[1860.] HARWOOD V. GREAT NORTHERN Railway Company. reference to annexed drawings, the specification proceeded, "Having now described my various improvements, together with some parts of my former specification, for the purpose of making the application of such improvements better understood, I shall proceed to enumerate what I claim as my present invention, which consists "Firstly, in the combination of machinery by which I effect the double speed required in fine spinning, as set forth and described. "Secondly, the mechanical arrangement commencing with the three wheel B and ending with the large wheel D1, which takes in the carriage with the levers and catches, by which, including the after draft, I effect the coming out of the carriage. "Thirdly, the application of the spiral drag pulley, by which, in conjunction with the crank F1, I effect the bringing in of the carriage. "Fourthly, the application of a new mechanical movement to the selfacting mule, for preventing snarles in the yarn at the time the faller wires are removed for the commencement of the succeeding stretch, by giving a small rotation to the spindle, and thus taking up the loose yarn. I am aware that the same object may be obtained by giving the carriage a slight outward motion, but I confine myself to the plan of preventing snarles above stated, which I have fully set forth and described, but which movement may be variously modified. "Fifthly, the improved winding-on motion, as set forth in sheet 2, which, although in part used in an imperfect form before the date of this patent, did not produce a correct winding-on until I constructed the improved curves, as represented on sheet 2, and which, together with the sector z and ≈ 6, and spiral ≈ 7, regulate the position and form of such curves, by which, in conjunction with the parabolic incline seen at fig. 8, I produce a perfect result. I would here remark, that by varying the curve of the incline, a corresponding variation must be made of the curves, as seen at figures 1 and 2, sheet 2, but which I consider to be only a modification of my present arrangement. "Sixthly, I claim the application of a spring for the purpose of increasing or diminishing the tension put upon the yarn during the winding-on, as seen at X, fig. 4, sheet 1; likewise the improved form of the lever I, which is necessary when the spindles are much inclined, as in fine spinning; likewise the arrangement of the grooved break pulley R3, as attached underneath the carriage for restraining its impetus whilst going in, and likewise the rest for the incline bowl, as represented at R1, fig. 8, sheet 2, all of which are fully set forth and described in the annexed sheets and drawings. "And lastly, with respect to the general arrangement of the self-acting mule headstock, I do not materially vary the position of the various movements, which arrangement I claimed in my former specification: but I have to remark that, in order to increase the stability of the ma chine, it is necessary to place the rack D2, which is attached underneath the carriage, and the wheel D1, as near the floor as possible; but I consider [this] to be only a modification of my former arrangement, and therefore do not think it necessary to repeat the claim.” On the trial, before Cockburn C. J., at the sittings at Guildhall after Trinity Term, 1859, it appeared that the winding-on motion in an imperfect form, referred to in the 5th clause of the plaintiff's claim of 1842, was first obtained in a machine constructed by him in 1839, which was defective as it did not keep the yarn sufficiently tight when winding on at the smallest part of the cop, so as to obviate the liability of the yarns to snarl or twist together. A verdict was given for the plaintiff, leave being reserved to move to enter a verdict for the defendants on the plea of not guilty, and on the 11th and 12th pleas. Atherton, in Michaelmas Term following, obtained a rule nisi accordingly to enter the verdict for the defendants, on the plea of not guilty to the first count, on the ground that there was no case to go to the jury on that count and also on the 11th and 12th pleas, on the ground that the plaintiff's claim (5th), in the specification of his alleged invention of 1842, included the subject-matter of the invention described and claimed in the letters patent of 1836, and also included the (so called) imperfect machine of 1839, and that such specification of 1842 did not sufficiently shew what was claimed as the invention patented; or for a new trial, on the ground of the verdict being against the evidence. In the following Easter Term, April 26th, 30th, Monk and Hindmarch shewed cause: citing Harmar v. Playne (11 East, 101), Jupe v. Pratt (1 Webst. Pat. Ca. 144, 146, per Alderson B.), Lister v. Leather (8 E. & B. 1004, 1017, affirmed on appeal Id. 1031), Bovill v. Keyworth (7 E. & B. 725). The Solicitor General and T. Webster (J. A. Russell with them was not called upon) were heard in support of the rule.-They cited Heath v. Unwin, in the Exchequer Chamber (12 C. B. 522, 552 per Alderson B.), S. C. in House of Lords (16 C. B. 713, 5 H. L. C. 505), Seed v. Higgins, in Exchequer Chamber (8 E. & B. 771, 775, per Martin B.; 776, per Willes J.; 777, per Bramwell B.), Thomas v. Foxwell (6 Jur., N. S. 271). COCKBURN C. J. With reference to the patent of 1842, the question turns entirely on the construction which the Court ought to put on the specification. If the true construction had been that the claim of the plaintiff was limited to the improved curves as the means of obtaining the improved winding-on motion, the question whether there had been an infringement of that part of the specification has been disposed of by the jury, who, upon a conflict of evidence, found, as they had a right to [1860.] HARWOOD v. GREAT NORTHERN Railway Company. [1860.] HARWOOD V. GREAT NORTHERN Railway Company. do, for the plaintiff. But looking at the whole of the specification, though it is not free from ambiguity, and might be bad on the ground that it is uncertain what is claimed, I think the true construction of the 5th clause is, that the radiating apparatus on the conical drum, as shewn in sheet 2, is a substitution for the conical drum in the patent of 1836, and that in 1842 the plaintiff intended to patent that as a substantial part of his claim, and not only in combination with the improved curves. He said that he had discovered that the defects which prevented the full development of the conical drum and its appendages in the patent of 1836 might be cured by the substitution of a radiating apparatus in connection with the appendages; that he had made