Whitney v Commissioners of Inland Revenue

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Dunedin,Lord Atkinson,Lord Sumner,The Lord Chancellor,Lord Wrenbury,Lord Phillimore,Lord Carson,.
Judgment Date06 Nov 1925
Judgment citation (vLex)[1925] UKHL J1106-2

[1925] UKHL J1106-1

House of Lords

Lord Dunedin.

Lord Atkinson.

Lord Sumner.

Sir W. G. Armstrong, Whitworth and Company Limited and Another
and
Hardcastle et è Contra.

After hearing Counsel, as well on Monday the 13th, as on Tuesday the 14th, Thursday the 16th, Friday the 17th, Monday the 20th, and Tuesday the 21st, days of July last, upon the Petition and Appeal of Sir W. G. Armstrong, Whitworth and Company, Limited, whose Registered Office is situate at Elswick, Newcastle-on-Tyne, in the County of Northumberland, and William Horace Sodeau, of the same address, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 14th of March 1924, so far as therein stated to be appealed against, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, and that the Petitioners might have the relief prayed for in the Appeal or such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the Petition and Cross Appeal of Engineer Commander Sidney U. Hardcastle, of the Admiralty, Whitehall, in the City of West-minster, praying, That the matter of the Order set forth in the Schedule thereto, namely, the said Order of His Majesty's Court of Appeal, of the 14th of March 1924, so far as therein stated to be appealed against, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order, so far as aforesaid, might be varied or altered or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of Sir W. G. Armstrong, Whitworth and Company, Limited and William Horace Sodeau; and also upon the printed Case of Engineer Commander Sidney U. Hardcastle, lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in these Appeals :

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Apeal, of the 14th day of March 1924, in part complained of in the said Original and Cross Appeals, be, and the same is hereby, Affirmed, and that the said Petition and Original Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the said Petition and Cross Appeal be, and the same is hereby, dismissed this House; And it is also further Ordered, That the Appellants in the said Original Appeal do pay, or cause to be paid, to the said Engineer Commander Sidney U. Hardcastle, the Costs incurred by him in respect of the said Original Appeal, and that the Appellant in the said Cross Appeal, do pay, or cause to be paid, to the said Sir W. G. Armstrong, Whitworth and Company, Limited and William Horace Sodeau, the Costs incurred by them in respect of the said Cross Appeal, the amount of the Costs in the said Original and Cross Appeals respectively to be certified by the Clerk of the Parliaments.

Lord Dunedin .

My Lords,

1

This is an action in which a declaration is asked that a patent belonging to the plaintiffs, being No. 3495 of 1905, is a valid patent and has been infringed by the defendant, who represents in this matter the Admiralty, in respect of the construction of what is known as the Admiralty torpedo. What the Admiralty torpedo is, is, for the purposes of this case, taken to be what is represented by certain agreed-on drawings. The defendants denied validity on the grounds originally of want of subject matter and anticipation by prior publication. Want of subject matter was subsequently but faintly insisted on. They also denied infringement. The action was tried by Sargant J., who found for the plaintiffs on all points. On appeal, the Court of Appeal held, agreeing with Sargant J., that there had been no anticipation, but, differing from him, held that there was no infringement proved. Appeal is now taken against this judgment by the plaintiffs and there is a cross appeal by the Respondents on the question of anticipation. As usual in such cases, it is necessary, in order to make intelligible the question really involved, to describe in a general way the nature of the alleged invention and the state of the knowledge on the subject with which it had to do. Compressed air had long ago been used as a motive power for engines to be put to various uses. The compressed air must be contained in a receptacle or reservoir from which it is fed to the engine. Now air as it expands, which it does in the engine, loses its heat, or, in other words, probably more graphic though less accurate, it generates cold. This cold if it meets with any moisture in the engine tends to form ice which clogs the working. The idea accordingly suggested itself that if the air could be heated two good results would follow. The heat would have the effect of increasing the volume of the compressed air and so increasing its efficiency, and, further, it would obviate the inconvenience already entioned of the formation of ice. Various patentees describe devices for this heating, and the plaintiff, in the opening words of his specification, concedes that the idea of heating was not of his invention. The earlier attempts all show various devices for burning fuel in the reservoir itself. Abel in a specification in 1893 had as a matter of fact, though without seemingly appreciating the advantage, shown a device in which the heating was effected in a separate chamber. But when the first practical attempt was made to apply the heating method to torpedoes (where obviously there could only be a reservoir incapable of further replenishment from an external source), which was done by Leavitt in 1900, the fuel supplied was burned in the reservoir itself. The Leavitt device did not remain like many others mentioned in the reign of a mere description of a machine never made and never used. Torpedoes were made under it and attained an extra efficiency of 50 per cent. over the old cold torpedo. But the burning of the fuel in the reservoir itself had some grave defects It introduced a danger from explosion and it gave the opportunity of injuring the reservoir itself by excessive heat. Further, as the heat went on increasing the pressure increased and so there was no steadiness of ratio between the air and the fuel supplied. It was, therefore, better, if possible, to effect the heating in a separate chamber.

2

Now here arose the problem of how to supply the fuel, which was obviously to be of a liquid character. There were three well-known ways of allowing a liquid to pass from one receptacle to another: (1) Gravity; (2) Injector action, of which perhaps the best known instance in common use is to be found in the device for spraying scent; and (3) Pressure on the liquid itself. A well-known instance of this may be found in the method, till recently almost universally used, for the supply of petrol in a motor car from the reservoir to the carburetter in front, which was effected by hand pumping to begin with, and the pressure then maintained by the exhaust gases from the engine.

3

It is with this problem of supplying fuel to heat the compressed air that the plaintiff's patent is concerned. He adopts the device of a separate combustion chamber, which he describes as a local increase in the diameter of the supply pipe, and he then provides for the pressure by branching the supply pipe from the reservoir. The one branch goes direct to the combustion chamber, but with a restriction before it gets there; the other goes to the back end of the fuel reservoir from which a pipe is taken to the combustion chamber. The result of the restriction is that the pressure in the combustion chamber is less than the original pressure of the air, and consequently the original pressure has power to drive the liquid into the combustion chamber. From the combustion chamber, the fuel being duly fired, the heated air is led to the engine and utilised there. To secure proper burning of the fuel supplied—the ignition itself being easily effected by an electrical device which utilises the electric spark —it is necessary that the liquid should be atomised, and accordingly in the description given in the specification of the apparatus there is the following paragraph :—

"The combustible liquid is contained in an appropriate vessel or fuel reservoir, communicating with the compressed air supply pipe at a point where the pressure is markedly higher than at the combustion chamber and connected to a pipe passing into the combustion chamber where it preferably terminates in a suitable spraying nozzle."

4

I have so far described the plaintiff's invention in general terms. Before I come to close quarters with the specification, I must so far anticipate by stating the point of difference between Sargant J., who held that there was infringement, and the Court of Appeal, who held that there was not. Sargant J. held that the pith of the device, as shown and as claimed, was what I have described as the method of supplying the fuel, with the concomitant advantage that the proportion between the fuel supplied and the air supplied was always constant. The device of a spraying nozzle for the purpose of spraying he looked upon as a mere adjunct, necessary no doubt in some form to effectuate combustion, but capable of being replaced by any equivalent.

5

Now, a spraying nozzle will not work unless there is sufficient pressure to effectuate the spray, and the Court of Appeal held that it was of the essence of the plaintiff's patent that there should be such pressure at the point of delivery into the combustion chamber as to make the spraying nozzle work, or at least to admit of spraying by impingement of the...

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