In The High Court Op Justice.—Chancery Division. Before Mr. Justice Stirling.
July 1st, 2nd, 5tb, 6th, 7th, 8th, and 13th, 1898, and January 12th, 1899.
Patent: Action for infringement of four patents. Action was successful as to one patent only.
In 1884 Letters Patent were granted, on a communication from abroad by D.,for "Improvements in gas or oil motors." The invention related to the class 10 of engines in which an explosion takes place on every alternate stroke. The specification, after describing how, in working, the heat of the sides of the combustion chamber, combined with the compression of the combustible mixtures, would of themselves bring about ignition at the right moment, contained the following passage: "That the mixture may also explode at the beginning of the working when the sides of the space are quite cold, a metallic "priming cap f, the interior of which is in continuous open communication with the space of combustion, is by means of a flame from without "so heated that ignition takes place from the heated sides of the priming "cap."
The Patentee claimed, "1st. In gas motors in which only one "impulse is given for each two strokes of the working piston, the effecting of "the automatic ignition of the combustible mixture at each second stroke by the "compression against the hot sides of the combustion chamber by means of the "movement of the crank of the working piston, and the regulation of the ignition "at the exact moment in relation to the dead point by the cock s which admits "more or less combustible mixture for the explosion charge, or by the cock t which "regulates the heat of the igniting cap f, substantially as herein before described "and illustrated in the drawings. 2nd. The use of the priming cap f for effecting the ignition when the sides of the chamber are quite cold, substantially as "herein before described and illustrated in the drawings." In 1885 Letters Patent were granted to D. for "Improvements in motor engines worked by "combustible gates or petroleum vapour or spray." This patent related to the same type of engines.
Claim 9 was as follows: " The method o f regulating the "speed of a gas or petroleum motor engine by causing the discharge valves for "the products of combustion to remain closed when the normal speed is exceeded,"so that the products of combustion are retained under pressure in the cylinder, "whereby the admission Halves b and c for combustible mixture are also kept "closed and no fresh charge is consequently admitted, either above the piston or "from the pump below, until the speed is again reduced and the discharge valve "opened .substantially at herein described.'" In 1885 another patent was granted 5 to D. for an "Improved vehicle propelled by a gas or petroleum motor engine." The first claim was for "The combination of a vehicle having a driving and "a steering wheel running on one, and the same trade, with a centrally "arranged gas or petroleum motor engine and its reservoir, the centre of "gravity of which lies in the vertical plane of the wheel-track, substantially 10 "as herein described." In 1896 the registered owners of the three patents brought an action against a Company for infringement of the same, as well as of a fourth patent, as to which the claim for infringement was dropped at the trial.
The main points on which the Defendants relied at the trial were, as to the first patent, that there was insufficiency of description, inasmuch as an engine constructed according to the description would not work, that the inventor contemplated, f,r starting the engine, the use of a heated surface, the shape being immaterial, in continuous communication with the cylinder, whereas the ignition tubes used by them, which were much longer in proportion to their diameter than f, operated by the spent gas in the tube being compressed and so unmasking the heated portion of the tube at the right moment, that the patent was anticipated, and that the patentee contemplated the use of f only for starting the machine. As to the second patent, that the patentee was not the first to affect the inlet valve through the action of the exhaust valve, and that they did not infringe, they operating by locking the exhaust valve open. As to the third patent, that, if construed broadly, there was no subject-matter, and, if otherwise construed, no infringement.
Held, by STIRLlNG, J., that the first patent was valid, and that the Defendant* had infringed it, but that the Defendants had not infringed either the second or third patents, the claim of the second patent only claiming the particular 30 device, and that, unless the first claim of the third patent was limited to the combination substantially as described, there would not be subject-matter for a patent. The first patent having expired, no injunction was granted, but an inquiry as to damages, the costs to follow the event in the case of each patent with a set-off. A certificate of validity was granted as to the first patent, but refused as to the second. A certificate as to the Particulars of Objections gone into at the trial with respect to the patents, except the first patent, was granted.
On the 17th of June, 1884, Letters Patent (No. 9112 of 1884) in this report called the first patent, were granted to Lorentz Albert Oroth, for an invention 40 (communicated from abroad by G. Daimler) for improvements in gas or oil "motors." The Provisional Specification, dated the 17th of June, 1884, was as follows :
"These improvements in gas or oil motors consist in a contrivance to press "air mixed with combustible substances i.e. 1st Air mixed with combustible "gases 2'"' Air mixed with the residue of distilled petroleum either in a solid or "vaporous form or 3"' Air mixed with coal dust and gas or products of "petroleum in a confined space at the end of a cylinder so quickly together and against the warm sides of the space that at the end of the piston stroke by the "effect of the compression a spontaneous ignition as it were a pneumatic ignition "takes place and a quick combustion or explosion ensues through the whole "mass of the mixture and to employ the tension thus obt lined as moving power. "The piston moves airtight in the cylinder one end of which is closed by a head "or cap covered by bad conductors of heat. By the outstroke of the piston air "mixed with gas or oil is sucked in or pressed in by a valve and by the instroke of "the piston the mixture is pressed into the space behind the piston and ignites at "the completion of its stroke as above described. By the combustion and "expansion of the mixture the piston is driven back with considerable force and "can then transfer this power by cranks or other contrivances.
By the instroke "of the piston the products of combustion are wholly or partly driven out through "a valve whereupon a fresh cycle begins. After some repetitions of this motion "the sides of the space and the bottom of the piston obtain a normal heightened "temperature in which the mixture regularly ignites in or round the dead point "of the length of the piston stroke in the inmost position of the piston in consequence of the compression according to the principle derived from experience "that combustible mixtures which under the pressure of the atmosphere would "either not at all or only slowly burn do by vigorous compression quickly burn 20 "and even explode. It is also possible to keep the whole or part of the space of "combustion cool.
"That the mixture may also explode at the beginning of the working when the "sides of the space are quite cold a metallic priming cap the interior of which "is in continuous open communication with the space of combustion is by "means of a flame from without so heated that ignition takes place thus when "the cylinder and the mixture are both cold the temperature necessary for "ignition is obtained from the heated sides of the priming cap."The advantages of the invention described above are a heightened useful "effect of combustibles as :—1" By the compression heightened into spontaneous "ignition and the hot sides of the cylinder bad and cheap combustibles are "made to burn. 2'"i Both during the compression and combustion within "warmed sides little heat is lost and from the almost unlimited quickness with "which the motor can work owing to the automatic ignition.' No cooling "water is required."
The Complete Specification (also dated the 17th of June 1884) was as follows :
"These improvements in gas and oil motive power engines consist in pressing "quickly a mixture of air and gas or oil vapours into a closed hot chamber by "means of the working piston until the said mixture is ignited by the combined "action of the compression and the heat of the walls of the chamber the expansion resulting from the explosion or sudden combustion of the mixture being "employed as driving power.
"According to this invention the motion of the crank is used for effecting the "ignition. The piston B Fig. 1 Plate I connected with the crank draws in by "its first outstroke a proportionate mixture of air an 1 gas or oil vapour which "mixture is pressed by the first return stroke of the piston into a chamber c "where it takes fire at the point of highest compression and then operates during "the second outstroke of the piston to communicate power to the crank shaft "and is afterwards exhausted during the second return stroke of the piston. "The action of the piston is therefore similar to that of the so called Otto gas "engine. After some repetitions of this motion the sides of the space and the "bottom of the piston obtain a normal heightened temperature in which the "mixture regularly ignites in or round the dead point of the length of the piston "stroke in the inmost position of the piston in consequence of the compression "according to the principle derived from experience that combustible mixtures "which under the pressure of the atmosphere would either not at all or only "slowly burn do by vigorous compression quickly burn and even explode.
"That the mixture may also explode at the beginning of the working when the "sides of the space are quite cold a metallic priming cap the interior of "which is in continuous open communication with the space of combustion is 5 "by means of a flame from without so heated that ignition takes place from the "heated
sides of the priming cap.
"The advantages of the invention described above are a heightened useful "effect of combustibles as: 1" By the compression heightened into spontaneous "ignition and the hot sides of the chamber bad and cheap combustibles are "made to burn. Both during the compression and combustion within "warmed sides, little heat is lost and from the almost unlimited quickness with "which the motor can work owing to the automatic ignition. 3rd No cooling "water is required.