that radiating apparatus in 1839, and that it did not work satisfactorily; and that he had now improved it by substituting for one portion of it an improved system of curves; and he contended that he might then take out a patent for the radiating apparatus, which he had made perfect by the improved curves. In that he was wrong, for he had already made known to the world the principal part of the machine; and he could not take out a fresh patent for a combination, including that and the improvements, without expressly stating that the patent was for a new combination only. Therefore the patent of 1842 falls to the ground for want of novelty, and the verdict must be entered for the defendant on the 11th plea, in pursuance of leave reserved. As to the patent of 1836, the specification claims a spiral movement by means of the apparatus therein described--the spiral drum and chain and hyperbolic screw, which last, it says, may be varied. For that apparatus the plaintiff, in the patent of 1842, substitutes an entirely new apparatus in express terms. I think the two are perfectly distinct; and, indeed, it hardly lies in the mouth of the plaintiff to say the contrary, because if they are not distinct, and consequently substantially new, the patent of 1842 would be bad, as patenting an old invention. The plaintiff has sought to establish an infringement of the patent of 1842, and contends that the defendants' machine is practically the same as his, effecting the same result by the substitution of mechanical equivalents. But the defendants cannot have infringed both patents, because the apparatus in that of 1836 and the apparatus in that of 1842 are distinct. Their machine is an infringement of the patent of 1842, and not of the patent of 1836, and the patent of 1842 is bad for the reasons already given. CROMPTON J. As to the patent of 1842, I am of opinion that the defendants are entitled to the verdict on the issue upon the plea denying the novelty. I think the plaintiff claims as part of his invention what is not new, unless, as Mr. Monk contends, the claim is confined to the improved curves; but, if that had been so, still the defendants would have succeeded, because the whole matter was left to the jury as to whether they had infringed any part of it, and no particular question was made of the improved curves; so that we might have moulded the rule. However, I think the plaintiff claims more than the improved curves. In the first instance, he declares the nature of his invention to consist in various improvements in the spinning machine, for which he obtained a patent in 1836; and I cannot go so far as to construe as a disclaimer the words in clause 5, "which, although in part used in an improper form before." I think the plaintiff meant to claim that imperfect machine, except so far as is specified in the patent of 1836. If not, the specification would be entirely ambiguous: it would not be possible to say how much he did and how much he did not claim. The other question depends on the construction of the patent of 1836. The same result is obtained by the plaintiff's and by the defendants' machines, but by different means. The plaintiff, in his specification of 1836, does not claim any particular part of the machine; he does not confine himself to the hyperbolic screw; he claims the spiral drum, the hyperbolic screw and the chain for the purpose of producing the winding-on motion. The only doubt in my mind was whether, in the defendants' machine, there was not a combination of mechanical equivalents substituted for those in the plaintiff's machine for producing the same result. But I think this case is within the authority of Seed v. Higgins, on appeal (8 E. & B. 771), and that the defendants' plan of producing the varying circumference is not a mechanical equivalent. The same result is worked out in a different way, and therefore the defendants have not infringed the plaintiff's patent. BLACKBURN J. As to the second count, the question is whether, upon the evidence the defendants are entitled to a verdict on the 12th plea. I agree that they are. We must look at what the plaintiff claims; and if part of that had been published or used before the date of the patent, it was not then new, and it is immaterial whether it had been invented before by the plaintiff himself or by another person, and whether it had been patented before by the plaintiff or by another person. The specification of 1842 claims improvements on the machine of 1839, and therefore the second patent is not new. That brings us to the question whether the machine of 1839 is part of the claim of 1842. I think it is clear that the specification does not claim the machine of 1836, but that it does introduce the machine of 1839; because sheet 2 includes a great deal of the machine of 1839, and what follows cannot be considered as a disclaimer. Then as to whether on the plea of not guilty there is evidence of infringement of the patent of 1836, I agree with Bramwell B., in Seed v. Higgins, on appeal (8 E. & B. 771, 776), that we must first find, as a point of law, what the specification of 1836 claims, [1860.] HARWOOD V. GREAT NORTHERN Railway Company. [1860.] HARWOOD V. GREAT NORTHERN Railway Company. and then examine what the alleged infringement is. That patent is more difficult to understand than the other: but though I have had some doubt, I think the plaintiff does not claim merely the right of causing the surface to vary in any way (I am not sure whether such a claim would be good), but a varying speed by varying the motion by means of a spiral drum and a screw capable of some variation. I find nothing claimed except the doing something by means of a screw with other things. Now nothing is an infringement which does not amount to doing the same thing or its equivalent, and I do not find in the defendants' process any use of a screw, hyperbolic or otherwise; and therefore the defendant has not infringed the patent of 1836. Rule absolute (a). (a) The arguments and judgments in this and the principal case have been partly compiled from the note books of the late T. F. Ellis, Esq., and Francis Ellis, Esq. 1862. Monday, IN THE EXCHEQUER CHAMBER. HARWOOD and another, executors of C. H. WILD, against The GREAT NORTHERN Railway Company. For head note, see ante, p. 194. THE defendants having appealed against the above Bovill (C. E. Pollock and Horace Lloyd with him), for the defendants.-The term "fishing" is derived from affiché, and was originally applied to splicing a mast with a splint, and thence was introduced into carpentry; see Tredgold on Carpentry. [Channell B. referred to Falconer's |