James Kay-Appellant; John Marshall and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 18 June 1841 |
| Date | 18 June 1841 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 96
House of Lords
Mews' Dig. i.354; x. 694, 737; S.C. West, 682; 5 Jur.1028; 2 Web. P. C. 36; 5 Bing. N.C. 492; 7 Scott, 548; 8 L.J. C.P. 261; 1 Beav.535. Distinguished in Pirrie v. York Street Flax Spinning Co., Lim. (1894), 11 R.P.C. 447; and see Plimpton v. Malcolmson, 1876, 3 Ch.D.563; and Herrburger Schwander et Cie v. Squire, 1888, 5 R.P.C. 581; 6 R.P.C. 194; Beavis v. Rylands Glass and Engineering Co., Lim., 1900, 17 R.P.C. 97.
Patent - Machinery; Part not New - Practice.
[245] JAMES KAY-Appellant; JOHN MAKSHALL and Others,-Respondents [June 10, 14, 15, 18, 1841]. Patent-Machinery; Part not New-Practice. [Mews' Dig. i. 354; x. 694, 737 ; S.C. West, 682 ; 5 Jur. 1028 ; 2 Web. P. C. 36 ; 5 Bing. N.C. 492 ; 7 Scott, 548; 8 L.J. C.P. 261; 1 Beav. 535. Distinguished in Pirrie v. York Street Flax Spinning Co., Lim. (1894), 11 R.P.C. 447; and see Plimpton v. Malcolmson, 1876, 3 Ch.D. 563 ; and Herrburger Sehwander et Ci-e v. Sqmre, 1888, 5 R.P.C. 581; 6 R.P.C. 194; Beavis v. Bylands Glass and Engineering Co., Lim., 1900, 17 R.P.C. 97.] A Patent had been obtained for new and improved machinery for preparing and spinning flax, hemp, and other fibrous substances, by power. The improvement, as to the spinning, consisted in the placing of the retaining and drawing rollers nearer to each other (at the distance of 1\ inches) than they had been ever used before in flax spinning; the shortening of the reach being rendered practicable by the maceration of the flax in the new machinery for preparing it. But spinning machines, varying in the distance of the reach according to the length of the fibre of the substance to be spun, had been in use before the patent was obtained.-Held, that the machinery for spinning was not a new invention, and that the patent was not valid in point of law. The House will not permit parties, on appeal, to raise objections which they did not raise in the Court below. This was an appeal from two orders of the Master of the Rolls, in a suit which was instituted by the Appellant against the Respondents, flax-spinners at Leeds and elsewhere in Yorkshire, for an account, and an injunction to restrain them from further infringing a patent granted to the Appellant for new and improved machinery for preparing and spinning flax, hemp, and other fibrous substances, by power. The bill (filed in February 1835, and amended in April 1835) stated, that in the year 1824 the Appellant invented new and improved machinery for preparing and spinning flax, hemp, and other fibrous substances, by power; and that he obtained 96 KAY V. MARSHALL [1841] VIII CLARK & FINNELLY, 246 letters-patent, dated the 26th of July 1825, granting to him, [246] his executors, administrators and assigns, the sole and exclusive right and privilege of making, using, exercising and vending his said invention in England, for the period of 14 years. The bill then set forth the letters-patent; and further stated, that by a specification dated the 26th of January 1826, and duly enrolled, the Appellant, in pursuance of the proviso contained in the letters-patent, particularly set forth, described and ascertained the nature of his invention and its several parts, and in what manner the same was to be performed; and that he thereby declared that what he claimed as his invention in respect of new machinery for preparing flax, etc. were certain macerating vessels, and a trough of water (both described by figures in the drawing annexed to the specification); and that what he claimed as his invention in respect of improved machinery for spinning flax, etc. was a wooden or other trough (marked in the said drawing) for holding the rovings when taken from the macerating vessels, and the placing of the retaining rollers and the drawirig rollers nearer to each other than they had ever before been placed, say within 2| inches of each other, for the purpose aforesaid. The bill further stated, that in the process of spinning flax by power, the skein of flax commonly called a roving was drawn out immediately before its being spun, by means of drawing and retaining rollers, the drawirig rollers moving at a greater velocity than the retaining rollers : That in the machinery for spinning flax by power commonly in use prior to the Appellant's invention, the drawing and retaining rollers were placed at a distance of from 12 to 20 inches from each other, such distance being regulated by the [247] length of the staple of fibre of the flax; and that such machinery was not adapted to the spinning of flax in a wet or macerated state : That the Appellant, after many experiments, discovered that by a new combination of the drawing and retaining rollers, that is, by placing the drawing rollers at a distance of 2^ inches only from the retaining rollers, the skein of flax or roving might be drawn out and spun in a wet or macerated state; and that when drawn out and spun in such prepared state, a thread of a much finer and stronger texture could be produced than co uld be produced from the skein ot roving drawn and spun with the machinery, and according to the method in use prior to the Appellant's invention: That the Appellant having made such discovery, and having contrived machinery more convenient for preparing flax by macerating or wetting the same, than any theretofore in use, and having also invented new and improved machinery for spinning flax in such macerated or prepared state, constructed on the principle of such new combination of the rollers, he obtained the aforesaid letters-patent, applicable as well to his improved method of preparing flax as to his improved machinery for spinning flax when so prepared: That by reason, of improvements made in the preparation of flax subsequently to the date of the letters-patent, the process of macerating flax in the mode described in the specification had become altogether or in a considerable degree unnecessary; the skein of flax being, by reason of the improved preparation thereof, rendered capable of being sufficiently wetted for drawing and spinning, by being made merely to pass through a trough of water previously to being drawn out and spun, which, prior to such improved mode of pre-pa-[248]-ration, and when the Appellant obtained his letters-patent, was not...
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