"The Patentee claimed, let In gas motors in which only one impulse is given "for each two strokes of the working piston, the effecting of the automatic "ignition of the combustible mixture at each second stroke by the compression "against the hot sides of the combustion chamber by means of the movement "of the crank of the working piston, and the regulation of the ignition at the "exact moment in relation to the dead point by the cock s which admits more "or less combustible mixture for the explosion charge or by the cock t which "regulates the heat of the igniting cap substantially as herein before described "and illustrated in the drawings. The use of the priming cap for effecting the ignition when the sides of "the chamber are quite cold substantially as herein before described and "illustrated in the drawings.
On the 7th of April, 1885, Letters Patent (No. 4315 of 1885), in this report called the second patent, were granted to the said G. Daimler for an invention of "Improvements in motor engines worked by combustible gases or "petroleum vapour or spray."
On the 7th of April, 1885, Letters Patent (No. 4315 of 1885), in this report called the second patent, were granted to the said G. Daimler for an invention of "Improvements in motor engines worked by combustible gases or "petroleum vapour or spray."
The Complete Specification, so far as material 30 for the purposes of this report, was as follows:
"My invention relates to an improved construction of that class of motor "engines worked by combustible gases or petroleum vapour or spray wherein "a combustible charge is only introduced at every alternate instroke of the "piston, the improvements being such that the gaseous charges employed are 35 "of greater volume and are freer from products of combustion than those of "engines heretofore constructed. "This is effected by introducing into the cylinder, both before and "after the admission of the main charge of gaseous mixture, additional "charges of either combustible mixture or of air introduced at every 40 "stroke by means of a pump, formed in the working cylinder on the "side of the piston opposite to that on which the charge works. "one of these additional charges the products of combustion are at the same "time driven out of the cylinder."For forming the pump and at the same time to avoid the use of a stuffing box "for the piston rod, and to render the construction of the engine more compact, "the crank is enclosed in a chamber provided with a suction valve for com"bustible mixture or air, the piston being provided with a valve that opens automatically when the piston is near the end of its instroke. The ignition of "the charge is prevented from taking place until the crank is at the dead centre "by causing an explosive mixture, poorer in gas than the cylinder charge, to 10 "come in contact when compressed with a heated part of the admission passage, "the moment of ignition being regulated by varying the proportion of gas in "the igniting mixture.
"A further improvement relates to the mode of regulating the speed "of the engine, this being effected by bringing the valve gear to a "standstill when the normal speed is exceeded, the gaseous products of "combustion being made to remain under pressure in the cylinder, so that "no fresh charge is admitted.
"A further improvement relates to the regulator and starting device. "Fig. 1 of the accompanying drawings shews a vertical section of an engine "constructed according to my invention; Fig. 2 shows a part elevation and part "section at right angles to Fig. 1; Figs. 3 and 4 shew details. A is the working "cylinder with compression space A<, at the upper end of which is the inlet and "discharge passage a; b is the inlet valve for the combustible charge, c the "discharge valve and d is the tubular extension on the inlet passage heated "externally. E is the piston with the inlet valve e, spring e,l and contact plate en; "F is a forked projection fixed to the framing with which fork the plate in comes "in contact towards the end of each instroke of the piston, so as to force back "the spring e' and thus cause the valve e to be free and automatic in its action "during a certain time before and after the dead centre of the instroke of the "piston, so as only to open when the pressure in the crank chamber exceeds "that in the cylinder; G is the gas-tight crank chamber with inlet valve gl for "combustible mixture and cover gu, which latter is sufficiently large to enable "the crank plate with its shaft to be taken out of the chamber. HH are "crank plates that can be made heavy so as to serve at the same time as "flywheels, and which occupy the greater part of the chamber in order to "make the pump chamber in the same as small as possible and thus to obtain "a compression in the same of from l to atmosphere over pressure. In order "to simplify the machine, one of the crank plates might be omitted. The valve "gear is actuated by a cam groove k k' formed in the crank plate H< and which "passes twice round the crank shaft and returns into itself and in combination "with which is the sliding block o and the rod L which acts upon the rod & of "the escape valve c.
"It will be seen that the cam groove k ¥ is so formed, that at one revolution "of the crank, the sliding block o is moved from the groove k into the groove, " kl thereby the rod L is withdrawn from the rod c of the escape valve c, "which consequently remains closed during the corresponding in and out"strokes of the piston; at the next revolution of the crank the block o is "moved back from the groove k into the groove k whereby the rod L in "rising is made to open the escape valve, such opening being effected after "the piston has performed its working instroke. The groove kl is circular "and is connected by branches as shown with the groove k by means of "which the block o is made to pass from the one to the other. The regulation "of speed is effected by means of the governor arm m with spring centrifugal "action, and the switch n, which, on the normal speed being exceeded, move "out of the working position at Fig. into the position at Fig. 3 whereby the "block o is caused to remain in the cam groove c1 during the revolution of the "crank and the rod L is thus brought to a standstill causing the escape valve to "remain closed until, by the reduction of speed, the switch is again moved back "to the position in Fig. 2. By thus retaining the gaseous products of combustion "under pressure in the cylinder, the supply valves b and e will remain closed and "consequently no fresh charges of combustible mixture will enter the cylinder "during that time.
The governor m is suspended from the axis i and has a spring "action in the direction of rotation round this point. The switch n is formed "with an incline and is connected to the axis i by its extension which has a "spring action at right angles to the axis as shewn in Fig. 4, in order that "in the event of the edges not meeting, they may escape one another, so as "to allow o to pass on the one or the other side of n. The governor m is "pressed inwards by a spring u in the contrary direction to the centrifugal "force due to the speed of rotation. The ignition of the charge is effected by "the compression of the charge by means of the working piston whereby a 15 "certain part of the charge is brought in a compressed condition in contact "with the tubular extension d heated externally by a gas flame v." ....
There were 13 claims, of which the following are the material ones for the purposes of this report :
1. In a gas or petroleum motor engine every alternate instroke of which is 20 "a working stroke, the method of introducing into the cylinder firstly at the "commencement of the outstroke following the working instroke a preliminary "charge of combustible mixture or air through the piston, whereby the residual products of combustion are expelled, secondly during the following instroke, "the main charge of combustible mixture and thirdly at the end of the said "instroke a supplemental charge of combustible mixture or air admitted through "the piston, the said combined charges being then compressed by the following "outstroke and ignited substantially as herein described. 2. In a gas or petroleum motor engine every alternate instroke of which is a "working stroke, the method of introducing into the cylinder, after the main "charge a supplemental charge of combustible mixture or of air admitted "through the piston at the end of the suction instroke, the combined charges "being then compressed by the following outstroke and fired, substantially as "herein described with reference to Fig. 5 of the drawings. 9. The method of regulating the speed of a gas or petroleum motor engine "by causing the discharge valve for the products of combustion to remain closed "when the normal speed is exceeded so that the products of combustion are "retained under pressure in the cylinder whereby the admission valves b and e "for combustible mixture are also kept closed and no fresh charge is consequently admitted either above the piston or from the pump below until the "speed is again reduced and the discharge valve opened substantially as herein "described."
On the 11th of September, 1885, Letters Patent (No. 10,786 of 1885) in this report called the third patent, were granted to the said G. Daimier for an invention of " An improved vehicle propelled by a gas or petroleum motor "engine." The Complete Specification, so far as material for the purposes of this report, was as follows :
This invention relates to an improved vehicle driven by a gas or petroleum "motor engine, the construction of which will be readily understood on "reference to the accompanying drawings in which Fig. 1 shews a sectional "side elevation, Fig. 2 a cross section, Fig. 3 a sectional plan, Fig. 4 a side" "elevation to a small scale; Figs. 5 to 9 shew the same views of a modified "arrangement for adapting the vehicle as a sledge; Fig. 10 shews a sectional "elevation of the motor engine, Fig. 11 shews a side view of the same, Fig. 12 "shews a vertical section of the apparatus for vaporizing petroleum."The vehicle consists of framing 1 with seat 2, steering wheel 3 and driving "wheel 4, arranged as a bicycle as shewn at Figs. 1 to 4. The motor engine "with its petroleum reservoir 6 is hung as low as possible between the sides of "the framing, being fixed on caoutchouc buffers 8, by means of screw bolts 7, "so as to afford a somewhat elastic connection and thus prevent as much as "possible the shocks of the explosions from being communicated to the vehicle. "To the foot boards 9 on each side are connected spring arms carrying rollers " 10 that steady the vehicle in the vertical position and at the same time permit "of its assuming an inclined position on curves."
