truth of the case, and there are to be two distinct machines to be made up by parts only of the instrument specified in this plan, let us see whether it is so said in the specification ;-there is not a word of it. It begins with the first, or No. 1, which is a breaker or beater of seeds and husks, and a finer of the flax, hemp, and other articles which are to be prepared for dressing. Then, says the counsel, there was a difference as to those things, because the hammer was proper for the hemp, and not proper for wool; if there be that difference, it was necessary for the defendant to state it in his specification; but he has made no distinction; he has left to those who are to learn his art and secret to use the same machine for every part of it. He has not distinguished between the cotton and the flax; the specification states that it is proper for every thing. Is it so? It is admitted it is not. Is there any thing which states that these parts are for two machines, and how they are composed? That the specification is totally silent about. What is there in the specifica

tion that can lead you to say that you must make use of three things for one of the machines and three for the other, and which three for one or the other? and even if it were so, what is to become of the other four? If those are of no use but to be thrown in merely to puzzle, I have no difficulty to say upon that ground alone the patent is void, for it is not that fair, full, true discovery which the public have a right to demand from an individual, who, under the sanction of parliament, gets so great a reward as a monopoly for fourteen years together.

However, upon the part of the defendant, they have called several witnesses to show you it is perfectly intelligible, and that they can make the machines from this specification. Wilkinson took his information, or a great deal of it, from the defendant himself, and supposing it true that he or any other person instructed by the defendant, and having seen what he does, can make a machine from the specification, yet that will never support it, unless other people from the specification itself, who have any knowledge in the business, can also do it. That is not the case with this man; but the last thing he says is also a material thing against the patent, for he says, for different purposes different proportions of the rollers are necessary. How is any man to find that out? It is not said in the specification it must be different in the one case from the other, and that you are to have different rollers for hemp or for cotton. All this remains to be the subject of a future discovery. Moore says, with due attention to the old machine, and an accurate attention to the specification, I could direct a skilful artificer to make the machine. This is all that a very ingenious sensible man can say of this specification. He has examined the instruments and machine, and seen a great deal of it between the trials, and at last he believes, with all the extreme caution that I have mentioned

If additions be requisite, the specification is insufficient.

to you, that he could direct a skilful artificer to make the machine. He says, that as to No. 3. a piece of cloth with cotton or any other material that was to be carded, rolled up in it, would certainly move much better and more steady with a roller within side, but it would do without it. If wanted, he thinks it would easily occur to a mechanic to put it in, that is, that a sensible man would have understanding enough to supply any defect in this specification; but in this case it proves the specification is insufficient. It will not do of itself, but wants something to be added, it is deficient, and there is nothing in the specification that imports there should be a roller in it.

Now it is admitted by the former witnesses, if there are sections of rollers, there ought to be a scale, and there is no scale, there is nothing in the plan to show the different comparative velocity of the rollers, but there will be a difference, because the one is larger than the other in diameter.

was.

You see how that applies to this part of the evidence. There is nothing, says he, that shows what the difference of velocity should be, that remains for experiment hereafter. Is that the case with the defendant? No, he knew to a certainty what it The man that comes to give an account of the invention, says, I had calculated it, and the difference of the velocity was to be as five to one; this is the way I made my rollers; now the defendant has not said a word of that in his specification. In that he has kept back the knowledge he had as to the size of the rollers, and velocity, and it is left to people to find it out as chance may direct.

Wood put No. 4, 5, 6, and 7, together, and that machine he has worked ever since; he don't recollect that the defendant used any thing else. If that be true, it will blow up the patent at once; he says he believes nobody that ever practised would find any thing necessary upon this paper but the No. 4, 5, 6, and The insertion of 7; he should look after no others. Now if four things only more things than requisite a fatal were necessary instead of ten, the specification does not contain a good account of the invention. As to the can, he made use of it without rollers at the mouth; he thinks it answers just the same without it.

defect.

This is the evidence that relates to the specification upon the one side and the other. You see upon the part of the prosecution they have called to you very ingenious men, that seem to be much beyond what are called common mechanics in life; they have all told you it is impossible for them to make the machine according to the specification.

Upon the other hand, several respectable people are called upon the part of the defendant, who say they could do it, but there is this difference in their description; most, if not every one of them, have looked at and seen how the machines were worked by the defendant, and have got their knowledge by other

means, and not from the specification and plan alone; besides, they admit the manner the defendant works it is not consistent with the plan laid down, particularly as to the cylinder, a particular part of the business, for Moore says, this upon the face of it must be taken to be a parallel, whereas that which plainly appears to be used is a spiral; besides, after all this, they have spoken most of them in a very doubtful way, particularly Mr. Moore, who qualified his expression in the way which I have stated to you, and the others qualifying their expressions, saying they think upon the whole they could do it. Suppose it perfectly clear they could with the subsequent knowledge they had acquired, yet if it be true that sensible men that know something of this particular business, and mechanics in general, cannot do it, it is not so described as is sufficient to support this patent. It will be for you to say upon this part of the case whether you are satisfied this specification is such, as, with the plan, it may be made from it or not, taking the old machine into. its assistance, which by the bye the specification has not taken notice of as known. If you think it is not sufficiently described, that alone puts a complete end to this cause, and then it will be unnecessary to trouble you with any other.

