129 F. 495 | N.D. Ill. | 1904
The question certified, as stated by the referee, is this: “Can a bankrupt be compelled to assign to the receiver or to the trustee all of his rights, title, and interest in, to, and under applications pending in the Patent Office for letters patent upon alleged invention?” The solution is not free from difficulty, but I am constrained to the opinion that the alleged interest of the bankrupt is not within either of the provisions of Act July 1, 1898, c. 541, § 70, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], and does not pass to the trustee in bankruptcy. The opinion of the referee rests the ruling in favor of the trustee upon section 70a, cl. 2, 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451], which declares that the bankrupt’s “interests in patents, patent rights, copyrights and trade-marks” shall be so- “vested by operation of law” as “of the date he was adjudged a bankrupt,” and upholds the contention on behalf of the trustee that the interest in a pending application is within the statutory intent and meaning of the term “patent right,” as therein used. This view impresses me as untenable for the reasons well stated in the opinion of Judge Shiras in Re McDonnell (D. C.) 101 Fed. 239. The term is one of frequent and distinctive use, both in statutes and in common parlance, and under the established rules for its construction must be taken in its “natural, plain, obvious, and ordinary signification.” Suth. on Stat. Const. § 229. As commonly used in various state statutes regulating transactions thereunder which have received judicial construction, the term “patent rights” has been limited, for obvious reasons, to such as “the patentee or his assignee (or licensee) possesses in the property created by the application of a patented discovery” (Patterson v. Kentucky, 97 U. S. 501, 506, 24 L. Ed. 1115); while in common parlance it is applied to rights derived under patents. As used in this statute, following the words “interests in patents,” I concur in the definition given by Judge Shiras, as “intended to indicate rights acquired under a patent to a third party, such as a license or manufacturing right.” The term is in no sense applicable to the incorporeal interest of an inventor in an alleged invention for which no' patent has issued, though application is pending. It would be a misnomer if employed in the latter sense, for no right to a patent exists except as provided by statute and upon allowance thereunder. Without such allowance of an. application, the applicant has no interest which can be denominated a “patent right,” whatever may be his interest in the invention claimed. Remarks arguendo in Fisher v. Cushman, 43 C. C. A. 381, 387, 103 Fed. 860, 51 L. R. A. 292, are cited by the referee (and in the briefs) as opposed to the ruling in the McDonnell Case. I do not so regard their import, and the dicta referred to impresses me as instructive only upon the inquiry of property right which remains to be considered.
The question certified must be answered in the negative, and the petition of the trustee denied accordingly. It is so ordered.