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partnership business, and he has been injured in his credit and Claim commercial position in consequence of the defendant's said against breach of his agreement.
breach of The plaintiff claims :
partner(1.) £1000 damages.
ship deed. (2.) Such further and other relief as the nature of the case
Statement of Defence. 1. The defendant denies that he prevented the plaintiff from Defence. entering the said place of business, as alleged in the paragraph of the statement of claim, and that he refused to carry on the said partnership business with the plaintiff, as in the said paragraph alleged.
2. If the defendant so prevented the plaintiff and refused to carry on the said partnership business, as in the said paragraph is alleged, he says that he was induced to sign the said articles of partnership by a representation made to him by the plaintiff that he (the plaintiff) was in a position to introduce business from certain persons and firms with whom he alleged he was intimately acquainted and possessed considerable influence.
3. The said representations were false, as the plaintiff at the time of making them well knew.
4. The defendant, before the said 20th of June, ascertained that these representations were totally devoid of foundation, and he consequently repudiated the said articles of partnership.
5. The defendant denies each and every the allegations contained in the 5th paragraph of the statement of claim.
Reply. The plaintiff joins issue on the defendant's statement of defence.
Counter-claim to an Action on a Note setting up a Claim arising
out of Partnership Transactions. [Action commenced by specially indorsed writ, setting out a promissory note for £500.]
Notice in lieu of claim.
Notice in lieu of Statement of Claim. 1. The particulars of the plaintiffs' complaint herein, and of the relief and remedy to which they claim to be entitled, appear by the indorsement upon the writ of summons.
The plaintiffs propose to try this cause at the assizes to be holden at for the county of -(a).
Defence and counter-claim.
Statement of Defence and Counter-claim. 1. The defendant denies that he made the note referred to in the indorsement on the writ of summons herein.
2. By way of set-off and counter-claim, the defendant claims from the plaintiffs £850 on the following account:[Here follows the account which was made out between the
plaintiffs as executors of the will of the late Anne R., of G., deceased, and the defendant.]
3. The defendant and the said Anne R. in her lifetime carried on the business of farmers in partnership together, and were entitled each to an equal moiety of the profits of such partnership. The defendant claims £700 as his share of such profits, for which the plaintiffs are accountable to him. And the defendant claims £130 in respect of the items shown in the said account as due to him for disbursements made on behalf of the said partnership and goods supplied by the defendant for use in the said business, and liabilities incurred by him for the said partnership, and disbursements made by the defendant for the use of the plaintiffs as such executors. He claims the said sum of £12 for payments made in respect of funeral expenses, as shown in the said account.
The defendant claims :-
the plaintiffs of the assets of the said partnership,
(a) This is given here to show that in such cases as well as in ordinary statements of claim, the plaintiff should fix his venue. If he does not the action may, contrary to his intention, be tried in Middlesex.li Of course if he wishes it to be tried there, he need not say anything as to the place of trial. (See Order XXXVI. r. 1.)
(3.) And that if necessary this action be transferred to the
Chancery Division of the High Court for the pur-
Reply. 1. Except the first item of £12 for cash paid in funeral Reply to
counterexpenses, which the plaintiffs admit, the plaintiffs deny all the
claim items in the set-off and counter-claim, and say that they are seeking a
partnership not liable in respect of any of such items.
account. 2. As to the claim for £700, if such claim ever existed (which the plaintiffs deny), it was settled and discharged in account between the deceased Anne R. and the defendant, who on the 31st July, 1874, agreed to settle all past reckonings between them, and the same were then settled and discharged.
Rejoinder. The defendant joins issue in the plaintiffs' reply to defendant's set-off and counter-claim, except so far as the same contains admissions.
Patents (a). Action by Patentee for Infringements of his Patent. Claim for 1. Her Majesty Queen Victoria, by her letters patent under
ment of a the Great Seal of the United Kingdom dated the 10th April, patent.
(a) Before an action for infringement of a patent can be maintained Essential the following conditions must exist, viz. :
conditions 1. That the plaintiff was the first inventor.
in an 2. The grant of the letters patent.
action for 3. The specification and enrolment or filing thereof.
infringing 4. The breach of the patent right.
patent 5. The damage.
rights. By the Patent Law Amendment Act, 1852 (15 & 16 Vict. c. 83), s. 2, - All Courts and judges shall take notice of the seal of the commissioners of patents, and also receive as evidence all copies and extracts of documents deposited in the office certified under their seal without further proof or production of the originals.”
By sect. 35 a “ Register of Proprietors” is directed to be kept in which Assignshall be entered the assignment of any letters patent, or of any share ments of or interest therein, any licence under letters patent, and the district to patents, which such licence relates, with the name or names of any person having &c., to any share or interest in such letters patent or licence, the date of his or be entered their acquiring such letters patent, share, and interest, and any other in “Rematter or thing relating to or affecting the proprietorship in such letters gister of patent or licence; ..... and certified copies of such entries shall be Proprie
Claim for infringement of a patent.
1875, granted to the plaintiff the sole privilege to make, use, exercise, and vend an invention, that is to say improvements in
Assign- primâ facie proof of the assignment of such letters patent, or share or ments, &c., interest therein, or of the licence or proprietorship as therein expressed ; of patents' provided always that until such entry shall have been made the grantee to be in or grantees of the letters patent shall be deemed and taken to be the sole “Register and exclusive proprietor or proprietors of such letters patent, and of all of Proprie- the licenses and privileges thereby given and granted. tors.