There were 12 claims, among which were the following:
"1. The combination of a vehicle having a driving and a steering wheel "running on one and the same track, with a centrally arranged gas or petroleum "motor engine and its reservoir, the centre of gravity of which lies in the vertical "plane of the wheel track, substantially as herein described. 2. In a two wheeled "vehicle propelled by a gas or petroleum motor engine such as is referred to in "the preceding claim, enclosing the motor engine by a casing, which serves both "to protect the motor engine and to form the seat of the rider, substantially as"herein described. 3. The method of heating the casing to the motor engine "referred to in the preceding claim by means of the waste or surplus heat of "the motor engine, and of using the heated air inside the casing to form the "combustible charges for working the engine,'substantially as herein described. "4. Providing the casing to the motor engine with openings closed by doors or"flaps, so that on opening these the heated air can be made to escape so as to "keep the seat cooled when required, substantially as herein described. 5. The "use in combination with the vehicle referred to in the first claim of spring "side supports with wheels 10, substantially as herein described. 6. The combination of the disc 12 on the axis of the steering handles, disc 11 on the "pivot of the steering wheel, and helical spring 16 whereby the steering wheel 5 "is brought into the central position when the handles are released, substantially "as herein described. 8. The method of suspending the motor engine from the "framing of the vehicle by means of springs 8 whereby communication of the "vibrations of the motor engine to the vehicle is more or less prevented, substantially as herein described. 9. in a petroleum vaporizing apparatus for 10 "motor engines the use of a float 40 having a basin 51 communicating with "the main body of liquid in the reservoir 6 only through a small hole 52, so "that while the liquid is maintained in the basin at the same level as the "main body, it is practically isolated from the same as regards heat, the said float "having an air tube 41 communicating with the petroleum in the basin by perforations below the level thereof, substantially as and for the purposes herein "set forth."
On the 18th of June, 1889, Letters Patent (No. 10, on 7 of 1889) were granted to the said G. Daimler for an invention of '; Improvements in gas and petroleum "motor engines." In 1896, The British Motor Syndicate, Ld., in whom the 20 patents were then vested, commenced an action against The British Motor Carriage and Cycle Company, Ld. (the name of which company was subsequently changed to The Universal Motor Carriage and Cycle Company, Ld.), and the Right Honorable The Earl of Aylesford, Christopher N. Baker, Joseph Barker, George E. Jarvis, Edward S. Lancaster, Edwin S. Ludlow, and 25 Edward T. Read, for infringement of the patents, claiming the usual relief, and also an injunction restraining the Defendants from trading under the title of the British Motor Carriage and Cycle Company, Ld.
The claim in respect of the Patent No. 10,007 being withdrawn at the trial, no further reference to it in the proceedings is made in this report.
The Plaintiffs, by their Statement of Claim, alleged that they were the registered legal owners of the patents, and that the Defendants had infringed and were threatening to infringe the patents in manner by the Particulars of Breaches therewith delivered appearing.
The Particulars of Breaches, so far as related to the first, second and third patents, alleged: "(1) That the Defendants had infringed the Plaintiffs' Letters "Patent set out in the Statement of Claim by manufacturing, selling, offering "for sale and exhibiting motor engines, motor cars, motor cycles, and other "motor machines constructed in infringement of the said Letters Patent; "(2) In particular, the Defendants exhibited, in the months of May, June and "July, 18th, at the ' International Exhibition of Motors and Horseless Carriages,' "held at the Imperial Institute in the County of London, a gas motor engine, "called the 'Pygmee Motor,' and a motor cycle constructed as aforesaid, and "that the Defendants were manufacturing, and threatening and proposing to "manufacture, similar motor engines and motor cycles; (3) The said gas motor "engine called the ' Pygmee ' motor was constructed in infringement of the first "and second claiming clauses of the Complete Specification of the Plaintiffs' .
** Letters Patent, No. 9112 of 1881, and also in infringement of the ninth "claiming clause of the Complete Specification of the Plaintiffs' said Letters "Patent No. 4315 of the year 1885;
(4) That the said motor cycle as constructed in infringement of the 1st and 2nd claiming clauses of the "Complete Specification of the Plaintiffs' Letters Patent No. 9112 of the year "1884, and in infringement of the 1st claiming clause of the Complete Specification of the Plaintiffs' Letters Patent No. 10,78G of the year 1885; (5) That "the Defendant Company had sold a ' Pygmee ' motor, having upon the makers' plate " certain words therein mentioned : "the said ' Pygmee ' motor was con"structed in infringement of the 1st and 2nd claiming clauses of the said "Patents No. 9112 of 1884, and No. 4315 of 1885; (6) That the Defendant"Company had also sold two motor bicycles bearing upon the caps of the carburetors respectively the numbers 471 and 484 : the said motorcycles were "constructed infringement of the 1st and 2nd claiming clauses of Groth's "said Specification No. 9112 of 1884, and of the 1st claiming clause of the "Complete Specification of the Plaintiffs' said Letters Patent No. 10,786 of 1885;"(7) That the Defendant Company had in its prospectus threatened to infringe "the patents referred to in the Statement of Claim by the threatened manufacture and sale of the various motors and motor cycles above described as "sold by them; (8) that the Plaintiffs were unable until they obtained discovery to give further or better particulars."
The Defendants by their defense (1) did not admit the Plaintiffs' title; (2) denied infringement; (3) and alleged that the patents were, and each of them was, invalid for the reasons stated in the Particulars of Objections delivered therewith. The Defendants, by their Particulars of Objections, alleged the following objections to the validity of the patents:
As to Letters Patent No. 9112 of the year 1884:
(1) That Lorentz Albert Groth was not the first and true inventor. (2) That the said alleged invention was not new. (3) That the Specification of the said Letters Patent disclosed nothing that required invention, or that was the proper subject-matter for the grant of Letters Patent having regard to the state of public knowledge. (4) That the said alleged invention made no useful addition to the stock of public knowledge. (5) The alleged invention described in the Complete Specification was a different invention from that described in the Provisional Specification, in that the regulating of the temperature of the exploding chamber by heat from the outside, claimed by the Complete Specification, was not mentioned in the Provisional Specification as being any part of the said alleged invention. (6) That the said alleged invention as claimed differed from the invention described in the Provisional and Complete Specifications, inasmuch as the priming or igniting cap /was, according to the description contained in both the Provisional and Complete Specifications to be used and brought into work only at the beginning of the working of the engine, when the sides of the cylinder c were quite cold, whereas in the first claim it is claimed as being used throughout the time when the engine was working. (7) That the said alleged invention was not sufficiently described in the Complete Specification, inasmuch as an engine constructed according to the description therein given would not work. (8) That having regard to the state of public knowledge 5 existing at the date of the said Letters Patent with regard to ignition or priming caps, there was no novelty in the use of the priming cap / for the purposes and in the manner described in the specification to the said Letters Patent. (9) That the said alleged invention was, previously to the date of the said Letters Patent, published within this realm in the following manner :—(I) By the Specification 10 of Siemens, No. 2071 of 1860, lines 6 to 10 and lines 37 to 41, and figs. 1 and 6 were relied on. (2) By the Specification of Newton, No. 502 of 1855, the whole Specification was relied on. (3) By the Specification of Ftndis, No. 1843 of 1878, from page 4, line 51, to page 5, line 7, and fig. 4 were relied on. (4) By the Specification of Atkinson, No. 3213 of 1879, page 5, lines 42 to 55 and fig. 1 15 were relied on. (5) By the Specification of Crossley, No. 4489 of 1882, the whole Specification was relied on.
As to Letters Patent No. 4315 of the year 1885 :
(1) That Gottlieb Daimler was not the first and true inventor. (2) That the said alleged invention was not new. (3) That the said alleged invention 20 made no useful addition to the stock of public knowledge. (4) That the said alleged invention was, previously to the date of the said Letters Patent, published within this realm in the following manner :—(1) As to claim 5 by the Provisional Specification of Foulis, No. 4630 of 1878, the whole was relied on. (2) As to claim 9 by the Specification of Beechey, No. 4270 of 1880, from page 4, 25 line 55, to page 5, line 43, and figs. 3, 4 and 5 were relied on. (3) As to claim 11 by the Provisional Specification of Alexander, No. 3905 of 1879, the whole was relied on.
