1829-04-08 The London Journal of Arts And Sciences - Letter Concerning Shearing Patents
ART. VII.-ON THE RECENT PATENT CAUSE, LEWIS v. DAVIS,
AND THE PATENT RIGHTS OF THE PLAINTIFF.
To the Editors of the London Journal of Arts, &c.
GENTLEMEN, Mr. Dutton, of Wootton-under-Edge, having addressed you in reply to my observations on the recent trial, Lewis v. Davis, published in the Journal of Arts for February, I beg to request the favour of you to insert the following explanatory remarks in your next number.
It is far from my wish to enter into controversy on the points at issue, but the view I had previously taken of the subject, appears, on reflection, to be as correct in principle, as the details of facts are uncontrovertible. My object was to give correctly the particulars of the case, agreeable to the impression made on my mind by the dictum of the learned Judge and the arguments of counsel; and to state the conclusion to which so important a decision would naturally lead; and I am supported by the opinion of gentlemen of science, that such decision was, in its effects, at variance with the general principles laid down in other cases of a similar description. I considered it of importance to patentees and manufacturers, that the grounds of that decision shall be clearly stated, and the rights and claims of the plaintiffs placed on their proper basis, viz. the exclusive right to shear "from list to list by a rotatory cutter," and that without any special right or claim to the invention of the machinery by which such shearing was to be performed.
Mr. D. commences his remarks by a metaphysical observation of doubtful authority, viz. "that it is to association that we are indebted for all our new ideas;" and he applied this abstract principle to the case of the steam engine, as improved by Watt, in illustration of the same principle when applied to Lewis's machine. It has been frequently observed, and often happens, "that few things are more dissimilar than a similie," and such is the case before us, for if Bolton and Watt had claimed "the cylinder and piston," or the formation of the vacuum in an iron, cylinder," as stated by Mr. D., their patent would have been of little value, instead of being as it in reality was, the most valuable and lucrative Patent on the roll. Mr. Watt's claim was placed on much higher and safer grounds; it was for the application of steam as an elastic force, under an improved construction of the usual machinery; steam having heretofore been used as a means of obtaining a vacuum only. Here was the new and novel application of a principle of power, and the parts of the engine that had been in use before were not claimed as part of that invention, but the particulars of this case have little bearing on the case of Lewis's Patent. Machinery has been so extensively adopted, and variously applied to the manufacturers of the country, that it is scarcely possible to originate a new machine, and Patents have for a great length of time been generally taken for improvements only, because such parts of a machine that had been previously known and used, was considered as public property, and to make such parts the subject of an exclusive claim, has been held fatal to the Patent in the specification of which such claim has been set up.
In the case of Bovil v. Moore, Chief Justice Gibbs observes, "if Mr. Brown has invented only an improvement of the old engine or machine, which existed before, then the specification by which he claims the whole (machine) to himself, must be bad." Thus one of the most valuable improvements in that singularly ingenious machine, called the lace machine, was entirely lost to the Patentee, though the improvement was highly important and beneficial in lace making, and produced an article of very superior texture.
Had Mr. D. sufficiently attended to the statute of 21 James I. and to those general principles which have been amplified and applied to the decisions of our courts of law, he would have perceived that most valuable inventions have been wrecked on this ground, and that any general claims to parts of machines that had been invented or used by others, cannot be sustained in a court of law, and if the described method of Lewis combines in friendly "association," the inventions of Harmer, Dyer, and others, they may possibly have a most unfriendly effect on the security of his Patent, should it ever happen to be again called in question in a court of justice, which is I believe expected.
