Stevens' patent rotating stamper head – court challenge
William Stevens, a Cornish engineer, was granted a patent by the Government of the colony of Victoria on 7 June 1858 for a rotating stamping head used in quartz-crushing machines. One of the manufacturers of crushing machines using the rotating head principle was James F. Dow, who also manufactured William Beauclerc Otway's patented improved Chilean mill.
In 1860, Stevens took Minor King to court claiming an infringement of his patent. The jury found that Stevens was not the first inventor, but was the first to apply the invention in public use.
The testimony given to the court provides some valuable recounting of events on the goldfields of Victoria in the early 1850s, with witnesses including William Frederick Osborne and James Lancelot Stormont, who appear to be the first people to crush quartz by mechanical means at Ballarat.
March 10 LAW REPORT. SUPREME COURT. NEW COURT.-SATURDAY, MARCH 10. (Before his Honour Mr. Justice Barry and a Special Jury of Twelve.)
STEVENS AND ANOTHER V. KING.
This was an action brought to recover £5,000 damages for the invasion of a patent. Dr. Sewell, Mr. Billing, and Dr. Mackay for the plaintiffs; Mr. Michie and Mr. Fellows for the defendant.
The plaintiffs were the inventors of the quartz crushing machine known as Stevens' patent stampers, the peculiarity of which is that a rotary motion is imparted to the stampers while being raised by a series of "cams" acting as inclined planes, the advantage being that the friction is lessened, and the stamper heads wear more evenly. It is also contended that the stamper in falling retains slightly the rotary motion, and falls on the quartz so as to grind it. This latter feature was however denied by the defendant. The following extract shows the terms of the plaintiffs specification, and the points of superiority in his invention:- "I do not confine myself to the method herein shown for giving to the stamp head a rotary action, although I believe the mode shown to be the best one; nor do I confine myself to the details generally, nor to the materials of which it is constructed, but what I claim as the invention is for making stamp-heads of a circular form; and, secondly, giving to them during the operation of raising and falling a rotary action."
The defendant in pleading denied the infringement, and also the originality of the plaintiffs' so-called invention, its applicability to the purposes named in the specification, that the improvement of the old stampers (the Cornish machine) effected by it were trivial, and that the specification was unintelligible. The machine of the defendant imparts the rotary action to the stampers by a horizontal inclined plane, instead of a vertical one imparted by "cams," and it contended that the plaintiffs' patent was invaded by the imparting a "rotary" action to the stampers although by a different mechanical contrivance.
The following evidence was called for the plaintiffs :-
Mr. Jas. F. Dow, sworn. - He had been connected with the Port Philip Foundry for a period of 17 years. Had been in the habit of constructing mining machinery since the commencement of the gold-fields. He was in a position to know of whatever new mining machinery came into use. The model (No. 1) shown him, was first used at Bendigo, and is known as the Cornish machine. He made the first machine that was constructed on Mr. Stevens' patent. Never knew the rotary action to be applied to quartz-crushing before. Stevens' machine (No. 2) is, in his opinion superior to the Cornish machine (No. 1.) The fault of the square stampers is that they wear unevenly. This is in consequence of the quartz coming in at the back of the machine. The stampers and guides require to be moved for the purpose of repairs, and considerable loss of time and expense would be incurred. In No. 2 machine (Stevens') the revolution in the stamp-head causes it to work evenly. The rotary motion is caused by the "cams" on the cam shaft. The machine would work up to 75 blows per minute. The speed in general is from 60 to 65 blows per minute. The stamps revolve in falling. Had made some hundreds of these machines for Mr. Stevens and his licensees. They are in high estimation on the gold-fields. The machine No 2 is an improvement on No. 1, inasmuch as there is less wear and tear of the machine, and the quantity of work done is greater. Knew the action of No. 3 machine, Mr. King's patent. So far as the rotary motion is concerned he considered No. 3 to be an infringement on the patent obtained by No. 2. The stamper of No. 3 is made to revolve by an inclined plane instead of a cam. They are both levers, but the one is vertical and the other horizontal. The plaintiffs have been paid a royalty for the use of their machine of £2 per head, and 2s. 6d. per cwt. for the use of the stamps and discs. A competent workman could erect a machine similar to that shown in the drawing handed in. An engineer would not be competent who could not. The machines he made were from drawings.
By the Court. - Had seen No. 2 machine at work on the gold-fields.
By Mr. MICHIE. - I do not recollect having had any assistance from Mr. Stevens in constructing the machine. It was only necessary to have working drawings. It is a very common practice for inventors to be present while their machines are making. There is a rotary motion in the stampers in No. 2 machine in falling. In good working stampers there is an appreciable grinding motion when they impinge on the quartz. A slight grinding motion has a great effect in crushing quartz. No. 2 machine is superior to No. 1, inasmuch as a stamper may be taken out separately without interrupting the working of the machine. He could not say whether the rotary principle had ever been applied to crushing minerals in Cornwall. Had not seen the principle applied in any part of England. The round stampers and discs in machines No. 2 and 3 are very different. Round stampers are not essential to No. 3. If the shanks or the stampers in No. 3 were square instead of round the stampers would not revolve. Made seven years ago a machine with such stampers and with a wheel working on an inclined plane instead of discs, as in Mr. Stevens' patent. Could not apply the principle of No.1 to a circular machine.
