1. A suit based on an alleged assignment of a patent right,
involving the validity of the assignment under the patent laws, is
within the jurisdiction of the district court as a suit arising
under those laws. P.
261 U. S.
33.
2. The mere right to exclude others from making, using, or
vending a patented invention is not such an interest as may be
assigned under the patent laws, and an attempted transfer thereof
as against a particular person with right to enjoin his future
infringements and collect damages therefor is void. Pp.
261 U. S. 35,
261 U. S.
39.
3. An assignment by a patent owner not conveying any interest in
the patent itself, but only a claim for past damages against
infringers, does not confer upon the assignee a right to sue for
such damages in his own name without joining his assignor, who must
also have been the owner of the patent when the infringements were
committed. P.
261 U. S.
39.
4. The effect of such an assignment depends upon the patent law,
unaffected by Equity Rule 37, providing that suits shall be
prosecuted in the name of the real party in interest. P.
261 U. S.
44.
276 F. 376 reversed.
This was a bill in equity filed in the United States District
Court for the Northern District of Illinois by the Nye Tool &
Machine Works, a corporation of Illinois, having its place of
business in Chicago, against the Crown Die
Page 261 U. S. 25
& Tool Company, a corporation of the same state and doing
business in the same city. The plaintiff sought to enjoin the
infringement of a patent for a machine for forming screw-thread
cutting devices, and for an accounting of profits and for damages.
The inventors were Wright & Hubbard, and the patent issued to
their assignee, the Reed Manufacturing Company of Pennsylvania.
The plaintiff based its right to sue on the following
instrument, which it terms as assignment:
"
EXHIBIT A"
"Whereas, Reed Manufacturing Company, a corporation of
Pennsylvania, is the owner of letters patent of the United States,
No. 1,033,142, for a machine for forming screw-thread cutting
devices, granted July 23, 1912, on an application of Wright &
Hubbard; and"
"Whereas, under said patent, said Reed Manufacturing Company has
the right to exclude others from manufacturing, using and selling
the devices of said patent; and"
"Whereas it is believed by the parties that Crown Die & Tool
Company, a corporation of Illinois, has been manufacturing and
using devices in infringement of said patent; and"
"Whereas, Nye Tool & Machine Works is engaged in the
manufacture of dies with which the dies made by said Crown Die
& Tool Company, by the use of said infringing machine, are in
competition; and"
"Whereas, Nye Tool & Machine Works is desirous of acquiring
from Reed Manufacturing Company all of its rights of exclusion
under said patent, so far as the same may be exercised against the
Crown Die & Tool Company, together with all rights of the Reed
Manufacturing Company against the Crown Die & Tool Company
arising out of the infringement aforesaid: "
Page 261 U. S. 26
Now, therefore, in consideration of one thousand dollars
($1,000.00) and other good and valuable considerations, the receipt
of which is hereby acknowledged, the Reed Manufacturing Company
hereby assigns and sets over to the Nye Tool & Machine Works
all claims recoverable in law or in equity, whether for damages,
profits, savings, or any other kind or description which the Reed
Manufacturing Company has against the Crown Die & Tool Company
arising out of the infringement by the Crown Die & Tool Company
of the Wright & Hubbard patent, No. 1,033,142, and for the same
consideration assigns and sets over all the rights which it now has
arising from said patent of excluding the Crown Die & Tool
Company from the practice of the invention of said patent, the
intention being that, insofar as concerns the exclusion of the
Crown Die & Tool Company under said patent, the Nye Tool &
Machine Works shall be vested with as full rights in the premises
as the Reed Manufacturing Company would have had had this
assignment not been made, and that the Nye Tool & Machine Works
shall have the full right to bring suit on said patent either at
law or in equity against said Crown Die & Tool Company, and for
its own benefit, to exclude the Crown Die & Tool Company from
practicing the invention of said patent, and for its own use and
benefit to collect damages which may arise by reason of the future
infringement of said patent by the Crown Die & Tool Company,
but nothing herein contained shall in any way affect or alter the
rights of the Reed Manufacturing Company against other than the
Crown Die & Tool Company, and for the same consideration all
rights as are herein given against the Crown Die & Tool Company
are given as against any successor or assignee of the business
thereof.
