COMPANY V. pened that he never had had occasion to consider whether 1847. he might, or might not, be disposed to carry the doctrine to THE ELectric that length. That the doctrine there said to be laid down TELEGRAPH by Lord Eldon, went beyond doubt a great deal further than Norr. the doctrine, which would be found to be laid down in any cases that had as yet occurred before him. That he had never said, that if the patent were new—not having acquired the sanction of enjoyment-the Court ought not, in any case, to exercise its own judgment upon the subject, but send the plaintiff to establish his right at law (a). That, however the doctrine as to the Court declining to interfere in general, establish the validity of his patent in a court of law before it will grant him the benefit of an injunction." (a) In Bacon v. Jones, 4 Myl. & Cr. 436, Lord Cottenham, after noticing that the jurisdiction of the Court is founded upon legal rights, the plaintiff coming into this court on the assumption that he has the legal right, and the Court granting its assistance on that ground; and that when a party applied for the aid of the Court, the application for an injunction is made either during the progress of the suit or at the hearing, and in both cases, as he apprehended, great latitude and discretion are allowed to the Court in dealing with the application; and that when the application is for an interlocutory injunction several courses are open, and that which of those several courses ought to be taken must depend entirely upon the discretion of the Court according to the case made-states that the Court may at once grant the injunction simpliciter without more. His Lordship immediately observes that this is a course which, VOL. II. though perfectly competent to the Court, is not very likely to be taken where the defendant raises a question as to the validity of the plaintiff's title. Lord Cottenham then states that when the cause comes to a hearing the Court has also a large latitude left to it, and he was far from saying that a case might not arise in which, even at that stage, the Court would be of opinion that the injunction might properly be granted without having recourse to a trial at law-that the conduct and dealings of the parties, the frame of the pleadings, the nature of the patent right, and of the evidence by which it was established, these and other circumstances might combine to produce such a result, although that was certainly not very likely to happen, and he was not aware of any case in which it had happened. Nevertheless it was a course unquestionably competent to the Court, provided a case were presented which satisfied the mind of the judge that such a course, if adopted, would do justice between the parties. E 1847. TELEGRAPH until the legal right was established, was open to one exTHE ELECTRIC ception. That it was an exception more than once laid down by Lord Eldon. That he did not mean to say that Lord Eldon had introduced the exception. It existed before Lord Eldon's time. That the exception was this: That where a patent has existed for some time, and there has, during this time, been a user under the patent, it is an assertion of a title against all the world. That if, during this time, the patent has been exclusively enjoyed, it is strong corroborative evidence of the validity of the patent. That the Court has in such a case assumed the validity of the patent. The Court has acted as if the patent was valid, supposing that there was nothing else in question but the validity of the patent-no question of infringement. That the Court has given so much sanction to the right asserted by the patent as to aid and protect it, till the patent be proved to be invalid. That this was, as he had already said, the exception laid down by Lord Eldon (a), (a) In the Universities of Oxford and Cambridge v. Richardson, 6 Ves. 707, Lord Eldon said, that in the case of patent rights, if the party gets his patent and puts his invention in execution, and has proceeded to a sale, that may be called possession under it; and however doubtful it may be whether the patent can be sustained, this Court has lately said possession under a colour of title, is ground enough to enjoin and to continue the injunction till it is proved at law that it is only colour and not real title. There had been several instances of late. Could it be said that the patent in the case of Bolton and Watt (3 Ves. 140) was not doubtful? The Court of Common Pleas were divided upon the validity of it. Upon the first argument in the Court of King's Bench they were inclined to hold it bad, but they altered their opinion and decided in favour of it. This Court enjoined the defendants all the time during the pendency of the proceedings at law, upon the ground that the plaintiff had had possession of the invention under colour of the title which a patent, questionable in that degree, gave. In Harmer v. Plane, 14 Ves. 132, Lord Eldon said that where the Crown on behalf of the public grants letters patent, the grantee entering into a contract with the Crown, the benefit of which contract the public are to have, and the public have permitted a reasonably long and undisputed possession under colour of the patent, the Court has thought upon the fact of that possession proved against the public, that there was although not first introduced by him, but familiar before 1847. his days. That he had himself acted upon this excep- THE ELECTRIC less inconvenience in granting the injunction until the legal question could be tried, than in dissolving it at the hazard that the grant of the Crown might in the result prove to have been valid. The question was not really between the parties upon the record, for unless the injunction was granted any person might violate the patent, and the consequence would be that the patentee must be ruined by litigation. That in the case of Bolton and Watt (3 Ves. 140) therefore, though a case of great doubt, upon which some of the ablest judges in Westminster Hall disagreed, yet upon the ground of the possession by the patentees against all mankind, the injunction was granted until the question could be tried, and the result of the trial being in favour of the patent proved that the conduct of the Court in that instance was at least fortunate. In Hill v. Thompson, 3 Meriv. 