Allen v. Culp,
166 U.S. 501 (1897)

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U.S. Supreme Court

Allen v. Culp, 166 U.S. 501 (1897)

Allen v. Culp

No. 252

Argued and submitted March 30, 1897

Decided April 19, 1897

166 U.S. 501


When letters patent are surrendered for the purpose of reissue, they continue valid until the reissue takes place, and if the reissue is refused they stand as if no application had been made.

Whether, if the reissue be void, the patentee may fall back on his original patent is not decided.

This was an action originally instituted in the Court of Common Pleas for the County of Philadelphia by the defendant in error, Andrew J. Culp, against Alonzo W. Allen, to recover half of the profits made by the defendant from a certain

Page 166 U. S. 502

patent for a cop and bobbin winding machine, granted jointly to Culp and Allen, and subsequently assigned to the defendant Allen.

The alleged consideration for the transfer of plaintiff's half interest was a promise on the part of the defendant that he would divide with him the profits made by the sale of the device, of which they were the joint owners, and also all damages which might be recovered against infringers of the patent, the principal object of the transfer being to enable the defendant to have title thereto for the purpose of prosecuting these infringers. It seems that in November, 1892, the defendant was advised by his counsel to apply for a reissue in order to more fully protect the invention, and he thereupon obtained the signature of the plaintiff, his co-inventor, to the application, by renewing the promises he had already made. Both parties joined in the surrender of their patent and in the application for a reissue, which, however, was rejected on the ground of unreasonable delay and also upon the further ground that the new claims of the reissue had been anticipated by other patents. Counsel for the defendant, who appears to have had absolute control of the reissue proceedings, made no effort to meet the formal objection of the examiner, and permitted the application to lapse by his failure to prosecute it within two years. He also neglected to take an appeal from the rejection of the application.

In January, 1893, defendant informed the plaintiff that he did not intend to take any further proceedings with reference to the patent, and refused to fulfill his promise with reference to the division of profits.

Thereafter, plaintiff began this suit to recover, under his contract with the defendant, the half of the profits which the latter had made out of the patent. The suit resulted in a verdict for the plaintiff for $225. A new trial being refused, defendant carried the case to the Supreme Court of Pennsylvania, by which the judgment of the court of common pleas was affirmed, and the record remitted to that court. 166 Penn.St. 286. Thereupon defendant sued out this writ of error.

Page 166 U. S. 503

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