of a description invented by one Bray. It is the precise article, also, that has been purchased by the defendants of Bassett, through .BIun & Co. and Doremus. As early as in the fall of 1880 the complainants had entered into an arrangement with Bray for the purchase of his invention, which had not then been patented, and Bray had agreed to assign his patent to them when it should be obtained. Owing to delay on the part of Bray the application for a patent was not filed until April 23, 1881. In the mean time the complainants had been making twin-wire to use in manufacturing the Bray corsets, and bad been manufacturing these corsets and selling them to a limited extent. The time came when the complainants wanted to forego the manufacturing of corset material, and contine themselves to manufacturing corsets from materials to be supplied by others; hence the negotiations with Bassett which resulted in the execution of the agreement. Bassett was aware of the relations existing between the complainants and Bray, and that the complainants had purchased Bray's invention, and expected to obtain the patent, and these matters had been the subject of conversation between Bassett and complainants during the negotiations which resulted in the execution of the agreement. It also appears that although at some period previous to the date of the agreement twin-wire had been used to a limited extent for other purposes than for the manufacture of the Bray corsets, its use for those purposes had become obsolete, and had been abandoned. In view of these facts, it is manifest that both parties to the agreement understood that the twin-wire which Bassett was to make and sell to the complainants and to other persons was just such an article as he has sold to the defendants. It is also manifest that the parties contemplated that the sales which Bassett was expected to make would be made to manufacturers for use in making corsets. This was the only use of which the article was practically capable, and unless it was to be sold for such use it could not probably be sold at all. If the question was whether, by this agreement, the complainants nave authorized Bassett to license others to use their patents in manfacturing corsets, the answer would not seem to be difficult. The scope of the agreement does not extend beyond the relations which the parties to it are to assume towards each other in the manufacture and sale of corset material. There is nothing in its language, or in the circumstances contemporaneous with its execution, to justify the implication that Bassett was to have flny interest, by way of license or otherwise, in either of the two patents upon which the bill is founded. The contemporaneous facts, and the terms of the agreement, are consistent with the purpose of the parties to secure to the complainants a royalty upon twin-wire in the event a demand for it should arise among manufacturers to be licensed by the complainants to use their Bray patent, who might find it more convenient Of economical to pUfchase the material of Bassett than to make it themselves. This
CELLULOID MANUF'G CO. fl. ZYLONITE BRUSH &: COMB 00.
conclusion is enforced by the fact that the complainants did not then have any interest in the other of the two patents in suit,-the pat. ent granted to Cohn in February, 1880, and which was purchased by the complainants in October, 1884; but, as has been stated, this question is not here. The defendants have established the truth of the facts alleged in their plea, and they are therefore entitled to judgment.
CELLULOID MANUF'G Co. v. ZYLONITE BRUSH & COMB Co. and others.'
(Oircuit Oowrt, S. D. New York, 1886.)
The question whether a reissue is valid which is granted merely to reinstate a patentee to an invention he had surrendered in order to obtain a wider monopoly than that covered by the original, decided in the affirmative; following the ruling in Giant Powder 00. v. Safety Nitro-Powder 00., 19 Fed. Rep. 509, where the facts were strictly similar to those in this case. The fact that a second or subsequent reissue is taken in order to reinstate the specification and claims of the original precludes the assumption that the original was invalid or inoperative.
By accepting a reissue containing the same claims as the original, the pat· entee declares, in a formal and deliberate manner, that as to the invention which he now claims the original patent was not inoperative or invalid. 4. FIRST REISSUE VOID IF IDENTICAL WITH ORIGINAL. It would not seem doubtful that if the first reissue had been identical with the original in the specification and claim it would have been void. 5. SAME. In such a case the original patent would have been abandoned, and the reissue would have been a nugatory grant, because the statutory conditions did not exist which are precedent to the exercise of the power of granting reissues. 6. SAME-REISSUE WITH ORIGINAL AND ADDITIONAL CLAIMS. Whether,a reissue which reinstates the claims, and inserts additional claims, not contained in the original, is valId even as to the original claims, and the effect of delay in applying for such a reissue, are difficult questions, decided in this case on the rule of comity. '1. COMITY, RULE OF. Whatever conclusion might have been reached by this court if the questions presented had not been considered and determined by another court of coordinate jurisdiction, held, the decision of the latter court was entitled to grea.t· respect, and should be followed. 8. SAME. lt would be unseemly that one rule of property in patents should prevail in one part of the country, and another in other parts. where the same title may be brought into litigation. In such cases the question should be remitted fOI final decision to the court of last resort.
This was a bill for infringement of reissued letters patent to Johu W. Hyatt, Jr., and Isaiah S. Hyatt, assignors, for improvement in treating and moulding pyroxyline. The reissue sued on was the third
by Charles C. Linthicum, Esq., of the Chicaj:(o bar.