By Dr. SEWELL. - A machine with square shanks and stampers would be liable to the defects of the Cornish machine. The one he made seven years ago was defective in this respect.
Mr. Charles Henderson, of Kennedy, Smith, and Co., deposed that he had had some experience in the erection of machinery, but not of quartz-crushing machinery. The fault of No. 1 machine (a Cornish machine) is that the square stampers cause extra friction and wear. Had not seen either of the machines in use. The friction in No. 2 machine is considerably less than in No. 1. He never heard of the rotary principle being before applied to quartz-crushing. A competent mechanic could construct a machine from the specifications attached to the application for No. 2 patent. The inclined plane in No. 3 is a mechanical equivalent for that introduced in No. 2. Both are levers. The stampers in Nos. 2 and 3 models are substantially the same. No. 2 machine is more easily repaired.
Mr. Thomas Carpenter deposed that he was a mining engineer, and had been engaged as such for six years on the gold-fields. No. 1 machine was erected by me on Bendigo, and was the first of the kind in use on the gold-fields. Its greatest fault was the unequal wearing of the stamps heads. The difference between the machine referred to and No. 2 is that the latter has a rotary motion. He saw that principle first applied on the Bendigo gold-fields. Kneebone Thomas, of Epsom, had one in use. Had seen in the museum a model of No. 3 machine; the principle involved was that of No. 2.
By the Court. - Did not think there could be any rotary motion on the face. Thought the patent valuable merely because it was less liable to wear. The stamper head would work more evenly, and a greater amount of work would be done.
Several other witnesses were examined for the plaintiffs' case, and the further hearing was adjourned till Monday (this day).
April 2 STEVENS AND ANOTHER V. KING. This was an action for infringement of a patent granted by the Government of the colony of Victoria on the 7th June, 1858, to the plaintiff, William Stevens, as "the first and true inventor of certain improvements in the construction and working of stamps for crushing minerals." The patent described the invention, as an improvement, "by constructing stamp-heads of a circular form, and also by the working of stamps, by giving to them a horizontal rotary motion during the operation of rising and falling." Three of the six issues raised by the pleadings at the trial before Mr. Justice Barry last sittings depended on whether the plaintiff was "the first and true inventor." The plaintiff obtained a verdict upon all the issues. A rule nisi for a new trial was obtained for the defendant, on the ground that fresh evidence upon the question whether the plaintiff was "the first and true inventor," had been discovered since the trial. James Lancelot Stormont, of Sandhurst, a civil and mining engineer, had sworn by affidavit, that in 1853 he invented and publicly used for six weeks, on the Black Hill, at Ballarat, and for six weeks at Rotten Gully, Ballarat, a machine for crushing quartz and minerals, with stampers which had heads circular in form, and which had a continuous horizontal motion imparted to them during the operation of rising and falling. The same person swore that an engine-driver of his acquaintance could prove that round-headed stampers having a rotary motion imparted to them during their up and down movement, were invented by a Mr. William West, at St. Austel, in Cornwall, in England, a considerable time before the plaintiff Stevens came to this colony, and obtained his letters-patent, and were publicly used there for crushing metalliferous ores.
Dr. Sewell, Dr. Mackay, and Mr. Billing showed cause against the rule. No affidavits had been filed in answer by their clients. They contended, firstly, that the defendants had shown laches in not discovering and bringing forward at the lost trial the evidence now put forward; and, secondly, that the new evidence was not of a character which, if given at the first trial, could have altered the verdict, as it did not show a sufficient use or publication of Mr. Stormont's machine to prove any more than an experiment, which seemed to have turned out an unsuccessful one, as the machine had quickly been disused by Stormont himself.
Mr. Michie and Mr. Kellows were for the rule, but the Court did not require to hear them. The Court made the rule absolute for a new trial on the second, fourth, and fifth issues, which raised the question whether Stevens was "the first and true inventor;" on payment by the defendant of the costs both of the trial and the rule.
May 30 LAW REPORT. SUPREME COURT. OLD COURT-HOUSE.—WEDNESDAY, MAY 30. CIVIL SITTINGS BEFORE TRINITY TERM. (Before Chief Justice Sir William Stawell, and Special Juries of Twelve.)
STEVENS AND ANOTHER V. KING.
