185 Ind. 616 | Ind. | 1916
— Appellee bas recovered a judgment against appellant in tbe sum of $8,04G, wbicb represents tbe amount of principal and accrued interest to tbe date of judgment on three promissory notes, unpaid and past due, wbicb were executed by appellant on March 25,1903. Tbe questions presented by tbis appeal from said judgment will best appear from a consideration, in substance, of tbe facts found specially by tbe trial court as a basis for its decision.
“Assignment.
“Whebeas, I, John M. Culver, of 356 Dear-born street, Chicago, Illinois, have invented certain new and useful improvements in Wind Stackers, adapted for use on Threshers, Fodder Shredders, and for other purposes, application for patent on which is now in process of preparation,
“And Whebeas, The Indiana Manufacturing Company, a corporation of West Virginia, with its place of business at Indianapolis, in the State of Indiana, is desirous of acquiring the entire right, title and interest therein.
“Now Thebefobe Be It Known, That for One Dollar, and other good and valuable consideration, the receipt of which is hereby acknowledged, I have sold, and by these pres*619 ents do hereby sell and convey to the said The Indiana Manufacturing Company, its assigns and legal representatives, all my right, title and interest in and to the said invention and the Letters Patent to be obtained therefor, to- have and to hold for the full term for which patent may be obtained on the said invention, together with the right to obtain foreign patents and I hereby agree to execute all papers necessary for the obtaining of patents in this and foreign countries.
“The Commissioner of Patents is authorized and hereby requested to issue any patents that may be obtained on said invention to the said The Indiana Manufacturing Company.
“In Witness Whereof, I hereunto set my hand and seal this twenty-fifth day of March, 1903.
(Signed) John M. Culver.”
This instrument was duly acknowledged before a notary public and mailed by appellee, on the day of its execution, to the office of appellant at Indianapolis, where it was received in due course, and has since remained in the control of appellant. The-specifications, drawings, claims and application contemplated by the agreement of the parties were duly prepared and filed by appellee, as attorney for the inventor, in the United States Patent Office on September 12, 1903, under serial No. 172,858, and a patent was allowed thereon by the Commissioner of Patents on October 3, 1904. It then developed that the assignment of May 25, 1903, had not been forwarded by appellant to the patent office, and appellee, on paying thé final patent fee, directed that the letters patent be issued in the name of the inventor, which was done on February 21, 1905, under patent No. 783,025. Appellee thereafter advised appellant of the issuance of the letters patent but was informed that the assignment in question had been lost, whereupon he procured the execution,
Appellant contends, however, that a mental conception of an improvement on an existing machine, unreduced to practice and unexpressed in any physical form or descriptive specification, does not constitute an invention (Lamson v. Martin [1893], 159 Mass. 557, 566, 35 N. E. 78), and that although one may enter into a valid agreement to sell an invention not yet developed by him, he cannot make a valid sale thereof. Regan Vapor-Engine Co. v. Pacific Gas Engine Co. (1892), 49 Fed. 68, 70, 1 C. C. A. 169, and authorities cited.
This conclusion. serves to dispose of such other questions as are presented by the appeal and not waived by appellant’s failure to discuss the same in its argument. Judgment affirmed.
Note. — Reported in 114 N. E.^214. Validity of note given for ' patent right where the assignment is defective or invalid, note, 20 , L. R. A. 605. _