The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1843-03-14 00:00:00

thir lost—if
cient to inval

scontinued at the time wh
my lords. I appr

granted

questioned that the notorious public use of
—vention before the granting of letters patent, though it
may have been discontinued, is sufficient to invalidate the

heard it befo

consideration is this, and it is an important one, whether, 11
the learned judge laid down the law incorrectly to the jury
this was calculated to mislead the jury. (His lordship they
explains how it was calculated to mislead, and says)—There.
fore, it is perfectly obvious that, if the learned judge be in-
correct in the manner in which he stated the law, in the par-
ticular in which I have stated, it was calculated to misleac

circumstances, my lords, I shook
)s to allow the 11th exception, and

Lord BROUGHA

ds, lentirely agree in the view

taken, and for the

asons so luminously expressed by my
that a

I learned friend on tt

exeep-
by the

eleventh, were properly d

ship should disallow
judgment below ; but

also entirly concL
nd. that we have no choice here but
If we are of opinion, first, that

with my noble

to allovt

Leventh exception

law has been mistaken, and under a misapprehension of it,
it has been erroneously delivered by the judge to the jury ;
and if we are, secondly, of opinion that the misdirection in
point of law, the mistake in point of law, committed by the
learned judge had a direct tendency—l may almost say an
--to mislead the jury in the conclusion to
ihich they should come, and in the verdict which they should
deliver; then, my lords, both of these questions beirie an-
swered in the affirmative, that the law was mistaken, and that
the mistake tended to mislead the jury in their verdict, we
have no choice, but must allow the exception. Now, my
lords, a more important mistake in point of law, your lord-
ships will give me leave to say, could not possibly have been
made by the learned judge than that into which the learned
judge fell upon the present occasion. And I will not allow
it to be said for one moment, in dealing with this question,
that there is anything doubtful, that there is anything specu-
lative, that there is any new law to be laid down, or even any

inevitable tendency-

new topics in respect of the law about to be broached here,
in dealing wi►h the direction of the learned judge ; for I
speak with all possible respect for that learned judge's
great ability and experience in his profession in Scotland
when I say, that this law, which has been mistaken here by
his lordship, is a matter of as perfect certainty as thoroughly
known, and as little drawn into doubt in Westminster Hall,
where the law is administered touching the construction of the
statute of James, the patent act, as any one branch of the law
most commonly known and most frequently administered by
our courts. It is one of the greatest errors that can be com-
mitted, in point of law, to say that, with respect to such an
invention as that, it signifies one rush whether it was com-
pletely abandoned, or whether it was continued to be used
down to the very date of the teste of the patent, provided it
was invented and publicly used at the time, twenty or thirty,
it is perfectly immaterial.

'ears ago

There being in my apprehension no kind of doubt that the
jury would say, " Why should we consider whether it was
used at the Bradley Works or not ? Why should we consider
whether it was a trial or a completed invention ?" Be it so
that it was used forty years ago—be it so that it was a com-
plete invention,we hear the learned Lord Chief Justice Clerk
telling us that we need not trouble ourselves upon, these facts,
for for us if it was abandoned, and that takes the
and leads us to find a verdict the other
„rounds, my lord, we have no choice in
application, it being a bill of exceptions; we have no
'ion in saying that the law was misconceived, and mis-
ers smile aronnd, I stated o the jury. The law is undeniable, it is a matter of

facts out of the case
way. Upon these g

hesitat

no doubt or hesitation with any man in this country who has
n,eustomed to athainister it, or I will venture to say
`miner whose opinion is entitled to any weight,
and i am also of opinion, that the law so laid down tended to
mislead, and must necessarily have tended to mislead the
orounds I have no hesitation in support-
'"d learned friend, that the

il any pract

Upon thes

g the proposition of my not

Lord CAMPBELL, after making some observations on other
exceptions, said, in regard to the eleventh, the only question
that remains is this, whether this misdirection shall be con-
sidered as immaterial. But, when I look at the form of the
issue I cannot say that it was immaterial because the issue
is " whether the invention as described in the said letters pa-
tent and specification is the original invention of the pursuer."
Now you cannot say that it was the original invention of the
-ger within the meaning of the issue if it had been pub-
n and practised by others before the patent was
anted. It has been said that there was no evidence, but I
nk that is a mistake •

iicly know

hat conclusion the jury have come
to I know not—but at the Bradley Iron Works there was
.nrh a machine. as Mr. Rutherford acknowledged at the

•
bar, as would have amounted to an infraction of the patent if
that the use of it had been subsequent to the patent. Then,
that being so, I know not what conclusion the jury might

perfect machine, that it was the same machine, and that it had
been publicly used. If they had been of that opinion, al-
though it had been abandoned, they ought to have found a
verdict for the defender. Under these circumstances I regret
exceedingly that I am obliged to concur in the opiniou that
has been expressed by my noble and learned friend, that this
eleventh exception must be allowed, and the consequence of
that will be, that there must be a Venice Facias De novo,
and that the case must be tried by another jury.