Nicolson Pavement Company v. Jenkins,
Annotate this Case
81 U.S. 452 (1871)
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U.S. Supreme Court
Nicolson Pavement Company v. Jenkins, 81 U.S. 14 Wall. 452 452 (1871)
Nicolson Pavement Company v. Jenkins
81 U.S. (14 Wall.) 452
An assignment of a reissued patent, reciting the date and number of the reissue, and that the original patent had been "given for the term of fourteen years," reciting that the assignee had agreed to purchase all the right, title, and interest which the patentee had "in the said invention as secured by the said letters patent," and transferring to the assignee all the right, title, and interest which the patentee has "in the said invention and letters patent,"
"the same to be held and enjoyed by the said party for the use and behoof of him and his legal representatives to the full end of the term for which the said letters patent are or may be granted as fully and effectively as the same would have been held and enjoyed by the assignor had the assignment never been made,"
will transfer an extension and renewal of the patent made under the Acts of July 4, 1836, and of May 27, 1848; and this though the patent be reissued subsequently to the assignment.
On the 8th of August, 1854, Samuel Nicolson obtained
letters patent for an improvement on wooden pavements. On the 1st of December, 1863, he obtained a reissue. He then, December 1, 1864, made an assignment to Jonathan Taylor thus:
"Whereas I, Samuel Nicolson, invented a certain new and useful improvement in wooden pavements, of which letters patent of the United States of America (numbered 1583 of reissued patents, and bearing date the 1st of December, 1863) have been granted to me, giving to me and my legal representatives the exclusive right of making, using, and vending the said invention throughout the said United States, the original patent being dated August 8, 1854, and given for the term of fourteen years."
"And whereas Jonathan Taylor has agreed to purchase from me all the right, title, and interest which I have in and to the said invention for and in the City of San Francisco, as secured by the said letters patent, and has paid to me the sum of one dollar, the receipt whereof is hereby acknowledged."
"Now, therefore, this indenture witnesseth that for and in consideration of the said sum to me paid, I have assigned, sold, and set over, and do hereby assign, sell, and set over unto the said Taylor all the right, title, and interest which I have in the said invention and letters patent for and in the said City of San Francisco, but in no other place."
"The same to be held and enjoyed by the said Taylor for the use and behoof of him and his legal representatives to the full end of the term for which the said letters patent are or may be granted, as fully and effectively as the same would have been held and enjoyed by me had this assignment never been made."
Afterwards, August 20, 1867, Nicolson obtained another reissue of the same letters patent on an amended specification, and he having died in January, 1868, intestate, the Commissioner of Patents, on the application of his administrator, on the 7th of July, 1868, renewed and extended the letters patent for seven years from the 8th of August, 1868, under the well known 18th section of the act of July 4, 1836, and the Act of Congress of May 27, 1848.
The right (whatever it was) which was vested in Taylor under the assignment being subsequently transferred to the
Nicolson Pavement Company, and that company having laid a large extent of the patented pavement in San Francisco, after the expiration of the original patent, one Jenkins, who had obtained from the administrator of Nicolson whatever right was vested in him under the renewal and extension of 1868, sued the company.
The question, of course, was whether the assignment from Nicolson to Taylor of December 1, 1864, vested any estate, right, title, or interest in the assignee in or to the extended or renewed term, which was acquired by Nicolson's administrator under the act of Congress subsequent to the date of the assignment.
The court below thought that it did not, and gave judgment against the company. From that judgment the company brought the case here.