swer, that it was signed. The complainant was, therefore, quite likely, in a.position, upon exhibiting this release, to have the interlocutory decree made final, provided the opinion was not then entertained which the court expressed later, that "possibly both parties were acting under a misapprehension." The situation in this respect was as if the master, after hearing the parties, had made a report that there were no damages or profits. Upon presenting such a report, costs being waived, the court, although it might refuse to do sO,would, in all probability, order a final decree for the complainant. The difficulty is that this decree, though it might have been made final, was not so made. The distinction is obvious between a final decree and a stipulation upon which such a decree may be entered. The sanction of the COU1·t, even though a formal supplement to the agreement of the parties, was necessary. In the absence of an express authority, the court should hesitate before holding that such a decree is res judicata. If there is a doubt, it ought to be resolved against the party who urges the estoppel. A mistake in so deciding can be hereafter corrected; whereas, if the principal defenses are stricken from the answer erroneously, the defendants will be remediless. The ex.ceptions are overruled.
BRIDGEWATER IRON Co. and others.1
(Oircuit Oourt, D. Massachus6tt8. February a, 1886.)
PATENTS FOR INVENTIONS-GUTHRIE PATENT,
No. 125,044, OJ!' MARCH 26, 1872. This patent was for an improvement on the patent to Freeborn Adams, for casting copper tubes, sued on in Adams v. Bridgewater Iron Co., ante, 324; and sucb"improvement consisted in an upright mould in combination with a chamber or vessel into which the molten metal was poured, and arranged to be rotated. The first claim of the patent covering this combination held valid, and infringed by defendants in the use of a rotary chamber or basin in combination with a stationary mould.
The inventor and patentee having supervised and directed the building of a machine for the defendant company, and while in its employ, held, under such circumstances, the defendant company may be said to have a license to use that particular machine.
In Equity. Geo. L. Roberts and Oeo. Wm. Estabrook, for complainants. D.Hall Rice, for defendants. COLT, J:This action is brought for infringement of letters patent No. 125,044, issued to James F. Guthrie, March 26, 1872, and by him assigned to the plaintiffs, for improvement in casting copper tubes. The specification says:
by Charles C. Linthicum, Esq., of the Chicago bar.
AMERICAN TUBE-WORKS V. BRIDGEWATER IRON CO.
"Heretofore, for casting copper tubes, etc., and un,ller letters patent No. 24,915, issued to Freeborn Adams, a rotary mould has been employed. Pra<>: tice, however, has shown that the use of a rotary mould did riot produce uniform or perfect castings; that its length and weight, and its revolution at a very high speed, prevented that accuracy of rotation which is essential for a perfect introduction of the molten copper. The purpose of this invention is to obviate the disadvantages existing in the use of the letters patent aforesaid; or, in other words, of a rotary mould, while securing all the advantages which a rotary mould possesses over a stationary one as employed previous to and since said letters patent to Freeborn Adams. The invention consists of an upright mould in combination with a chamber or vessel, into which the molten metal is poured, that has one, two, or more tubes for distributing the multen metal within the mould, and is arranged to be rotated; its axis of revolution and the axis of the mould being in the same vertical line and plane. By this combination, a conveyance and introduction of the molten metal to the mOl/,ld is secured, without injury or disturbance to the core of the mould or the mould itself, and with the utmost accuracy and most uniform and perfect results, as practice and use has demonstrated." ' The claims of the patent are as follows: "( 1) A mould-case in combination with a revolving distributing chamber or hopper for conducting the molten metal to the mould, substantially as and for the purpose described. (2) The revolving distributing hopper for conducting the molten metal to the mould, when prOVided with two or more distributing tubes, substantially as described, for the purpose specified." The defendants, as we have seen in the preceding case between the same parties, use a rotar.}' chamber or basin, in combination with a stationary mould. The basin used by them since 1872 is substantially like the one described in the Guthrie patent in controversy, except in the use of two or more distributing tubes. As stated in the specification, Guthrie's purpose was to improve upon the Adams patent by the mould. Both the use of a rotary hopper or basin instead of devices, however, secure the same method of distribution of the metal in the mould, which was the great merit of Adams' invention. We have already decided in the previous case that the defendants use sub·' stantially the method of Adams as to distribution, I1nd it follows, therefore, that they use substantially the same method of distribution as Guthrie. We think it clear, from the conclusions reached in the other case, that the defendants infringe the first claim of the Guthrie patent, which is for a mould-case in combination with a revolving distributing chamber for conducting the molten metal to the mould. '1'he prior patents referred to in this case, as in the other, do not anticipate the Guthrie device, for the same reasons that they did not anticipate the Adams process. The second claim is not infringed, because the defendants do not use two or more distributing tubes. It appears that Guthrie was employed by the defendant company for some years previous to June 17, 1872; and that, during this time, a machine containing four rotary hoppers was built under his supervision and direction. Under such circumstances, the defendant company may be said to have a license to use that particular machine. McCl'uTg v. Kingsland, 1 How. 202;
Wooster v. Siden'berg, 2 Ban. & A. 91; Black v. Hubbard, 3 Ban. & A. 89; Bloomer v. Millinger, 1 Wall. 340; Mtlgoun v. New England Glan 00.,8 Ban. & A. 114. Decree for complainants.
FBANKFORT WHISKY PROOESS
(Oircuit Court, 8. D. New York. --,1885.)
PATENTS FOR INvENTIONS-SUIT FOR UNAUTHORIZED USE-PARTIES.
Where the former owner of a patent has disposed of all interest in the same, reserving the right to specified uses of the invention, he has no interest in the patent, and is not a necessary party plaintiff in an action against third parties for an unauthorized use of such inve.ntion.
WALLAOE, J. The ground of demurrer assigned is that Allen, the former owner of the patent upon which the suit is founded, has not been joined as a party complainant. In the instrument conveying the patent to the complainant, Allen, the then owner, reserved the right to himself to use and to license others to use the process patented "to mash an aggregate of 4,000 bushels of grain in each and every 24 hours, and convert the same into distilled spirits," and also to license the proprietors of certain specified distilleries to use the patented process. The conveyance was a grant of the patent, with a reservation of a license to the grantor; and is in legal effect as though the grantor had made an unqualified transfer of the patent to the complainant, and had at the same time received from the complainant a license back. Allen is not a necessary party to a suit by the complainant against third persons to restrain infringement. 1'he demurrer is overruled, with costs.