By sect. 41, in actions for infringement of patent, the plaintiff is bound
to deliver with his statement of claim particulars of the breaches, and the The “ par. defendant with his statement of defence, particulars of objections on ticulars"
which he intends to rely, and no evidence will be allowed in support of to be
any infringement or objection not stated in such particulars, &c., and the delivered
particulars of objections are to set forth the dates and places at which with claim the invention is alleged to have been used before the date of the patent. or defence.' The judge may allow an amendment of the particulars on the trial. What
In questions whether there has been a violation of a patent, the existamounts
ence of an intention to violate it is immaterial. (Stead v. Ander. to an
son, 4 C. B. 806.) Proof that the defendant sold the patented article infringe
without evidence of his having made it or procured it to be made was ment of
held sufficient to warrant a jury in finding that an infringement had patent
been committed. (Wallon v. Lavater, 29 L. J. C. P. 275.) So the selling rights.
articles made by the patented niachine, even though the defendant did not know of the patent. (Wright v. Hitchcock, L. R. 5 Ex. 37.) The plaintiff must prove, where the breach is denied, that the article was not made by him or his agent. (Betts v. IVillmott, L. R. 6 Ch. 239.)
It is no defence that the defendant's servants had in the course of their business committed the infringement contrary to his express directions. (Betts v. De Vitre, L. R. 3 Ch. 429.)
To import the patented article from abroad, when the patent did not extend beyond England is an infringement. (Elmslee v. Boursier, L. R. 9 Eq. 217.) Even in such circumstances the transitory resting of the patented article in England was held to be an infringement. (Betts v.
Neilson, L. R. 3 Ch. 429 ; affirm. L. R. 5 H. L. 1.) The Crown The Crown is not bound by letters patent, and consequently cannot be cannot be guilty of an infringement. (Feather v. The Queen, 35 L. J. Q. B. 200.) guilty of This does not apply to contractors under the Crown. (Thomas v. The an infringe. Queen, L. R. 10 Q. B. 131.) ment. Measure of damagex.]-If the plaintiff has been in the habit of licensing
the use of the invention for a fixed royalty, such royalty will be the measure of damages for the infringement of the patent, unless perhaps he has been in the habit of charging infringers with a higher royalty, in which case the higher royalty may be given as damages. (Penn v. Jack, L. R. 5 Eq. 81.)
DEFENCES. Defences : Besides the denial of breach as to which the preceding authorities will 1. A de- be found useful, the defendant may raise the following defences among nial of others : breach. Denial of norelty.]--Prior use of the patented article, even though not
general, if the use was not secret, will avoid the patent. (Carpenter v.
Smith, 9 M. & W. 300.) If the prior use was public, it does not matter 2. Prior that the person using it made a secret of the process. (Heath v. Smith, use of the 23 L. J. Q. B. 166.) It is not necessary in order to invalidate the patent patented
to show that the article had been previously manufactured for sale. article--no (Betts v. Neilson, supra.) The exhibition of a useless machine which novelty.
turns out a failure will not affect the right of a patentee, who subse
mechanically feeding furnaces with fuel, and an apparatus con- Claim for nected therewith, within the United Kingdom of Great Britain infringe
ment of a and Ireland, the Channel Islands, and the Isle of Man, for the patent. term of fourteen years from the said date, subject to a condition (amongst others not now necessary to be stated) that the plaintiff should, within six calendar months next after the date thereof, cause to be filed in the Great Seal Patent Office an instrument in writing under his hand and seal, particularly describing and ascertaining the nature of the said invention, and in what manner the same was to be and might be used.
2. The said invention, as limited by the disclaimer and memorandum of alteration hereinafter mentioned, was an invention of a new manufacture.
3. The plaintiff was the first and true inventor of the said invention so limited.
4. The plaintiff did fulfil the aforesaid condition by causing to be filed in the Great Seal Patent Office on the 6th October,
quently makes a useful machine, though somewhat similar to the former useless one. (Murray v. Clayton, L. R. 7 Ch. 570.)
The application of an old contrivance to a purpose similar or analogous What to that to which it was formerly applied, is not sufficient to sustain a
amounts patent. (Harwood v. Great Northern Rail. Co., 31 L. J. Q. B. 198, and
to novelty. 35 L. J, Q. B. 27; Jordan v. Moore, L. R. 1 C. P. 624 ; Parkes v. Stevens, L. R. 8 Eq. 358 ; affirm. L. R. õ Ch. 36.) However the application of an old contrivance or machine to a purpose so different from that to which it was before applied, that the application would not obviously suggest itself, may be the subject of a valid patent. (Penn v. Bibby, L. R. 2 Ch. 127 ; Arnold v. Bradbury, L. R. 6 Ch. 706 ; Cannington v. Nuttall, L. R, 5 H. L. 205.)
Insufficiency of specification.]—The omission of any part of the pro- 3. The invisional specification of a patent out of the complete specification will sufficiency not vitiate the patent if there be no fraud, and the effect of the remainder of the is not affected by the omission. (Penn v. Bibby, L. R. 2 Ch. 127, 133 ; specificaThomas v. Welch, L. R. 1 C. P. 192.) But if there be a departure in tion. the complete from the provisional specification, the patent is bad. (Penn v. Bibby, supra.) A specification which professes to effect the proposed object by either of two ways is bad, if it is shown that the object can only be effected by one of them (R. v. Cutler, 14 Q. B. 372, n.); even though a competent workman would adopt the effectual way. (Samson v. Holliday, L. R. 1 H. L. 315.)
Non-registration.]-Where a patent has been assigned and the de. 4. Where fendant denies the assignment, the plaintiff must show that the assign, assignment ment has been registered pursuant to 15 & 16 Vict. c. 83, s. 35, for until in quesregistration the title remains in the assignor. But the assignee may sue tion, want the assignor for an infringement before registration. (IIassal v. Wright, of registraL. R. 10 Eq. 509.) The registration relates back to the date of the assign- tion. ment so as to include interim infringements. (16.)