RECENT DECISIONS

Progress, Volume I, Issue 10, 1 August 1906, Page 283

RECENT DECISIONS

Patent. Combination of known elements, mechanical equivalents. claims appendant to principal claim. — Mr. van Berkel was the grantee of a patent for a machine for slicing German sausages and like meats, consisting of a revolvable circular knife of spherical or dished form, and a table having a to-and-fro movement adopted to carry the sausage with it against the knife in the direction of the cut (so that only the cutting edge of the knife comes m contact with the sausage ■during the slicing), whilst with the return of the table executed quickly relative to the forward movement, the sausage is moved forward on the table to the width of a slice. The first claim in the specification was for the machine with the above characteristics, the second for the cutting, the third for the means of reciprocating the table, the fourth and fifth for the means of moving forward the sausage the breadth of a slice. Mr. van Berkel brought an action in Scotland against R. D. Simpson Ltd., for infringement of this patent. It was proved that dished knives and the reciprocating mechanism were both old but had never before been employed in a slicing machine, also that the means of moving forward the sausage was old and closely resembled that in former machines. Prior to the invention there had been no satisfactory machines for slicing sausages, but van Berkel 's was at once a commercial success. Prior to van Berke^s patent there had been published in Great Britain Kolbe's specification (U.S.A.) for a device for cutting bread, consisting of a fiat knife of irregular edge and a reciprocating table and mechanism, similar to van Berkel's, for moving forward the bread the breadth of a slice. Simpson's machine had mechanical equivalents for the dished knife and the device for moving forward the sausage, but in its reciprocating table the backward and forward motion took place m about the same time. Held by the Lord Ordinary, Dundas, that van Berkel's patent was a valid pioneer or master patent, being a new combination for producing an entirely new and important result ; that it was not anticipated by Kolbe's, whose fiat knife of irregular edge was neither intended to perform nor capable of performing the meat-slicing operation of van Berkel's dished knife ; that Simpson's differentiation in the motion of his machine was of no practical utility ; that Simpson's apparatus, consisting of purely mechanical equivalents of van Berkel's, had infringed, and that van Berkel's second and subsequent claims should be constructed, not as claims for subordinate integers, but as appendant only to the principal claim for the invention. van Berkel and others v. JR. D. Simpson Ltd. XXIII. Reports of Patent Cases, 237. Patent. Publication. Combination — Mr. Peacock, the proprietor of a patent for rotary disc ploughs, brought an action against D. M. Osborne & Co. and the International Harvester Co. to restrain them from infringing his patent. They pleaded, inter aha, that his invention had been anticipated by a description and drawing of Peacock's invention m a number of the official Gazette of the United States Patent Office, containing 168 pages, which had been in the Patent's Office Library for 10 days before the date of Mr. Peacock's patent. They also pleaded that the invention was not new and was not the proper subject matter of a patent. There was no evidence that the description of the invention in the United States Gazette had been seen by anyone Held by A'Beckett, J., where the public have the opportunity of reading the prior publication, it is unnecessary to consider that whether anyone has availed himself of the opportunity, and that there was proof of prior publication of Peacock's invention, which, however, was protected by a section of the Victorian Patents Act, providing that when any patent for exclusive use in parts out of Victoria of any invention first invented m Victoria has been obtained, a patent may be granted for such invention at any time within one year from the date of the granting of the first of such patents, notwithstanding that such invention has been published in Victoria within one year Held iurther that a combination is not a mere aggregation ot unpaten table improvements in different parts of a machine. There must be some novelty in result either by the different parts having some new inter-action as between themselves or the machine acquiring some new function. It is not enough