This was the second trial of an action by William Stevens and George Hosking, partners in a patent taken out in this colony by Stevens, for improvements in the construction of stamps for crushing minerals, to recover damages against Minor King, for infringement of their patent. The first trial resulted in a verdict generally favourable to the plaintiffs, but the court, in banco, afterwards granted a new trial, on the ground chiefly of the defendant's sworn allegations, that he had discovered new and important evidence not before accessible to him. The new trial was, however, granted only on three out of the six issues raised by the pleadings at the first trial. Those six original issues were:- 1, "Guilty" or "not guilty." 2. Whether the plaintiff was or was not "the first and true inventor" of the improvements patented. 3. Whether the patent did or did not sufficiently describe in what "manner the invention might be performed." 4. Whether the invention was or was not, when the patent was granted, "new as to the public use and exercise thereof in the colony." 5. Whether the invention was or was not "an improvement." 6. Whether the invention was or was not "of any general use, benefit, or advantage, or in any way beneficial to the public."
The new trial was only granted by the court, under the circumstances, on the second, fourth, and fifth issues, and on condition that a verdict for the plaintiff be submitted to on the first, third, and last issues - an arrangement chiefly affecting the burden of costs ultimately to be borne by the litigating parties. Thus, the only issues now to be tried were - firstly, whether or not the plaintiff was the first and true inventor in the colony; secondly, whether or not the patent was new, as to the public use and exercise thereof in this colony; and, thirdly, whether or not the invention was really an "improvement."
Under the practice in patent cases the plaintiffs gave particulars of the breach of their invention with which defendant was charged, and the defendant gave notice of the objections to the patent on which he should rely. The breach charged against tho defendant was his sale on the 3rd November, 1859, at Melbourne, of a machine made in imitation of and adopting the principle and several of the details of the plaintiffs' patented invention.
The objections against the plaintiffs' invention were - 1. It was not new when patented; 2. It and each of its parts, were known to the defendant, to James Lancelot Stormont, and others; 3. Stevens was not the first and true inventor of the invention, or of any part thereof; 4. The invention was not, nor was any part thereof new, as to the public use and exercise thereof in the colony; 5. The invention was not an improvement.
Dr. Sowell, Dr. Mackay, and Mr. Billing, appeared for the plaintiffs; Mr. Michie, Mr. Fellows, and Mr. Higinbotham, were for the defendant. The opening speech of Dr. Sewell, for the plaintiff, the examination of the plaintiffs' witnesses, and the opening speech of Mr. Michie for the defendant, were all that could be got through by 4 o'clock to-day.
James Dow, mechanical engineer, and a licensee of the plaintiffs', described the principle and construction of engines made according to their specification. The great advantage of their invention, as compared with the old form of the stamper, as used in the old Cornish machine, was, that in the patented machine you need not stop the machine to turn round the stampers, on their becoming irregularly worn. A square stamper, not rotating, grinds off on the angles. A round stamper, rotating, wears with an even surface.
Cross-examined, Mr. Dow said that the specifications were not his instructions when he made the first machine. He took instructions from Mr. Stevens personally. The discs [collars by which certain revolving arms, called cams, lift the stampers and let them fall] got broken, in consequence of improper construction of the cams. He then altered the shape of the cams. He did not know what would be the value of the machine with the cams according to the plans. He thought much good could not be done with such a machine. Tho original cam rounded off the edge of the disc, and there would be little rotation of the stamper in that case.
Robert Fulton, mechanical engineer, described the common Cornish stamping-machine and the one patented by the plaintiffs. He considered the latter an improvement on the former. It was now extensively used. His own firm made as many of the plaintiffs' machines as of the Cornish ones. He was a licensee of the plaintiffs.
Cross-examined. - Mr. Fulton said that if the stampers did not revolve, he did not think Stevens could claim a licence. He could not say positively that the stamper had any rotatory motion after it left the cam. The original form of the cam was a little straighter than in the model of the plaintiffs' machine now shown. If that machine were driven at a high speed, the cam, after letting go the stamper, would catch it again before it had fully descended on the quartz. Witness's firm have to make a great many cams for plaintiffs' machine.
On re-examination, Mr. Fulton said that on the whole he preferred Stevens's to the Cornish machine, as it saved time and trouble.
William Thompson, an engineer, deemed the plaintiffs' invention an improvement. He had examined half-a-dozen, and was able to say that the stampers revolved both in ascending and descending. He had had seven years' experience on the gold diggings of the colony, but had never heard of rotatory stamping machinery till 1853. He believed there was no stamping machinery on Ballarat - on the Black Hill or in Rotten Gully - in 1856. The specification of Stevens's patent very nearly agreed with the model in court.
Henry Tregellis, mining engineer, had seen Stevens's machines at Bendigo and Castlemaine. They worked first-rate - were a decided improvement over the Cornish machines, as the heads of the stampers in the latter ought to be changed once a week; and in the plaintiffs' machine they required no change, as they had a rotatory motion in rising and falling.
C. Kennedy Smith, manufacturer and machinist, thought Stevens's machine an improvement, as it had less wear and tear, but he never saw a Cornish machine in action.
George Horwood, engineer and ironfounder, held Stevens's patent machine to be an improvement. He had known the gold-fields since 1852, and never heard of rotatory stampers before Stevens's machine. Never was at Ballarat.
