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a special training, and who have peculiar mental characteristics. For the purposes of patent law administration, the
. United Kingdom should be divided into districts, and a judge of the Patent Court should sit, at fixed intervals, in some central town in each district, and should try all causes which had arisen therein.
The next point to which we shall direct our attention, is the employment of what are called “skilled witnesses." Witnesses of this kind, in addition to deposing to facts within their knowledge, are allowed to give their opinions on points respecting the matter in dispute, as to which they are considered to be skilled, and their employment is, in our opinion, the great curse of modern litigation. We say this advisedly, for it is well known that scarcely any case is so desperate that witnesses of this character, and sometimes men of eminence, cannot be retained to give evidence in support of it, to the great cost of the parties, and at the risk of a failure of justice. Sometimes an arbitrator who has listened for days to the examination, cross-examination, and re-examination of the skilled witnesses produced by the parties, is at last reduced to such a state of doubt and perplexity by their swearing and counter-swearing, that he finds it necessary to take the opinion of a man of his own selection, who is skilled as to the matter in dispute. When this occurs, the arbitrator is of course guided in coming to his decision by the opinion which he has thus obtained, since it is the only opinion before him which has not been given by a partisan, brought forward and paid to support a particular view of the case ; the opinions expressed by the skilled witnesses called by the parties are entirely disregarded by him, and much time and money is wasted, which might have been profitably employed in some other way, if the expression of such opinions had been prohibited, and the arbitrator had done at first what he was compelled to do at last. The above example of what sometimes happens in arbitration cases, both illustrates the evil which we are now considering, and suggests its remedy.
VOL. XXX,--NO. LIX,
In the Patent Court, and in all courts for the trial of civil cases, the witnesses called by the parties should be required to depose to facts within their knowledge alone, and should not be allowed, under any circumstances, to give their opinions respecting the points in dispute. If, however, either of the parties was anxious to have the opinion of a skilled witness given at the trial of his cause, it should be open to him to apply to the Court or to a judge at chambers, to appoint one. If satisfied that it would be necessary or desirable that the opinion of a witness, who was skilled as to the matter in dispute, should be given in evidence at the trial of the case, the Court or judge so applied to, should have power to grant the application, and to select and to appoint one or more such witnesses to attend for that purpose, every witness, so selected and appointed, being considered to act as an officer of the Court, and being entirely independent of both the parties. In cases where a view was required, the parties or their agents should be allowed to accompany the witness or witnesses to take it, in order to point out the matters to which they thought attention ought to be directed. At the time and place appointed for that purpose, the witness or witnesses should appear, and should give evidence when required by the Court to do so; the counsel of either party to the cause having a right to cross-examine each skilled witness, in order to ascertain whether he had duly considered all things necessary to be considered in forming a sound and reliable opinion. If this cross-examination showed that any skilled witness had overlooked some points to which he ought to have directed his attention, the Court should have power, either to remit the case back to him for further consideration, or to select and appoint one or more additional skilled witnesses to consider the matter on which information was required, and to give evidence respecting it.
When an action is brought for the infringement of patent rights, the defendant is allowed to dispute the validity of the
plaintiff's patent, if he give him notice of his intention to do
In this notice the defendant must give explicit information as to the objections to its validity upon which he intends to rely, and if at the trial of the cause he succeed in establishing any of them, the plaintiff is defeated in his action and has to pay the costs. Now, though the plaintiff may thus be defeated in his action for infringement, on the ground that his patent is invalid and ought to be cancelled, it does not thereby become void; for, as our law now stands, a patent does not become void, until it has been declared to be so in a suit brought expressly to try the validity of the grant. The legal proceeding required by our law for this purpose is prosecuted in the name of the Queen, and is called a writ of scire facias.
Any person may petition Her Majesty to direct a writ of scire facias to try the validity of a patent, and the petitioner who puts the law in motion is liable for the costs of prosecuting the writ, and is also required to give a bond to secure the patentee's costs in the event of its failure. The evidence required in a proceeding of this kind is similar to that which is required in an ordinary action for infringement, in which the validity of the patent is disputed, and if the verdict is for the Crown, the patent is void and the Court orders it to be cancelled. Now the interests of the public demand, that patents which ought to be cancelled shall be cancelled as speedily as possible, so that all persons wishing to make use of the arts and manufactures described in the specifications, may know that they are at liberty to do so. In order to protect these interests, we propose that it shall be the duty of any judge of the Patent Court who tries an action for infringement, in which the validity of the patent is disputed, to order it to be cancelled, if it be proved to his satisfaction that it ought to be cancelled, sufficient time, however, being allowed for an appeal to the full Court, between the date of his order and the date fixed for its execution.
There are many other particulars in which our patent laws require to be simplified and otherwise improved, but we are
obliged to leave them unnoticed, and we regret that we have been unable to give more than mere outlines of the few amendments which the space at our disposal has allowed us to suggest; we must leave our readers to supplement these outlines by their own knowledge and reflection.
ART. II.-DIGESTS AND CODES.
A Letter to the Lord Chancellor concerning Digests and Codes.
By W. R. FISHER, of Lincoln's Inn, Barrister-at-Law. London: Butterworths. 1870.
to the above-named publication. Mr. Fisher has an especial right to put forward his views upon the subject indicated, not only by virtue of his position as one of the foremost text-writers of the day, but yet more because he is one of those who were selected by the Digest Commissioners to prepare a specimen Digest under their supervision.
Possibly our readers may not remember the precise position of the question at the present moment. The Law Digest Commission made their first Report in 1867. Thereby they declared their opinion that the construction of a Digest was desirable : and further advised that, as a preliminary and experimental step, a portion of the contemplated Digest, sufficient in extent to be a fair specimen of the whole, should be in the first instance prepared. In conformity with these recommendations, three several branches of the law were selected to form the subjects of specimen Digests. These specimen Digests were to be constructed under the supervision of the Commissioners by gentlemen nominated by them, and were designed to precede the actual commencement of the task of preparing an entire Digest of the Law.
Mr. Fisher was selected to construct one of these specimen Digests, the subject committed to his charge being the Law of Mortgage and Lien. Upon this task Mr. Fisher was engaged for some time, and it is understood that a considerable portion of the work has been completed. In the present year, however, the Commissioners have made another Report. Therein they state, that although the specimen Digests are not yet complete, the task has already served its purpose by enabling the Commissioners to form conclusions as to the conduct of the entire work. They therefore recommend “ that the work of a general Digest, based on a comprehensive plan, and with a uniform method, should be at once undertaken," and that it should be carried on under the supervision of a permanent board of professional men of the highest skill, whose whole time should be given to the task, and who should be highly remunerated. The specimen Digests, so far as already complete, would be available as materials for the construction of the entire work.
From this Report Mr. Justice Willes dissents. His Lordship states his opinion to be that a Digest would after all be only a make-shift for a Code, and advises that, instead of a Digest, the construction of a Code should be immediately commenced.
Hereupon comes Mr. Fisher's letter. He addresses himself especially to the views expressed by Mr. Justice Willes, and shared with him by many others. Mr. Fisher endeavours to show that these views are erroneous. His contention is that the completion and publication of a Digest should precede any attempt directly to form a Code. Not that he is in any way opposed to codification ; on the contrary, he agrees with Mr. Justice Willes in regarding a Code as the ultimate object to be aimed at, but he prefers to approach it through and by means of a Digest, in preference to attacking it at once.*
* Mr. Austin appears to have been of the same opinion. See his collected works, Vol. III., pp. 279, 281, et seq.