Bainbridge v. Wigley

The case of Bainbridge v Wigley dates from December 1810, at the threshold between a few years of invention and change for William Bainbridge, at the start of his mature period. At the time, British patent law was still very much in its infancy and copies of patented devices, especially musical instruments were not uncommon—a fact attested to by the large number of copies of Bainbridge’s “Improved” Flageolet still in existence. A significant proportion of Bainbridge’s mature life seems to have been occupied with litigation against those who he considered to have copied his instruments, although without a great deal of success. Not only did he have to withdraw his action in his case against Wigley but lost another case, in 1817, against John Briggs.

In legal terms, the case of Bainbridge v Wigley, is not particularly important and would have almost certainly be forgotten had William Carpmael not published it in a 1846 collection of patent cases which dated before 1835 (when Lord Brougham’s Act “to Amend the Law Touching Letters Patent for Invention” was passed). Its one subsequent use in court was when it was used by the defence in the case of Beard v Egerton and Others (1849) 8 CB 165. Here the counsel argued that when a patent was granted on erroneous terms, (as it was ruled had happened in the case of Bainbridge’s Improved Flageolet patent) it was invalid and could not be infringed.

The case is interesting for those the study of the flageolet as it gives detailed descriptions of Bainbridge’s improvements to the English flageolet and a few other details of musical life in London in the 1810s. In particular:—

1. It is clear that in 1810, the two of main opera–houses in London (the Royal Opera House, Covent Garden and the Lyceum), employed professional English flageolet players (who were called as witnesses in the case). Interestingly, the Royal Opera House’s flageolet–player was called Sharpe which, in what is likely to be mere coincidence, is similar to the family name of the Sharps who are depicted with flageolets in Johan Zoffany’s group portrait (painted about 30 years earlier).
2. Bainbridge considered his flageolet capable of playing up to an F (by which he probably meant an F♯). Although Lord Ellenborough held that this was an addition of only one note to the range of the instrument, this judgement does, retrospectively, look flawed as the upper limit of an English flageolet is generally regarded to be the D below this F. Additionally, the use of Bainbridge’s trill key would have allowed any new note to be changed by a semi–tone (thus turning it into two notes).
3. Bainbridge aimed to make his flageolets in a variety of keys, namely D (the “octave”), C, B, A, F and E. The “octave” was the smallest size, with each of the other instruments growing increasingly large until they approached flute size. Few instruments have survived in any sizes apart from the “octave” and although a few non–standard ones exist, modern identification is a little difficult due to pitch variation over the last 200 years and Bainbridge’s habit of marking all of his instruments as if they were in D (in order that the same tutor book could be used for all of them).
4. Bainbridge was strongly in favour of making and using his flageolets with a thumb–hole on the back (although this hole was particularly small so that it only acted as a “speaker” and it was not necessary for the player to “pinch” the hole with his thumb).

The case also reinforces a number of other details about the “Improved” flageolet (such as the raising of the tonic note by a forth, from being played with six fingers to being played with three) which are more widely known.

In the Court of the King’s Bench—December 1810

The plaintiff and the defendant in this case were both musical instrument makers. The action was brought for an infringement of the plaintiff’s patent right of exclusive making his improved flageolet. The plaintiff’s specification stated that he had improved the flageolet by perfecting notes which were before imperfect on the old instrument, by giving it a power of producing notes not before to be produced on the old instrument; and also for rendering the fingering of it less complication, inasmuch as on his improved instrument cross fingering was avoided, and the notes were produced by raising the fingers in succession and in their natural order. Another improvement resulting from this mode of fingering was, that the music might be pricked as easily by cyphers as by the musical characters. The specification then set out the mode by which that was effected, which was by additional keys, by varying the position, and altering the dimensions of some of the finger holes; some objections were taken to the specification, but Lord Ellenborough held that the specification was only the modus operandi; and in order to ascertain whether that was good or not, would be to call competent workmen and to asked them whether they could make the instrument by the mode therein specified. Two witnesses, Mr. Sharpe, the flageolet player at the Opera House, and the person who played the same instrument at the Lyceum, were called to describe the improvements of the plaintiff’s patent instrument. They both described it as a great improvement. In the old instrument, C natural on the third space, was so imperfect and discordant a note, that they always transposed music into another key to avoid it. By the patent flageolet also they could go as high as double F, which was a note beyond the compass of the old instrument. It did not appear that it produced any other new note.