William Crossley, engineer and ironfounder, deposed as follows: — I have known Rotten Gully and Black Hill, at Ballarat, about six years. I erected a Chilian mill up there about the middle of 1853. Dr. Otway had one or two stamping machines there in 1853, driven by a windmill. I never saw rotatory motion given in the same way before Stevens's invention, but I have seen stampers revolving. I should prefer square stampers. I have some recollection of the name of Stormont. I believe he was connected with Otway. There was only one steam-engine at the end of 1852 or beginning of 1853 on Ballarat. The cam gives a rotatory motion to the disc on the shaft of the stamper.
Cross-examined. — I left Ballarat in 1856. I was there three weeks of each month from 1852 to 1856. Never was away more than a month. The mill was on the top of Black Hill. I saw it pretending to work. It did not crush anything. I knew Rotten Gully in 1853-4. I recollect a machine at the foot of Black Hill in 1853. There was Otway's and another. I don't remember more than those two. Both were driven by bands. I don't remember one working with a horizontal band. I won't swear that there was not such a band. Otway's and the German's had not rotatory stampers. If there was a machine at Eureka Gully in 1853 I didn't see it. It is possible, but not likely, that a steam-engine might have been there without my knowing it. I saw a rotatory plan in North Wales at Brymbo. There is nothing new in revolving the stampers.
Re-examined. — There is more wear and tear in Stevens's machine than in the Cornish machine.
To Sir WILLIAM STAWELL.—In some cases the stampers in Wales are round.
James Hunt, mechanical engineer, was at Ballarat in 1854. There was only one quartz-crushing machine there. First heard of rotatory stampers 12 months ago at Pleasant Creek. Prefers Stevens's machine to the Cornish. In Stevens's the stampers revolve in the fall but not in the rise.
Thomas Henwood, quartz crusher, at Epsom, spoke favourably of one of Stevens's machines used by himself, at Epsom, for 17 months.
William Frederick Osborne, a miner on Ballarat, examined.—Was a partner of Otway. Erected on the Black Hill, in 1853, a windmill and stampers on the old Cornish principle. Had a second machine in May, 1854, a steam-engine, at the foot of the hill, and fitted it with the same stampers. There was no other machine then in Ballarat, nor afterwards, for a year or so. I never heard of rotatory stampers until told of Stevens's a few days ago. I worked in 1851, '52, and '53, It is impossible for any machine to have worked at Ballarat in 1853 or 1854 without my knowing of it. A machine could not have been publicly worked in 1853 at Rotten Gully, the Black Hill, Ballarat, without my knowing it. I never knew of such a machine being worked. I applied for a grant of land to erect machinery upon, but was refused. Sir Charles Hotham came to see our machinery, I never heard of Stormont. No such person lived near me that I know of. It must have been 18 months or two years after ours that any other machine was erected.
Cross-examined. — I am always on the look-out, but never came across a rotatory-machine on Ballarat till now. There could not have been any machine at the foot of the Black-hill without my knowing it. Any improvement in machinery at Ballarat now you can't help hearing of; but I never heard of this till now. In 1852 there were no steam-engines in Ballarat. The first was in 1853—Campbell's. Ours was the second. Campbell was only a puddler, not a crusher. It is quite impossible there could have been three or four steam-engines in use in Ballarat without my knowing it—even within three or four miles. I have not heard of any of these machines of plaintiffs' on Ballarat now. A Mr. Stormont was put forward, in view of Mr. Osborne. He said he did not know Stormont.
Robert Mitchell, a smith, on Ballarat, from 1852 to 1854, knew Otway's machine, and that there was no other machine on Ballarat till the end of 1853, or beginning of 1854, and never heard of rotatory stampers till three months ago.
George Walker, a storekeeper at Little Bendigo, in Rotten Gully, on Ballarat, from 1853 to 1854, examined.—Never saw any quartz-crushing machine there at all, and there could be none without his knowing it, as he was then working in the centre of the gully, and it was only about 600 yards long; but was not conversant with machinery, and might see a machine and not know it had revolving stampers; and there might have been machinery on Black Hill.
Joseph Deveson worked in Rotten Gully from June 1852 to July 1854. There were only puddling-tubs and spades used then. No machinery of any kind. There might be machinery on the Black Hill not visible from Rotten Gully, about a mile over.
John Thomas, quartz-crusher at Bendigo, spoke favourably of a machine of Stevens's make which he had used from July, 1858, to last July. One of the discs of his machine was shown by this witness, very little worn. Witness left Cornwall in 1848, and had never heard of rotatory stampers before this one.
Thomas Carpenter, M.L.A., examined.—Had been mining engineer eight years here. Came to New South Wales as mining engineer and assayer to the Australasian Gold Mining Company. My quartz machine put up in 1855 was the first in the colony. It was on the Cornish principle — that mode of lift for the stampers. The defect of that is the uneven wear of the stamper-heads. I have seen Stevens's machine at work. It lets the head wear more evenly, from the rotatory motion not allowing it to strike twice in one place. I have heard of the use of rotatory stampers before at home, but I never saw them.
To Sir WILLIAM STAWELL.—I never heard of them here before, but at home-but that was mere hearsay.
