The term licence is incorrect; it is really a grant (Wood v. Ledbitter, 9 Jur. 187); this, perhaps, applies more properly to the exclusive licence, which defines a certain thing. The patent itself, originally, was rather a licence than a grant; a right to do rather than to have. The licence is closely analogous to a lease (Warwick v. Hooper, 3 M. & G. 60), and the construction of it to that of contracts in general (Chanter v. Dewhurst, 12 M. & W.823) as to acquiescence, &c. Past payments are gone and irrecoverable, though the patent prove invalid (Taylor v. Hare, 1 B. & P. 260); they may be repudiated for the future: (Pidding v. Frank, 1 Mac. & G. 56; Neilson v. Fothergill, Webs. P. C. 287; Hayne v. Maitley, 3 T. R. 438.) If a deed estops the denial of validity, a scire facias must be resorted to to annihilate the patent. In Cutler v. Bower (12 Jur. 721), a licence was followed by an assignment to the same party; on the failure of the latter the former revived.

CHAP. VII.

REMEDIES GENERALLY.

A LARGE proportion of patent cases are a judicial acquisition, or at least recognition, of title: they are really brought to try a right. The judge or jury in such cases really grant the letters patent, which are, in the first instance, provisional, it being not worth while to contest at the grant a claim to what may never be worth contending for. The cost of litigation is usually part of the case made for extension, not only to the vigilance in defence of the right, but as substantial evidence that the subject was valuable, and the title actually tested. The question of infringement is usually but a pretext for assaulting the right, or, at least, derives its difficulty from the indefinite limits of the property trespassed on; and, as one trial, in a great degree, settles this question for all, the bias subsequently runs strongly in favour of a patentee, who, indeed, needs this favourable presumption, having, singlehanded, to hold at bay the public, or, at least, the trade, leagued more or less openly against him, or harassing him by independent skirmishes. Thousands are sometimes thus spent, but only, of course, when weak points exist, not properly fortified and provided for at the period of the grant. Howard's patent, a very lucrative one, for instance, never even reached Nisi Prius. It is seldom, however, that the patentee can entirely carry out the rule of not bringing his title deeds into court. A verdict against the patentee is no proof of invalidity, even partial, so as to require disclaiming, &c.; but it affects the right to damages, which, until after one favourable trial, are seldom insisted on. The statutes expressly recognise this

distinction, and give larger costs on a second verdict, as hereafter detailed. Much of the cost in patent cases, as that of experiments, models, and scientific evidence, which is not allowed in taxation (Severn v. Olive, 3 B. & B. 72), and which in difficult cases is considerable; and the act (5 & 6 Will. 4) has failed to abbreviate the pleadings or arguments, it being still worth while to try everything that endangers the patent right. In 1829, 6007. was named (Evid. Ho. Com.) as an average expense of trial to one party, without reference to procedure in equity and those after the verdict. It is, therefore, no wonder that the Privy Council (In re Muntz) should have congratulated a patentee on having got damages and costs enough out of a series of law proceedings to nearly cover his expenses. Actual compensation is got usually, if at all, in Chancery; in two cases it was assessed by juries, at a round sum, viz., 2007. (Lewis & Marling, Webs. P. C. 493), and 5001. (Morris v. Branson, Bull. N. P. 76); as to the difficulty of more accurately estimating it, see the section on Equity.

Three kinds of procedure require notice. The common action (no case has yet gone to a County Court), which does really involve the stability of the patent: the peculiar action of scire facias explicitly directed to that end: and equity, which acts solely and entirely as an auxiliary either to obtain evidence and information as to the points in dispute, particularly to take account of the value of the infringed portion, or sometimes to prevent its commission.

For the formal details of the scire facias, which has recently been amended by statute, see the treatises devoted to it, of which those by Foster and Abbott are the latest. The substantial nature of, and mode of treating, the questions arising will be sufficiently seen in the chapter on the ordinary action. As aiming at nothing short of the destruction of the property, it seems an invidious and urfavoured proceeding; but it involves the right of opening and reply, and, till lately, no patent had survived it.

There are now, however, certain means of amendment even during a pending scire facias (see the section on Disclaimer.) Some of the peculiarity of the procedure (which is not known in Scotch law) arises from the Crown being nominally the prosecutor-a mistake, or rather, deception in making the grant being the ground for setting it aside. The plaintiff being in place of the Crown receives no costs (which are heavy), nor should by rights pay any for the same supposed reason. An arrangement is made, however, for costs to a patentee who passes the ordeal, to prevent his opponent from harassing him on slight grounds. It is, therefore, often preferred to act on the negative, and defend against a void patent.

The legal and equitable jurisdictions are not always harmonious, and the conflict between the two legal processes mentioned is still more inconvenient, a single question being thus mooted at once in three different courts, to say nothing of proceedings on Scotch and English patents for one and the same invention. No rules can be laid down as to the interposition of the various courts to stay contemporaneous proceedings: (see the cases of Muntz v. Foster, 1 Dowl. & L. 490; Smith v. Upton, 6 Scott, 804; Haworth v. Hardcastle, Webs. 486; R. v. Neilson, Webs. 665.)

All the proceedings deal with property, not with the intention of the parties, except in so far as furnishing evidence or argument: (compare the insurance law cases.) In Heath & Unwin (10 M. & W. 684), some expressions of an opposite tendency occur, but the doctrine (if it were so meant) was rejected at the subsequent trial of the same case at law, as well as when before Vice-Chancellor Knight Bruce: (15 Sim. 522; Stead v. Anderson, 11 Jur. 877.) Fraud is a loose expression in some patent cases for failure, as where a proviso has not been fulfilled; thus (in Bovill v. Moor, 2 Marsh. 211), fraud and inadvertence are interchanged.

A patent, of course, carries a certain weight, both in

law and with a jury; so that a pirate is often desirous of the influence of a rival patent: (Baskett v. Cunningham, 2 Eden C. R. 147.) It is also matter of notoriety, and without notice, the public are bound not to infringe. It must be presumed valid till actually cancelled and repealed. The secondary rights, actions, &c., of course, survive the patent on which they are founded; but apart from substantial injury, courts discourage the litigation on questions of right, or the completion of litigation, with reference to costs: (Dalgleish, 14 Jur. 945.)

In passing to the particular species of litigation, it is impossible not to remark that they are an operose means of determining the subtle questions of patent cases, and might with advantage, when there are rights on both sides, be remitted to arbitration, or compromised, in preference to plunging into (Spottiswood v. Clarke, 2 Phill. C. R. 154) or protracting (Crossley v. Beverly, 3 M. & C. 428) litigation.

SECT. 1.-EQUITY.

The equitable rights in patents (ante) present nothing peculiar, but equitable remedy is resorted to in aid of legal rights, the jurisdiction being analogous to that in case of waste, mines, &c., and the technical proceedings relative to which will be found in treatises on injunction, &c.

A patent enters a Court of Chancery either verified by legal authority, or challenging and appearing likely to obtain it. Even in the former case, each fresh defendant may dispute the right, not only because his breach may be different, but on the possible failure of the former trial accurately to explore the title; for such trials are sometimes collusive, and, again, new facts may be presentable. In the absence of legal title, the extent of user, under the patent, is material, affecting not only the amount of injury, but the argumentative value of acquiescence. Possession proves little where it was not worth disputing. The length of period which amounts to prescription