REED MANUFACTURING COMPANY
By P. D. Wright
Its President
Page 261 U. S. 27
The defendant moved to dismiss the bill as follows:
"Now comes the defendant, Crown Die & Tool Company, by its
solicitor, and moves the court to dismiss the bill of complaint
instituted in the above-entitled cause upon grounds and reasons
therefor as follows:"
"1. That the bill of complaint states an alleged cause of action
arising out of the assumed infringement of a patent in which
plaintiff has no title, and prays an injunction, and accounting and
damages."
"2. That the owner of the entire or any part of the legal title
to the patent sued on is not made a party to the suit."
"3. That the legal effect of the alleged assignment set up as
the basis of this cause of action and forming part of the bill of
complaint herein is contrary to the statutes covering suits for
infringement of patents, and shows on its face that the plaintiff
has no interest in the patent sued on."
"4. That the bill of complaint herein, including the alleged
assignment, evidences a conspiracy against this defendant by the
parties to the document identified as 'Exhibit A,' in which the
plaintiff and the Reed Manufacturing Company assumed the function
of the court in having already decreed that this defendant
infringes patent No. 1,033, 142, and now seeks to utilize this
Court to annoy and harass the Crown Die & Tool Company by
instituting legal proceedings when no right of action exists."
"5. That 'Exhibit A' attached to the bill of complaint in this
case purports only to convey to plaintiff all claims recoverable in
law or in equity which the Reed Manufacturing Company may have
against the Crown Die & Tool Company, over which subject matter
this Court has no jurisdiction."
"6. Prior suit pending, between the same parties in this Court,
decision of which will determine any questions involved in this
case. "
Page 261 U. S. 28
"Therefore this defendant respectfully moves the court to
dismiss said bill of complaint with its reasonable costs and
charges in its behalf most wrongfully sustained."
CROWN DIE & TOOL CO.
By Florence King
Solicitor for Defendant.
The district judge, in the interest of expedition, granted the
motion to dismiss in order that the main question,
i.e.,
the plaintiff's right to sue, might be determined by the circuit
court of appeals before the expense of an accounting should be
incurred, although he thought the plaintiff had acquired the right
under the instrument. 270 F. 587. The circuit court of appeals
reversed the decree of dismissal, holding the instrument to be a
valid assignment of an interest in the patent conferring the right
to sue, and remanded the cause to the district court for an
accounting and further proceedings. 276 F. 376.
Although the decree of the circuit court of appeals is not
final, the importance of the question involved and the possible
saving of useless litigation led this Court to grant the writ of
certiorari before further proceedings in the district court.
Page 261 U. S. 33
MR. CHIEF JUSTICE TAFT, after stating the case as above,
delivered the opinion of the Court.
The petitioner raises a question of jurisdiction. It says that
the suit does not arise under the patent laws of the United States,
but is merely a suit on a contract like one for royalties under a
license of which the district court could not have jurisdiction
because the parties are both citizens of the same state. To sustain
this argument are cited
Albright v. Texas, 106 U.
S. 613;
Pratt v. Paris Gaslight Co.,
168 U. S. 255, and
Excelsior Wooden Pipe Co. v. Pacific Bridge Co.,
185 U. S. 282. The
cases have no application, and the point is without merit. The bill
in this case is based on an assignment of a patent claimed to be
valid under the statutes of the United States, and asking the
protection of the patent right thus assigned by injunction and an
accounting. It therefore involves the validity of the assignment of
a patent, which is a question arising under the patent laws because
it depends upon their construction, and, if the assignment is
valid, the suit is just an ordinary suit for injunction and profits
dependent on the validity of the patent and its infringement under
those same laws. There is no question of royalties by contract in
the case.
The main question is an interesting one. The argument of counsel
for the respondent, and the one upon which the circuit court of
appeals proceeded to its conclusion,
Page 261 U. S. 34
is that the right which the patentee derives from the government
by its grant is not the right to make, use, and vend; that such a
right is a so-called natural right, not dependent on statute, but
arises under the common law, and has no peculiar federal source or
protection other than any other right of liberty or property. All
that the government grants and protects is the power to exclude
others from making, using, or vending during the grant of 17 years.
Under the patent law, § 4898, Rev.Stats., a patentee may assign by
an instrument in writing his patent or any interest therein. It is
argued that, as the patent is only the power to exclude all from
making, using, and vending, the power to exclude some particular
person from doing so is a part of that power of exactly the same
nature, and therefore is a definite interest in the patent that can
be assigned.
