Majority
Sir W. J. C.J.-(After stating the particulars of the alleged invention, and referring to the judgments of the court below.)
I agree with the majority of the Court of Appeal that the patent claimed by the plaintiff cannot be supported, and I think the appeal should be dismissed, on the ground that the plaintiff's invention was not properly the subject of a patent for the reasons given by the Court of Appeal.
J.-The appeal should be allowed with costs and the judgment of the Chancellor restored.
FOURNIER J.
I agree with His Lordship the Chief Justice that the appeal should be dismissed.
HENRY J.-The appellant seeks to recover from the respondent damages for the infringement of a patent right claimed by him under letters patent issued to him on the 26th August, 1880, for what is called "Hunter's Improved Oven." His claim in the specification is: " In combination with a baker's oven a furnace D set within the oven but below the sole A," and the patent right granted is for that combination.
He claims nothing for any one or more of the several parts mentioned in the specification, which are employed merely to show the combination, and therefore we are to conclude none of them was new. They are described as follows:the pit but that the - 303 other flues.
As is well known to those familiar with baker's ovens, HUNTR a fire is made in the sole, and when the required temperature is e.
obtained it is withdrawn, and the bread or other article to be baked inserted."
The respondent pleaded, amongst other things, as follows:
2. In answer to the fourth paragraph of the said bill I admit that I have lately built a new oven, but I deny that such oven contains the improvements claimed by the plaintiff in his patent in the said bill referred to, or any of them, or that my oven is an infringement upon the alleged patent of the plaintiff.
5. I am informed and believe, and charge the fact to be, that the means of heating ovens claimed by the plaintiff in his patent have been in public use in this Dominion for many years prior to the plaintiff's patent, and that there was and is no novelty and improvement on any other invention in the plaintiff's alleged invention. 6. I submit that there was not, prior to or at the date of the said patent, any novelty in the plaintiff's alleged invention, and that the same was not, nor was any part thereof, a new or useful invention or improvement upon a prior invention within the meaning of The Patent Act of 1872."
And that the improvements claimed by the plaintiff in his said patent are trifling and insignificant, and that the said alleged invention of the said plaintiff is not, and was not the subject of a patent, and could not be patented. And I further submit that the said patent -is invalid and void.
7. I submit that the specifications fled by the plaintiff on his application for the said patent do not clearly and distinctly state the contrivances and things which the plaintiff claimed as new, and for which he obtained the said patent, and that they claim more than the said plaintiff could in any event obtain a patent for, and I therefore submit that the said patent is void.
8. I also submit that the said patent is void, because the same includes as new a contrivance which was, I believe, and charge the fact to be, well known and publicly used prior to the plaintiff's said patent.
The pleas therefore, put in issue all that was necessary to entitle the respondent to deny the infringement of the appellant's rights under the patent, and also to contest its validity.
By the evidence it is shown that all the combinations were used before the issue of the patent, except perhaps, one flue which is referred to in the specifica. tions as before shown, and is as follows:but that other
It will be observed on referring to the patent and specifications, that the first does not grant, and the latter does not claim, any right for the combination of the flue in question. They are both limited to a combination of "'a furnace D set within the oven below the sole A."
The erection therefore, of 'such a flue by the respondent, would have been no infringement of the patent right, and it is shown also that in the erection of the oven by her no such flue was constructed and therefore there could be no infringement of the right. The evidence establishes the fact, to my mind very conclusively, that the combination claimed by the appellant was not new when he obtained his patent, and that furnaces set within the oven and below the sole had previously been made and used.
I am therefore of opinion that the appeal should be dismissed and the judgment of the court below affirmed with costs.
TAScHEREAU J. concurred with Ritchie 0. J.
Appeal dismissed with costs.
Statutes and regulations cited