The Permutit Co. v. Borrowman

citation(s): [1926] 4 D.L.R. 285 (Privy Council per Viscount Cave, L.C.)

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This appeal relates to two conflicting patent applications for the use of greensand or glauconite for softening water. The issue was whether Spencer or Borrowman was the first and true inventor.

At pp. 286-287:

Those being the facts as regards the respondent, the question is whether Spencer, the predecessor of the appellants, has been proved to have made the same invention, in the true sense of the word "invention," before that date. Spencer gave evidence in this case, and he said that he had the idea, or (as in one passage in his evidence he calls it) the vision, of this process in or just before the month of May, 1912, and he referred to certain letters and other documents which he says indirectly corroborate his statement. This evidence is not strong, and is open to considerable comment; but it is needless to examine it in detail, because it appears to their Lordships that, assuming it to be true, it is not proved that there was an invention by Spencer within the true meaning of the statute. Spencer did not test his idea; he made no experiments for that purpose; he did no work for that purpose. It is said that he communicated the idea through his agent to a Dr. Duggan, who was then connected with the Permutit Co. and that Dr. Duggan tested it and came to some conclusion about it; but it is plain that what Dr. Duggan did he did for his own purposes, and not as the agent of Spencer. Spencer in his evidence makes that clear, for he says that he took a portion of greensand and carried it to his agent's office for the purpose of having it forwarded to parties in New York with the idea that they would do the necessary work and report to him, but that those parties were unknown to him, that he heard nothing from them, and they made no report to him; and apparently he did nothing from them, and they made no report to him; and apparently he did nothing whatever further until late in the year 1916, that is to say, at a date after Borrowman's invention was fully made and completed.

The Decision

At p. 287:

These being the facts, it appears to their Lordships that it is not proved that any invention in the true sense of the word was made by Spencer in 1912.  It is not enough for a man to say that an idea floated through his brain; he must at least have reduced it to a definite and practical shape before he can be said to have invented a process.

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