ant's wall it could be taken out by itself, in the Stevens patent the same proceeding which would take one wall would also take out the other three. This wall in the defendant's refrigerator, neither as patented nor made, is removable from the case; and it seems to me that the difference between 'it and the complainant's, in the principle covered by complainant's claim, is greater than that between the complainant's and the Stevens patent. However that may be, I am of the opinion that the variations from what was already accomplished in the design and construction of refrigerators at the time when the patents in question were applied for were not, in respect to this peculiarity, at least, the result of such original invention as is intended by the statute. · Upon his specifications, Mr. Leonard also claimed the results from a combination of his ice-floor and his partition wall; but, as this is not much dwelt upon in the argument, I notice it only to say that, both the elements of the combination being old, and the constituents not qualifying each other in any'way. the combination is not pat. entable. Pickering v. McCullough, 104 U. S. 310. lt follows from these views that the bill must be dismissed.
MACKENzm and another.
(Circuit Oourt,8. D. New York. December 22,1886.)
PATENTS FOR INvENTIONs-SUIT FOR INFRINGEMENT-TITLE OF COMPI.A.INANTASSIGNMENT-LICENSE.
February 11l, 1884, A., the owner of a patent, assigned it to B. November 20, 1884, B. granted to A. a license to manufacture and sell the patented article. November 2G,1884, B. assigned the patent to C., who assigned to D. April 16, 1886, B. assigned to A. all her right. title, and interest in and to the patent. April 24, 1886, A. filed a bill against E. to restrain him from infringing the patent; the assignment to C., which was made to secure payment of a joint note executed by B. and A., being still in full force. Held, that A. had not the legal title to the patent, and could not maintain the suit.
In Equity. Suit for infringement. The bill, based upon letters patent No. 293,545, was filed April 24, 1886. In July, 1886, the defendants filed a plea, alleging that the complainant, when he commenced the action, did not hold the legal title to the patent. Issue was joined on the plea. It appears from the record that on the thirteenth of February, 1884, the complainant assigned the patent to Sarah E. Waterman. On the twentieth of NovemlJer, 1884, Sarah E. Waterman granted to the complainant a license to manufacture and sell the patented article. On the twenty-fifth of November, 1884, Sons, and on the same day she assigned the patent to Asa L. they transferred it to Asa L. Shipman. On the sixteenth of April, 1886, Sarah E. Waterman assigned to the complainant all her right, title, and
WATERMAN V. MACKENZIE.
interest in and to the patent. The assignment to Asa L. Shipman's Sons contains the fonowing language: "I hereby sell, assign, transfer, and set over unto the said Asa L. Shipman's Sons, their successors and assigns, all the right, title, and interest. or demand, of any character or description, legal or eqUitable, which I have, in, to, under. or by virtue of the said invention. and in, to, under, or by virtue of the letters patent therefor aforesaid, the same being the entir.e interestinsaid letters patent." It then recites that complainant and Sarah E. Waterman have made ajoint note for $6,500, payable in three years, and provides as follows: "If the said Lewis E. Waterman and myself, or either of us, shall well and truly pay the said note according to its tenor, then this assignment and transfer shall be null and void; otherwise to be and 'to remain in full force and effect." Walter S. Logan, for complainant. Philip J. O'Reilly, for defendants.
CoXE, J. I have carefully examined the additional suggestions sent me by counsel, and see no reason to change the opinion expressed at the argument. To what was then said but a word need be added. The transfer to Asa L. Shipman is in language so emphatic and exact that there is little opportunity for misapprehension. It matters not what the instrument is called. It matters not that it may be defeated by the payment of $6,500 on the twenty-fifth of November, 1887. The fact remains that, by virtue of this assignment or mortgage, the title to the patent was, on the twenty-fourth of April, 1886, when this action was commenced, outstanding i.n Asa,L. Shipman. Hit was not absolute, it was a present, existing title, defeasible upon a condition subsequent. . On the sixteenth of April, therefore, when Sarah E. Waterman assigned all her right, title, and interest to the complainant, she had nothing to assign which could at all change the legal status of the parties. She could not vest a clear title to the patent in the complainant, for the obvious reason that she had previously disposed of it, and did not own it. The agreement of the twentieth of November, 1884, being a license, and nothing more, does not enable the complainant to maintain this action without joining the holder of the legal title. The suggestion U:at, irrespective of the Shipman assignment, the complainant is entitled to prosecute for infringements alleged to have occurred between February 12 and November 25, 1884, is equally unavailing; for, assuming such a right of action to exist, it could only be maintained on the law, and not in the equity, side of the court. The plea is allowed. The complainant may amend upon payment of costs within 10 days. '
v. G:un and others.'
(Circuit Court; D.. Indiana. November 18,1886.'
The sixth ,and eighth claims of reissued letters J)atentNo. 10.347, (original . No. 274,940.) issued November 22, 1883, to Lewis W. Hasselman, for a strawstacker, held anticipated by patent No. 152,760, of July 7, 1874, to Morey, for hay a,nd grain elevator. '
PATENTS FO:S !NVENTIONS-STlU:W·STA,(JKERs.
Claim Sof letters patent No. 290,050, issued December 11, 1883. to Lewis W. Hasselman, for a straw-stacker, does not cover a new combination, and, as added to a straw-stacker, is nothing but an aggregation of well-known devices, which in their new relation perform no new office, and such claim is therefore void.
In Chancery. O. P. Jacobs, for Wood et Boyd, for defendants.
WOODS, J. The 'complainantis the patentee and owner of letters patent No. 10,347, reissue of No. 274,940,and of original patent No. 290,050, and charges that the defendants have infringed the sixth and eighth claims of the reissue, and the third claim of the lastnanred patent, by manufacturing and putting upon the market a straw-stacker embodying the set forth in those claims, respectively. The claims in question read as follows:
"(6) In a straw-stacker, the folding straw-carrier,A, B, the supporting frame, F, F, the revolving plate, b, and the straw-c.arrier braces, G, G, adapted to rotate upon the axis, E, when the carrier frame is tilted, in combination with the axis, E, the windlass, L, and a rope connecting the windlass with the carrier, substantially as and for the purpose described." "(8) In a straw-stacker, the folding and tilting carrier, A, B, adapted to revolve on the fifth wheel,.b, in combination with such wheel, a supporting frame, the stay-rope, I, brace, 11, windlass, L, and its crank, e, located and operated below the carrier frame, substantially as describ,ed." "(3) In a straw-stacking machine, the windlass, sp, mounted on a shaft, S8, the cogged gearing, cg, cg 1, shaft, 8 2, and crank, cr,' the shaft, S3, being provided with a ratchet, engaging a paWl on the frame, as set forth, in combination with the chain, ch, and carrier arm, P, substantially as described, and for the purpose set forth."
The defenda.nts deny novelty and invention in each of these claims, and make the following references to the prior art, to-wit, letters patent of the United States granted D. Morey, July 7, 1874, No. 152,760; W. R. Maloy, September 12,1882, No. 264,311; J. D. Edward, February 20, 1877, No. 187,607; J. W. Perkinson et al., April 17,' 1883, No. 275,941; H. Cortelyou, December 26, 1882, No. 269,561; J. Q. Adams, May 2, 1876, No. 176,916; M. T. Reeves, reissue, September 26, 1882, No. 10,208; C. E. Merrifield, March 20, 1883, No. 274,134; J. C. Lindley, March 20, 1883, No. 274,205; O. E.
by Charles C. LinthicuIll, Esq., of the Chicago bar.