The analysis of the rights which a patentee acquires under the
grant is sustained by a line of authorities.
Bloomer v.
McQuewan, 14 How. 539,
55 U. S. 548;
Patterson v. Kentucky, 97 U. S. 501;
United States v. Bell Telephone Co., 167 U.
S. 224,
167 U. S. 249;
Bement v. National Harrow Co., 186 U. S.
70,
186 U. S. 90;
Continental Paper Bag Co. v. Eastern Paper Bag Co.,
210 U. S. 405;
Heaton Peninsular Co. v. Eureka Specialty Co., 77 F. 288,
294;
Fuller v. Berger, 120 F. 274. The fullest and most
satisfactory discussion of the subject is found in the
Continental Paper Bag Co. v. Eastern Paper Bag Co., supra.
In that case, it was sought to defeat a suit by a patent owner for
infringement of a patent on the ground that he was not entitled to
ask a court of equity to aid him in protecting the grant of the
patent to him by the government because he had failed and neglected
ever to use the patent himself or to allow anybody else to do so,
and therefore had not rendered to the public the benefit and
consideration for which the patent was granted. This Court held
that the benefit which the government intended to secure was not
the
Page 261 U. S. 35
making or use of the patent for the benefit of the public during
the 17 years of the grant. except as the patentee might voluntarily
confer it from motives of gain, but only the benefit of its public
use after the grant expired. The Court held that the government did
not confer on the patentee the right himself to make, use or vend
his own invention, that such right was a right under the common
law, not arising under the federal patent laws and not within the
grant of power to Congress to enact such laws, and that, in the
absence of the express statutory imposition upon the patentee of
the obligation to make, use, or vend his patented invention as a
condition of receiving his patent, it would not be implied. The
Court further held that, in its essence, all that the government
conferred by the patent was the right to exclude others from
making, using, or vending his invention.
We do not think, however, that these clearly established
principles sustain the next step in the reasoning of the counsel
for the respondent and the circuit court of appeals which is that
they make the mere right to exclude persons from the making, using,
and vending of an invention such an interest in a patent that it
can be assigned. It ignores the indispensable condition of the
granting and establishment of a patent right and patent property
that the patentee shall have himself the common law right of
making, using, and vending the invention. The sole reason and
purpose of the constitutional grant to Congress to enact patent
laws is to promote the progress of science and useful arts by
securing for limited times to inventors the exclusive right to
their respective discoveries. Article I, § 8, cl. 8. In pursuance
thereof, § 4886, Rev.Stats., as amended, 29 Stat. 692, provides
that any person who has invented or discovered any new and useful
art, machine, manufacture, or composition of matter, or any new or
useful improvements thereof, upon certain conditions not important
here, may obtain a patent
Page 261 U. S. 36
therefor. Section 4884, Rev.Stats., directs that the grant of a
patent shall be to the patentee, his heirs or assigns, for the term
of 17 years of the exclusive right to make, use, and vend the
invention or discovery throughout the United States. An inventor
may in writing assign his invention and the right to a patent
before the patent is granted, and, under § 4895, Rev.Stats., a
patent will issue to the assignee. Can it be claimed that an
assignment of the right to exclude all from making, using, and
vending, and excepting therefrom the right to make, use, and vend
in the assignee, would be such an assignment as would justify the
Patent Office in issuing the patent under the statute to the
assignee? Yet, if all that there is in a patent property is the
bare right to exclude others from making, using or vending
something, the patent should issue in such a case.
The error in the position of the respondent and the court below
is in a failure to distinguish between the property or title or
interest in a patent capable of assignment and the chief incident
of that property, title, or interest, an incident which can only
pass by assignment when attached to the right to make, use, and
vend. It is the fact that the patentee has invented or discovered
something useful, and thus has the common law right to make, use,
and vend it himself, which induces the government to clothe him
with power to exclude everyone else from making, using, or vending
it. In other words, the patent confers on such common law right the
incident of exclusive enjoyment, and it is the common law right
with this incident which a patentee or an assignee must have. That
is the implication of the descriptive words of the grant "the
exclusive right to make, use, and vend the invention." The
government is not granting the common law right to make, use, and
vend, but it is granting the incident of exclusive ownership of
that common law right, which cannot be enjoyed save with the common
law right.
Page 261 U. S. 37
A patent confers a monopoly. So this Court has decided in the
Paper Bag case,
supra, and in many other cases.
