BENTLEY V. FLEMING. CASE for the infringement of a patent. 1844. August 31st. If the inventor of a machine lend it to an other in order to have its qualities tested, and that other use it for some weeks in a The patent in question had been obtained for making a card-machine; and there was evidence, that, about five or six weeks before the letters-patent were obtained, the inventor, one Thornton, had lent the machine to one N., in order that he might try whether it would set the teeth public workof the cards. There was also evidence that N.'s in a mill, and that men were constantly going backwards invention such and forwards to and from the said room. It appeared, room was room; this is not giving the publicity as to deprive the in ventor of his right to obtain moreover, that for some weeks before the time at which the machine was lent to N., it had been in complete work- letters-patent ing condition. in On this evidence, it was submitted, on the part of the defendant, that the plaintiff was out of court,-first, on the ground that the machine had been publicly used N.'s room, which was a public room, before the granting of the letters-patent; and on this point the case of Wood v. Zimmer (a) was referred to. CRESSWELL, J.-Have you any case that goes that length? The case referred to was the case of an absolute sale; but here there is no evidence that the machine was given to N. for the purpose of his giving it publicity. The evidence merely is, that Thornton lent the machine to N., in order that he might discover whether it really was worth while to take out a patent for it, or not. I cannot stop the case on that point (b). (a) Holt, N. P. C. 158. (b) In the recent case of Carpenter v. Smith, (9 M. & W. 300), Alderson, B., said, (p. 303):--" Public use means a use in public, so as to come to the knowledge of others than the inventor, as contradistinguished from the use of it by him self in his chamber;" and in the therefor it. A machine does not cease to be the subject of a patent, merely because of the length of time during which the in ventor may keep it by him, after it has been made a complete workable machine. 1844. BENTLEY v. FLEMING. It was then submitted, secondly, that, inasmuch as the machine in question was a complete workable machine for a long period before the letters-patent were taken out, it did not form the subject of a patent at all. CRESSWELL, J.-A man cannot enjoy his monopoly by procuring a patent, after having had the benefit of the sale of his invention. But you cannot contend, that if a man were to keep his invention shut up in his room for twenty years, that circumstance merely would deprive him of his right to obtain a patent for it. W. H. Watson, Rotch, and Webster, for the plaintiff. Knowles, Baines, Addison, and Cowling, for the defend ant. [Attornies-Redfern, and Barber.] novelty of the invention was, that the machine which was alleged to have been invented had been constructed, not by the patentee himself, but by a third party at the factory of the latter, and in which the Court gave judgment in favour of the validity of the patent,—much stress was laid on the fact, that such third party not only constructed the machine under an injunction of secrecy from the patentee, but, further, that the machine itself, when completed, was not shewn or exposed to the view of those who might happen to come to the factory; and it was said, that these circumstances made the case, so far, the same as if the machine had been constructed by the inventor's own hands in his own private work shop, and no third person had seen it whilst in progress. (Per Parke, B., delivering judgment in Morgan v. Seaward, 2 M. & W. 558). In the case reported in the text, however, the evidence was, that the room in which the machine was used was a public room; and the ground of the learned Judge's opinion was simply, that, although the room was public, still the machine had been placed there for the purposes of experiment only; and that, therefore, this did not constitute a public use and exercise thereof within the meaning of the laws relating to patents of invention. The above case, therefore, would seem to carry the law on this subject further than it has been carried by any previous decision. of poison to an agent, with directions to him to cause it to be INDICTMENT on the stat. 1 Vict. c. 85, s. 3.—The first The delivery count of the indictment charged the prisoners with feloniously attempting to administer to one Thomas Vaughan a large quantity of a certain deadly poison, called white arsenic, with intent to kill and murder him. There was administered to another under such circum stances that if the agent would be the sole principal felon, also a second count, charging the prisoners in like manner administered with attempting to administer poison to Mary Vaughan, with intent to kill and murder her; and a third count, charging them with attempting to administer poison to Thomas and Mary Vaughan, with intent to kill and murder both. It appeared that the two prisoners cohabited together, the female prisoner being a daughter of Mary Vaughan; and that, in the month of May, 1844, the prisoners procured some arsenic, and gave it, in a paper, to a man named Richard Edwards, informing him that it was poison, and that they wanted to kill Vaughan and his wife; and they gave directions to Edwards to keep the arsenic in the palm of his hand, and go to Vaughan's house, which was two or three miles distant, and there call for a pint of beer, which he, Edwards, and the Vaughans were to drink together, and after having done so, he (Edwards) was to call for another pint of beer, and take an opportunity of slipping the arsenic into it, undiscovered by the Vaughans, VOL. I. Q Q N. P. is not an "at tempt to administer poison," within the stat. 1 Vict. c. 85, s. 3. A. delivered poison to B., and desired him to put it wanted to kill V., and told him what had passed between A. and himself: could not be -Held, that A. the stat. 1 Vict. c. 85, s. 3, of convicted on having at tempted to administer poison to V. 1844. REGINA บ. WILLIAMS. to whom he was to hand it, that they might drink it and be poisoned. The prisoners gave Edwards 5d. for his services, and told him, that if he succeeded he should never want, for all in the Vaughans' house belonged to the pri soner Ann Williams. It further appeared that Edwards immediately proceeded to the house of the Vaughans, and gave up the poison to them, and told them all that had passed. Edwards was a man of apparently rather weak intellect, but gave his evidence in a very clear and collected manner, and was certainly perfectly aware that, if he had done as he was directed, he must have destroyed the Vaughans. Verdict-Guilty. ROLFE, B., respited the judgment, in order to consult the judges on the point, whether the foregoing facts warranted the conviction of the prisoners for an attempt to administer poison; for if Edwards had administered the poison, he would have been the sole principal felon, and the prisoners would have been accessories before the fact. The question, therefore, was, whether the delivery of poison to an agent, with directions to him to cause it to be administered to another, under such circumstances that, if administered, the agent would be the sole principal felon, was an “attempt to administer," within the third section of the stat. 1 Vict. c. 85. E. V. Williams and E. L. Richards, for the prosecution. [Attornies for the prosecution-Perkins and James.] IN the ensuing term the case was considered by the fifteen judges, who held the conviction wrong. CHESTER ASSIZES. (Crown Side). BEFORE BARON ROLFE. 1844. REGINA V. WILLIAM NEALE. MISDEMEANOUR.—The indictment charged the de- Townsend, for the defendant, submitted, that on this evidence the defendant was entitled to be acquitted, as the offence amounted to a rape. W. Yardley, for the prosecution.-Every allegation in the present indictment is proved, and the further proof of the non-consent of the child does not disprove any part of the present charge. ROLFE, B.-I think the case must go to the jury. After the verdict was returned, the jury, in answer to a uestion put to them by Rolfe, B., stated that they were of opinion that the prisoner did effect his purpose by force, and against the child's will. |