The Commonwealth Law Reports Volume 3; Cases Determined in the High Court of Australia - Australia High Court

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1906 Excerpt: ...defence of want Ilfleyoke 0f novelty, a prior publication must be shown to exist of the ConcentraTor SyndiCs tk Ltd. Barton J. essential and practical working of the invention. Shortly before that case, which was decided in the House of Lords, there was a case of Beits v. Menzies (1), and portion of the headnote, to which I wish to refer, is this, that--" Where two specifications"--or, as in this case, a publication not being a specification, and a-subsetjuent specification--"of different dates, relating to the same external object, contain terms of art, though the expressions used in both are identical, their construction cannot be declared to be the same without the meaning and the use of the terms of art employed therein being first ascertained by evidence, and being shown to be the same at the date of both the specifications." I mention that portion of the headnote at this stage for the purpose of expressing my opinion that in the publication in the "Engineering and Mining Journal" we can scarcely say the terms of art trouble us, or that there are in it any such technical terms as require explanation, in determining which we exercise here the functions of a jury in addition to the functions of a Judge. We have then, first, to construe these two documents as Judges, after having any technical words in them explained to us by evidence as if we were a jury. Having made up our minds what they mean--having construed them---we have again to exercise the functions of a jury in comparing and deciding whether the words as interpreted by ourselves, contained in the publication Ex. D., do or do not denote the same "external object," to use Lord Wextbury's expression, as the words used in the respondents' specification. I hav...