BOGART 11. HINDS.
If, then, this assignment is to be regarded as part of the complaint, it appears upon its face that Smith, on the seventh of October, 1871, assigned the entire patent to the powder company. He then had no interest of any kind until the eighth day of May, 1873, when the company reconveyed to him the right to apply the invention to the light. ing of gas-jets. By conveying this right to Bogart, Smith again divested himself of all interest in the patent. The only interest Bogart has is by virtue of the assignment from Smith, and the only interest Smith had was by virtue of the assignment from the powder company. Bogart, therefore, necessarily derives his title direct from the powder company. Smith simply conveyed to Bogart what he had obtained from the powder company. In legal effect it is as if Smith had transferred to Bogart the written paper he received from the company, or as if the company had assigned directly to Bogart. Smith is not the owner of the letters patent, and he could not assign any rights except such as he received from the powder company. Any other interpretation of the assignment would be strained and unnatural. It is argued in the complainants' brief that there is nothing to show that the powder company ever existed, or that the assignment to it became operative. Three answers suggest themselves: First, the instrument must be taken in its entirety, and the complainants, having alleged that the company had sufficient vitality to receive an assignment of the letters patent, and reconvey to Smith a right there. under, are hardly in a position to raise such an issue; second, if the company never received title, Bogart received none, for he has only what Smith took from the co&pany; and, third, it is incumbent upon the complainants, if they propose to rely upon such a proposition, to introduce it by proper suggestions and averments in the complaint. The conclusion cannot be resisted that the action in its present form is not maintainable. The complainant Bogart is a mere licensee. The legal owner of the patent is not a party. The case is clearly within the doctrine enunciated in the following authorities: Game· well Fire·alarm Tel. 00. v. Oity of Brooklyn, 14 Fed. Rep. 255; Wilson v. Ohickering, ld. 917; Ingalls v. Tice, Id. 297; Gayler v. Wilder, 10 How. 477; Nellis v. Pennock 00.,13 Fed. Rep. 451; Nelsonv. Mc· Mann, 16 BIatchf. 139; Moore v. Marsh, 7 Wall. 520. The objection that the defect in the complaint cannot be taken ad· vantage of by demurrer is purely technioal. If sustained, it will reBult in delay, but in nothing else; for sooner or later the complainants must meet this question upon the merits. It is thought to be for the ad vantage of all parties that it should be met and disposed of at the threshold of the litigation. The demurrer IS sustained. Complainants have 20 days in which to amend.
BOGART and another tl. MITCHELL, In this case there should be a similar order. VANCE
PETERSON and another v. SIMPKINS.1
(Circuit Oourt, E. D. Missouri.
PATENTS-PRIMA FACIE CASE-DIRECT EVIDENCE OF INFRINGEMENT BEFORE INSTITUTION OF BUIT UNNECESSARY.
In a suit by A. against B. for the infringement of a patent upon an oven, evidence was introduced that A. sent C. to examine and make drawings of an infringing oven in D.'s possession, the drawings being- for use in the suit; that when D. was requested to let C. see the oven he said there was litigation concerning: it, but that he could see it if he got an order from B., who had erected it; that B. gave C. an order when requested; that upon presentation of the order the oven was shown; that C. sketched what he could see of the oven as it stood, and made drawings partially from his sketch, and partially from explanations given by B., who was told that the drawings were for use in the suit against him; that said oven and another which E. had seen were identical with the one described in A.'s patent; and that E. "understood" both ovens had been erected by A. No date of the erection of any oven by B. was named in the testimony. The defendant introduced no evidence, but his an· swer denied infringement, under oath. Held, that the evidence made out a primajacie case of infringement, and that A. was entitled to a decree. The defendant, in a suit for infringement, set up as a defense that the complainant's device had been described in certain prior patents. No notice of what the defense would be was served. At the hearing the case was submitted upon the plaintiff's evidence, which the defendant claimed failed to make out aprimajacie case of infringement. Upon the court's intimating that Il. sufficient case was made out, the defendant asked to be permitted to introduce in evidence the patents described in his answer. Held, that they could not be received.
EVIDENCE-INTRODUCTION AFTER SUBMISSION OF CASE.
In Equity. This was a bill to restrain the defenbnt from infringing letters patent No. 252,054, granted to E. A.. C. Peterson, as inventor, and Henry Piper, as assignee, January 10, 1882. The defendant's an· swer, which is upon oath, denies the infringement and the other mao terial allegations of the bill, and sets up, as matters of affirmative de. fense, public use of the invention for two years before the application for the patent sued upon, and description of the same improvements in four prior patents: two issued by the United States, and two by the German Empire. The evidence and testimony for the complainant is as follows: (1) A copy of the letters patent sued on. (2) A duly-recorded assignment from Peterson to Piper. (3) Drawings and sketches referred to in the testimony of the witnesses. (4) The deposition of Charles Pickels to the following facts, to-wit: That the drawings offered in evidence were made in his office and under his instructions, at Mr. Knight's reo quest, for use in this suit, and represent a baker's oven seen by him at the Christian Brothers' College in St. Louis; that he went to the college to see and sketch the oven at the request of Mr. Knight; that when he got there and requested to see the oven in question, the president of the college said he understood there was some litigation in
by Benj. F. Rex, Esq., of the St. Louis bar.