624, Lord Eldon said that the principle upon which the Court acts in cases of the description under consideration is the following-that where a patent has been granted, and an exclusive possession of some duration under it, the Court will interpose its injunction without putting the party previously to establish the validity of his patent by an action at law. In a subsequent page (628) Lord Eldon observed it was insisted on the part of the plaintiff, and the Court agreed to that position, that where a person had obtained a patent and had had an exclusive TELEGRAPH enjoyment under it, the Court COMPANY v. will give so much credit to his NOTT. apparent right, as to interpose immediately by injunction to restrain the invasion of it, and continue that interposition until the apparent right has been displaced. In Millar v. Taylor, 4 Burr. 2400, Lord Mansfield said, whoever has attended the Court of Chancery knows that if an injunction in the nature of an injunction to stay waste is granted upon motion, or continued after answer, it is in vain to go to hearing. For such an injunction never is granted upon motion unless the legal property of the plaintiff is made out, nor continued after answer unless it still remains clear, allowing all the defendant has said. In such a case the defendant is always advised either to acquiesce or appeal, for he never can make a better defence than is stated upon his own answer. Upon this statement by Lord Mansfield of the doctrine of the Court of Chancery, Lord Eldon observed in the Universities of Oxford and Cambridge v. Richardson, 6 Ves. 707, it was said that in cases of injunctions of the nature above mentioned, the universal rule was that, if the title was not clear at law, the Court would not grant or sustain an injunction, until it was made clear at law. With all deference to Lord Mansfield he could not accede to that proposition so unqualified. There were many instances in his own me 1847. TELEGRAPH tion (a). That the exception came into operation where THE ELECTRIC the validity of the patent, and that alone, was questioned. That it had no possible reference to a case, where it is not the validity of the patent only that is in contest. That assuming the question of the legality of the patent to be free from difficulty, other circumstances might render it extremely doubtful, whether the plaintiff had a right to call upon the Court to issue an injunction against the defendant. That assuming the patent to be a valid patent, there might be the question whether it has been infringed. That the exception was, where the sole question was the validity of the patent, and there had been exclusive enjoyment under it for a reasonable time. That the Court would, in such a case, interpose by injunction until the invalidity of the patent has been ascertained at law. That in the present case, assuming the validity of the patents in all respects-assuming that the invention was novel, and that the plaintiffs mory in which the Court had Lord Eldon then illustrates what (a) In Bickford v. Skewes, 4 Myl. & Cr. 500, Lord Cottenham said that if the patentee has been long in possession the Court will not look into the title, but will give credit to it until displaced by a trial at law. In Collard v. Allison, 4 Myl. & Cr. 488, Lord Cottenham said that it was argued that there was - possession of the patent, and that possession of a patent for a cer tain length of time gave such a title as the Court would protect until a trial at law could be had; and certainly if he found that manufacturers had acquiesced, he should have adopted the course which Lord Eldon adopted, and which he had followed, of protecting the right until the trial should have been had. For that purpose, however, he ought to have very satisfactory evidence of exclusive possession. The perusal of the remarks of Lord Cottenham in Kay v. Marshall, 1 Myl. & Cr. 387-390,where, however, the bill alleged (it was a case of demurrer) not only that the patentee had been in the possession of his patent right for ten years, but also that he had within that time established his right at law-will not be unprofitable to the student. COMPANY V. had a legal right-there was still the question, whether the 1847. patents of the plaintiffs had been pirated. That the defend- THE ELECTRIC ants raised two questions. That they contested the novelty TELEGRAPH of the invention of the plaintiffs, and in consequence the Norт. legality of the patents. And the defendants said besides, that they had not infringed the patents, even if they were valid patents. That for the present he would concede the first question, and that the plaintiffs had a right to be protected in all that was claimed by the patents. That the plaintiffs would then stand precisely in the same position, as a person having an acknowledged right. That the only question then would be, had that right been pirated? That take the case of a party claiming a copyright in a work of his own composition. That in such a case there was no question about the right, generally speaking. That, generally speaking, a party has the copyright of a work composed by himself. If a plaintiff has copied another man's composition, of course he has no copyright in that; but this was in general soon seen. If the composition be an original composition at all, no question can ordinarily be raised as to the plaintiff having the copyright. That in such a case the only question was, whether the defendant had pirated the plaintiff's work-whether he had made an improper use of the plaintiff's publication. The legal right of the plaintiff was not disputed. The only thing to be ascertained was, whether the defendant had violated that legal right. That for the present he would place the plaintiffs, the owners of the patents in question, in the same position as a plaintiff, the owner of a copyright. That for the present purpose he would suppose there to be no legal doubt as to the validity of the plaintiffs' right, and he would then consider the remaining question, that of infringement of the patents of the plaintiffs by the defendant. That he would try this question by the rule of the Court, which he had already stated that the legal right not being disputed, still the Court ought to be satisfied that the acts, of which complaint was made, were a violation of it. But how could |