Witness,--I have seen mining since I was 13 years of age. I have been principally in St. Austell's, Cornwall. I never saw the rotatory motion there. The fall of the stampers is direct there. I first heard of it when I saw it at Epsom here, unless I may have seen it in papers before then. I have heard of it in England, but whether that was correct I could not say. I have seen all the large mines in England, but never saw it in use there.
Cross-examined. - I left Cornwall in 1849. Many new mines have "sprung up" since then.
Mr. MICHIE. - "Sprung down," rather.
Witness. - I have heard of the rotatory principle as in operation at home, but I never saw it; and, if it had really been in existence, I certainly think I should have seen it in some of the large mines.
To Sir WILLIAM STAWELL. - I should say it is a great improvement in this country.
Witness. - I can't say that rotatory stampers are not used in South Wales in crushing copper ores.
William Stevens, one of the plaintiffs, a Cornish engineer, examined. - Before coming here I never saw circular heads given to stampers, or a rotatory motion. My attention was first directed to the defects of the square-headed stampers, after putting up a machine on Bendigo for some Somersetshire men. After we had been a fort night at work, we were obliged to stop working, and turn the stampers round. I then tried how I could make stampers wear evenly. I first made the shaft square, and lifted it up, and turned it round each stroke after it was up ; but I found that the cam which lifted the stamper had a tendency to turn it round, so I made the stamper-head around, and then it all went round without difficulty; but by that means I lost area, and I then enlarged the circular head to the same area as the square head. That was how I came to the rotatory motion. But I can give a rotatory motion in a dozen ways, and in some ways simpler than this one. You can lift and turn the stamper by two separate motions, or by one; this is by one. A machine with two motions won't stand half as long. I saw Mr. King, the defendant, since the last action. He said, would I take a royalty of £1 per stamper? He wanted to work our stampers. I was advised not, and I said I would not do it, as it would not be fair to the other licensees who had paid £2 per stamper royalty. He took me away from the office to the Rainbow, and asked me again; but I said I would not do any business away from the office.
Cross-examined by Mr. MICHIE, as to his knowledge of one Vivian, the plaintiff said he had never spoken to Vivian in his life, but had seen his partner Hoskins speak to him. Hoskins and Vivian knew each other in Cornwall. No conversation ever passed between plaintiff and Vivian about patenting. Plaintiff never heard tell of, and never saw, the rotatory stampers before. He would not take that advantage of people if he had heard of it before. As to his having tried to procure a drawing of rotatory stampers from a Mr. Jackson, he swore that he applied to Mr. Jackson first in July, 1858, after taking out his own patent; and even then did not see what he inquired after, as Jackson had then lost it.
William Waters, patent agent, examined.-On the 20th April, 1850, witness and Mr. Hart, and Mr. King (the defendant), and Mr. Stevens, one of the plaintiffs, had an interview. Mr. King asked with what object Mr. Stevens had written to him? Stevens said because King had infringed his patent. King said-" In what way ?" Hart said-" You have taken the patent absolutely - both the circular stamp-heads, and the rotatory motion." There was a long discussion. King at last said-" Will you accept £1 per stamper-head royalty on the machines I have already made?" Hart said, "That would be unjust to all the parties who have paid the full royalty of £2." King said he would only pay on those already in existence, as he purposed making an innumerable quantity more, Hart then advised Stevens to have nothing to say to King. King then said, "Then I shall try the question, as I've got a couple of thousand pounds to do so." He asked Stevens to go for a walk, and they went out together. Stevens came back, and we all met again by appointment at Nunn's Hotel, but there was no result to the second meeting.
Cross-examined by Mr. HIGINBOTHAM.-The witness said that Mr. King's reference was particularly to two engines which he had made before, and to those only, when he made his offer.
The specifications and other formal proofs having been completed, the plaintiffs' case was closed. After Mr. Michie's speech, opening the evidence for the defendant, the court adjourned till Thursday (this day), at 10 a.m. 
June 1 LAW REPORT. SUPREME COURT. OLD COURT-HOUSE.-THURSDAY, MAY 31. CIVIL SITTINGS BEFORE TRINITY TERM. (Before Chief Justice Sir W. Stawell and Special Juries of Twelve.)
STEVENS AND ANOTHER V KING. (CONTINUED)
The trial of this case was concluded to day. The evidence for the defendant, the speeches of counsel, and the summing up of the judge, occupied the Court till about half past 4, and the jury took about an hour to consider their verdict.
