BREACH OF PATENT.

Evening Star, Issue 12899, 23 August 1906, Page 6

BREACH OF PATENT.

BtTRT v. CHRISTIE. In the case of Burt v. Christie, a claim for injunction and damages or for an inquiry and order for delivery up of the articles constituting a breach of patent in connection with a skylight, His Honor Mr Justice Cooper gave judgment this morning. This "was an action brought by plaintiffs, as assignees of a patent for a skylight known us " Wade s improved iron skylight frame " against the defendants for an infringement of the patent, the validity of which was admitted. The contest at the trial jj-as narrowed to the question whether a skylight now being manufactured and sold by defendants was an infringement of Wade's patent. After analysing the evidence and the arguments of counsel at the trial, His Honor said :

In his opinion, Wade's patent was one of the class of which the patent in Curtis v. Piatt was the leading instance. It was a combination for improvements to bring aiout a result known before. It was not denied that metal skylight frames were n use in this colony long before Wade's patent. The defendants' exhibit was a skylight which was in use in Dunedin very many years ago. It was made of. cast metal, and the frame was in one piece. Nor was it claimed that the plaintiffs were entitled to restrain a manufacturer from manufacturing a skylight of galvanised iron or of sheet metal; and Ballinger v. Ballinger was a decision upon the present patent that if this were claimed such a claim could not be maintained. Nor could the plaintiffs claim a monopoly in the manufacture of watertight skylights. Watertight skylights were not unknown in the colony before Wade's patent. Nor could they claim an exclusive right to manufacture skylights in which the glass was seeped without putty, unless the combination patented in Wade's patent was substantially adopted. A skylight put up at Ashburton in 1886 was a cast metal skylight in which the glass was secured without putty. The use of capping was well known in the trade before 1899. Wooden caps were used on the University skylights placed on the University buildings long before Wade's patent, and also on the skylights placed on the Normal School, and leaden capping on the skylights on the D.LC. buildings. Provision for carrying off water bv means of channels or gutters, and for carrying off water condensed on the inside of the glass, had been made and been in use before Wade's patent. Wliat was new in Wade's patent was the combination bringing about in an improved, simpler, and cheaper maimer results which had previously been obtained by the use of known methods, but in a more cumbrous, less durable, and more costly form. In His Honor's opinion, therefore, the present case fell within the principle of Curtis v. Piatt, and_ the doctrine of mechanical equivalents did noi apply. Nor, in his opinion, was it clear that the defendants' skylight was not Wade's combination. An exhibit put in by the plaintiffs showed Christie's skylight in an incomplete condition. Christie's frame was jn two pieces, but Wade's was in one. Christie's skylight was rendered watertight from outaide water because .the glass was secured with putty. It was contended that the use of putty "in this "skylight was a mere blind. 'His Honor's.exunination of. the skylight satisfied, him thai it was :the essential element .in rendering the skylight watertight, and the evidence of the defendants and of their witnesses .was conclusive> on this pqmt. He was quite'-unable.'to draw from the use of this putty the sinister inferences 'suggested by the counsel for the plaintiffs. Then, the capping was not an appropriation of Wade's caps. In Christie's skylight the capping was on the top end and the two sides only, and could not serve the purpose of rendering tie skylight watertight. That purpose was attained by the fixing in of the glass with putty, 'in Christie's skylight the purpose of the caps was to protect the putty from the action of the sun and

so to prolong the life and effective serric* A of the putty. The channelling in Christie's J skylight formed by the- raised edges along M the.inside elevated portion of iW piece would, when the cover was put on, ford a means of escape for outside water if glass were not-secured by putty, not, as this skylight was at present con-™ structed, keep the water but. The capping, B which was used in C&ristiey skylight pnly M went along each side and the top end of the ■ coyer, and if putty were not iised,* neither ■ this capping nor the channelling "nor? both fl together could be in any way an : means in keeping the skylight watertight. ■ The effective means in Christie's" was the manner in which the glass* secured by the putty, arid these channels, asS the skylight was at present constructed, were only effective in carrying off wateiH which might through condensation on the inside of the skylight The bar in Christie's skylight was only for the same purpose. Wade's system channelling and his centre bar were, a&H described m the jg>ecification and drawings, useless for inside moisture, but were of real assistance in carrying off outside water. H And even as they were now constructed, B| the principal purpose effected by them still the carrying off of outside water. Theirß use for condensation moisture was but very secondary object, and they did not. at any rate in Dunedin, prove even now effective for that purpose, additional provision having to be made where the skylights are used in this district. Therefore, in Hi 3 Honor's judgment, the defendants had not taken Wade's combination, and they were, entitled to succeed on the authority of' Curtis v. Piatt. Assuming, however, thai this case did not fall within the rule established! in Curtis v. Piatt, defendants were still entitled to succeed. They had not, either by the use of mechanical equivalents or otherwise, taken the substance of Wade's invention. The substance of Wade's invention was the construction of a watertight skylight without the use of putty. The essential element in the construction of defendants' skylight was the use of putty, without which their skylight would lie worthless. There must be judgment for the plaintiffs in respect of Durie's skylight, and ■ for the defendants in respect of the other ' matters alleged as infringements in the statement of claim. The amount and scab of costs to which each party was entitled could be settled in Chambers, and Hi? Honor referred that question to Chambers accordingly. The amount of damages, or, in the alternative, the right of the plaintiffs to an account in reference to Durie'i skylight, was also referred to Chambers. As the defendants had ceased to manufac- '' > turo Dune's skylight, and had undertakei not to resume such ■ manufacture, no injunction was necessary. The working out of this judgment and the ascertainment of th« amount of costs to which each party wa: entitled was also referred to Chambers; liberty to either party to apply. Bv consent all questions in reference to certificates, etc, were furthefl reserved for consideration in Chambers.