As to Letters Patent No. 10,786 of 1885: (1) That Gottlieb Daimler was not the first and true inventor. (2) That the 30 said alleged invention was not new. (3) That the Specification to the said Letters Patent, so far as it is described the inventions claimed in the 1st, 2nd, 3rd, 4th and 8th claims thereof, disclosed nothing that required invention or that was the proper subject-matter for the grant of Letters Patent. (4) That the said alleged invention made no useful addition to the stock of public knowledge. 35 (5) That the said alleged invention was previously to the date of the said Letters Patent published within this realm in the following manner :—(i.) As to claim 5 by the Provisional Specification of Pain, No. 2270 of 1870, the whole was relied on; by the Specification of Hodgkinson,'So. 1256 of 1880, page 2, line 27, to page 3, line li, and figs. 1 to 4, 9 and 13 to 16 were relied on; by the Specifi- 40 cation of Kay, No. 16,406 of 1884, page 1, line 15, to page 2, line 8, and figs. 1 to 5 were relied on ; by the Specification of Warman, No. 8650 of 1885, page 3, line 17, to page 4, line 7, and page 5, lines 9 to 20, and all the figures were relied on. (ii.) As to Claim 6 by the Specification of Griffiths, No. 15 of 1885, figs. 10 and 11 and the letterpress relating thereto were relied on; by the 45 Provisional Specification of Field and Badger, No. 363 of 1870, page 1, line 17, to page 2, line 8, was relied on. (iii.) As to Claim 9 by the Specification of Harrison and Harrison, No. 1679 of 1872, page 8, lines 1 to 25, and fig. 8 were relied on; by the Specification of Trotman, No. 2874 of 1880, the whole was relied on. (iv.) As to Claim 12 by the Specification of Bolton and others, 50 No. 3316 of 1867, page 2, lines 22 to 27 were relied on; by the Specification of Edmonds, No. 2816 of 1880, page 7, lines 41 to 44, and page 8, lines 12 to 15, figs. 1 and 4 were relied on.
The action was tried before STIRLlNG, J.Moulton, Q.C., Bousfield, Q.C., A. J. Walter, and /. A. S. Bucknill 55 British Motor Syndicate, Ld. v. Universal Motor Carriage and Cycle Co., Ld., and Others. (instructed by Stead man and Van Praagh) appeared for the Plaintiffs; A. B. Shaw and A. Paget (instructed by Limhrey Higgs, and Co.) appeared for the Defendants.
Moulton, Q.C., opened the Plaintiffs' case.
This action is brought for 5 infringement of four patents relating to motor cars, but of these No. 10,007 of 1889 may be taken as struck out, as we do not now claim that it was infringed. The first patent has expired since the commencement of the action, but, of course, the right to damages is not affected by that. The. first patent relates to gas engines of the Otto type, in which there is an explosion every alternate 10 stroke. The cycle is this ; starting after the explosion, the piston is driven out and when it comes to the end of the stroke it opens the exhaust valve.
The gas being under pressure escapes and leaves the cylinder full of the products of combustion at the atmospheric pressure or nearly so ; the piston then returns, driving before it the products of combustion. It then starts forward again, by the impetus of the flywheel creating a suction, which draws in the charge; the piston then, on coming back, all the valves being shut, compresses the charge, which is a mixture of gas and air, and which is to give the next explosion. Then the cycle is recommenced. When you raise gas at a certain temperature to a higher temperature the increase of pressure is independent of whether the gas was at first compressed or not. If you double or treble the temperature you double or treble the pressure. It is therefore of advantage to start with air and gas under compression at the moment of explosion. The cylinder must therefore be closed at this time, and a difficulty arose as to obtaining ignition. In some engines'it was obtained electrically. Otto devised a gas slide by which a small quantity of ignited gas was carried by the slide at the right moment opposite to a hole which led into the cylinder. This held the field for some years, but was liable to get out of order. Then there were a number of devices with timing valves (that is something opening at the right moment), a connection between the cylinder and a chamber having a light in it, but they were not very successful.
Daimler in the first patent made an advance which has driven out the gas slide and the substitutes for it. It requires a lower temperature to ignite gas under compression than it would if the gas were not compressed, and Daimler took advantage of this. The heat of the cap or ignition tube /can be adjusted, so that at the moment of greatest compression it is hot enough to set fire to the mixture. Ignition is thus obtained, without any access of flame to the mixture, as soon as compression is complete, and not until then. This was a great simplification and is of great value, especially for motors. [The Complete Specification was then read and explained.]
After the engine had been running for a time, it might be that there was heat enough without the gas flame, and it could be turned out. The invention is the substitution of an ignition tube having no apparatus for cutting it off at any period from the cylinder. There are two classes in the anticipations alleged. The first class relates to an old species of engines called flame engines. In these anticipations there is ignition by heated tubes, but not ignition by the combined effect of compression and temperature. The other class of anticipations consists of those in which there is a timing mechanism, which really goes back to the Otto gas slide. Daimler's invention got rid of time mechanism. Then as to the second patent, it is the ninth claim which we allege to be infringed. It is a device for regulating gas engines. They are more difficult to regulate 50 than steam engines. Although other methods have been tried, practically the regulation of gas engines depends on the method of missing strokes, and not of graduating the effect of the strokes. If the engine goes too fast, the governor makes it miss a stroke. One way is that the governor makes that which opens the gas valve to miss. These are called hit and miss regulators. As the supply of motive power is cut off, the engine gradually decreases in speed, until it begins again to open the gas valve. Daimler conceived the idea of indirectly affecting the inlet valve through the exhaust valve. He had a device which locked the exhaust valve when the engine went too fast. The result was that the products of combustion could not escape; there was a pressure in the cylinder, and so no suction, so that a stroke was missed. Claim 9 is not confined to a particular 5 method of locking the exhaust valve. There is really no anticipation of this.The third patent relates to a motor bicycle. Daimler was the first to conceive the idea, and his machine is very practical. It is the first claim which we allege to be infringed. We shall show it was novel to fit a motor in any way to a bicycle, and that all motors fitted to bicycles must be fitted in this way.
There may be a question as to subject-matter. The Objections are chiefly to the fifth claim, but this claim is for the use in combination with the vehicle referred to in the first claim.
As to infringement, the Defendants have the ignition tube. They have a chamber always open to the cylinder, with no timing valve, and ignition is due 15 to the effect of the compression. Then they have an engine centrally arranged with reference to the bicycle, and thus infringe the third patent. [Exhibit J. I. 2 was then explained.] Besides the Pygmee motor (J. I. 1) is an infringement of the first and second patents. It has an ignition tube, and it has a regulator which controls it by locking the exhaust. They, however, lock it open instead 20 of shut, but prevent suction because it is kept open to the atmosphere. The question raised is somewhat similar to that in Presto Gear Case &c. Company, Ld. v. Simplex Gear Case Company, Ld.,* Daimler was the first to control the inlet by management of the exhaust valve.
The following witnesses were called for the Plaintiffs, Messrs. John Imray, 25 A. J. Boult, H. L. Lawson, and W. W. Beaumont.A. B. Shaw opened the Defendants' case.—The first patent is not for an invention of an ignition tube, it was for an invention for getting rid of any external source of heat in the bulk of the running. The ignition tube was merely to meet the difficulty of starting. In our tube we owe nothing to 30 Daimler but only to Crossleyrf who shows that a timing device need not be used, but you can mask by the spent gases. The fact that a different result in the moment of explosion is got as the flame is brought up or down the tube is due to the masking effect, which Crossley disclosed. The ignition spot must be carefully regulated. In the Pygmee engine it is done by the masking action. 35 The admissions to the effect that the shape of Daimler's ignition tube is immaterial shows that he did not depend on masking. Then the Defendants' evidence will show that there is not enough in the first patent to make it work. There is no utility. No engine on the Groth principle has been produced. We do not infringe the second patent. Infringement of Claim 9 only is now alleged. 40 Against Claim 9 we put in Beechey's Specification. The broad interpretation of Claim 9 contended for cannot be given to it. Claim 9 is anticipated, and Claim 11 is Alexander. As to the third patent, if the matter turns on the relative position of the parts, then our arrangement is different. The position of the cylinder relatively to the oil reservoir is quite different. The patent is bad in its present 45 form for want of subject-matter.
