THE PATENT LAW.

New Zealand Times, Volume XXXVI, Issue 8179, 22 July 1912, Page 2

THE PATENT LAW.

IMPORTANT POINT. HOW IMPROVEMENT MAY MEAN INFRINGEMENT. The extent to which a patent may be "improved" without an infringement ot tho patent rights was determined by tue Chief Justice, Sir lyobert Stout, on Saturday morning, when, no delivereu judgment in the Supremo Court civil action brought by George 11. MacEwau, exporter (Dunedin) and S. B. MacEwau and Co., Ltd. (Wellington) against Joseph, llopkirk, engineer (Ha we raj. Tho plaintiffs wore owners of tho patent rights of a milk agitating apparatus anu claimed that the defendant had infringed their patent by making and patenting a machine very like theirs. Xiicy there* fore sought air injunction to t restrain llopkirk from any further infringement ana claimed .£250 damages or an inquiry as to the damages sustained or an account of tho profits made by Hopkirk in connection with the alleged mtnngemont. Defendant's reply to this was a denial of infringement and a plea that plaintiffs’ patent was invalid. His Honor said tho mere fact that improvements might be made in a patent was no defence to an action, for infringement. The first question to bo considered was whether the plaintiffs patent was anticipated by other registered patents. Tno only one at all like plaintiffs' patent was a machine known as ‘•Tucker's" though a considerable number of others had been referred to. After making comparisons of the designs ot the machines his Honor said it was clear to him that plaintiffs' patent could not be invalidated by Tucker's patent and that it was only necessary to look at the specifications and plans of tho other patents to ace that none of them really touched this patent. They woro all vastly different. No doubt each of them used a mechanical contrivance and in each this ■mechanical contrivance performed the same operation, namely stirring fluids, but unless it were to bo held that the fact that fluids had been stirred by something turning found in them invalidated a patent which was for stirring fluids in a different way, it could not be said that this patent was invalid. The next ques tion was, had tho defendant infringed tho plaintiffs’ patent? Tho defendant’s machine was for a similar purpose and was like tho plaintiffs’ machine in many respects, tho only point of difference being in tho holes through the beaters. This, in his Honor’s opinion, constituted nothing more than an improvement. He considered that this was not sufficient to establish for the defendant’s machine a right to utilise all the other parts of tho plaintiffs’ machine, which was practically tho machine itself. The defendant had substantially taken tho plaintiffs' patent and made this slight alteration which was an improvement when milk was not normal. His Honor was, therefore, of opinion that tho plaintiff was entitled to succeed. The plaintiff was entitled to an injunction to restrain the defendant from manufacturing, etc., the defendant’s machine. An inquiry was ordered as to damages if tho parties could not agree upon any amount. It was understood from the defendant that he had no machines made and therefore the enforcement to deliver up was unnecessary. 'The plaintiff "was entitled to the costs; those would be fixed after his Honor saw whether the inquiry was necessary or not. Ho reserved to both parties the right to move. At the hearing Sir John Findlay, K.C.. with him Mr D. M. Findlay, appeared for tho plaintiffs, and Mr J. C. Peacock, with him Mr D. E. Boggard, for tho defendant.