the whole of the meat and pack the can with it, compressing it into a solid mass, then heat and seal it up from the air. and reheat it to combine any free oxygen that may possibly be left in the can."
Here we have in both cases solid meats, and in one case cooked meats, packed in cans for preservation. Neither of these patentees tell ns the shape of their cans. But we cannot see how, with conical and pyramidal cans well known in the art as packages for the preservation of meats and other food, and the old art of packing or com· pressing meats solidly into cans, there can be any invention which should be protected by a patent in taking these well-known shaped cans and pressing into them cooked meat so as to form a solid mass or cake. The can was old and the meat cake was old. The result that the bills will be dismissed.
HERRING 'V. GAS CONSUMERS' ASSOCIATION. O
(Circuit Court, E. D. Missouri. March 28, 1878.) 1.
INFRINGEMENT OF PATENT BY JOINT OWNER.
A part owner of a patent has no right to use an infringing device. If he does he is liable to his co-owner for the wrong done.
SAME-AMOUNT OF RECOVEUY.
When a part owner of a patent sues a Co-owner for using: an infring:ing device, the recovery, if any, will be in proportion to their respective mtcrests.
J. 11. Blair, for plaintiff.
H. B. Wilson and John McGuffy, for defendant. TREAT, D. J. The plaintiff avers, .substantially, that he is owner of an undivided two-thirds interest in the patent described, and that the defendant is owner of the other undivided one-third interest; that the defendant is using a device which is an infringement upon their cornman patent, and that he is so doing under cover of their Common patent. Hence the claim for damages for said infringement,-not for the entire amonnt thereof, but for plaiutiff's proportion, to-wit, two-thirds. ' The direct question presented is whether an infringer of a patent can escape liability for his infringement because he is a joint owner of the original patent upon which the infringement occurs. The cases cited do not reach the precise point raised by the bill. It is evident that if a stranger was guilty of the infringement he
HERRING V. GAS CONSUMERS' ASSOCIATION.
would be compelled to respond in damages. Can a part owner· infringe the common patent and escape all liability? If hei can,it is obvious that, however small his aliquot part, he can make the enjoyment of the patent valueless to his joint owner. He has, by virtue of the joint ownership, a right to use the patent, but he has no right, more than a stranger, to infringe the same. If there is an infringement the right of recovery is in the party wronged. All the joint owners should ordinarily be parties plaintiff, but if the wrong-doer is one who is guilty to the damage of the other joint owner, the latter should not be left remediless. As .to such infringement they strangers. All the joint owners are on the record, and the amount of the recovery determines their respective interests. The infu:inger cannot escape the consequences of his wrong to his joint owner by averring that he was by. his infringement injuring not his joint owner alone, but himself also. In other words, he cannot, under cover of his interest in the common patent, shield every wrongdoer who may infringe that patent. He can, as to the other part owners, by infringing, become liable to them for the wrong done. The amount of recovery will be in proportion to their respective interests. Were this not so, the door would be open to the grossest frauds by one joint owner against all other joint owners. The case of Pitts v. Hall, 3 Blatchf. 204, and the comtnents:thereon in Curtis, Pat. § 108 et seq., do not cover this case. The question there discussed pertains to the use by one joint-owner of the common property. The difficulties in maintaining an action for an infringement against a joint-owner who merely uses the common patent may be insurmountable. As to that no opinion is expressed. In this case an entirely new and distinct proposition is presented, viz. one of the several joint owners is not using the common patent, but an infringing patent. His defence is that inasmuch as he had a right 'to use the original patent without question from his jointo:wners, despite the decision in Pitts v. Hall, supra, he has a right also to, use any infringing patents, on the ground that his right to use the original, being vested in him, his use of other and infringing patents did not cause any wrong or injury to himself as joint owner. In other words, the defendant contends that as one joint owner he could use· the common patent without being liable to account to the other joint owners; that he could not be sued as an infringer for using what he had a right to use by virtue of his proprietary interest; and therefore, if he used an infringing device, he was only injuring himself in what he had a proprietary right to forbid.
Thisworild be correct if no interest except his own were involved, for a man may do what he pleases with his own, and "valenti non fit injuria" would be, a fortiori, applicable in such a case. If a stranger were using the infringing patent this action would unquestionably lie against him; and the question before us is whether it will lie against a joint owner, or, in the language of the bill, whether he, under cover of his joint ownership, can infringe and escape liability. So far as he acts outside of his interests or rights or powers as a joint owner there is no adequate' reason for treating hipl, quoad hoc, otherwise than as a stranger. If this be not so, then one joint owner may destroy, without remedy, the rights of the other joint owners. Demurrer overruled.
NAT. FEATHER DUSTER
(CircuU Ocu.rl, N. D. flUnoi8.
November 26, 1881.)
Letters patent No. 177,933, dated May 80,1876, and issned to SURan M. Hib. bard,for an improvement in feather dusters, held to interfere with letters patent No. 154,985, and set aside. 2. ESTOPPEL. Under the: circumstances, Susan M. Hibbard is estopped to deny that her husband was the inventor of the device in controversy. 3. INVENTOR. One who made a valuable suggestion to the conceiver of the idea of substituting, in 8 feather duster, feathers of the common domestic fowls in place of ostrich feathers, while he was engaged in 8 series of experiments with 8 view to discover sOll'le means whereby sucb feathers might be made pliable, did not, thereby, become the inventor of the duster.
Sl.eeper ct Whiton, for complainant. West <f Bond, for defendant. BLODGETT, D. J.This is a bill in equity, framed under section 4918 ofthe Revised Statutes oftha United States, for the purpose of setting aside and declaring void a patent issued by the United States to Susan M:. Hibbard,for "an improvement in feather dusters," dated May 30, 1876, and numbered 177,933, upon the ground that the patentee, Susan M. Hibbard, was not the inventor of the device described in and covered by the patent. The .complainant claims to be the owner of patent No. 154,9A5, issued by the United States, on the fifteenth oLSeptember, 1874, to