The following witnesses were called for the Defendants, Messrs. J. Swinburne and A. G. New. Shaw summed up the Defendants' case.—As to the third patent, everything turns on the construction of Claim 1. I submit that the broad construction is 5015 R.P.C. 635.
The material part of Crotsley's Specification will be found in the judgment of the learned judge. the true one, namely, that it is a claim for any motor-bicycle that has its engine in the middle. It is not a claim for a bicycle with the parts, such as the engine and reservoir, arranged relatively substantially as described. It is the combination that is substantially as described, and the combination is a bicycle with an engine. So construed the patent is bad. The fact that this has never been done before is not sufficient; the obvious way of doing it is to put the engine at the centre. If a narrow construction be adopted, then the Defendants, having the cylinder on the top sloping sideways and the reservoir at the bottom, do not infringe. Also Claims 2, 3, 4, and 8 have no subject-matter. Also there is no subject-matter in enclosing the machinery in casing. There must be some difficulty to be overcome. The same arguments apply to Claim 3. It stands or falls with Claim 2. Claim 4 is absolutely ridiculous. It is not a claim for keeping the motor, but for keeping the seat, cool. Two anticipations of Claim 5 have been referred to. It is said that it is only claimed for a motor bicycle, and that no one had done it before. But it is claimed for all bicycles. Kay is an anticipation. Even if only claimed for motor bicycles, Claim 5 is bad, for the thing was old for a bicycle. It is anticipated by Kay. Anticipations to Claims 6 and 9 have been proved. Griffiths (see Claims 10 and 11) anticipates Claim 6. Claim 8 is old, every engine has the springs, there is nothing in the difference of material. As regards this patent, it is invalid, and in any case there is no infringement unless the first claim is construed so broadly as to make it bad.
As to the second patent, if Claim 9 is put broadly, namely, that it was new to govern by the exhaust, Beechey is an answer. Bcechey has a shaft with cams of three different sizes, Daimler has what is the same as two cams. Beechey does not prevent the valve opening, but does prevent fresh gas protanto coming in. So far as the mechanism is concerned, Daimler only cut out two intermediate steps of Beechey; that is not subject-matter. Daimler was not the first to operate the exhaust for the purpose of reducing the charge. The Defendants have a cam-shaft which operates from completely closed to completely open; they have a clutch which catches hold of the valve-stem and holds the valve open. Also as regards effect, theirs is different. The Defendants do not prevent the admission of a fresh charge by keeping the products of combustion under pressure in the cylinder. The exhaust valve is open and they get no fresh charge, because they take in and blow out the atmosphere.
That is an answer on infringement. We also attack Claim 11. We cite Alexander against that claim. There is not sufficient subject-matter left for so broad a claim. Coming to the first patent, there are three points. First, it is difficult to find out what the invention is; there are differences between the Provisional and Complete Specifications, which, if not amounting to disconformity, leave it doubtful what it was that the patentee communicated to the public : secondly, the Specification does not disclose enough to enable a competent engineer to make an engine that will work: there is the question of utility, but we rely mainly on this as want of description: thirdly, there is no infringement. As to the first point, the ignition tube was not the main part of Daimler's invention,which was for getting the explosion by spontaneous ignition due to two factors—one, the heat of the walls, and one, the heat and sensitiveness of the mixture due to compression. At starting he says that you muse get your heated walls in another way. In the Specification "the chamber" means c without, which is not a part of but an addition to c. f is a priming cap and not an ignition tube. The operations in / are intended to be those of a model of c.
The modern ignition tube works in a different way. If you read the Specifications, Provisional and Complete, you are left in doubt what to do to make the engine work. In the description of the invention there is no snggestion that ignition is to be effected by / throughout, and Claim 1, however construed, does not suggest that. If the latter part of Claim 1 is regulating, the patentee did not think it needed anything but automatic regulation. Then we submit that this would not work with the knowledge of 1881. The patentee thought that he could dispense with masking by spent gas or by time-sliding or in any other way. He thought that you could keep an explosive mixture in continuous communication with the heated surface during the compression- 5 stroke, and could get the tiring merely with the sensitiveness of the mixtures. That will not work. No engine has been made simply on the Oroth principle, and Daimler in his Specification of 1885 departed from it. Then as to infringement, and first as to Claim 1, the Defendants do not regulate as there described, but our main defense is that we do not explode in r but in /; also we rely on 10 the words " substantially as described." For our defense to Claim 2, we say that the Defendants, having a masking action by means of cushioning, it is immaterial how high the temperature goes in the Defendants' engine, provided that the ignition spot is not shifted, but the temperature must not be too low.
Crossley disclosed the principle of masking by the spent gas. There is no hint of it in Groth, his merit is alleged to be that the mixture is in continuous communication with the hot sides, but the Defendants bring the mixture at the right moment to a part of the tube which will explode it. Mffulton, Q.C., in reply.—Taking the first patent, Daimler was the first to show an explosion engine working automatically without any timing arrangement—timing itself as it were. It is now common ground that this had not been done before. Foulis and Atkinson were flame engines.
It is said that Crossley made the discovery that you could do without a timing device, but he had an elaborate one. Daimler showed that you could start an engine with a closed cylinder by having what is a model of his cylinder projecting out and heated externally. Daimler thought a time came when that precaution need not be taken. That is how the majority of these engines are now worked; they are started by heating a projecting tube without a timing device; the stroke of the piston arriving at the proper compression causes the ignition. Groth told people to have the tube projecting from the cylinder and open to it. A distinction is taken that in the course of development they have taken to use tubes longer in proportion to their diameter than is shown by Groth. There is no action stated to take place in the Defendants' tubes which must not to some extent have taken place in Groths. Cushioning action must to some extent take place in Groths idea was that was hot enough to light what was in it at the time of greatest compression. Whether you have a long or short tube one-quarter will be filled by what was in/at first, and the last three-quarters by the same as what is in the cylinder. In Groths the flame goes right to the entrance of the cylinder, and that is the proper method. Neither the position of or its length is material. It is suggested that because the relative importance of two things, both of which are in Groths, are changed, the Defendants are outside it. Unmasking takes place in the Defendants' tubes when the compression is 1 to 2, but the compression goes on to 1 to 4. According to their case ignition ought to take place at the moment of unmasking; but it only occurs when the right compression is reached.
Infringement is indisputable so far as the starting of the engine is concerned. Then as to the working, no doubt that Daimler saw his way to a greater degree of freedom than it has been found useful to take. But, as a matter of fact, the heated sides of the combustion chamber are used, for instance, in the Hornsby-Ackroyd engine; they are the cause of regular working. But Daimler saw that there would be times,as for instance at starting, when their heat would not be sufficient; so his device is to have one part of the chamber under control and independent of the condition of the engine. He says how you may start and how you may work. They postpone the latter and keep the engine by cooling in a starting condition. Supposing that after starting the flame was turned out and it was found that the engine stopped, there is still the means of keeping it going. There would be no utter lack of utility. Where there is great utility in one claim, very little utility in the other claims will support the patent [Otto v. Linford, (46 L.T.N.S., 35) was referred to]. But he does contemplate working with the cap, the first claim shows he meant to regulate by the heat of the cap. Anyone would know that the flame might be kept alight if the engine would not go without it.
