Scottish Court of Session Decisions

William Harvie, lampmaker, Broomielaw, Glasgow, had acquired exclusive right to two patents granted for an improved valve to prevent waste of water in water-closets, urinals, &c.

In April 1886 Harvie brought a suspension and interdict against William Ross, brassfounder, for alleged infringement of the said letters-patent, and on 25th May interim interdict was granted by the Lord Ordinary.

Upon 18th October a petition and complaint was presented by Harvie for breach of interdict against William Ross and his son Thomas Ross. This petition craved the Court to find the respondents guilty of contempt of Court and breach of interdict, and in respect thereof to inflict upon them such punishment by way of fine or imprisonment as should seem proper.

On 13th November [ vide supra, p. 58] their Lordships of the First Division allowed the complainer and the respondent William Ross a proof of their averments, the respondent Thomas Ross a proof of a certain part of his averments, but not of certain other averments made by him.

The proof was taken by Lord Kinnear, who on 31st December reported the cause to the First Division. The material portions of the proof are contained in his Lordship's note.

“Note.—The Lord Ordinary has thought it right to report this case because the only operative conclusion of the petition is a prayer for the punishment of the respondents by fine or imprisonment.

“The question is whether the manufacture and sale by the respondents of certain valves for regulating supplies of water involves an infringement of the patent set forth in the petition, and therefore a breach of interdict. The interdict which is said to have been broken is an interim interdict pronounced in the Bill Chamber in respect of the respondents' failure to find caution. There has been thus no judgment upon the construction and scope of the patents, and the parties are at issue on the question whether they include such apparatus as the respondents have manufactured since the date of the interdict.

“The patents are two in number, and were granted one in 1877 and the other in 1880 to the respondent William Ross, by whom they have been assigned to the complainer. The Lord Ordinary having considered the evidence and examined the models produced, with the advantage of the assessor Professor Armstrong's advice, is

Page: 251↓

of opinion that the apparatus manufactured and sold by the respondent is substantially identical with that described in the specification of 1877; and therefore that the respondent has infringed the patent, and so committed a breach of interdict.

“The part of the patented invention which the complainer maintains to have been infringed is that described in the specification as the first part. This is described as relating ‘generally to certain improvements in that class of duplex regulating valves for the service in cisterns of water-closets, and other similar or equivalent service purposes which have the valve lid part lifted by the action of a sucker either attached to the top weighted or actuating part of the valve or the valve lid.’ Neither the action of the sucker, therefore, nor the mode of attaching the sucker to the valve, forms any part of the invention. But assuming these things to be old, the patentee goes on to describe his improvement as consisting in a certain construction of the parts of the valve. It is described in detail, but the result appears to be that the invention consists in guiding the valve part by a central spindle, either hollow or solid, which works over or into a corresponding spindle solid or hollow in the lifting part; and the purpose and merit of the invention is said to be that it dispenses with the necessity of any outside guiding case such as had heretofore been used for guiding the lifting parts of sucker valves. The claim corresponding to this part of the description is the second, by which the inventor claims as novel and original ‘the guiding and steadying of all the working parts of sucker lifting service regulating valves wholly by central spindles, hollow and solid, working into each other, all substantially as described and shown in the drawings or any mere modification thereof.’

“The apparatus complained of is a sucker lifting service regulating valve; and its working parts, the valve, the valve-seat, and the weight, or actuating part, are similar to those of the valves to which the patent relates. The question, therefore, is whether these working parts are guided and steadied by ‘central spindles, solid and hollow, working into each other.’ That they are guided by a central spindle is not disputed; but it is said that, whereas there are two central spindles—one hollow and one solid—in the patented inventions, there is only one spindle in the apparatus complained of.

“This single spindle is a solid rod attached to the valve-seat, which passes up through a bush introduced into the valve, and then through another bush in the top weight. It is said that this is not an infringement, because it is the essential feature of the invention that the spindles shall be so adjusted as to work into each other. But the bush through which the central rod of the valve complained of is made to pass, is simply a perforated box or tube of metal fitted into the machinery to receive the central rod; and if it were elongated it would be what is described in the specification as a hollow spindle. The only feature of novelty to which the second claim relates is the invention of a central guide instead of an outside case; and the apparatus complained of is undoubtedly guided from the centre, and not from the ontside. The Lord Ordinary is advised by the assessor that to substitute a bush sliding upon a central rod for the two central spindles described in the specification required no invention, but, on the contrary, that the one machine is a mere modification of the other.

“In other respects the valve complained of appears to be an improvement upon that described. But the points of difference are not material to the present question.”

At advising—