James Lancelot Stormont gave evidence, in substance as follows - I came here in 1844, and settled on Ballarat in 1852. I constructed a quartz-crushing machine within 20 yards of where Dr. Otway constructed one in the end of 1853, at Black Hill. My machine was made at the end of 1852. The stampers had round heads, and had a vertical and rotatory motion. The vertical motion was given by cams; the horizontal motion by spur wheels. There were three stampers. It was erected in a public place. Dozens of persons saw it, and made fun of it. I worked it for about five or six weeks there. I crushed about 10 or 12 tons on the Black Hill. I then removed it to the bottom of Rotten Gully, a mile or a mile and a quarter off. It could have been seen by all who came. I explained it, and got laughed at for my pains by Cornishmen. There were not many persons at Ballarat then. I worked it there again five or six weeks - as much as before. The shaft revolved with a disc. The crushing produced about 10 oz. of gold to 20 tons. It was worked by hand. I made it myself. I recollect Mr Crossley. He lived about 10 yards from my tent. In 1852 I saw a drawing of an engine in Galloway for crushing flint, with round headed stampers. The revolving motion was the application of my own head. The whole machine was 6 feet high, and the stampers were 6 inches in diameter. I could not say if Crossley saw it. I told Dr. Otway of it. My mill was removed before Dr Otway. I told him that I had tried the grinding as well as stamping process. I had a mate - D. Laby, an American - who worked with me. He advised me to go into quartz. He went to California.
Cross-examined. - I came here in 1844, and to Ballarat in 1852 - in March, 1852. Dr. Otway was not there then. There were only two tents. There was no one on the hill - Black Hill; about two tents between that and Rotten Gully. There were a number of persons in the immediate vicinity. I gave an order to a storekeeper, who kept the Melbourne Store, for the stamp heads. The stamps were made of wood, shod with iron. The machine was not a mere model. We had to shepherd our alluvial claim. I showed the machine to H. Hall. He is not here. I last saw him when Sir Charles Hotham was here, at the levee. He approved of it. I cut it up, as the timber was wanted, in the latter end of January, 1853. It was made in August, 1852. I heard of Stevens's patent, and objected, but found I was too late. I heard of the first trial, and volunteered service to King. I told my evidence to Fulton, to Robert Fulton.
To a Juror. - I abandoned my machine because it didn't pay so well as alluvial.
Re-examined. - I was making trials in crushing, then. I have received as much as £8 per ton, five years ago. I believe mine to be the first machine made in Victoria. Alluvial washing was more profitable than crushing, then. One bucket of stuff paid each man of nine £384. It took all I was making by the machine for food then.
Johnston Vivian, an engine driver in the colony for three years, gave evidence of having seen, in a mine between Hailes and Helston, in Cornwall, a steam stamping - machine, with 36 stamps, turning as they rose and fell, "exactly the same as Stevens's." He had also seen Stevens in Cornwall.
Dr. SEWELL objected to this evidence on grounds which he drew from the 16th section of the Colonial Patent Act, 20 Vict., No. 3. He mentioned also that he had other objections.
The CHIEF JUSTICE overruled the objection as founded on the 16th section of the Patent Act; and, without hearing the "other objections", held the evidence admissible.
Mr. Ricards proved that, in 1857, he brought from America a single copy of the periodical called the Scientific American in which there was a drawing of a crushing-machine having cams which gave a vertical and rotatory motion by one action to stampers, similarly to Stevens's machine. He gave the copy to Mr. Saunders, clerk of the bench at Sandhurst. He first showed it to several persons, and asked them to show it to Mr. Ballersted. Mr. Saunders proved giving this copy to Mr. Parker, of Sandhurst, and afterwards getting it back from Mr. Jackson, about two months ago. Mr. Saunders now produced the identical copy. The drawing on it answered Mr. Ricards's description. Mr Jackson, of View Point, Sandhurst, ironmonger, proved getting the copy from Parker, lending it to one Harris, a steam puddler, known as Yankee Sam. He got it back, from Yankee Sam in July, 1858, after Stevens's patent was taken out. Stevens called on witness, and asked witness to lend him tho journal which had been handed to him by Yankee Sam. He mentioned some picture. Witness told him he had it in his box and would give it to him; but witness never did hand it to him. Mr. B. Mortimer, the American bookseller, swore that he had sold the Scientific American in this colony before 1856. He also swore that he had sold the American Patent Office Report of 1854, in two volumes (one volume of letterpress describing patents granted at Washington in 1854, and the other volume giving drawings illustrative of the volume of letterpress). He sold this work here in 1855 - certainly previously to 1858. The two volumes of the Patent Office Reports and the number of the Scientific American were then put in evidence. The Patent Report contained a description and drawing of a crushing-machine in which the stampers had a rotatory motion given by cams, much in the same way, and with identically the same object, as in Stevens's machine.
S P Lord, the American merchant, swore to his belief that copies of the Patent Office Reports of 1854, now put in his hands, were purchased in this colony two years and nine months ago.
Mr. Stormont, engineer, was recalled to give his professional opinion whether the descriptions and drawings of the American machine were such that the machines could be constructed from them by machine-makers of common intelligence. He deemed them clear and sufficient.
Mr M King, defendant was examined as to the interview concerning which the plaintiff, Stevens, and Mr. Waters had given evidence. On one point he differed materially from them. They had stated that Stevens had refused an offer by Mr. King, of a royalty of £ 1 on each stamper. Mr. King now swore that their demands were equal to more than £ 2 per stamper-head.
