Buss v. Putney, 38 N.H. 44

Buss v. Putney

38 N.H. 44 | N.H. | 1859

Sawyer, J.

The sale of the machine and the right to use with it one of Allen’s patented saws, imported a license to use the saw. Such license is not an assignment of an interest in the patent, or a grant of an exclusive right under it to make and use the patented article, within the meaning of section 11 of the act of congress of July 4, 1836, .(5 Statutes at Large 123) which requires the assignment of a patent, or of any interest therein, and the grant of an exclusive light under it to make and use the patented article, to be in writing, and recorded. Gayler v. Wilder, 10 How. 477. An assignment, within the meaning of the act, is the transfer of the whole or of an undivided interest in the monopoly conferred by the letters patent; and a grant is the conveyance of an exclusive right to make, use, or vend within a designated territory. Either gives to the assignee or grantee a right or interest in the monopoly, which may be protected by a suit for its violation. A license by the party claiming the monopoly *47to use one of the patented articles, is a mere waiver by him of all claim for damages for what otherwise would be a violation of his right in the use by the licensee; Wilson v. Rousseau, 4 How. 646; Troy Factory v. Corning, 14 How. 193; and it confers no exclusive right or interest under the patent for a violation of which he may recover damages. If there is implied in such license a covenant of right and title in the licensor, it is sufficient for this case that the defendant has introduced no evidence tending to show that the plaintiff had no right or title, or that the use of the saw, in accordance with the license, has been interrupted. Until the defendant is disturbed in exercising his license by some party claiming to be the owner of the right under the patent, and whose right would appear, prima facie, to be violated thereby, he is not in the situation to call upon the vendor, in an action for the purchase money agreed to be paid, to establish his title to the thing sold. Until then he has all he bargained for. If the want of title in his vendor would avail him in such case as a defence, it is for him to show it. Holden v. Curtis, 2 N. H. 61; Bartlett v. Holbrook, 1 Gray 114. The position taken by the counsel for the defendant, that this is shown by the recital in the plaintiff’s deed, that the letters patent were granted to Allen, is fully answered by the view suggested on the other side, that if this is evidence against the plaintiff on that point, it is so because it is an admission made by him, and the admission is qualified by the further recital that the patent has been assigned to him. It is an admission, then, not that the plaintiff had no title at the time of the sale, but directly to the contrary. The defendant has no ground of exception to the ruling of the court, and consequently there must be

Judgment on the verdict.