Judge Buller and the Arkwright trial.

Judge Buller was often criticised for his sometimes hasty and prejudiced behaviour on the bench. He was alleged to have said that a husband could thrash his wife with impunity provided the stick was no bigger than his thumb

Francis Buller was educated at the Grammar School in Ottery St Mary and went on to Christ's Hospital, London. In February 1763, he became a pupil of William Henry Ashurst at the Inner Temple. He became a special pleader in 1765. A special pleader was a lawyer who specialised in drafting "pleadings" or what are now referred to as statements of case. He was called to the bar in 1772 and became King's Counsel in 1777. In  the following year at the age of 32, he was made a puisne [subordinate] judge of the King's Bench.

 

He was often criticised for his sometimes hasty and prejudiced behaviour on the bench. He was alleged to have said that a husband could thrash his wife with impunity provided the stick was no bigger than his thumb, leading to the phrase “rule of thumb” which is still used today but never as part of English common law merely as a colloquialism.

 

In 1785 he presided over an important trial involving the validity of a patent held by Richard Arkwright the cotton manufacturer. Arkwright had invented and patented many machines used in the process of producing yarn. This meant that much of the cotton industry manufaturers were using technology which was owned by Arkwright but because this technology was so sucessfull they continued to use the machinery without Arkwright's permission. Arkwright had already taken legal action against nine firms in 1781. The nine firms claimed that the language of his patents was too vague and Arkwright, who had wanted the language of his patents to be exactly that was found to have no case.

 

So in 1785 he took legal action once more to enforce his patents, but by now so many were using his machines that he could not defeat them.Mr. Justice Buller stated, that -  the case was of great importance and that one of the questions was, whether the machinery was invented by the defendant. Judge Buller concluded as follows: " Gentlemen. thus the case stands, as to the several component parts of this machine; and if upon them you are satisfied, none of them were inventions unknown at the time this patent was granted, or that they were not invented by the defendant, upon either of these points, the prosecutor is entitled to your verdict. If upon any point, you are of opinion with the prosecutor, you will find a verdict for him. If upon all the points, you are of opinion for the defendant, you will find a verdict for him."


The verdict was against the defendant; a new trial was moved for, but no allegation was made of a misdirection in point of law.


Reference is still made to Arkwright and Judge Buller even now, and is mentioned in a Report to the Strategic Advisory Board for Intellectual Property Policy prepared in 2010:


....and the fact that a patent-holder may 'undercut disclosure by being either terse or wordy - disclosing so much that the key points are obscured by irrelevant verbiage and data' The strategy is as old as Arkwright‟s patent, which was eventually revoked. Buller CJ said that if, to work the patent “four things only were necessary instead of ten, the specification does not contain a good account of the invention”: R v Arkwright (1785)

 

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