The idea of monopoly held by one in making, using and vending
connotes the right in him to do that thing from which he excludes
others.
Dealing with question of patent assignments under the laws of
the United States, Mr. Justice Gray, in
Waterman v.
Mackenzie, 138 U. S. 252,
138 U. S. 255,
said:
"The monopoly thus granted is one entire thing, and cannot be
divided into parts, except as authorized by those laws. The
patentee or his assigns may, by instrument in writing, assign,
grant, convey either, first, the whole patent, comprising the
exclusive right to make, use and vend the invention throughout the
United States, or second, an individual part or share of that
exclusive right, or, third, the exclusive right under the patent
within and throughout a specified part of the United States.
Rev.Stats. § 4898. A transfer of either of these three kinds of
interests is an assignment, properly speaking, and vests in the
assignee a title in so much of the patent itself, with a right to
sue infringers; in the second case, jointly with the assignor; in
the first and third cases, in the name of the assignee alone. Any
assignment or transfer short of one of these is a mere license,
giving the licensee no title in the patent and no right to sue at
law in his own name for an infringement. Rev.Stats. § 4919;
Gayler
v. Wilder, 10 How. 477,
51 U. S.
494-495;
Moore v. Marsh, 7 Wall.
515."
The learned Justice then proceeds (page.
138 U. S. 256)
to give examples of what would and would not constitute an
assignment. A grant of an exclusive right to make, use, and vend
two patented machines within a certain district, he points out,
citing
Wilson v.
Rousseau, 4 How. 646,
45 U. S. 686,
is an assignment because the right, although limited to making,
using and vending two machines excludes all other persons even the
patentee from making, using, or
Page 261 U. S. 38
vending like machines within the district. "On the other hand,"
he says,
"the grant of an exclusive right under the patent within a
certain district, which does not include the right to make, and the
right to use, and the right to sell, is not a grant of a title in
the whole patent right within the district, and is therefore only a
license."
In
Gayler v.
Wilder, 10 How. 477, it was held that the grant of
an exclusive right to make and vend an article within a certain
territory upon paying to the assignor a cent per pound, reserving
to the assignor the right to use and manufacture the article by
paying the assignee a cent per pound, was only a license, and that
a suit for the infringement of the patent right must be brought in
the name of the assignor. The effect of the opinion in that case is
that the monopoly granted the patentee is for one entire thing,
and, in order to enable an assignee to sue, he must have received
the entire and unqualified monopoly in the territory specified.
Chief Justice Taney's reason for this (p.
51 U. S. 494)
is useful in this case. "For," said he,
"it was obviously not the intention of the legislature to permit
several monopolies to be made out of one, and divided among
different persons within the same limits. Such a division would
inevitably lead to fraudulent impositions upon persons who desired
to purchase the use of the improvement, and would subject a party
who, under a mistake as to his rights, used the invention without
authority to be harassed by a multiplicity of suits instead of one,
and to successive recoveries of damages by different persons
holding different portions of the patent right in the same
place."
See also Pope Manufacturing Co. v. Gormully Manufacturing
Company, 144 U. S. 238,
144 U. S.
250.
These cases do not present the same facts as the one before us,
but they indicate clearly what view the courts deciding them would
have taken of an effort like that in the case at bar to divide up
the monopoly of patent property
Page 261 U. S. 39
so that the patentee retains the right to make, use, and vend,
but gives to many different individuals the right to sue certain
named infringers, respectively, and that with the sole motive of
harassing them such as is avowed in the recitals of the instrument
before us. If held legal, it would give the patentee an
opportunity, without expense to himself, to stir up litigation by
third persons that is certainly contrary to the purpose and spirit
of the statutory provisions for the assigning of patents.
Nor do we think that the principle of
Patterson v.
Kentucky, 7 U. S. 501, or
the instance of a patent for an improvement on a machine, patent
for which is held by another, involves anything inconsistent with
our conclusion that the right to exclude others conferred in a
patent can only be conferred upon one who has the common law right
to use, make, and vend. In
Patterson v. Kentucky, the
patentee had the common law right to make, use, and vend, but the
State of Kentucky exercising her lawful police power restricted him
in it. In the case of the patentee for improvement on a patented
machine, the patentee has the right to make, use, and vend the
improvement, but he cannot make it profitable or useful unless he
can secure the right to put it onto another machine.
