such variation as amounts to a new discovery will be an infringement. Therefore if it is made for use and so as to be saleable, this is an infringement; nevertheless, if it was made for mere amusement, or as a model, this being no substantial use, the infringement is too trifling to be noticed. And where a patent was taken for converting iron into cast steel by using mixtures of cast iron with carburet of manganese, and another person discovered that coal tar and black oxide of manganese produced the same effect when mixed with cast iron pieces, this was deemed no infringement. When the thing patented consists in a design and the two things appear to ordinary observers the same, the selling of the thing will be an infringement when they are the same in substance though with immaterial variations. And the similarity of structure in two things fulfilling the same purpose is presumptive evidence of their being made in the same way. 1 Warwick Hooper, 3 Mac. & G. 60; Crossley v Dixon, 10 H. L. C. 293. 2 Saunders v Smith, 3 M. & Cr. 711. 3 Taylor v Hare, 1 B. & P., N. R. 260. 4 Walton v Potter, 1 Webst. P. C. 585. 5 Jones v Pearce, 1 Webst. P. C. 125; Higgs v Goodwin, E. B. E. 529. 6 Unwin Heath, 5 H. L. C. 505. 7 Walton Potter, 1 Webst. P. C. 586; Bovill v Moore, Dav. P. C. 361, 8 Huddart" Grimshaw, 1 Webst. P. C. 85. |