3 F. Cas. 84 | U.S. Circuit Court for the District of Connecticut | 1871
This is a motion for a preliminary injunction, founded upon an ordinary bill in equity, seeking to-restrain an alleged infringement of the plaintiffs’ patent, and to obtain an account, together with accompanying affidavits. That the device covered by the plaintiffs’ patent is in use in the defendant’s manufacturing establishment, with his consent, is not denied. He seeks to justify that use by the following facts:
On the 3d of February, I860, the then owners, of the patent in question executed a written instrument under seal, which, after reciting the issue of the patent to the inventors thereof, and that “Messrs. Howarth & Co., of Ho-boken, state of New Jersey, are desirous of acquiring a license to use said invention to a limited extent,” proceeds as follows: “Now this indenture witnesseth, that, for and in consideration of the sum of one thousand dollars to us in hand paid, the receipt of
But it is said that there is an implied limitation to persons — that the privilege can only be enjoyed by Howarth & Co., as the grant was to them only. This is a very narrow interpretation, by which the construction of the instrument is made to hinge on a name. By such a construction, the privilege would not have been defeated had new partners been admitted to the firm, provided the name had remained unchanged. Nor would the withdrawal of one of the two partners composing the firm at the time the license was granted, have had such an effect, provided the remaining member had chosen to carry on the business under the old name of Howarth & Co. For, it will be noticed, that the instrument does not prescribe or limit the number of partners which shall compose the firm of Howarth & Co., by setting out their individual names. The instrument, therefore, furnishes no evidence that the grantors intended that the privilege conferred by the license should be enjoyed by the exact number and identical persons of which the firm of Howarth & Co. was then composed. There was nothing in the nature of the privilege to lead the owners of the patent to call for, or contemplate, such a precise and rigid limitation of the grant. They knew perfectly well, in view of the instability of human affairs, that this firm might be changed or dissolved in a short time, and yet they took a consideration coextensive with the-whole life of the patent, which they still retain; and one of them is a party plaintiff to this bill. He, at least, is seeking to deprive a party of a privilege for which he undoubtedly paid a full consideration.
There is no pretence that Howarth is using the invention in any manner not warranted by the license, except what grows out of the fact that his co-partner has withdrawn from the firm and relinquished to him all her rights therein. As at present advised, I do not think that this fact operates to deprive him of all rights under this license. At all events, I entertain sufficient doubts of the validity of the plaintiffs’ claim to lead me to deny this motion for a preliminary injunction.