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POPE MANUFACTURING COMPANY v. GORMULLY & JEFFERY MANUFACTURING COMPANY. (NO. 3.)

decided: April 4, 1892.

POPE MANUFACTURING COMPANY
v.
GORMULLY & JEFFERY MANUFACTURING COMPANY. (NO. 3.)



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

Author: Brown

[ 144 U.S. Page 249]

 MR. JUSTICE BROWN delivered the opinion of the court.

There are two patents involved in this case, both of which relate to what is known as hammock saddles for bicycles.

(1) The second claim of the Shire patent, No. 216,231, which is the only one alleged to be infringed, and the only one to which the plaintiff appears to have the title, is as follows:

"2. In a velocipede, an adjustable hammock seat J, substantially as set forth."

Plaintiff derives its title to this patent by assignment from Thomas Kirkpatrick, who himself claimed title to it from Shire, the patentee, under the following instrument:

"Be it known, that I, John Shire, of Detroit, Wayne County, Michigan, for and in consideration of one dollar and other valuable considerations to me paid, do hereby sell and assign to Thomas J. Kirkpatrick, of Springfield, Clark County, Ohio, all my right, title and interest in and to the letters patent on velocipedes granted to me June 3, 1879, and No. 216,231, including all rights for past infringement so far as said patent relates to or covers the adjustable hammock seat or saddle, except the right to use said seat or saddle in connection with the velocipede made by me under said patent, in my business at Detroit.

"Signed and delivered at Detroit, this 10th day of July, 1884.

"JOHN SHIRE.

"Witness: J. M. EMERSON."

[ 144 U.S. Page 250]

     The instrument should evidently be read as though there were a comma after the word "infringement," as the following words are evidently intended as a limitation upon the prior granting clause. It is then only so far as this patent "relates to or covers the adjustable hammock seat or saddle," that the patentee conveys his right to the same to Kirkpatrick. The patent itself contains four claims, and covers not only the adjustable hammock seat mentioned in the second claim, but three combinations set forth in other claims, of which the hammock seat is an element in only one.

Did this instrument, then, vest in Kirkpatrick the legal title to that element in the patent embodied in the second claim, or was this a mere license giving him a right to make, use and sell the device in this claim, but not vesting in him the legal title, or enabling him to sue thereon in his own name, nor to convey such right to the plaintiff? It really involves the question, which is one of considerable importance, whether a patentee can split up his patent into as many different parts as there are claims, and vest the legal title to those claims in as many different persons. This question has never before been squarely presented to this court, but, in view of our prior adjudications, it presents no great difficulty. The leading case upon this subject is that of Gayler v. Wilder, 10 How. 477,494, wherein it was held that the grant of an exclusive right to make and vend an article within a certain territory, upon paying to the assignor a cent per pound, reserving to the assignor the right to use and manufacture the article by paying to the assignee a cent per pound, was only a license, and that a suit for the infringement of the patent right must be brought in the name of the assignor. While that of course was a different question from the one involved in this case, the trend of the entire opinion is to the effect that the monopoly granted by law to the ...


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