the alteration here was to exceed the province of the patent; Felton's (3 C. & P.) specification failed by falling short of it; but in either case the invention is not truly ascertained.

All improvements, however, should be inserted up to the period allowed to specify (Jones v. Pearce, Webs. 124); Crossley v. Beverly, 3 C. & K. 513); and, accordingly, it is usually put off till too late for deliberate revision. An earlier execution might suggest ameliorations in practice, and it might be reasonable to test it by setting a man to work from it, and at least reading it to him, and taking his remarks.

For further illustration of the whole subject, see a specification (Turner v. Winter, 1 T. R. 602), which, as, according to Mr. Godson, it exhibits every fault that could well occur, might serve as a text for a treatise on "How draw a bad specification."

CHAP. V.

AMENDMENT AND EXTENSION OF PATENTS.

THE hardships which may be rectified under sections 1, 2, and 4 of Lord Brougham's Act, and some amendments of it, were previously remediable only by Parliamentary interposition. A list of applications to the Legislature will be found in Webster's Patent Cases (Vol. I.)

The equity afforded by this act to the inventor applies partly to the case of an originally hard bargain, as, where fourteen years was notoriously too little, but yet all that could be got; and partly to a bargain turning out a hard one subsequently. So, again, it corrects some errors which might have been avoided, and some which no care on the patentee's part could have prevented.

We shall notice, the principle of operation under this statute; the practice, which is either before the Privy Council or the law officers of the Crown; and, lastly, the common law amendment, independent of the act.

SECT. 1.-CONFIRMATION.

This portion of the act (sect. 2) has been but little brought into operation; the essential points seem to be that prior existence is rendered innoxious; if not public and general, and, if not known to the inventor, it is, in fact, a liberal construction of the novelty of the old law, for, in the case thus described, the public really get a new possession, as they got a new world from Columbus, though obscure navigators had preceded him. The condition of ignorance on the patentee's part must improbability that he should have known it.

amount to

He can

hardly be expected to deny what he alleged at the time of obtaining the grant. (Compare the chapter on Inventors, p. 27.)

The public and general use here intended is probably not that of the ordinary patent law (p. 22), but actual popular use-notoriety—as was said in Well's case (1 Webs. 554.) The provisoes secure the rights of others in practical possession of the subject (Re Card, 12 Jur. 507), and à fortiori if under a patent (Wells.) Total abandonment at the date of the patent, therefore, seems the necessary qualification. The act cannot (Pow, 5 E. F. Moo. 65) be used to relieve a patent in one kingdom vitiated by prior use in another; nor (Lamenaude, P. C. 1850) to an indiscreet publication just before the patent; even, probably, if such disclosure were by hostility or fraud. It seems (Re Stead, 1846, Priv. C.) that the patent must be void; there must be no other remedy, as by disclaimer, for instance (Wells); though the word "confirm" seems rather to point to securing what might be unsafe.

However, as the jurisdiction was pointedly said to be discretionary, the case cited may not be rigidly followed. Lord Wynford (Westrupp's, 1 Webs. P. C. 554) seems to have misconceived the section or confused it with the disclaiming section. The only successful application seems (Heurteloup, 1 Webs. P. C. 553) to have been as to a publication merely by a foreign work in the British Museum.

The privilege is bestowed on the patentee or his assigns; it is meant, probably, to accompany and be confined to the legal right to the patent.

SECT. 2.-EXTENSION.

This section (4), though employed effectively and in numerous cases, is not easily developed to a system of principles. A general view of the whole circumstances is taken (Re Galloway, 1 Webs. P. C. 774; Re Jones, 1 Webs. 577), and the only rule explicitly laid down, is that there must be a strong case. It opens, in fact, that

question of an estimate of value which the old statute got rid of by a procrustean term of fourteen years, and commits to it an administrative tribunal, unchecked and unassisted by other terms than that " upon hearing and inquiring of the whole matter," the committee "may report." There was, however, the peculiar circumstance that one of the most active members of the tribunal has been the noble Lord who has the credit of its legislative creation as a Patent Court. Its fiat is an act of favour the committee have more than once said, and therefore liable to be affected, to some slight extent, by the vehemence of the petition. The trade or rival patents sometimes appear to oppose, and this judicialises the proceeding, which is often hard fought; but the Court's jealousy for the public interest pretty well supplies the place of this, and it has been thought that the unopposed cases fare worst. By degrees a kind of comparative estimate assists the discretion of the court. "In A. B.'s case we gave seven years; yours is weaker, take five;" thus, in the propeller cases five or six analogous patents were all placed on an equal footing.

The subject-matter here differs from that already treated, in being viewed in respect of quantity of merit, not of whether any merit at all; this is presumed to exist in the old patent; and if primary validity be wanting, is by no means supplied: the old privilege is extended; it may be good for anything or good for nothing; and the evidence includes matters of commercial statistics which do not occur in the ordinary patent trials.

The Satellite Act (7 & 8 Vict. c. 69) may be in some degree an authoritative exponent of the former, when it speaks of the inventor's expenses not being reimbursed by the original term, and, again, of "non-remuneration" for expense and labour in perfecting the invention. This is so far a wrong principle as it looks towards the prime cost of the article supplied to the public instead of its market value. The reported cases dwell sometimes on the inventor's merit, and sometimes on that of the invention.

As to the first, an importer has less merit (Soames', Webs. P. C. 729) supposing no special sacrifice of personal exertion; he has only the lower order of merit exhibited by an assignee. Pecuniary investment has the same merit whether made by the inventor or another, and falls better under our second head; yet commercial skill or enterprise, which a new trade gives so much scope for, is a personal quality (In re Woodcroft, Webs. P. C. 724; Galloway, 10 Jur. 363; Muntz, Priv. C. 1846; Simister, 4 Moo. 164; Webs. 721); but it must be judicious enterprize; auxiliary to a valuable invention, so that we are brought again to the merit of the thing. An assignee, again, is liable to be told "you have drawn your lot and must abide the result; " this has occurred with several joint stock cases, where each man losing little there is no argumentum ad misericordiam, which has certainly aided some inventors: (Downton, Webs. 565.) Sympathy with perseverance against ridicule and prejudice or more substantial hostility strikes, and incendiarism, for instance (Russell, Webs. P. C. 473; Roberts, Webs. P. C. 571) seems more legitimate, to say nothing of a just amount of legal pugnacity, the want of which has been noticed (Simister.) The intellectual merit of the inventor, his skill and ingenuity, refer less really to his general capacity as a man of science than in the matter discussed, the particular product of his skill, to which we proceed, remarking, however, that though it was said to be reasonable for an assignee to represent all the merit (Whitehouse, Webs. 473), especially when, as in Bodmer (Newt. L. J. No. 210) he has suffered severely after dealing liberally with the inventor. Yet the inventor's concurrence is advantageous, and there is usually a willingness to secure him a slice of the concession by a fixed sum or annuity: (Hardy, 13 Jur. 177; Whitehouse, supra.) A patentee or assignee is qualified to apply, and both together, or several such parties: (7 & 8 Vict. c. 59, s. 5.)

E