Judgment of the Court
J.-The appellants seek relief from a cI judgment of the Exchequer Court declaring they had infringed a number of claims in a patent and re- straining further like infringement.
seems that the patentee under whom respondents' claim had invented and patented in the United States a wire fence of longitudinal wires crossed at right angles by stay wires at regular distances apart and that these crossing wires had been welded by some electric process of welding at each of the crossing intersections.
This product never was, even if in itself patentable, patented in Canada and hence cannot be claimed as covered here by any patent.
Some time afterwards the same patentee constructed and had patented a machine for making the said wire fence.
It is urged that it must be inferred that this was disclosed by the product in question.
I cannot see how that necessarily follows. The original product may have been the result of the use of one or more crude appliances that implied nothing requiring inventive faculties to produce.
Nothing is disclosed to shew that anything at all like the machine now in question was used in making that product.
Then the patented machine, now in question and under which respondents claim, is attacked here, on the grounds that Perry the patentee was not the true inventor, that there was no novelty in it, that it was not useful, and that there was no invention or subject matter.
The mode of attack is this. It is shewn that many of the parts of the machine were, in some other ways, used as machines or parts of machines used in welding processes.
It is not pretended that any of them ever were used to construct such a wire fence as that produced by this machine.
It is not pretended that they ever were all combined to form any single J. machine for any purpose.
Nor can I find that any such combination of the major or substantial parts were ever before combined for any similar process any kind.
It is urged, however, that each part having been in use and well known to ordinary men skilled in electric welding as having been in use for some purpose or other therefore any such man having his attention turned that way by seeing the wire fence product would have been able to and without any further knowledge could have framed such a machine as that now in question.
It is not at all self-evident or even probable to my mind that such is the case.
It may have been quite susceptible of proof by some such ordinary man saying so, but none has said so.
Mr. Bain, the only witness for the defence, says a great deal, but does not touch this point or vouch his belief that looking at the matter as an ordinary man might he could construct such a machine. This seems fatal to the contention.
Moreover, it is pretty evident that even Mr. Perry, who does not seem to have been an ordinary man, did not find it quite so easy a task as the argument implies, or he would have done so long before.
The grounds of the objection taken seem on this evidence utterly to fail. The specifications and claims -do not in words specifically claim the invention, as a combination, but as at present advised I think enough is expressed to shew that such is the nature of the invention.
is not pleaded that the specification or claims J. therein were insufficient, and besides there are some things that enter into this combination that I am not quite clear were anticipated in any prior invention. I think the attack on the respondents' patent has upon the evidence and within the pleadings before us failed.
As to the appellants' machine, It seems on the evidence to be as a whole substantially the same as that of the respondents. It seems rather an unsuccessful attempt to differentiate but only, unfortunately for the attempt, by means of mechanical equivalents. I think the appeal fails and must be dismissed with costs.
Appeal dismissed with costs.