For the reasons given, we think the attempted assignment in this
case carried no part of the title to the patent or interest in it,
and therefore conferred no right to sue for damages for
infringement of the patent after the execution of the
instrument.
The remaining question is whether the instrument relied on by
the plaintiff below gave it the right to sue in its own name in
this case for damages for past infringements. We think not.
The plaintiff below could not bring such a suit for past
infringements without joining with it the owner of the
Page 261 U. S. 40
patent when the infringements were committed. It is said that
the claim of an owner of a patent for damages for infringement is
only a chose in action which, in modern days, may be so assigned
that the assignee acquires full title and the right to sue at law
as well as in equity without joining his assignor. This view
ignores the peculiar character of patent property and the
recognized rules for the transfer of its ownership and its
incidents. Patent property is the creature of statute law, and its
incidents are equally so, and depend upon the construction to be
given to the statutes creating it and them, in view of the policy
of Congress in their enactment. This is shown by the opinion of
this Court in
Waterman v. MacKenzie, 138 U.
S. 252, already cited, and in the line of authorities
followed therein. It is not safe, therefore, in dealing with a
transfer of rights under the patent law, to follow implicitly the
rules governing a transfer of rights in a chose in action at common
law. As Chief Justice Taney said in
Gayler v.
Wilder, 10 How. 477,
51 U. S.
494:
"The monopoly did not exist at common law, and the rights
therefore which may be exercised under it cannot be regulated by
the rules of the common law. It is created by the act of Congress,
and no rights can be acquired in it unless authorized by statute,
and in the manner the statute prescribes."
The law as to who should bring a suit at law for damages by
infringement of a patent is clearly and correctly stated in
Robinson on Patents, vol. 3, § 937, as follows:
"With a single exception, the plaintiff in an action at law must
be the person or persons in whom the legal title to the patent
resided at the time of the infringement. An infringement is an
invasion of the monopoly created by the patent, and the law which
defines and authorizes this monopoly confers only upon its legal
owners the right to institute proceedings for its violation. These
owners are the patentee, his assignee, his grantee, or his
Page 261 U. S. 41
personal representatives, and none but these, are able to
maintain an action for infringement in a court of law. Moreover,
the injury inflicted by an act of infringement falls upon the
individual who owns the monopoly at the date of the infringement.
It does not affect former owners whose interest had terminated
before the infringement was committed, nor does it so directly
prejudice a future owner that the law can recognize his loss and
give him a pecuniary redress. Hence, the plaintiff must not only
have a legal title to the patent, but must have also been its owner
at the time of the infringement. The exception above referred to
arises where an assignment of a patent is coupled with an
assignment of a right of action for past infringements. In this
case, the present owner of the monopoly may institute proceedings
for its violation during the ownership of his assignor, as well as
for infringements committed since the transfer of the title to
himself."
In
Moore v.
Marsh, 7 Wall. 515, the question was whether a sale
and assignment by a patentee of his patent right was, under the
fourteenth section of the Patent Act of 1836 (c. 357, 5 Stat. 117,
123) now embodied in § 4919 of the Revised Statutes, a bar to an
action by him to recover damages for an infringement committed
before such sale and transfer. The section provided:
"And such damages may be recovered by action on the case, in any
court of competent jurisdiction, to be brought in the name or names
of the person or persons interested, whether as patentees,
assignees, or as grantees of the exclusive right within and
throughout a specified part of the United States."
The neat issue in that case was whether "the name or names of
the person or persons interested" meant the person interested when
the infringement took place or when the suit was brought. The Court
held that it meant the person who was patentee, assignee, or
grantee when
Page 261 U. S. 42
the infringement occurred and the cause of action accrued. The
Court held, therefore, that the proper plaintiff in a suit for past
infringements was not the present owner of the patent, and that he
did not acquire the right to bring suits for prior infringements
merely by the conveyance of the full title to the patent and its
enjoyment. This case was followed by that of
Gordon v.
Anthony, on the circuit, reported in 16 Blatchf. 234, s.c., 10
Fed.Cas. 773, No. 5605. The decision was by Blatchford, Circuit
Judge of the Second Circuit, who had been district judge, and who
subsequently became a justice of this Court and had great
experience in the administration of the patent law.
