702 line with the-.mdius ofthe'l dislt r tQ' which it is This a fereuce in.form l , but not: ill. principle. The pbject in both cases ,is to spear the potato. By :t4e'old strike it with the speati by the new, you potato while thesnear it. ''I'b;e last is ;much the better device,: lito doubt". but.in };>pth you spear the p,o·tato. 'I'M last plan of doing it)s an improvement on old plani that is, all. The patent-office patent may! make two classes, if they please, andeaU one Ii,hpokedrspear cllJ,ss, and the other a spear classi but that eallnot set,tlethe mlltter.'l'hese classilications areeritirely arbitrary, and may descend to infinitesimal differen.ces. common sense of the thing ,is the only criterion of the rights of the parties, and ofthe legal rules by to be decided. , lnmy opinion, the as described in ,the patents of 1880 and 1883 is but an improvement upon the machines as described in the patent of 1869, within the true sense and meaning of the word ments," .as used in theassignmeI\t ofJanuary 15, 1870. . Under this view of the effect. of the aE\sigllment, the bill, of course, _must be dismissed. The owner of one-eleventh of a: patent cannot suethe owner of eight-elevenths of it for. an infringeme.I;lt"even though the ownership of the latter be only an equitable interest. i It is the duty. of the ,legal owner to transfer ,to the equitable owner his r;ightful share of the .property. The exact mutual rights of part, owners (jfa patenthav;e never yet been authoritatively settled. If,one part owner derives a profit from the patent, either by using the invention, or getting royalties for its use, or purchase money fQr sale ,of rights, it would seem that he ,should be accountable to the Qtherpart owners for their portion of such profit. And probably a bill for.a,n account would be sustained therefor. But this is matter of mere specnlation, So far-as this ease is concerned. It is olear, I think, that one part owner cannot maintain suit against another for infringement. :, The bill is dismissed, with
(OirtJ'/j,it Oourt, D. New J'er8eY. JulV 18, 1887.) ,-', 'i
PATENTS FOR INVENTIONS-LICli:NSE-INJ'UNCTION.
Where it appears that a has a license from the inve,u,tor and. pano injunction will tentee to make, use, and vend 100 patent potato, be decreed to restrain the exerci.se of the license untIl he has fully enjoyed it; and where it appearedtha1i defendant; under 8\1ch license, had only made 50 machines, the should be; qenied.
On Bill in Equity. On, digger patents. Pranci8 Fot'bes, for contplainant. F. a. Inwthorp, Jr., for d.efeij.dant.
IN BE GLENMONT.
The bill in this case'was filed to restrain the infringement oUwocertain patents granted to L. Augustus Aspinwall,one dated February 3,1880, and numbered 224,123, and the other dated September 19, 1882, and numbered 264,603,-both for improvements in potato diggers,aQd both assigned to the complainant by a deed bearing date February'24j 1883.: The bill charges the defendants with infringement' of the: Said patents, ,and prays for a decree for profits and damages. TlieilMenses set up in the answer are-F'irst, a license; and, secondly, , ,' , The li6ense :elit!imed is the same ,as that which was set up in the suit on the plariterpa,tent, ante, 697, Gustdecidedj)it being claimed under the'same,l1gree#ient, which provided for the manufacture of 100 planter machines a:rid 100 lUgger machines. I held in that case that the defendants hadexbausted the Ih)ense for the manufactUre of planters before' the of the suit, and had infringed the patents sued Qn by manufacturing in excess of the license. In the present case this has notheen done:' The defendants have not manufactured, all told, out 50 pothiOdiggerSof the :tOO which they were authorized to manufacture. According'to the views expressed in the other case, therefore, the defendants are not amenable to a suit for infringement of the digger patents. They went to large expense in getting out such machines as they di,d manufactu,rEl, and,are entitled to a reimbursement of those expenditures from the proceeds of machines to be sold; and,as the sai.d Aspinwall:Rasintel'posed every 'possible obstacle in the way of their dispOsing of machiries, it cannot be justly contended that their license will expire until they have made their full complement of 100 machines. , This disposes Of the presentcase,and it is unnecessary to enter upon the consideration 'of the :other defense, which is much the same as thesecond defense in the planter 'ease, with the exception that the instruments called IlSsignments of the digger only grant the right to make, 1;1se, and vend, (which is a mere license,) and only grant use of futl;lre the,state ofNew Jersey. What thii!limited right may amount to, shOuld the new digger machines be held to be mere improvements on the old machines, 'it is unnecessary, as before said, to consider at this time. The license is a su.fficient defense to the present bill. The is therefore with costs·
'(Dtatrict Oourt,' D. MiTtnl8otQ,. November 1,1887.)
Oil' VESSEL ,INCLUDED., ORIGIl'fAL CoN'PlACT - , MATTERS .'
,. . A month after-the hun of thesteam·boat was built, and the r>ropelling power put in, the libelant furnisbed)lljrwith stores, fuel. cbec)t·line, copper for J,lilaWJ.inery. pails for roof, bedding, etc. On the dliy 'tllfliout:lit was redei'ved the boat made her first trip. It'did not