At the close of the evidence for the defendant the jury asked for and obtained 20 minutes adjournment.
In their absence, Sir WILLIAM STAWELL stated to counsel that he had looked more narrowly into the Patent Act, and was now of opinion that, though the evidence, of use in England, or elsewhere out of the colony, was not inadmissible under tho 16th section, as argued by Dr. Sewell, it was inadmissible by reason of the 35th section, regulating the particulars of objections which might be given against patents on the trial of their validity. Looking at these regulations, he thought the evidence inadmissible, as the objections delivered by the defendant had limited the prior use to Ballarat only. He should, therefore, strike out the evidence of Vivian as to use in Cornwall, and withdraw it from the jury in charging them.
Dr. SEWELL addressed the jury in a general reply.
Sir WILLIAM STAWELL, to the jury. -This action, though formally for damages, is in reality to establish a right, and not to recover damages, so that the damages will be only nominal. The three issues now before you are - Firstly, was the plaintiff, or was he not, "the first and true inventor?" Secondly, was the invention, or was it not, "new as to the public use and exercise thereof in this colony?" And, thirdly, was the invention, or was it not, "an improvement?" As to the question generally - before going into these particular issues - it has been urged that the question of the validity of this patent is a public question. It is so, certainly, to an extent; but that must not mislead you in your mode of dealing with the question as it now comes before you, because there are other proper modes particularly provided for testing the patent in that point of view. Still, however, as one at least of the issues, if not two, relate to the use of the invention by the public, it will be necessary to consider the broad question. You are all aware that a patent is, no doubt, a monopoly of the use of an invention, granted in consideration of the inventor having made a useful discovery. The Legislature has in effect said, that the country is prepared to pay a higher price for the invention for a certain number of years, in order to induce the discovery and publication of similar valuable inventions in future, and so, in a manner, it has given the patentee a bonus on his invention for 14 years.
In this point of view, it is undoubtedly true that the interest of everyone is involved. It is for you to say, was this man the real inventor? If he were so, then, was the discovery a new invention? It may be perfectly true that the plaintiff honestly, faithfully, and conscientiously believed he was, and put himself forward as the discoverer; and yet equally true that the discovery is not new. He may have been too late in the field, though a discoverer for himself; for there may have been another who made the discovery, and made it public before the plaintiff, though the plaintiff did not know of it. So that finding that this invention is not new may in no way affect the character of the plaintiff. But, on the other hand, the defendant is at liberty to say that, as what the plaintiff has thus discovered was discovered and made public by another long ago, he, the defendant, and the public have a right to complain, that he and the public should have to pay a higher price for that which is really no new invention at all; and that a man who is not the first discoverer and publisher of an invention should obtain a patent and a bonus for that which is not a new invention at all. The public interests may thus be involved in these issues between the plaintiffs and defendant; but that must not influence your verdict in any way whatever, excepting so far as you may fairly see, that the evidence shows whether this invention was really given to the public before the plaintiff obtained his patent for it or not.
On the first issue, whether the plaintiff Stevens was the "first and true inventor," there is no evidence that he actually knew of the invention before his own patent was issued; but there can be little doubt, if the evidence of the defendant's witnesses be believed, that other persons must have known of it before. The person referred to as Yankee Sam certainly seems to have been shown the Scientific American in 1857. But there is no evidence to show that Stevens knew of it till after his patent, which was issued in June, 1858.
The substantial defence, however, is on the second issue, whether or not the discovery was new - whether it had been used, practised, or vended in public in this colony. The word public here is used in opposition to secret. It does not mean all the country side; it is opposed to secret. If a man keeps an invention in his own closet, then he does not make it public, but keeps it as his own secret. The object of granting the patent is to let the discovery be known, and that it should not be kept secret; and if it is already published, and not kept secret, the patent has no foundation. It is not necessary to show that all people know of an invention. It is for you to say whether this invention of Stormont's was used generally; I mean not secretly, but publicly, and in such a manner as that the public near, whether the people were few or many, had an opportunity of seeing it in use. The plaintiffs have not contended that Stormont's instrument was different from theirs; so you have only to say whether it was used openly, and not secretly, in a locality in which persons resident there, or the public generally, might have seen it. If so, the defendant is entitled to a verdict, as in that case the plaintiffs' patent was for an invention which was no new discovery, so far as the public use thereof in this colony was concerned. Again, was this invention published in any book circulated here, so as to make the invention public?
If you believe Stormont's evidence as to his use of the instrument as he described, it would be far more proof of public use than this purchase of the American periodical by the seller's friends. Yet, the latter circumstance is evidence in two aspects - firstly, in direct proof of the fact of publication here; secondly, in corroboration of a portion of Stormont's evidence. Evidence has also been given that this invention was used in Cornwall five years ago. But on looking closely into our own Patent Act, passed in 1855, I find that the nature of the objections to the patent made by the defendant does not entitle him to adduce that evidence. So that you will leave Vivian's evidence out of your consideration altogether. The whole of it must go out; and you must, as far as you are able, not allow yourselves to be influenced by it any more than as if it had not been given.
