Neilson and Others v Harford and Others
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1841 |
| Date | 26 June 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 1266
EXCH. OF PLEAS.
S. C. 1 Webst. P. R. 295. Referred to, Plimpton v. Malcolmson, 1876, 3 Ch. D. 582.
neclson and otheks v, harford and others. Exch. of Pleas. June 2fi, 1841.- The construction of the specification of a patent belongs to the Court, and not to the jury.-If a specification contain an untrue statement in a material circumstance, of such a nature that, if literally acted upon by a competent workman, it would mislead him, and cause the experiment to fail, the specification is therefore bad, and the patent invalidated, although the jury, on the trial of an action for the infringement of the patent, find that a competent workman, acquainted with the subject, would not be misled by the error, but would correct it in practice.- In the specification of a patent, the title of which was "An invention for the improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required," the mode of operation was described as follows:-"A blast or current of air must be produced by bellows or other blowing apparatus, and is to be passed from the bellows, &c., into an air-vessel or receptacle, made sufficiently strong to endure the blast, and from that vessel or receptacle, by means of a tube, pipe, or aperture, into the fire, &e. The vessel or receptacle must be air-tight or nearly so, except the apertures for the admission and emission of air, and at the commencement and during the continuance of the blast, must be kept artificially heated to a considerable temperature." After giving directions as to the materials and dimensions of the vessel, the specification proceeded to state, "The form or shape of the vessel or receptacle is immaterial to the effect, and may lie adapted to the local circumstances or situation." In other parts of the specification, the same language was used with reference to the ultimate beneficial effect upon the furnace, &c.:-Held, that such was the reasonable construction of the above clause also, and not that the form or shape of the vessel was immaterial to the effect of heating the air within it.-Held, also, that the title of the patent was not inconsistent with the specification, but that the invention of applying to fires, &c., air heated in the manner therein stated, might be described as an "improved application of air."- Held, also, that in this specification the plaintiff did not claim a patent for a mere principle, but for a mode of applying a well-known principle, viz. the heating of air, by means of a mechanical apparatus to fires and furnaces.-If the notice of objections, delivered by a defendant with his pleas in an action for the infringement of a patent, pursuant to the stat. 5 & 6 Will. 4, c. 83, s. 5, be not sufficiently specific, the plaintiff's course is to apply to a judge at chambers for an order for the delivery of a more specific notice; but if he omit to do so, he cannot object to the generality of the notice at the trial: the only question then SM. &W. 807. NEILSON V. HARFORD 1267 is, whether the notice is sufficiently large to include the objections relied on by the defendant. [S. C. 1 Webst. P. B. 295. Referred to, Plimpton v. Makolmson, 1876, :j Ch. D. 582.] This was ati action on the case for the infringement of a patent, dated Llth September, 1828, granted to the plaintiff James Beaumont Neilson for a term of fourteen years, the title of which was "An invention for the improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required." [807] The defendants pleaded not guilty, and also several special pleas, of which the fourth only is material to this report. In that plea the defendants set out the specification of the invention enrolled by the plaintiff Neilson, as follows : " I, James Beaumont Neilson, do hereby declare, that the nature of my said invention for the improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required, and the manner in which the same is to be performed, is particularly described and ascertained as follows : that is to say :-A blast or current of air must be produced by bellows or other blowing apparatus, in the ordinary way, to which mode of producing the blast or current of air thia patent is not intended to extend. The blast or current of air so produced is to be passed from the bellows or blowing apparatus into an air-vessel or receptacle, made sufficiently strong to endure the blast, and from that vessel or receptacle, by means of a tube, pipe, or aperture, into the fire, forge, or furnace. The vessel or receptacle must be air-tight, or nearly so, except the apertuj'es for the admission and emission of the air; and at the commencement and during the continuance of the blast, it must be kept artificially heated to a considerable temperature. It is better that the temperature be kept to a red heat, or nearly so ; but so high a temperature is not absolutely necessary to produce a beneficial effect. The air-vessel or receptacle may be conveniently made of iron, but as the effect does not depend upon the nature of the material, other metals or convenient materials may lie used. The size of the air-vessel must depend upon the blast, and upon the beat necessary to be produced. For an ordinary smith's fire or forge, an air-vessel or receptacle capable of containing 1200 cubic inches will be of proper dimensions; and for a cupola of the usual size for cast-iron founders, an air-vessel capable of containing 10,000 cubic inches will be of a proper size. For fires, forges, or furnaces [808] upon a greater scale, such as blast furnaces for smelting iron, and large cast-iron founders' cupolas, air-vessels of pro-portiouably increased dimensions and numbers are to be employed. The form or shape of the vessel or receptacle is immaterial to the effect, and may be adapted to the local circumstances or situation. The air-vessel may generally be conveniently heated by a fire distinct from the fire to be affected by the blast or current of air ; and generally, it will be better that the air-vessel, and the fire by which it is heated, should be inclosed in brick-work or masonry, through which the pipes or tubes connected with the air-vessel should pass. The manner of applying the heat to the air-vessel is, however, immaterial to the effect, if it be kept at a proper temperature. In witness whereof," &c. The plea then alleged, that the plaintiff, J. B. Neilson, did not, by the said instrument in writing under his hand and seal, at any time within six calendar months after the da.te of the said letters-patent, particularly describe and ascertain the nature of his said invention, and in what manner the same was to be performed, and by reason thereof the said letters-patent were and are wholly void. The defendants delivered with their pleas, pursuant to the stat. 5 & 6 Will. 4, c. 83, s. 5, the following notice of objections to the validity of the patent:- " The defendants in this action, besides denying that they have infringed the patent in the declaration mentioned, intend, at the trial of this cause, to rely on the following objections, that is to say :-that the alleged invention is not the subject of a patent, because it claims a principle : that the terms in which the subject of the patent is described, viz. 'an invention for the improved application of air to produce heiat in fires, forges, and furnaces, where bellows and other blowing apparatus are required,' are ambiguous, and it is doubtful whether the patent is for the invention of the appliation of hot air, or only for an improved mode of applying hot air: that the said J. B. Neil-[809]-sori is not the first and true inventor of the said supposed invention, and that the said supposed invention was publicly used and put in practice 1268 NE1LSON V. HA.RFORD 8 M. &W.810. before the granting of the said letters patent. [Here followed a statement of the facts on which the defendants relied as shewing that the invention was not new.] The defendants further contend that the said patent is void, because no sufficient specification of the said invention lias been inrolled in conformity with the provisions of the said letters-patent in that behalf: that the description of the apparatus to be applied is so defective, that no workman of ordinary skill would be able to manufacture the said apparatus, merely by reading the said specification : that the said specification is calculated to deceive : that the mode of applying hot air by means of an air-vessel or receptacle, which is vaguely described in the said specification, ia substantially the mode or apparatus for which Mr. Botfield had previously obtained his patent: that the said specification, so far as it can be understood as descriptive of an apparatus for forming and supplying hot air, describes an apparatus which does not answer the purpose: that the said...
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