The question before him was whether the vendee and assignee of a
receiver appointed by a state court of New York in proceedings
supplementary to execution on a judgment against a debtor whose
assets included a patent right, and who was directed by the court
to convey the same to the receiver, but did not do so, could sue
for damages, for infringement of the patent occurring before the
receivership. After saying that, under the law of 1836 and under
the Revised Statutes in which the sections of that law were
embodied, no one could bring a suit either at law or in equity for
infringement of a patent in his own name alone unless he were
patentee, assignee, or grantee, the judge continues:
"A claim to recover profits or damages for past infringement
cannot be severed from the title by assignment or grant, so as to
give a right of action for such claim, in disregard of the statute.
The profits or damages for infringement cannot be sued for except
on the basis of title as patentee, or as such assignee or grantee,
to the whole or a part of the patent, and not on the basis merely
of the assignment of a right to a claim for profits and damages,
severed from such title. Therefore, if, in the present case, no
such assignment or grant has been made to the defendants
Page 261 U. S. 43
as the statute contemplates, they could not bring suit in their
own names under the assignment made to them to recover any claims,
profits, or damages for infringement, which belonged to Gordon
(
i.e., the patentee), nor can they use the assignment as a
defense against any such claims existing against themselves in
favor of Gordon. In this case, there has been no assignment
executed by Gordon."
See also Ball v. Coker, 168 F. 304, 307. Counsel for
plaintiff cites
Hayward v. Andrews, 12 F. 786, to maintain
the contrary and to sustain the right of the assignee of claims for
past infringements to maintain suit. The case cited is not in
point; the assignee in that case held the legal title to the
patent.
The sole exception to the rule that only he who is the owner of
the patent at the time of the infringement can sue for damages to
which Professor Robinson refers is when such owner assigns the
patent and also the claim for past infringements to the same
person. In such a case, as the title and ownership of the claims
are united, it is held that the owner may sue.
Dibble v.
Augur, 7 Blatchf. 86, 7 Fed.Cas. 642, No. 3,879;
Hamilton
v. Rollins, 5 Dill. 495, 11 Fed.Cas. 364, No. 5,988;
Henry
v. Francestown Soapstone Stove Co., 2 Ban. & A. 221, 11
Fed.Cas. 1180, No. 6,382;
Consolidated Oil Well Packer Co. v.
Eaton, Cole & Burnham Co., 12 F. 865, 870;
Spring v.
Domestic Sewing Machine Co., 13 F. 446, 449;
Nellis v.
Pennock Mfg. Co., 38 F. 379. Under this exception, therefore,
if the instrument here relied on had been effective to make the
plaintiff an assignee or grantee of the patent or "of any interest
therein" within the meaning of § 4898, Rev.Stats., as amended, then
the plaintiff could have maintained this action for damages for
infringements prior to the execution of the instrument; but, as we
hold, the instrument did not have this effect.
But it is urged that, under Equity Rule 37, every action
Page 261 U. S. 44
must be prosecuted in the name of the real party in interest,
and therefore, as the plaintiff is the beneficial owner of the
claims for past infringements, it should be permitted to sue in a
court of equity. The equity rule was not intended to set aside a
policy and rule having its source in the patent statutes, and
cannot affect this case. The rule laid down by Circuit Judge
Blatchford in
Gordon v. Anthony, supra, applied to both
actions in equity and law, and grew out of the sections of statutes
quoted by him and not since amended. Both at law and in equity,
either the owner of the patent at the time of the past infringement
or the subsequent owner of the patent who is at the same time the
assignee of the claims for past infringement must be a party to a
suit for damages for the past infringement. If the owner of the
patent when the infringements took place has assigned his patent to
one, and his claims for damages for infringement to another, then
the latter cannot sue at law at all, but must compel his assignor
of the claims to sue for him. In equity, both such assignor and the
assignee who is the real party in interest must join as plaintiffs.
Such assignor is a necessary party, and a bill for accounting and
damages is fatally defective otherwise. Robinson, vol. 3, § 1099;
Dibble v. Augur, 7 Blatchf. 86, 7 Fed.Cas. 642, No. 3,879;
Gamewell Fire Alarm Telegraph Co. v. City of Brooklyn, 14
F. 255;
Ball v. Coker, 168 F. 304. As the owner of the
patent is not a party to this bill, the result is that on no ground
can the bill of the plaintiff be sustained, and that the motion to
dismiss should have been granted.
The decree of the circuit court of appeals is reversed, and
that of the district court is affirmed.