As to the other points, there are two; first, whether it is a [Printed case, new invention; and, in the next place, whether it was an inven- 182.] tion made by the defendant. Now if, in your opinions, it is material to go into these points, I think the law in general is very different on them from what I have stated in the specification, because in the case of an invention many parts of a machine may have been known before, yet if there be any thing material Any thing material and new, and new which is an improvement of the trade, that will be and an improvesufficient to support a patent (e); but whether it must be for ment in the trade, will supthe new addition only, or for the whole machine, would be port a patent. another question. It seems to me not to be necessary now to state precisely how that would be, because this patent is at

(e) This dictum of the learned judge seems to present an admirable test of the sufficiency of an invention to support letters patent. The improvement of the particular trade is the principle upon which the policy of such limited monopolies rested, and in many cases the materiality and importance of the change can only be judged of by the effect on the result, which effect is tested by the improvement in the trade in the commercial sense of the term, that is, by the production of the article as good in quality at a cheaper rate, or of a better quality at the same rate, or both these partially combined. Thus the latter words, "improvement of the trade," define and explain the preceding, and the utility of the invention as ascertained by this result becomes, in cases of this kind, the real test. In other cases, as when some particular instrument or machine is the subject of the patent,

the same test is indirectly applicable. This view is suggested by the Court of Exchequer in their elaborate judgment in the case of Morgan v. Seaward. Parke, B.: "On a review of the cases, it may be doubted whether the question of utility is any thing more than a compendious mode introduced in comparatively modern times of deciding the question whether the patent be void under the statute of monopolies." 2 M. & W. 563. So that whenever utility is proved to exist in any great degree, sufficiency of invention to support a patent may be presumed; and if such invention be any manner of manufacture, and new, and the specification be sufficient, the letters patent for such invention will be valid in law.

Upon this test the decision in Brunton's case was correct, his anchors not being so good as those made in the old way.

The alteration

leads to a material improve

ment.

tacked upon the ground that there is nothing new; therefore I will go over the articles one by one, and see what is stated upon the different articles which are here mentioned.

No.1 it is said is not stated by the specification to be joined. to any thing else, and therefore it must be taken to be a distinct thing. It is admitted that is not a new discovery, for Emmerson's book was produced, which was printed a third time in the year 1773, and that is precisely the same as this. Lees says he is the inventor of the old feeder; that he made it in 1772, and in August, 1772, he worked with it, and that it is now commonly used in his country. He has never seen the defendant's used, but the description of the defendant's is the same as his.

This also shows, first of all, that it is no new invention; secondly, it is not invented by the defendant, for this invention is spoken of as used before the time of the patent; and in the next place, it is proved to you not to be the invention of the defendant, by the person who actually invented it. It is proved that the crank (No. 4) was invented between thirteen and fourteen years ago by Hargreave, and used publicly in two factories where men came to work. If that be so, that will put an end to this article of the crank. Some of the witnesses have proved them made in great numbers, and used in different factories publicly, and they have proved it by the persons who made them. Upon the part of the defendant, the witnesses never having heard of it may be perfectly true, and yet no contradiction to the evidence for the prosecution. As to No. 5, the filletted cylinder, Wood proves it used long before the defendant's patent; he confirms what was said by the other witnesses; and what the other witnesses have said against it is nothing at all to this article; for here it is proved to be used in both ways, in the manner the defendant has used it now, and likewise being carded quite through.

Now if it was in use both ways, that alone is an answer to it; must be such as if not, there is another question, whether the stripe in it makes a material alteration? for if it appears, as some of the witnesses say, to do as well without stripes and to answer the same purpose, if you suppose the stripes never to have been used before, that is not such an invention as will support the patent; upon that ground it is fully answered.

As to No. 6, there is no contradiction to the evidence of Hayes and Kay, that the rollers were made before, and used in the different ways I have stated to you, and that the defendant got the secret from them. Then the 7th article is what they call the can. Holt says, the only difference between the two, the spinning machine and the present roving machine, is, that the latter has a can-and indeed that at one time was admitted by the counsel for the defendant.

If it be so, it brings the case to a short point indeed, for if

nothing else is new, the question is, whether it is material or If new, the useful? The witnesses upon the part of the prosecution say it question of materiality and is of no use at all. In the first place, they had that before which utility arises. answered the same purpose, though not made exactly in the same form; it was open at top, it twisted round and laid the thread precisely in the same form, and had the same effect this has. So if it was new it is of no use, but they say it is not new, for though it was not precisely the same shape, in substance it was the same thing; that is not contradicted. That part also stands without any contradiction upon the part of the defendant, for the defendant's witnesses satisfy themselves with telling you they think it intelligible, and it might do without the roller, though it might not be so effectual as with the roller. It is admitted by several it could do without, that appeared from the experiment made; they showed you by one of the engines, how it did with the roller and how without; and that it was done without just the same as with it. As to 8 and 9, it is admitted those are entirely out of the cause, and may be used, says the counsel for the defendant, instead of No. 7.

But it is a question whether this is the fair construction of the specification. Suppose it was so, it is perfectly clear the defendant has never used either of them, and some of the witnesses tell you they cannot use them at all. One tells you they cannot be used, and, therefore, it is a little unfortunate they got into this specification, if nothing more was meant than to make a fair discovery of what was useful; but in this manner the description is given. As to No. 10, nothing is said about it for the defendant. First, Mr. Moore said it was not difficult to conceive it; but there is no witness that says at all what the use of it is: so this seems to stand without any evidence at all.

Gentlemen, thus the case stands as to the several component parts of this machine; and if upon them you are satisfied none of them were inventions unknown at the time this patent was granted, or, that they were not invented by the defendant; upon either of these points the prosecutor is entitled to your verdict. If upon any point you are of opinion with the prosecutor, you will find a verdict for him.

If upon all the points you are of opinion for the defendant, you will find a verdict for him. Verdict for the Crown.

10th Nov. 1785.-Adair, Serjt. applied for a rule to show cause why there should not be a new trial, on the following grounds, set forth in the affidavit of the defendant and another person.

That he was led to suppose, that upon two trials on a question of such importance, no evidence that appeared material to the party would have been suppressed and kept back, and that

L