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TMI Blog1928 (11) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... port of his judgment on (1), but he did not formally pronounce that there had been anticipation. He found it in these circumstances unnecessary to consider (3) and (4). His judgment was confirmed simpliciter by the Supreme Court of Canada, who were unanimous. 2. The present appeal is brought by special leave. Their Lordships think it necessary to say that it must have been conveyed to their Lordships who granted the leave, that the case raised an important and general question. Speaking generally a patent case has to do with the construction and the infringement of one or more particular patents, and it cannot often be said that any general question is thereby raised. In such cases, where there have been concurrent judgments of the Judge of first instance and the Court of Appeal, their Lordships Would deprecate the idea that leave should be given to appeal to the King in Council. 3. Leave however, having been given, it is their Lordships' duty to deal with the case, and they must say at once that the case does not fall within the rule known as the rule of concurrent findings. This matter was exhaustively dealt with in the recent case of Robins v. National Trust Co. [1927] A.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sely touch. The lowest roller alone is actuated by power, the other rollers obtaining their motion by reason of the frictional contact between each. The piper goes into the bite below the top most roller and the second, then back to the bite of the second and third, and so on to the lowest, from whence it is taken to a receiving roller on which it is accumulated. In its progress through the calendars, owing to the severe pressure between the smooth surfaces, it obtains a polished or glazed appearance. Now once the whole process is in operation, it is evident that what has been called the accumulating roller can be mechanically moved, and so moved will pull the paper through the calendar rolls; but at the commencement of the operation, or it from any reason the paper gets broken so that its continuity is destroyed, this is not so. The end of the paper must then in some way be threaded through the successive calendar rolls. This threading will be alternately on one side or the other. Thus, if the paper, as one looks at the end of the rolls, goes between the top and the second roll which latter is turning clockwise, the next thread will have to be done on what is the right side of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patent and adequately claimed. The objections, as already stated are based on want of novelty and subject matter that is, want of invention, and also of anticipation. It will be convenient to examine anticipation first, as much of the argument on want of invention is bound up with what was disclosed by the patents which are said to anticipate. The test of anticipation has been dealt with in many cases. They were enumerated in the very recent case of British Thomson Houston Co. v. Metropolitan Vickers Electrical Co. 45 R.P.C. at p. 23. At p. 23 the judgment runs thus: In Otto v. Linford [1882] 46 L.T. 35 at p. 44, Lord Justice Holkar expresses himself thus: 'We have it declared in Hill v. Evans as the law, and it seams very reasonable, that the specification which is relied upon as an anticipation of the invention must give you the same knowledge as the specification of the invention itself.' And in Flour Oxydising Co. v. Carr & Co. 25 R.P.C. 457, Mr. Justice Parker (afterwards Lord Parker) says : ' When the question is solely a question of prior publication, it is not, in my opinion, enough, to prove that the apparatus described in an earlier specification could be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompared with the present device. So far from there being any indication of the discovery that one jet directed against the upper roll at a certain angle would by reflex ion keep the paper adhering to the next roll up to the next nip, the very device employed indicates the opposite, because he thought it necessary to have the successive jets arranged at succeeding parts of the periphery of the lower roll. Smith's patent of 1835 puts in the plainest terms that the object of the patent is to avoid the jamming of fingers which results from hand manipulation. His solution, according to the patent, consists in having sets of wind cases hugging alternately each side of the periphery. He also uses a "doctor" which strips the paper from the upper roll, and it was then kept close to the lower roll by the wind, steam, or gas, which he directs from the wind cases. As already mentioned, this was, so far as known, never constructed, so that whether it would have acted successfully or not remains doubtful. But in any case it is obvious that the whole idea of the encirclement of the periphery by a frame is just a rather more complicated form of Imray, and no one could guess from it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing round the periphery of the lower roll it will enter the next nip. Schulte shows that an arrangement of a "doctor" with air directed to the upper roll just after the nip will deflect the paper on to the felt. Remove the felt and it will be directed as Schulte shows on to the roller. And then Imray and Smith show that once clinging to the roller it will enter the next nip. This, however, is to make a mosaic. That is illegitimate. In the case of British Ore Concentration Syndicate Ltd. v. Minerals Separation Limited 26 R.P.C. 147 Lord Multon speaks thus: It cannot be too carefully kept in mind in Patent Law that in order to render a document a prior publication of an invention it must be shown that it publishes to the world the whole invention, i.e., all that is material to instruct the public how to put the invention in practice. It is not enough that there should be suggestions which, taken with suggestions derived from other and independent documents, may be shown to foreshadow the invention or important steps in it. Since the date of the vigorous protest of Lord Justice James against such a mosaic of prior publications, this has been a universally accepted as a mos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han if it went slow. But the pinching happened with the old slow machines. Indeed, it was proved that pinched and maimed fingers were looked on as the symbol of a veteran workman. It must be remarked that in almost every patent for mechanical combination the elements are old. It must also be considered that there may be invention in what, after all, is only simplification. But here there is really more than that. The plan for separating the paper from the upper roll by means of a "doctor" and an air blast had been shown, but it had not been shown that by a particular arrangement of these two the paper would not only be separated from the upper roll, but induced to cling to the lower roll round about its adjacent periphery, so as to enter of itself into the next nip. After all, what is invention? It is finding out something which has not been found out by other people. This Pope in the present patent did. He found out that the paper would so stick, and the practical problem was solved. The learned Judges below say that all this might have been done by anyone who experimented with 'doctors" and air 'blasts, already known. That is that someone else might have hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the canons already mentioned. Does the man attacking the problem find what he wants as a solution in the prior so-called anticipations? The distinction between anticipation by prior description and by prior user is well understood. The doctrine of analogous user only applies to cases as to things in actual use. The leading case is the Fishplate case, Harwood v. G.N. Ry. Co. [1865] 11 H.L.C. 654= 14 W.E. 1= 35 L J.Q.B. 27= 12 L.T. 771. That dealt with the question of whether there could be a good patent for a fishplate on a railway where the same fishplate had been used on a bridge. Blackburn, J, one of the consulted Judges, who although he differed on the ground that he thought there was a real difference between the two fishes, yet concurred with all the others as to the law, states the problem thus at p. 667: In every case arises a question of fact, whether the contrivance before in use was so similar to that which the patentee claims that there is no invention in the difference. 11. The contrivance, be it observed, must be a contrivance in use, not one merely described. Then there was the case of Morgan & Co. v. Windover & Co., 7 R.P.C. 131 the C-spring case. Throughout th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter application" and not after Canada," and the words "for patent therefore" are omitted. S. 8, Ch. 4 of the Revised Statutes of 1886 is as follows: The said revised statutes shall not be held to operate as new laws, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the said Act and parts of Acts so repealed, and for which the said revised statutes are substituted. (2) But if upon any point the provisions of the said revised statutes are not in effect the same as those of the repealed Acts and parts of Acts for which they are substituted, then, as respects all transact ions, matters and things subsequent to the time when the said revised statutes take effect, the provisions contained in them shall prevail but, as respects all transactions, matters and things anterior to. The said time, the provisions of the said repealed Acts and parts of Acts shall prevail. It is antecedently very improbable that it was meant really to alter the law by the displacement of a comma. The consideration, however, which determines the matter in their Lordships' opinion is that, considering that the whole section is dealin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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