The evidence shows that Oroth will work. [The Specification was then read to show that it contained the invention clearly and fully stated.] As to the second patent, there is no anticipation. Beechey has not the Otto cycle, he had an explosion each time; to have that there must be a separate pump, and a compressed charge must be driven into the cylinder. He does this by a sliding valve. He has a cam whereby he can have more or less of the products of combustion in by preventing them going out of the exhaust. It is said that if he had an extra cam and let no products out, his device would have been Daimler's. But that would be contrary to his idea, and it would not work. To carry out that suggestion the machine would have to be re-organised. As for Alexander, that would not work. The substantial question on this patent is infringement. Daimler was the first to affect an inlet valve by managing the exhaust valve; he did it by taking care that there was not a suction, that there should not be in the cylinder pressure less than the atmosphere. It does not matter whether you do that by keeping the products of combustion in or by throwing open the cylinder during the whole time. One is the mechanical equivalent for the other. This case comes under the principle of Procter v. Bennis (4 R.P.C. 333) rather than that of Curtis v. Piatt (L.R. 3, Ch.2D. 135). Ours was a new departure. On the third patent there arises the question, what are the rights of a man who starts a wholly new thing. The attacks by anticipation come to nothing. The question is really one of subject matter. Daimler was the first to apply an engine to a bicycle. There is no question of novelty, and invention was required. The claims after Claim 1 are, subsidiary and relate to what is there claimed. Everything really turns on the first claim. {British Dynamite Co. v. Krehs, 13 R.P.C. 190, was referred to.)
After the conclusion of the arguments, Mr. Swinburne was re-called to explain the meaning of certain answers, and subsequently the experiments referred to in the judgment were made and shewn.Judgment was reserved, and delivered on the 12th of January, 1899.
Stirling, J. This is an action for the infringement of no fewer than four patents, namely, No. 9112 of 1881, granted to one Oroth; No. 1315 of 1885, granted to one Daimler, No. 10,780 of 1885, granted to the same Daimler, and No. 10,007 of 1889, granted again to Daimler. The first of the patents, although granted to Oroth is in reality also an invention of Daimler's, being a communication from him from abroad. At the trial the action in far as related to the last patent was given up, and the others I have now to deal with, and I proceed to do so in the order I have mentioned. No. 9112 of 1884 is a patent for
improvements in gas or oil motors. The motors to which the process applies are those commonly known as the Otto type in which the motive power is derived from the explosion by ignition of a mixture of air and gas or oil vapour. This explosion takes place in a cylinder, in which a piston works, so as to perform a cycle of operations in two outstrokes and two in-strokes. The first out-stroke takes place as the result of the explosion, and during it the piston communicates motive power to the crank shaft of the engine. During the first in-stroke which succeeds the first outstroke, the cylinder is placed by a mechanical device in free communication with the external atmosphere into which the piston, as it returns to its first position, drives the products of combustion, which are the result of the ignition, During the second out-stroke, the communication of the cylinder with the external air is closed, but that with the reservoir of gas is open, and a mixture of gas and air rushes into the cylinder. During the second in-stroke this mixture undergoes compression, and is ignited as nearly as possible at the moment when this compression reaches the maximum.
Down to 1884, the date of the patent, this ignition was brought about by the application at the proper moment of some external source of heat, either electricity, or a flame, or a heated body. In general, the Otto machines were provided with a sliding pocket, carrying a gas flame which at the right moment was brought in front of a small hole in the base of the cylinder, and so ignited its contents. It was essential to the proper working of the machine that the ignition should be effected, as I have said, as nearly as possible at the instant when the gas in the cylinder was most compressed, and for this purpose, various mechanical devices, carefully timed to come into operation at the proper moment, were made use of. The object of the patentee seems to have been to get rid of all these mechanical devices which, notwithstanding their ingenious nature, were very liable to get out of order. For this purpose he proposed to avail himself of the heat generated by the rapid compression of gaseous bodies which has long been known to be sufficient to cause ignition. The Complete Specification deals with the matter thus : " These improvements "in gas and oil motive power engines consist in pressing quickly a mixture of "air and gas or oil vapours into a closed hot chamber by means of the working "piston until the said mixture is ignited by the combined action of the compression and the heat of the walls of the chamber, the expansion resulting "from the explosion or sudden combustion of the mixture being employed as "driving power. According to this invention, the motion of the crank is used "for effecting the ignition."
He then, in the next paragraph, describes the mode in which the piston works in the way which I have just explained. I need not read that. He then continues: "After some repetitions of this motion, the "sides of the space and the bottom of the piston obtain a normal heightened "temperature in which the mixture regularly ignites in or round the dead "point of the length of the piston stroke in the inmost position of the piston "in consequence of the compression according to the principle derived from "experience that combustible mixtures which, under the pressure of the "atmosphere, would either not at all or only slowly burn, do, by vigorous "compression, quickly burn and even explode." By the claiming part based on this he says, "In gas motors in which only one impulse is given for each "two strokes of the working piston, the effecting of the automatic ignition of "the combustible mixture at each second stroke by the compression against "the hot sides of the combustion chamber by means of the movement of the "crank of the working piston, and the regulation of the ignition at the exact "moment in relation to the dead point by the cock s which admits more or less "combustible mixture for the explosion charge, or by the cock which regulates "the heat of the igniting cap substantially as herein before described and illustrated in the drawings." The passage from the Specification, as distinguished from the claim which I have read, describes a mode of working the engine when what is termed the normal heightened temperature has been attained, but down to this point the patentee has not shown how a cold cylinder is to be brought to that state. He points this out in the passage of the Specification which follows that which I have read, " That the mixture may also explode at the "beginning of the working when the sides of the space are quite cold a metallic "priming cap / the interior of which is in continuous open communication "with the space of combustion is by means of a flame from without so heated "that ignition takes place from the heated sides of the priming cap." Then by the claiming part in reference to this he claims, "The use of the priming "cap/for effecting the ignition when the sides of the chamber are quite cold, "substantially as herein before described and illustrated in the drawings."
Reading this Specification on the whole it seems to me that the invention there described may shortly be stated thus :—to remove from the Otto engine as it existed at the date of the patent the timing apparatus by means of which ignition was effected; to add a priming cap exposed to a gas flame, and to provide means of regulation by two cocks, one admitting more or less combustible material for explosion, and the other regulating the heat of the igniting cap.
It is remarkable that at the trial no evidence was given of any engine made exactly on these lines ever having been brought into practical use. The explanation of this was said to be that since 1884 very rapid improvements had been effected in the Otto engine, and the engine in its simple form had not come into general use. It is some evidence of that that in the following year, 1885, Mr. Daimler, the real inventor of all these inventions, took out in England two patents for improvements on this very engine.
At the same time it is also remarkable that neither Plaintiffs nor Defendants put in evidence any model of the engine constructed according to the specification of the patent. Conflicting evidence was given as to the possibility of making or working such a machine, but after the close of the evidence, at my suggestion, experiments on this point were subsequently made by both sides, and I witnessed the result on two days last month in the presence of the Counsel, solicitors, and expert witnesses of both the parties. The Plaintiffs produced a stationary engine of the kind specified, and also a motor bicycle. As to the action of the latter, it is unnecessary for me to say anything. The former worked, and worked well, but it was objected that the priming cap was a long tube of very different proportions from the cap figured in the drawings annexed to the Specification. The Defendants, on the other hand, produced a stationary engine, made as near as might be according to the patentee's description, and with it the results were somewhat remarkable on this occasion. The Defendants, although they had stated that they had not down to the time when the actual experiment was made before me, succeeded in working that engine, did, in my presence, succeed in so doing.
On the other hand, when the engine was stopped and handed over to the workmen of the Plaintiffs, they failed to start and work it, though it was confidently asserted by them that with time and familiarity with the engine they would be able to put it in effectual operation. Each side was desirous of making further experiments with their opponents' machine, the Plaintiffs with the view of making the Defendants' engine work, the Defendants with the view of trying the effect of the application of the gas flame to various points of the Plaintiffs' priming cap. I acceded to their wishes by directing that opportunity should be given for such experiments, the result to be shewn to me in presence of the same persons as before. The object of the experiments sought to be made by the Defendants was to shew that if the source of heat were applied close to the point where the tube or priming cap enters the cylinder the machine would not work. The Plaintiffs, however, were apprehensive that the result of the experiment would be the destruction of the machine, and they declined to permit it unless some substantial guarantee against the loss of the machine were given. In consequence of this term being imposed, the Defendants did not prosecute their experiment. With regard to the experiments made by the Plaintiffs upon the machine, I found on my second visit that the machine was started and run both without and with load, and, in fact, seemed to be perfectly under the control of the Plaintiffs' workmen. This was effected without any change in the structure of the machine, simply by having recourse to the two means of regulation referred to in the Specification, and it w,as candidly admitted by Mr. Swinburne, the Defendants' leading expert witness, that the engine worked better than he could have expected.