that, as the result of these various improvements, you have a stronger or more handily worked machine. The plaintiff was decided to have a good claim for weights in the wheels of his plough, which had been infringed, but could not succeed because other claims in his patent were invalid as not being good subject matter for a patent. 1906, Victorian L.R., p. 375. Principal and Agent. Approval of Contract by Principal. Secret Limitation. — Carmichael, Wilson & Co. were appointed, by an agreement in writing, agents of The International Paper Co., of the U.S.A., for the exclusive sale in Australia of the Company's paper. The agreement provided that " all transactions shall be made m the name of the International Paper Company to whom all the contracts shall be submitted for approval. A contract was made in writing between H. Spicer & Co. and the Paper Co. for the supply by the latter of paper, and was executed by Carmichael, Wilson & Co , purporting to act as agents for the Paper Co. Before the execution of this contract Spicer & Co. asked for production of the agreement appointing Carmichael, Wilson & Co. agents of the Paper Co., but inspection was refused on the ground that it contained privileged matter, and Spicer & Co. knew nothing of the clause requiring the Paper Co.'s approval of contracts The Paper Co found difficulty in supplying the paper, and in the course of a conversation between Mr. Carmichael and Mr. Gates the representative of Spicer & Co., the former said, " My people in New York don't like having to leave their marks off," and when Gates replied that he could not re-open the contract, Carmichael answered, " But some of the paper is on the way." Later Carmichael said, " You know the trouble there has been m New York in connection with supplies — they have had to import from Scandinavia — we may be late with the first delivery, will you give me an extension of time." In an action for failing to deliver the paper, the Paper Co argued that there was no evidence that the contract had been approved by them, and Spicer & Co were nonsuited on this ground. A new trial was granted and it was held that it was within the scope of Carmichaels authority as agent to make the above statements, and that they were some evidence that the contract had been approved by the Paper Co , also that on the evidence the jury would have been entitled to presume that Carmichael had obtained the Paper Co.'s approval by cable before making the contract. Cohen, J., was of opinion that as Spicer & Co. had been refused information as to the clause requiring approval they were not bound by it, and that from the statements made by Carmichael it might be inferred that the Paper Co. knew of the contract and had ratified it by their silence and non-repudiation. Spicer 6- Co. v. The International Paper Co. VI. N.S.W. State Reports, 170. Company. Power to Borrow. Bill of Sall. —The Golden Rhine Mines of W.A., Ltd., executed in England a bill of sale m the form of a debenture to the Ida H. Gold Mining Co., to secure £600 and further advances. Both Companies were English mining companies registered m Western Australia. The bill of sale was only registered in Western Australia in accordance with the provisions of the local Bills of Sale Act. Within three months of registration the chattels comprised in the bill of sale were seized by the sheriff under a writ of execution issued by Jones Brothers. The Ida H. Co. claimed the goods under their bill of sale. On the trial of an interpleader summons the Articles of Association were not produced, and it was argued that the Golden Rhine Co. had no power to borrow. Held by the Court of Appeal that a mining company is a trading company and has implied power to borrow money as properly incident to the purposes of its business, if not prohibited by its Articles of Association. The onus of proving such prohibition lies on the party denying the power to borrow. Held further that a bill of sale executed in England registered in Western Australia is valid in Western Australia, although by the laws of England it may be invalid as against' creditors for want of registration although valid between the parties at its inception. — VII. Western Australian L.R., 329 Life Insurance Written Assurance by Agent Varying Terms of Policy — Mr Horncastle was induced to effect with the Equitable Life Assurance Society a semi-continue policy for £z, 000 on the representation by a memorandum in writing by Mr. Moss, the London superintendent of the Company, that the cash value of the policy at the end of 15 years would be When the policy matured, however the Company would only pay Mr. Horncastle 55., the amount which they claimed was one under the policy, which contained this clause " The contract bettween the parties hereto is completely set forth in this policy and the application therefore taken together and none of its terms can be modified, except by an agreement, signed by one of the

following officers, (of whom Mr. Moss was not one). Mr. Moss having carefully pinned his memorandum to his policy when he received it, and subsequently deposited both with the Company to secure loans for sued the Company for the £7,390, to which he considered himself entitled. Mr. Justice Walton held, however, that, even assuming that Mr. Moss had authority to make the representation, it was not admissible in evidence as it was not an agreement collateral and consistent with the policy, but contradicted the policy which was the complete and final statement of the transaction. — Horncastle v. The Equitable Life Assurance Society of the United States. 22 Times L.R., 534Fire in Hotel. Negligence. Liability for Damage to Lodger's Goods. — Mr. Kellett lodged in the Blue Bell hotel, of which Mr. Cowan was the landlord. Mr. Cowan's servants by his instructions burnt sulphur in saucepans to fumigate two of the hotel rooms. The hotel was burned down and Mr. Kellett's effects to the value of were destroyed, for which amount he recovered damages. Held that Mr. Cowan was liable for the damage, as a duty to use extreme care was upon him, unless he proved that the spread of the fire was owing to vis mayor or the acts of God. — Kellett v. Cowan. 1906, State Reports, Queensland, p. 116. Landlord and Tenant. Covenant against Assignment. Fine. — By section 94 of " The Property Law Act, 1905," (N.Z.), taken from " The English Conveyancing Act, 1892," m all leases containing a covenant against assignment, such covenant shall, unless the lease contain an express provision to the contrary, be deemed to be subject to a proviso that no fine or sum of money in the nature of a fine shall be payable for or in respect of such consent. A lease from Mr. Waite to Leon Perrot contained a covenant by the lessee that he would not assign without the consent of the lessors, such consent not to be unreasonably or capriciously withheld. One Chater, in whom the lease became vested, applied to the plaintiff for consent to assign the lease to one, Dear. By a deed the plaintiff granted to Chater' s license to assign to Dear & Dear covenanted that he would pay the rent during the rest of the term. Dear subsequently assigned to Escotts who, after the assignment, failed to pay a quarter's rent. Waite sued Dear for this rent, but Dear's defence was that his covenant to pay the rent was a provision for a payment in the nature of a fine. Held by the Court of Appeal that the above section did not prohibit the taking of sum in the nature of a fine, but its effect was as between the parties to the deed — that the deed was to be deemed subject to a proviso that no such payment should be payable, and Dear, therefore, who was no party to the original lease, could not avail himself of the section as a defence. L. J. J. Vaughan Williams and Stirling were of opinion that the covenant was not a covenant for a payment of a fine, L. J. Moulton that it was. — Waite v Jennings. 22, Times L.R., 510.