The observation of Mr. D. on the invention of the inherent principle of cutting by a rotatory cutter, which he terms "continuous cutting," can be scarcely esteemed to be correct-for a rotatory cutter having been before used by Price and Collier, and their method of operation was by a rotative motion, or continuous cutting,-in opposition to the vibrating action of the shear and reciprocating cutter in common use, and what can there be that is new and novel in the direction of cutting? Shearing across the cloth is the old and approved method; may we not ask then what remains? Why truly the abstract junction of the rotatory cutter with cutting cloth transversally. Both old in their seperate invention and application-and only new in their joint application-and to enable the rotatory cutter to perform the operation of cutting when they are thus joined together, all the machinery employed had been previously in use for cutting across the cloth from list to list. In the year 1811, Mr. James Mallory (an. American), obtained Letters patent for an improved machine for cropping peltry, and shearing woollen cloth. The Patent right of this machine was sold to the Messrs. Norman, of Martin's Lane, Cannon Street, London; and a machine on one of Mallory's plans was constructed by Messrs. Donkin and Co. eminent engineers, for the purpose of shearing woollen cloth. This machine was sent to Mr. Gardner, of Chalford, for trial, and not answering the expectation of the parties, the late Mr. Price, of Stroud, was recommended to make such alterations and improvements as the machine might require; and under an arrangement with Mr. Norman, this machine was finally transferred to the premises of Messrs. Lewis, of Branscombe.
On the Patent Cause Lewis v. Davis, &c. his specification Mallory suggests two modes of applying a vibrating cutter, and one for a rotatory cutter or revolving cylinder. This machine, in connection with the specification of particulars, appears to have laid the foundation for the subsequent improvements of Price and Lewis, if not also those of Collier; and Mr. Price appears to have availed himself of Mallory's suggestion of the revolving cylinder operating against a ledger blade, in the construction of his cutters. How far Mallory was really the inventor of the rotatory cutter appears doubtful; but it is a fact, that nearly about the same time, Price and Lewis in England, and Collier in France, turned their attention to shearing by a rotatory cylinder, operating by a continuous movement, and this sufficiently accounts for, and explains why neither Price, Lewis, or Collier, claim the exclusive use of the rotatory cutter in the Patents of 1815, each claiming their own particular method of construction, both in cutters and machinery.'
Mr. Collier's machine was approved by the French manufacturers, and one or two was put to work by Mr. Hirst, of Leeds; but the cutting was not approved in England. The plaintiffs, in conjunction with Mr. W. Davis (now of Leeds,) their engineer, obtained another Patent in 1818, on which the action in question was brought, but the specification of the Patent proceeds upon the same view of the subject as the former one, and is taken for the several improvements specified, and sets up no general claim, either for the rotatory cutter or its method of acting, but for the described method of shearing from list to list. Gardner and Herbert followed, and their machine appears to be a considerable improvement upon that of Lewis's; the rotatory operation of the cutter, combined with a lateral movement, is held to effect most beneficial results, producing on the cloth a more soft, smooth, and beautiful face, than can be effected by any other machine, such being the opinion of several clothiers of the first practical experience and respectability in the trade.
Mr. W. Davis, of Leeds, has had two Patents for machines to shear transversally, or from list to list, since the year 1818; and this, at least, is a tacit proof that he had not contemplated that his late partners and himself had secured the sole right of shearing from list to list by a rotatory cutter, by every shape and form of construction under which such machinery could be manufactured.
In respect to the infringement, it would be mere affectation on the part of the defendant, to pretend he did not shear from list to list by a rotatory cutter, and equally at variance with fact, to assert that he used any of the plaintiffs' inventions in so doing. The ruling of the court must then apply solely to the general claim, which is a Patent for application of method, and not for a new combination of organized machinery. Mr. Dutton charges me with frittering away a valuable invention. I can only reply, that I had no such purpose in view, or in any respect to depreciate the value of Mr. Lewis's machine; my object was solely to strip the subject of all the extraneous matter in which it appeared involved, and to shew the real ground on which the decision of the court proceeded; and if such a claim can be made the subject of a Patent, the public ought to be in possession of the fact. I cannot, however, concur in the view Mr. D. has taken of the beneficial consequences resulting from this ruling of the learned Judge, for it appears to operate injuriously by prohibiting, for the period of the Patent, all improvements for shearing cloth by a rotatory movement. It is high time, however, that the laws on this subject should assume a definite character, and that the ingenuity of the country should not be subject to expensive law suits, and valuable inventions dependant for protection on the ruling of the court, or the uncertain impressions of a jury. I am, Gentlemen,
Your most obedient servant, J RAYNER.
London, April 8, 1829.