In my judgment, two points have been established as the result of these experiments. First, that the Specification sufficiently indicates the nature of the invention, and second, that the invention is of sufficient utility to support a patent; by which, however, I do not mean that an engine constructed according to the invention would be sufficient for every purpose to which it might be desired to apply such a motor. I think such an engine would probably fail if applied to a purpose which involved considerable variations in the working conditions, as, for example, to propel a carriage along a hilly or very uneven road, but that it would give satisfactory results when the working conditions were approximately uniform.
This being so, I next turn to the question of whether the Defendants infringed this patent of the Plaintiffs. It appears to me that since the year 1884, as I have already said, great improvements of various kinds have been introduced into engines of this class; it has been discovered that motors of this kind can not only be started, but are most efficiently worked by the use of what is termed an ignition tube, being a tube which is in general of greater length and narrower bore than the priming cap described in the Specification, but which occupies a position, relatively to the cylinder, similar to that of the priming cap, and, like it, is heated externally by a gas flame. The Defendants' engines are provided with such tubes, which are used both for starting and working them. The Specification appears to me, as I read it, to contemplate the use of the priming cap merely for starting, but if the priming cap be really an ignition tube, the Defendants infringe the patent although they may turn it to a purpose after the starting which was not contemplated by the inventor.
Much of the evidence and of the argument on behalf of the Defendants was directed to showing that these two things, the priming cap and the ignition tube, were totally different in their nature. To show the line which was taken, I may refer in the first place to the cross-examination of the Plaintiffs' leading expert witness, Mr. Imray. At Question 237 this takes place. "I forget whether we have had it or not, but the shape "of 'f"' (that is the priming cap) "for effecting ignition is comparatively "immaterial so long as you get the flame there? (A) It is a small metallic "capsule closed at the end. (Q) It would work equally well if of a slightly 35 "different shape for effecting ignition? (A) No doubt, as long as you could "conveniently heat it. (Q) For instance, if it was shallow instead of being like "that—if it were like a cap or a saucer it would make no difference? (A) Not "if you can conveniently heat it. (Q) So long as you have ' t' going in the "right way the shape of 'f' is immaterial? (A) Yes. (Q) Whether it is a 40 "saucer or a plate it would work equally well? (A) Yes. (Q) Would it not "work equally well for the purpose of ignition if, instead of being an excrescence on the end of the cylinder, it was bent into the cylinder like that "instead of bent out like that?"
The answer to that was—" How could you "get the flame to it. (Q) Direct the flame into it. The same result would be 45 "produced? (A) You might perhaps get that result. I do not know. "(Q) You cannot see any reason why it should not work equally well provided "the flame gets to it? (A) It might do that, yes. (Q) The shape of ' f' is "immaterial provided the flame can get to it, and get it to the regular temperature? (A) Yes. (Q) If you turn it inside out, that is to say draw it 50 "off, and instead of its projecting in this shape from the cylinder, make it "project in this shape into the cylinder, and arrange your compression and "the heat of your 'f,' it would work as well? (A) Yes. (Q) Projecting into "the cylinder it will work equally well? (A) Possibly, yes. (Q) Provided "the flame gets to it, and that is the invention that he is describing according "to you, the invention that he describes will work equally well with a tube "going inside? (A) Yes, if you can get the flame to it." Then Mr. Swinburne, whom I have already mentioned, who gave evidence on behalf of the Defendants, gave this evidence at Question 1574—" How do you gather that if' 5 was intended to be used in working? (A) There is very little indeed "said about'f.' It is called a priming cap and it is apparently used practically "as a working model of the cylinder for starting.
In starting as the cylinder is "cool it would rob the explosive mixture of the heat and prevent it firing, so "he has here a little model of the cylinder which he is going to heat externally,"so that that will fire on the same principle as the main part of the cylinder, "and he uses this little model for starting. If he used the model continuously "he would be doing away with the whole point of his main invention of using "the firing by compression in the main cylinder. (Q) According to your "understanding is 'f ' heated all over in the same way as ' c' is described to be "in the bulk of the running? (A) Precisely. You heat 'f' at starting to "imitate what'c ' is to be in running. (Q) So that you aim at getting the same "critical temperature in ' f' as you get in 'c'? {A) Yes. (Q) That is because "the mixture in 'f ' is at the same sensitiveness or temperature as in 'c '? (A) "Yes. I am talking of what his idea was." Then at 1580, " According to your "understanding of the inventor's description; do you agree with Mr. Imray's "evidence that the shape of the cap is immaterial? (A) Yes, according to "Daimler it would certainly be immaterial. All you want is that if the whole "of the cylinder cover is not hot enough to cause the ignition, that part of it can "be artificially raised to such a temperature. (Q) Do you find anything in this "Specification to suggest that, provided the form is convenient for heating, the "shape matters at all? (A) No. It is not even called a tube, I would point "out; it is only a priming cap, and the size of it and shape are apparently "determined by convenience in the external heating. (Q) With reference "to
the words to which you call attention, the priming cap, do you think that"'f,' according to these Specifications, is the same thing as the ignition tube? "(A) No, it lights by igniting explosive gases inside, the tube being heated "externally and there the resemblance ends.
To make my answer clear, my "Lord, perhaps I ought to explain how the modern tube works. (Q) I was "going to ask you that very thing? (A) The modern tube works, because on "an explosion, or after an explosion, the tube is left filled with burnt gases. "(Q) Any inert gas will do? (A) Any inert gas will do, or a little mechanical "piston and spring will do equally well, if it could be devised, when compression comes and before the next ignition, that cushion of inert gases is com"pressed and the explosive gases follow it down into the tube. When the"explosive gases following the cushion down come to the hot part of the tube "they are fired, and the charge is exploded. (Q) For that working the cushion "of inert gases is, of course, a necessary part of the working? (A) Yes, the "cushion is the essential part of the ignition tube."
Therefore the theory of the ignition tube which is put forward on behalf of the Defendants is this, that at the commencement of the second instroke the tube is filled with inert gas, that is, gas incapable of being exploded by the heat of the tube. The cylinder, on the other hand, is full of explosive mixture at a pressure of one atmosphere. When the instroke reaches the maximum point, according to the evidence of the Defendants' witness, Mr. New, the pressure is usually about four atmospheres and the volume about one-fourth of the original volume. The inert gas occupies therefore only about one-fourth of the ignition tube, and the heat ought to be so applied to the tube that no point of it at a greater distance from the source of heat than a fourth of the length of the tube reaches the temperature necessary to explode the gas in the cylinder.
On the other hand, according to the interpretation sought to be placed by the Defendants on the Specification, the invention there described contemplates simply the existence of a heated surface of some kind (the shape of which is immaterial) so long as it is kept in constant communication with the gas in the cylinder. If this is really what is claimed, then it is certainly not established that the invention will work, indeed the difficulties attending the experiments proposed to be made by the Defendants on 5 the Plaintiffs' model engine and not prosecuted by reason of the danger attending them, tend strongly to show that it would not. In my judgment, however, the true construction of the Specification is not in accordance with the Defendants' contention. What the patentee claims is the use of the priming cap substantially as herein before described and illustrated in the drawings, and I do 10 not think that a priming cap shaped like a saucer or a plate, still less a tube projecting into the cylinder, fairly falls within the claim. It is further to be observed that, whether or no it was present to the mind of the inventor, the priming cap must really work according to the theory of the ignition tube. When the engine is started the priming cap is filled with air, an inert gas. If, in the course 15 of the cycle this is partly sucked out, it would be replaced at a later stage by products of combustion 'equally inert. It was indeed stated by Mr. Swinburne, Questions 1580 to 1588, and Mr. New, Questions 2012 to 2015, that the cap as described was too shallow to preserve in it a sufficient quantity of inert gas, but it seems to me that this evidence is displaced by the result of 20 the experiments made with the Defendants' own model. I come therefore to the conclusion that the Defendants' user of the ignition tube for the purpose of starting their engines is an infringement of this patent.
There remain to be dealt with some objections to the validity of the patent. It was suggested in the course of the trial, though I hardly think it was pressed in the concluding argument, that there was a disconformity between the provisional and final Specifications. This was based upon the omission from the final Specification, the language of which is up to a certain point almost identical with the provisional, of the words at page 1, line 32, of the provisional, namely, "It is also possible to keep the whole or part of the space "of combustion cool." Whatever may have been the reason for that omission, I am unable to see that it shows that the invention ultimately described differs from that contemplated in the Provisional Specification.
