And upon this question my Brothers Bayley and Holroyd agree with me in thinking, that our decision must be against the defendant. My Brother Best having been engaged when he was at the bar in some of the earlier stages of this proceeding, has declined taking any part in our deliberations. The language in which the supposed invention is described in a patent of this nature is the language of the patentee himself. He represents to the crown, that he has invented this or that thing, and that he is the first and sole inventor thereof, &c.; and the crown yielding to his representation, and willing to give encouragement to all arts and inventions that may be for the public good, grants to the patentee the sole liberty and privilege of using his said invention, for a certain term, under the conditions before noticed. It is obvious, therefore, that if the patentee has not invented the matter or thing of which he represents himself to be the inventor, the consideration of the royal grant fails, and the grant consequently becomes void. And this will not be the less true, if it should happen that the patentee has invented some other matter or thing, of which, upon a due representation thereof, he might have been entitled to a grant of the exclusive use. It is well known that the granting of monopolies was restrained by the stat. 21 Jac. 1. c. 3. to the scle working or making of any manner of new manufactures, and to the true and first inventor of such manufactures. Now the word "manufactures" has been generally understood to denote either a thing made, which is useful for its own sake, and vendible as such, as a medicine, a stove, a telescope, and many others, or to mean an engine or instrument, or some part of an engine or instrument, to be employed, 1819. The KING against WHEELER. 1819. The KING against WHEELER. employed, either in the making of some previously known article, or in some other useful purpose, as a stocking-frame, or a steam-engine for raising water from mines. Or it may perhaps extend also to a new process to be carried on by known implements, or elements, acting upon known substances, and ultimately producing some other known substance, but producing it in a cheaper or more expeditious manner, or of a better and more useful kind. But no merely philosophical or abstract principle can answer to the word manufactures. Something of a corporeal and substantial nature, something that can be made by man from the matters subjected to his art and skill, or at the least some new mode of employing practically his art and skill, is requisite to satisfy this word. A person, therefore, who applies to the crown for a patent, may represent himself to be the inventor of some new thing, or of some new engine or instrument. And in the latter case he may represent himself to be the inventor of a new method of accomplishing that object, which is to be accomplished by his new engine or instrument, as was the case of Watt's patent (a), in which he represented himself to be the inventor of a new method of lessening the consumption of steam and fuel in fire engines, and by his specification he described certain parts to be used in the construction of fire engines. Or supposing a new process to be the lawful subject of a patent, he may represent himself to be the inventor of a new process, in which case it should seem, that the word "method" may be properly used as synonymous with process. The language of the patent may be explained and reduced to certainty by the specification; but the patent must (a) 8 T. R. 95. not not represent the party to be the inventor of one thing, and the specification shew him to be the inventor of another; because, perhaps, if he had represented himself as the inventor of that other, it might have been well known that the thing was of no use, or was in common use, and he might not have obtained a grant as the inventor of it. Now to apply these general principles to the patent and specification before us. The defendant has represented himself to the crown to be the inventor "of a new or improved method of drying and preparing malt." Malt was an article of common use before the granting of this patent, possessing qualities long and well known, and prepared or made by a process practised for many years, of which drying was one of the last stages. And it is, in our opinion, impossible to read this patent, without supposing the patentee to claim the merit of having invented some new or improved method either of organ or process, of preparing or at least of drying this old and well known article. Then has the patentee by his specification shewn himself to be the inventor of any method of drying or preparing this well known article? For this we are to look at the specification; and we there find that he claims to be the inventor, not of a method of drying or preparing this well known article, but of a method of giving to it, when previously prepared, some qualities which it did not possess before, or which it possessed only in a very slight degree, namely, the qualities of being soluble in water, and colouring the liquor in which it shall be dissolved, which latter is the object in view. And this is to be effected by a second and additional process, the application of a very 1819. The KING against WHEELER. 1819. The KING against . WHEELER. high degree of heat. We think the invention mentioned in this specification so entirely different from that mentioned in the patent, as that the latter (if any such there be) remains wholly undescribed and unspecified, and consequently that the issue could not be found for the defendant. It was contended that this process was in truth a preparation of malt to answer a particular purpose, and that the purpose need not be noticed in the grant. It may be true in general that the purpose need not be mentioned in the grant; but if in any particular case the mention of the purpose be necessary to explain the words previously used, to shew that they were not used in their ordinary and obvious sense, but in a sense limited and confined to that particular purpose; in such a case, we think, the purpose ought to be mentioned. In this case, if the patentee had represented himself to be the inventor of a method of preparing malt, for the purpose of colouring beer and porter, every person who read his representation would understand, that the malt prepared according to his method was not intended to answer the common and known purposes of that article, viz. the brewing of beer, but was intended only for the special and particular purpose of colouring the liquor, and to be used in addition to common malt. But, as we have before intimated, we think no person could conjecture that to be the object of the invention mentioned in this patent. This being our opinion, it is unnecessary to say, whether or not a patent for a new method of drying and preparing malt for the colouring of beer, might be good as a patent for the manufacture, that is, for the malt so dried and prepared, if followed by a sufficient specification, which it probably might be: nor nor is it necessary to notice at any length the apparent defects in the specification accompanying the present patent. It was argued that the term "malt" is applied to the grain as soon as it has germinated by the effect of moisture, and before it has been dried; that malt in that state might be taken and used for the objects of the defendant's invention; and that as these were to be accomplished by heat, his was an invention for drying malt. But if this were so, then the specification would be defective in not informing the reader that the malt to be used for the intended object might or ought to be taken in that state, and in leaving him to discover by experiment, whether it should be taken in that state, or after drying, which according to the most common use of the word malt he might very reasonably suppose. Again, this is a patent for the invention of a method, that is, of an engine, instrument, or organ, to be used for the accomplishment of some purpose; or at least of a process to be so used. The patentee does not profess to be the inventor of any engine, instrument, or organ: he says, that a coffee roaster, or a kiln, or any thing by which the grains may be kept in motion during their exposure to the requisite degree of heat, may be used. Neither has he described any certain or precise process, which, admitting that there may be a patent for a process only, ought unquestionably to be done. He does not mention the state in which the malt is to be taken, for the purpose of undergoing the process, whether in a moist or dry state as was before noticed; he does not say, what heat beyond four hundred degrees of Fahrenheit may be used; he does not furnish the operator with any means of knowing when he has VOL. II. A a this 1819. The KING against WHEELER. |