INDIAN VACUUM BRAKE CO LTD Vs. ESLUARD

JUDGEMENT

(1.) This is a petition under Section 26 of the Patents and Designs Act (II of 1911) for the revocation of a patent granted to the respondent on the 21 March 1922, by the Controller of Patents and Designs, Calcutta. At the request of the parties this case has been tried with the aid of an Assessor, Mr. A.H. Thackwell, Works Manager, East Indian Railways, Carriage and Wagon Workshops, Lilooah, and I desire to acknowledge his assistance to" me. The petitioner is the Vacuum Brake Co , Ltd,, who carry on business in the manufacture and sale of Vacuum Brake fittings for Railway locomotives and rolling stock. The respondent is an Engineer and is a Director of the Consolidated Brake and Engineering Co , Ltd., manufacturers of Vacuum Brakes. The petitioner for many years, in the business of the Company, imported from the factory in England and sold in, British India, Vacuum Brake Cylinders described as having the valve chamber mounted in the inner side of the piston according to 2 designs No. 14153, dated 2 November, 1909 and No. 14678, dated 23rd; April 1910. These designs were published and have been publicly known in British India since 1910. The petitioner also claims to be the assignee of a patent known as "Hardy's Patent" being British Letters Patent No. 5864 of 1905. This also was publicly known, and published in India, and Vacuum Brake Cylinders according to that patent have been publicly used in India.

(2.) On the 21 February 1922, the respondent applied for and obtained in England a patent relating to the pistons of Vacuum Brake Cylinders identical with the one in the present suit. That patent was No. 50.99 of 1922. On appeal, however, by the present petitioner, the patent No, 5099 was Cancelled on the 31 July 1924 by the Solicitor General who held the view that it disclosed no invention. In the meanwhile, on the 21 March 1922, the respondent had applied in Calcutta to the Controller of Patents for a patent of the same device. The application was opposed by the petitioner, but it was accepted on the 11 June 1922, and Patent No. 8018, dated 21 March 1922, the subject-matter of the present suit, was granted. On the 10 December 1923, the respondent applied to the Patent Office in Calcutta for an amendment of his Specification No. 8018 of 21 March 1922. The amendments asked for were allowed subject to the insertion to a disclaimer in the Specification relating to British Specification No. 5864 of 1905, and in consequence of this, the present proceedings were instituted for a revocation of the patent.

(3.) The Specification relating to Hardy's patent is marked as Ex. A in this case, and the drawings show some examples of forms of construction of the invention. Specimens of the petitioner's design No. 14153 of 1909 and No. 14678 of 1910 are marked C and D respectively. The only difference between these two lies in the method of attachment to the vertical wall of the piston. The respondent's Specification No. 8018 accompanied with the drawings is marked F-I. I think there can be -no doubt that both, in the working principle, and general character of construction, the petitioner's designs and the respondent's patent are founded on Hardy's patent. It is material in the present case to observe that the ball valve in this patent of 1905. is attached to the inner wall of the piston, and figure 2 shows are moveable seating at the bottom of the valve. If the nuts are removed from the bolts, the ball seat below and the ball come away. The ball can be let in either from above or below, and in the type shown in figure 4, from the side. In the respondent's patent the ball valve, as it is in Hardy's patent, is attached to the piston wall inside the cylinder. The valve consists of the body with the screw plug underneath, and the ball inside the body rests on the plug which is put in position from below, and which is removeable by unscrewing it; so both in Hardy's patent and in, the petitioner's design the ball rests on a remove-able seating. Exhibit E a model which has been used in this case to show the general character of the construction and principle of the respondent's ball valve. It is not an exact model, but it shows the principle. Later, during the case, a specimen of the respondent's ball valve, in section, was secured by Mr. Thackwell, the Assessor, and at the request of the respondent's Counsel it was marked as Ex. I. The petitioner's designs C and D as already stated are identical. Type C is attached to the inner wall of the piston by 2 studs and nuts, and type D is attached to the inner wall of the piston by the valve being screwed in. The ball valve consists of the valve body, the ball seating which is screwed in, the ball which is contained in a smaller cage, and a screw plug which closes the top of the body. It has been proved, and it is not disputed, that the petitioner's ball valve type Ex. D has been in rise on Indian Railways many years, and long prior to the grant of Patent No. 8018 to the respondent, and the present application for a revocation of that patent is made on the ground that it is of no utility and that it is not a new invention, within the meaning of the patent law. The patent is also attacked on the ground that it was anticipated by Hardy's patent. It is important, therefore, to see the interpretation placed by the Courts on the terms " utility," "novelty," and "invention." The cases show that in patent law the term "utility " is used, not in the abstract, but in a very special sense. Mere usefulness is not sufficient to support a patent. In the case of Young and Neilson V/s. Rosenthal & Co. (1884) 1 Pat. C. 1 Grove, J., in charging the Jury described "utility" as meaning an invention better than the proceeding knowledge of the trade as to a particular article. As to the meaning of "novelty" and "invention," Lord Westbury, in the case of Harwood V/s. Great Northern Railway Co. (1865) 11 H.L.C. 654 at p. 682 : 35 L.J.Q.B. 27 : 12 L.T. 771 : 14 W.R. 1 : 11 E.R. 1488 : 145 R.R. 356, said "you cannot have a patent for a well-known mechanical contrivance merely when it is applied in a manner or to a purpose, which is not quite the same, but is analogous to the mariner or the purpose in or to which it has been hitherto notoriously used." In citing this rule in Rickmann. Thierry (1896) 14 Pat. C.105 at p. 121 Lord Davey said "It is not enough that the purpose is new or that there is novelty in the application, so that the article produced is in that sense new, but there must be some novelty in the mode of application. By that I understand, that in adopting the old contrivance to the new purpose, there must be difficulties to be overcome, requiring what is called invention, or there must be some ingenuity in the mode of making the adoption" and Cotton, L.J., in Blakey V/s. Latham (1888) 6 Pat. C. 184 at p. 187 laid down that to be new in the patent sense, the novelty must show invention; see also Fletcher Moulton on Patents, page 21.