Lord Ellenborough held, that this would be fatal to the patent, the ground on which it was granted having failed, the consideration on which his Majesty was induced to grant his patent not being truly stated; it was granted on the faith that the patentee had truly stated the grounds on which he claimed that exclusive privilege. It was here stated that the plaintiff had by his improvement given new notes to the instrument, whereas, in fact, he has produced but one new note.

His Lordship having intimated this opinion, the parties, after a short consultation of the counsel, came to a compromise. It was agreed to withdraw a juror, by which both sides pay their own costs, and the plaintiff undertook to bring no new action.

Bainbridge’s Patent (as reported)

The specification was in the following words:—

“To all to whom these presents shall come, I, William Bainbridge, of the parish of St. Andrew Holborn, in the City of London, Musical instrument maker, send greeting. Whereas, his most excellent Majesty King George the Third, did, by his letters patent, under the Great Seal of the United Kingdom of Great Britain and Ireland, bearing date at Westminster the 26th day of February, in the fiftieth year of his reign, give and grant unto me, the said William Bainbridge, my executors, administrators, and assigns, his especial license, full power, sole privilege and authority, that I, the said William Bainbridge, my executors, administrators, and assigns, during the term of years therein mentioned, should and lawfully might make, use, exercise, and vend, within England, Wales, and the town of Berwick–upon–Tweed, my invention of “Certain improvements on the English flute or flageolet;” in which said letters patent there is contained a proviso obliging me, the said William Bainbridge, by an instrument in writing under my hand and seal, to cause particular description of the nature of my said invention, and in what manner the same is to be performed, to be inrolled in His Majesty’s High Court of Chancery, within two calendar months after the date of the said recited letters patent, as in and by the same relation being thereunto had, may more fully and at large appear. Now know ye, that in compliance with the said proviso, I, the said William Bainbridge, do hereby declare, that the nature of my said invention, and the manner in which the same is to be performed, are particularly described and ascertained, as follows, that is to say:—

“First and principally, I do construct the English flute or flageolet in such as manner, and with such proportions of the parts, that the upper joint or mouth joint shall be the same or nearly the same as in other English flutes or flageolets, as far as relates to the several parts by which the peculiar sound of the instrument is produced, and that the other joints upon which the fingering is performed, shall be either the same or nearly the same as those of the German flute, in order and to the effect that the English flute or flageolet so altered and improved, may and shall require the same fingering in performing as is required to be used in performing on the German flute. And I do declare that in order to produce the said last–mentioned effect in the most complete and perfect manner, it is necessary that the following directions should be attended to; that is to say:—

“Let from the upper joint, which is to be plugged, by bored throughout regularly from end to end about one eighteenth part of an inch wider than the upper joint of a German flute of concert pitch,and let the other joints be turned and bored in the same manner as a good German flute, with the additional keys, or with one only, as may be required. And let the holing be the same, except the third and fourth hole from the top, which will be better if made a very little smaller than usual, because such construction will prevent the G and A from being too sharp. And whereas, the F sharp is too flat on most flute, it is advisable to make the fifth hole a very little larger than on the German flute. And moreover, I do declare, that the upper joint of the English flute or flageolet may be turned of the same thickness as that of the German flute of the same pitch, and that in such and the said case the distance from the centre of the plugged part to the centre of the uppermost finger–hole must be about nine inches and five–eights. And that I do cut away the back part of the plug underneath about one inch deep, but do at the same time leave that part of the plug which covers the throat about the thickness of three–sixteenths of an inch, but that the thickness or quantity to be cut from the plug may be, without difficulty, regulated by a competent workman or maker of these of the like instruments. And further, that the breadth of the plug–hole of an English flute or flageolet as before described must be from side to side about half an inch, and the distance from the bottom of the plug to the wind cutter about the three–sixteenths of an inch; and that the distance from the hole out of which the sound issues, or the plugged hole to the first finger hole may be varied, and the same effect continue to be produced; that is to say, if the plugged joint be turned of larger diameter, and be flatter, and, consequently, the distance between hole and hole must be less; and so, on the contrary, if the diameter or bore be smaller and the plugging the same, the instrument will be sharper and the distance from hole to hole must be greater; and a like observation may be made with regard to the variation of the said distance between hole and hole if the plugged hole from which the sound proceeds be made either larger or smaller, because the larger hole will give the sharper pitch, and will require the said distance between hole and hole to be great; and, on the other hand, the smaller hole will give the flatter pitch, and require the said distance to be less, the bore being supposed the same in both cases. And lastly, if the bore itself be varied as to the plug or upper joint the wider bore will be the flatter tone, and require the holes to be nearer together than would be required if the bore were narrower.

