Viscount Dunedin:-

The present action is directed against an infringement of a Canadian patent, 192726 of 1919, which is owned by the appellants. There were originally two actions brought, one against the present respondents, the Spanish River Pulp Company, and the other against a company called the Abitibi Company. The cases were tried together, and the evidence in each admitted in the other. The defences were various :- (1) Want of novelty and no subject matter; (2) anticipation; (3) a defence founded on certain Canadian statutes, which will be explained later; and (4) denial of infringement. The trial judge gave judgment in favour of the respondents in respect of (1). He dealt with (2), and used much of what had been proved under that head in support of his judgment on (1), but he did not formally pronounce that there had been anticipation. He found it in these circumstances unnecessary to consider (3) and (4). His judgment was confirmed simpliciter by the Supreme Court of Canada, who were unanimous.

The present appeal is brought by special leave. Their Lordships think it necessary to say that it must have been conveyed to their Lordships who granted the leave, that the case raised an important and general question. Speaking generally a patent case has to do with the construction and the infringement of one or more particular patents, and it cannot often be said that any general question is thereby raised. In such cases where there have been concurrent judgments of the Judge of first instance and the Court of Appeal, their Lordships would deprecate the idea that leave should be given to appeal to the King in Council.

Leave however, having been given, it is their Lordships' duty to deal with the case, and they must say at once that the case does not fall within the rule known as the rule of concurrent findings. This matter was exhaustively dealt with in the recent case of Robins v. National Trust Co. [1927] A. C. 515 and on p. 518 this is said:

"There is, however, also another way of preventing the application of the rule. If it can be shown that the finding of one of the Courts is so based on an erroneous proposition of law that if that preposition be corrected the finding disappears, then in that case it is no finding at all."

It is quite true that, dealing with the respective functions of Judge and jury, there is high authority to the effect that while it is for the Judge to construe a specification, it is for the jury to contrast the specification so construed with the facts of the case as found so as to arrive at a conclusion either as to anticipation or as to novelty and subject matter, but there must be no misdirection as to the facts found or as to how they may be handled. In a case tried by a Judge alone he fulfils the functions of both Judge and jury. If, therefore, it can be shown that in the view he has taken there is something which, if addressed to a jury, would be misdirection, there is no finding of pure fact in the judgment, and the rule, as explained above, does not apply. Their Lordships therefore felt bound to hear counsel on the merits of the case so as to come to a conclusion thereon.

The patent is for a device to be used in connexion with the calendar rolls of a Fourdrinier paper-making machine. To make the matter intelligible it is necessary to describe the machine. The Fourdrinier paper-making machine is a machine for making paper from wood pulp. The pulp starts from a receptacle where it is in a highly triturated state and full of water, which at that stage represents 99 per cent, of the mixture. It is spread on to a travelling band of the breadth of what is to be the eventual paper sheet. This band is of sieve-like formation, and as the material travels forward it gradually loses its water. A large part of the water being gone, it next goes on to a felt band, and that band goes through press rollers which squeeze still more of the water out, and then through drying rollers which effect the final drying.