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Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Morton v. Barclay, &c. [1824] ScotJCR 3_Murray_398 (15 March 1824)
URL: http://www.bailii.org/scot/cases/ScotJCR/1824/3_Murray_398.html
Cite as: [1824] ScotJCR 3_Murray_398
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SCOTTISH_HoL_JURY_COURT
Page: 398↓
(1824) 3 Murray 398
CASES TRIED IN THE JURY COURT.
No. 39
v.
PRESENT, THE THREE LORDS COMMISSIONERS.
Damages found in absence of the defender, for infringement of a patent.
Damages by a patentee for infringement of his patent.
Defence.—The machine was not an original invention. The machine manufactured by the defenders is altogether different from that described in the pursuer's specification.
Page: 399↓
“It being admitted, that, on the 18th day of August 1818, the pursuer obtained Letters-Patent under the Great Seal, kept and used in Scotland in place of the Great Seal thereof, whereby he acquired the exclusive privilege, for and during the period of fourteen years from the said 18th day of August, of using, as his original invention, certain machinery for drawing ships out of the water on dry land, being an improved method of performing that operation, and that the pursuer (as required by law, and by the said Letters-Patent) did make out a particular description of the nature of the said invention, and in what manner the same is to be followed out, and did, within four months of the said Letters-Patent, as required, viz. on the 17th day of December 1818, make out, sign and seal, and cause to be enrolled in the Court of Chancery, a specification or particular description of the nature of the said invention, a copy of which said specification is transcribed into the summons in this case.
Whether the said machinery described in the said specification, for the purpose of drawing ships out of the water on dry land, was an original invention of the pursuer?
Page: 400↓
Whether, on or about the 26th day of October 1821, and subsequent to the date of the said Letters-Patent, and of the said enrolment of the specification, the defenders, by themselves, or others carrying on business as shipwrights in Glasgow, under the firm of the Stobcross Shipwright Company, did, without the consent or permission of the pursuer, and in contravention of the privilege granted and protected by the said Letters-Patent, erect machinery at or near Stobcross, near Glasgow, in imitation of, and which was substantially, and in effect, the same with the machinery described in the said specification, to the loss and damage of the said pursuer?”
The law of patent in Scotland, the same as in England.
The notice of trial was proved, but the defenders failed to appear.
Before the trial commenced, the Lord Chief Commissioner inquired, Whether there was any Scotch authority on the subject of patent, as he had not been able to find any; it was answered, that the English law had been tacitly adopted.
One of the witnesses, called for the pursuer, stated, that he did not consider the machine used by the defenders so good as that for which the pursuer obtained the patent.
Page: 401↓
Lord Chief Commissioner.—That evidence goes in diminution of damages. This is a case in which a Jury in England would find a shilling damages, which establishes the right; but if you wish to recover damages, you may prove them.
Jeffrey opened the case for the pursuer, and described the patent machine, and the one which was said to be an imitation, and exhibited a model of each.
Lord Chief Commissioner.—The case is closed without appearance for the defender; but the pursuer must make out, by clear and distinct evidence, that the machine was an original invention, and not used before,—that it is useful, and has been invaded.
The witnesses all agree in the originality and utility of the invention, and the pursuer has established his right to it. The invasion is also established, and, therefore, there can be no doubt in finding for the pursuer.
The only point is, what damages ought to be given. This is the first case in this Court of an action brought to establish a right where no damages have been proved, and as the right
Page: 402↓
Verdict for the pursuer, damages 1s.
Counsel: Jeffrey, R. Bell and Skene, for the Pursuer.
Solicitors: (Agent, W. Bell, w. s.)