Fada Radio Ltd. v. Canadian General Electric Co., Ltd.

the endorsement on the writ of summons, and the amount or amounts the plaintiff was entitled to in respect thereof, reserving further directions and the question of costs until . after the report, costs of the appeal to be costs in the cause. The plaintiff objected to the reference, as ordered by Lennox J., or as varied by the Appellate Division, and appealed to this Court (1).

C.J.C.-We are all of the opinion that the motion must succeed.

There is no jurisdiction in this Court to hear the appeal. The judgment appealed from was not a final judgment. Moreover, it dealt merely with a matter of practice and procedure. The motion is granted with costs.

Lamont J. After discussing Alexanderson's device, he said:

"*

That this device gave a high degree of selectivity is not denied and if the patent issued for it be valid there would not seem to be much doubt that the appellants infringed the patent.

" The main defences relied upon by the appellants are: "1. That Alexanderson's device does not constitute invention, and, 2. That if it does, he was anticipated by other inventors, particularly Wilhelm Schloemilch and Otto von Bronk, in Germany."

He then proceeded to deal with the latter of these defences, and, in regard thereto, discussed the devices in question, and the evidence, at length.

In the course of his discussion of the question, he said: " A comparison [of certain diagrams] shews that the invention of Schloemilch and von Bronk is very similar to that of Alexanderson. It is, however, argued, and it was held by the court below, that the inventions differed in two material respects: (1) That the input circuit of the invention of Schloemilch and von Bronk was not tuned, and that tuning of that circuit was necessary to obtain as high a degree of selectivity as was obtained by Alexanderson, and (2) That their invention was not for the purpose of securing selectivity at all, but simply for securing amplification.

" The first question, therefore, is: Did Schloemilch and von Bronk intend the input circuit of their invention to be tuned?"

As to this point, after discussing the evidence thereon, he found that in the patents of Schloemilch and von Bronk (no. 293,300 in Germany, and no. 1,087,892 in the United States of America) the input circuit was tuned as well as the others; that " the grid circuit was intended to be, and RADIm was in fact, tuned to the same frequency as the other circuits."

He then proceeded:

" It was also contended that the two inventions differed in the objects to be attained; that Alexanderson sought selectivity, while Schloemilch and von Bronk sought amplification only, and that no claim for selectivity is made in any of their patents. That they made no claim for selectivity, the appellants admit, but the reason for that, they say, was because the securing of selectivity by means of tuned circuits arranged in cascade was, to their knowledge, already old in the art and their invention added nothing to the prior art as far as selectivity was concerned." After dealing with the evidence as to the prior art, and discussing further the inventions of Schloemilch and von Bronk and of Alexanderson, he said:

" That Alexanderson stressed selectivity and made provision for amplification, while Schloemilch and von Bronk stressed amplification only, is, in my opinion, of little moment for although they made no claim that their invention secured selectivity-that having been obtained by prior inventors-the object of both devices was to eliminate undesired signals and secure and strengthen the desired signal and bring it within the compass of the human ear. Had Alexanderson, in February, 1913, possessed their knowledge of the prior art, it seems to me very doubtful if he would have claimed selectivity as he did.

" I am therefore of opinion that during the last months of 1912 and the early months of 1913, Schloemilch and von Bronk, in Germany, and Alexanderson, in America, working independently, produced devices for securing selectivity and sensitivity in a receiving set by precisely the same means."

Dealing next with the question as to which device was prior in time, he found, on the evidence, that Alexanderson's device was anticipated by Schloemilch and von Bronk. He then concluded as follows:

" Having reached this conclusion it is unnecessary to consider whether or not either of the inventions added any-