It was also contended that the patent was bad for want of novelty, and as many as five instances of prior publication were adduced. 35 The Defendants' Counsel in his arguments relied only on one, namely, the Specification of a patent granted to Francis William Crosslcy in 1882 for improvements in gas motor engines. The material part of this Specification is at page 2, lines 0 to 24, where the inventor says :—" My invention relates lo "means of igniting the combustible charge of a gas motor engine, these means 40 "being applicable whether the charge is or is not compressed before ignition. "For this purpose I keep heated, by an external flame, the middle part of "a bent (J tube, which may be of platinum or other metal not readily "oxidisable. This tube opens at both its ends into two compartments, formed "in the passage by which the combustible charge enters the cylinder of the "engine, or in a part of the cylinder where the gaseous mixture is such as can "be readily ignited.
One of these compartments is open to the cylinder, and "the other or inner compartment communicates with it by a hole in the "partition which separates the compartments. A small plunger worked by the "engine passes through packing in the side of the first compartment and 50 "through the hole of the partition, the movement of this plunger being so "timed as to make part of its instroke at the moment of ignition.
The operation "of the apparatus is as follows :
Usually the hot part of the bent tube is "occupied by incombustible products of previous combustion, and remains so "occupied when the two compartments into which it opens are charged with "combustible gaseous mixture, but when the plunger makes its stroke, passing "through the hole in the partition, it causes a portion of the combustible "mixture contained in the inner compartment to pass through the tube, by the "heat of which it is ignited." He proceeds to describe the drawings, and at line 45 he makes this remark :—" For engines in which there is compression of "gaseous mixture, the (J tube should have its hot part so far from its mouths "that this part is not reached by the mixture forced into both mouths by the "compression." And the claim is, " Having thus described the nature of my "invention, and in what manner the same is to be performed, I hereby declare "that I make no general claim to the use of an externally heated tube as means "of igniting the combustible charge of a gas motor engine, but I claim, for the "purpose of igniting such charge, an externally heated (J tube, communi eating by both its mouths with the space containing the combustible "gaseous mixture, in combination with a reciprocating plunger, so arranged "and moved that, at the desired moment of ignition, it causes a portion "of the mixture to flow through the heated tube substantially as herein "described."
Now that Specification undoubtedly discloses that the incombustible products of combustion may be made use of to prevent contact between an explosive compound and a heated tube, and a particular mode of effecting ignition by the removal of it. It does not, however, if that were mat rial in the present action, claim as the subject of the patent every mode of making inert gas available for the protection of the tube, and the removal of it for ignition. It was not disputed that the modus operandi described in Crossley's Specification differs entirely from that described in Broth's. One great distinction between them is obvious, namely, that the former requires the use of an auxiliary mechanical device in order to remove the inert gases, while the latter simply makes use of the compression caused by the piston alone. In my judgment, what is disclosed in Crossley's Specification does not render Groth's patent bad for want of novelty. I come therefore to the conclusion that in respect of this patent the Plaintiffs are entitled to relief, but as the patent has expired their remedy is in damages only, and not by way of injunction.
The amount of the damages will be ascertainment inquiry in the usual way.
I come next to No. 4315 of 1885. This is a patent for various kinds of improvements in motor engines worked by combustible gases or petroleum vapour or spray. It applies, like the patent already dealt with, to motor engines of the Otto type.
The ninth claim is as follows :
" The method of regulating "the speed of a gas or petroleum motor engine by causing the discharge valve "for the products of combustion to remain closed when the normal speed is "exceeded so that the products of combustion are retained under pressure in"the cylinder whereby the admission valves b and e for combustible mixture are "also kept closed, and no fresh charge is consequently admitted, either above "the piston or from the pump below, until the speed is again reduced and the "discharge valve opened substantially as herein described." The Defendants are alleged to infringe this portion of the patent because they regulate the speed of their engine not by causing the discharge valve for the products of combustion to remain closed when the normal speed is exceeded, but by causing the discharge valve to remain open, the admission valves, however, remaining shut as described in the Plaintiffs' Specification. Now, it appears from the evidence of the Plaintiffs' own witnesses, that prior to 1885, the mode of regulating engines by preventing gas from entering during one or two strokes was well known. Mr. Imray is asked this, " Will you tell his Lordship the way in which "gas engines used to be regulated? (A) The most successful way of regulating "them for many years was to shut off for one or two strokes the supply of gas, "so that there were several revolutions made, as you might call it, inertly. 5"(Q) What I called, in my opening, 'missing strokes'? (A) Yes, missing "strokes. Sometimes it was tried to vary the strength of the explosive mixture, "but that never succeeded very well. Then 'missing strokes,' that is to say, "preventing the inlet apparatus from what? (A) Preventing gas from entering "during one or two strokes. (Mr. Moulton.)—That would make 8 or 12 strokes "without any new supply of energy? (A) Yes, sometimes. (Q) According as "the engine was running light or doing its full work, you had your explosions "regularly or irregularly? (A) Yes. (Q) How was this regulating generally "effected? (A) Well, first of all, it was effected by means of a centrifugal governor "which, when the engine went too fast, shut or prevented the opening of the gas "supply valve; but afterwards it was mainly done by what is called an inertia "governor,, that is to say, a weight, which at every stroke of the engine was "caused to vibrate to and fro, and if the engine went too fast, the weight lagged "behind and caused the thing which opened the valve to miss opening it. "(Q) That was called the inertia governor? (A) Yes, the inertia governor, or "hit and miss governor. (Q) Does Daimler in his claim describe a new method of "effecting this regulation? (A) Yes. (Q) And to the best of your knowledge "was it new at that date? (A) Yes, so far as I know it was new." The witness then describes the mode in which Daimler proposed to effect this regulation and proves the novelty. As to all this there is no dispute, but the question is whether there is an infringement. Now it seems to me that what the patentee 20 has done is simply to claim a particular device for affecting this regulation, and that, in accordance with the doctrine laid down in Curtis v. Piatt in 3 Chancery Division, page 135, as explained by the Court of Appeal in Proctor v. Bennis in 36 Chancery Division, page 740, he must be held strictly to that device. In my opinion, therefore, the Defendants have not infringed this patent.
No. 10,786 of 1885 is a patent for an improved vehicle propelled by a gas or petroleum motor engine, the vehicle consisting of a framing with seat steering wheel and driving wheel arranged as a bicycle. The first head of claim is this: "The combination of a vehicle having a driving and a steering wheel "running on one and the same track, with a centrally arranged gas or "petroleum motor engine and its reservoir, the centre of gravity of which lies "in the vertical plane of the wheel track, substantially as herein described." The Defendants are alleged to infringe this head of the patent because they make and sell a vehicle first with a driving and steering wheel on one and the same track, secondly with a centrally-arranged gas engine and its reservoir, thirdly the centre of gravity of which lies in the vertical plane of the wheel track. The Defendants' combination is not, however, that described in the specification of this patent, but is different, and unless the patent can be maintained as one for the combination of the three elements which I have just enumerated in any form, however different from that described by Daimler, 40 the Defendants have not infringed. Now these three elements seem to me to be those which would suggest themselves to anyone acquainted with the ordinary laws of mechanics who proposed to construct a motor bicycle, and this is the opinion expressed by Mr. Swinburne in his evidence upon this subject. It may be, and I express no opinion to the contrary, that in the particular mode which the patentee has described of combining these three elements, there is an ample display of ingenuity and invention, but it seems to me that the combination which is patented is a combination involving the three elements which I have named substantially as described in the patent. I think that the Defendants machine is not in substance that which is described in the patent and if the patent is to be read in the widest form contended for by the Plaintiffs the invention does not appear to me to be the proper subject of a patent. In my judgment therefore the action fails so far as it relates to this patent.
The result is that the action succeeds as to one patent to the extent that I have mentioned, and as regards the other three it fails. The costs must follow the event in each case; the Taxing Master will make the proper apportionment and there will be the usual set oft.
As to the first patent his Lordship directed an inquiry as to damages and gave certificates that the Particulars of Breaches were proved and that validity had been in question. He also gave the Defendants certificates that such of the Particulars of Objections to the other three patents, as to which evidence was given, were reasonable and proper.
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