“Secondly, I do make a small aperture about the size of a strong pin, in the said top joint, about two inches from the top hole of a concert flute or flageolet, as hereinbefore described; and I do cover the said hole either with the thumb or by means of a key for producing all notes below E on the fourth space, and I do uncover the same for producing all notes about that E, by which means the said last–mentioned notes are rendered more clear and certain. And I do declare, that the said small aperture will produce the like effect if placed within considerable limits, either higher or lower, but that the situation here described is the best because it makes very little difference of pitch in the notes above E.

“Thirdly, In order to construct flutes of various sizes with the improvements hereinbefore described in the best manner, the following instruments must be attended to.

1. For the octave let the upper joint be bored about the thickness of a piece of paper wider than the German flute of that size, and from the top finger hole to the sound hole or centre of plug hole, when turned the same as an octave German flute, the distance must be about four inches and a half, and the breadth of the plug hole about five–sixteenths of an inch, and from the bottom of the plug to the wind cutter about one–eighth of an inch, and the back of the plug must be cut away, as in the large size, about half an inch, leaving the surface of the plug in thickness about one–eight if an inch, and the said small sized flute may be constructed either with or without the aperture hereinbefore described, and made for rendering the upper notes more clear and certain.
2. For the C flute or one size larger than the octave, the distance from the plug hole to finger hole must be five inches, breadth of the plug hole five–sixteenths, and from the bottom of the plug to the wind cutter, about one-eight of an inch, the plug being cut away underneath as before.
3. For the B flute, from plug hole to finger hole five inches and seven–eights; breadth of plug hole, nearly three–eights; from plug to wind cutter one–eight; and the plug cut underneath as before.
4. For the A flute from plug hole to finger hole six inches and three–eights; from plug to wind cutter, full one–eight; and the plug cut underneath as before.
5. For the F Flute from plug hole to finger hole, seven inches and five–eights; breadth of plug hole, seven–sixteenths; from plug to wind cutter, three–sixteenths; plug cut underneath as before.
6. For the E flute, from plug to finger hole, eight inches and a half; breadth of plug hole, near half an inch; from plug hole to wind cutter, three–sixteenths; plug cut underneath as before; and smaller or larger flutes may be made conformably [sic] to the said instructions, and all the several sizes must be turned, bored and hole in the same manner as a German flute or picolo [sic], either with one key or more, according to the respective sizes, except the F G and A, which are better if made a little flatter.

“Fourthly and lastly, I do apply to English flutes of flageolets constructed with the improvements hereinbefore described, a key for producing the half–tones for which his Majesty was pleased to grant unto my the sole privilege and use, by certain letters patent, bearing date on or about the 14th day of May, in the forty-seventh year of his reign. And I do either make the aperture for blowing the aid English flute or flageolet, at the end or at the side of the upper joint or piece, and with a projecting mouth-piece or without. And I do, in the case of making the aperture in the side, so dispose of the tail of the before–mentioned key for producing the half-tones, as that the same shall or may be pressed by the lips during the time of performance when required. And I do consider the said placing or disposing of the said tail in order to produce the effect by means of the lips as here described to be one of the said improvements which constitutes the invention for which his Majesty hath granted me the hereinbefore first recited letters patent. And I do declare that my said improvements may be used together or separately, or any two or more of them together, in any such manner as shall be found advantageous or desirable in the use of the said English flute or flageolet. In witness whereof, I, the said William Bainbridge, have hereunto set my hand and seal, the 26th day of April, in the year of our Lord, 1810.

“Signed: WILLIAM BAINBRIDGE”