His Honour then minutely criticised the evidence on the question of the public use, or not, of Stormont's machine on Ballarat. He pointed out that the plaintiffs were under the difficulty of proving a negative; and the defendant, under the more easy duty of proving distinctly an affirmative. He showed that the plaintiffs, though long before aware that Stormont would be a witness, had only given evidence relating to 1853 and after, while Stormont gave a precise time from August, 1852, to January, 1853, as that during which his machine was at work. He also observed that many of the plaintiffs' witnesses spoke negatively with a positiveness which savoured somewhat of presumption, looking to the distance of time, the aspect of the locality at the time, and the circumstances of their residence. Others of the plaintiffs' witnesses who were less positive, but yet who gave their impressions as strong and clear, were more reliable in his Honour's opinion. On the other hand there was Stormont's own testimony. In reference to that, it was a curious circumstance in corroboration of it, that he had said his partner went to America, and that within a year afterwards this precisely similar American invention was patented in America. Stormont had been asked whether he saw the public notice advertised before the grant of Stevens's patent. He had said he did not till after he understood it was too late to object; and he had said that he did take some steps. Unquestionably, if he had, taken no steps, and had lain on his oars when a similar invention to his own was patented, it would have been a strong circumstance of suspicion against his prior invention. But he had made objection; and it had appeared that Fulton was unwilling to litigate with the plaintiffs, because he was then making money by the construction of machines on their plan.
His HONOUR continued. - Do you believe that an instrument of this kind described by Stormont was used at Ballarat, and so used as that all the public might see it? If so, the defendant is entitled to the verdict. Cases have been read to you from the law books. It is dangerous to quote law to a jury. You can't make a lawyer of a juryman in five minutes. I shall direct you that if the use was public at the time stated by Stormont, it was not necessary that it should be continuous from then up to the time of the patent. It would be different if Stormont's was only an experiment, or a trial of a model, put up and discontinued, or abandoned. The abandonment, then, would be evidence that the invention was never perfected, or published as perfect. It would not then have been a practical invention or discovery. The instrument might have been small, but yet not a mere model. It was worked for 10 or 12 weeks. If a mere model or toy, it should have been operated on till the patent; but if a practical invention, then the public use of it need not have been continuous up to the patent; so that the evidence of use at Ballarat is limited to the testimony of Stormont and the corroborative evidence of the American book. The evidence against that is the negative evidence you heard from the plaintiffs' witnesses. There is also evidence of a patent known through the circulation of the American periodical and book. If' that stood by itself, I should tell you it was not enough; but taken in connexion with the other testimony it is evidence for your consideration.
His HONOUR then went to the third issue, whether or not the invention was an improvement; and reviewed the evidence, which he deemed not so satisfactory as it might have been. On this point the plaintiffs' own witnesses were not quite unanimous. One preferred square headed stampers; another, Dow, seemed not much enamoured of it ; and Fulton seemed to make as many of the old Cornish machines.
However, the relative sale was no criterion, for the good might be less sold than the bad; and for the jury to judge by the sale of whether the invention were an improvement, would be to allow other men to judge for them, instead of judging for themselves. The expense also was not a very important element. The jury would not be wise to balance on these points too nicely, and if the revolving was an improvement, they would probably not look very nicely into counterbalancing circumstances. Still these must not be left out, as they might be such as to make the discovery worthless in practical use. His Honour repeated that the damages would be but nominal, as the action was merely to establish a right.
The jury were locked up about an hour. They returned with their verdict at 5.20 p.m. The foreman at first said, simply, "We find for the defendant on the first issue; and for the plaintiff on the second and third issues." He then added, as we understood him, the following words :- "We are of opinion that he was not the first inventor in the colony, but we think he was the first to apply it here in public use." The foreman then went on to say something which we did not catch verbatim but which counsel for the plaintiffs took as indicating a verdict for his client on the first issue also. But
His HONOUR said no; I quite understand the verdict.
His HONOUR certified for a special jury, and gave leave to move to-morrow for a certificate that the action was to try a right. The court adjourned till Friday (this day) at 10 a.m.
- ↑ 1.0 1.1 1.2 LAW REPORT. (1860, April 3). The Argus (Melbourne, Vic. : 1848 - 1957), p. 6. Retrieved October 10, 2015, from 
- ↑ 2.0 2.1 2.2 LAW REPORT. (1860, March 12). The Argus (Melbourne, Vic. : 1848 - 1957), p. 7. Retrieved October 10, 2015, from 
- ↑ 3.0 3.1 3.2 LAW REPORT. (1860, May 31). The Argus (Melbourne, Vic. : 1848 - 1957), p. 6. Retrieved October 10, 2015, from 
- ↑ 4.0 4.1 4.2 LAW REPORT. (1860, June 1). The Argus (Melbourne, Vic. : 1848 - 1957), p. 3. Retrieved August 22, 2015, from 
--Neil Huybregts 18:01, 11 October 2015 (AEDT)