COURT OF APPEAL.

New Zealand Mail, Issue 1095, 24 February 1893, Page 30

COURT OF APPEAL.

Saturday, February 18. (Before Their Honors the Chief Justice and

Mr Justice Richmond.)

W. J C. Stokes (Christchurch) v. Davkn■port and Son (Wellington). —The plaintiff brought an aotion in the Supreme Court (l) for an iojunotion restraining defendants from manufacturing and selling a cupheaded, self-adjusting roofing nail requiring no washer, for which he had taken out letters patent as the original inventor, and (2) for an acoount of the profits which defendants had made by reason of the infringement of this patent, and manufacture, and sale of the said nails, and an order upon the defendants to pay to the plaintiff the amount of such profits when ascertained, Tbe.case was tried in the Supreme Court, before Mr Justice Biohtaond, who gave judgmont against the plaintiff. The appeal followed, and was argued by Messrs G. Harper, Quick and Tripp, for tha appeh lant, and Mr Skorrett for the respondents, some three months ago, when judgment was reserved. The Court now sat to deliver judgment. Mr Tripp (Chapman, Fitzgerald and Tripp) reoeived judgment for the appellant (Stokes) and Mr Brown (Brown, Skerrett and Dean) for the respondents (Davenport and Son). Mr Justice Richmond read the judgment of Mr Juatioe Conoliy, who dissented from the majority of the Court. He was unable to agree entiroly with the finding of Mr Juatioe Riohrnond in the Court below, and he preferred to base his judgment oa the admissibility of appellant’s amendments of bis original specification. He held here that the departures made in the amended speeifis cation from the original specification were so extensive as to amount to an abandonment to th 9 public of the olaim in the original specification. The claims made in tha amended specification which were not contained in the original specification were therefore subject matter for a new patent,

which must be refused on the ground that a oup-headed nail with a flange had been in nse for years previously. In his opinion therefore the appeal must be dismissed. The Chief Juatioe then road his own judgment. He had arrived at the oonoluBion that Stokes’ patent was not void on the ground that the patentee had not displayed any substantial exercise of the inventive faculty or power. The plaintiff in his oase had not to rely on mere utility and novelty for his invention, but on other circumstances as w*ll. On the whole, he was of opinion that there was sufficient subject-matter for the issue of a patent. There remained the question of the specification and amended specification. He considered that thß patent was not voided by reaßcn of the amended speoifioation going beyond what was permissible. As to the specification not being suffioient, he thought the evidence showed it was. As the majority of the Court was in favour of the appeal, it would bo allowed with costs on the highest scale in the Court of Appeal and in the Court below, as on au aotion for £SOO, and with costs for two extra days. The plaintiff (stokes) would therefore bo entitled to a perpetual injunction, and an acoount since the date of the amended specification of Davenport and Son’s profits from the manufacture and sale of the patented nails would be taken by the Registrar of the Court, and if there was no dispute it could be settled hereafter. The plaintiff would also be entitled to a certificate under section 40 of fcho Patents, Do signs and Trades Marks Act of 1889, that tha validity of the patent had come into qa3ation. The Chief Justice finally read Mr Justice William’s judgment, which concurred with bis own. Mr Brown asked for laavo to appeal to the Privy Council. This was granted, the terms on whioh the appeal will be allowed to bo Bottled on the 3rd prox, Mr Tripp agreeing on condition that it is to be grantod on tha usual terms as to security. The Chief Justice said that ;ln the meantime the decree would be drawn up. The Court was then adjourned till Friday 3rd March, at 10 a. re.