JAMES RUSSELL, v ANDREW CRICHTON (Court of Session)

This was the case which was before the Court on the 1st June 1837. (See Vol. xii. p. 966.)

Whether the defender, by himself or others, did at Glasgow, during the year 1836, and subsequent to that year, without the consent or permission of the pursuer, and in contravention of the privilege granted by the said letters-patent, wrongfully manufacture, or wrongfully cause to be manufactured, certain tubes by machinery or means substantially and in effect the same with the machinery and means described in the specification aforesaid, to the loss, injury, and damage of the pursuer ?’

The defender objected to this issue, and pleaded , that as he denied the improvement, for which the pursuer held a patent, was a new or original invention, the pursuer ought to take an issue to prove these points, which could not be held as established by the possession of a patent which was passed without any contradictor periculo petentis; at least he, the defender, was entitled to take an issue of denial of the invention, for which his statements on record were quite sufficient.

The pursuer answered, that possession of a patent was prima facie evidence of original invention, and threw the onus of disproving it upon the defender.

The Lord Ordinary pronounced an interlocutor, by which he ‘Approved of the issue proposed by the pursuer, and appointed parties' procurators to be ready to close the record, unless the defender intimated his intention to take an issue on the denial of the invention, and asked permission to amend his averments in reference to such issue.’