*1 Gеorge attained following H. Thomas. spring, when of James title name .in father majority with his what- and settled H. Thomas clothed himself with his James only $2,000 coming. This bank, not shown apparent he had he had. It is ever title had'disappeared in money any knowledge or large Eugenia amount Thomas had there- way, no sum had claimed considerable notice that her husband ever some except by right. property of is accounted for in his own own the knowledge or no- property. had of this is not shown that she plaintiff to found for the had ever any representations trial court that he The tice of any question was property in had effect, she made to that Thomas, that property of James H. knowledge R. G. Dunn whatever of the wife, Eugenia Thomas, conveyed made any statement, Co. other statement by quitclaim deed without consideration George Thomas had husband, or that creditors, deed any in fraud of ordered never plaintiff The such information. subjected property to the ques- set aside said acquired any property lien on the judgment. from that decree plaintiff’s It is George transaction Thom- tion. The between Thomas and that the defendants James H. mother, Eugenia, as and his had been Eugenia appeal. Thomas any plaintiff summated before the obtained testimony of George judgment Thomas and against Thomas, we Jaines H. Eugenia Thomas shows without conflict that think for a full and valid consideration. Eugenia Thomas, after the conclusions, In view of our it follows that property from Amanda J. Taylor, made vari holding the trial court was in error in ous loans and advances George, who had question decreeing invalid deed purchased married and a home. She ad subjected the same be set aside and $7,000, vanced him bought at the time he a payment plaintiff’s judgment, and for home on Fifteenth and streets, Cincinnati reversed, that reason the decree is with di- money buy Tulsa. He had borrowed rection the trial dismiss court to $2,000, eаr in the amount of and various plaintiff’s bill. sums, early aggregated in 1923 Reversed. $17,000. about These sums it is testified advances, understanding with the mother, Eugenia, security should have RADIO CORPORATION OF v. AMERICA upon the in controversy, and, lot about six LORD al.* et finally months before the executed, deed was Appeals, Circuit Court Third Circuit. George had directed his father to deed the September 11, 1928. property mother, to his and the deed was pursuant made to that direction. We are No. 3789. satisfied that advances the mother George made testified, and that property originally bought George Thomas his father and with his money. just stated, As how the details were handled between James H. Thomas, bank, George Thomas is not clear, testimony fairly think that, shows arrangement whatever the was, was an arrangement in George. behalf of question plain now occurs: Is the nullify tiff conveyance entitled subject payment of his judgment plea under his Eugenia estopped setting Thomas is up her own ership thereof or therein, interest years prior “that a number of July 20, 1923, she clothed husband, her James H. Thomas, legal with the title to said land and held him world, out to the including plaintiff, as the owner thereof” ? testimony findWe in the record to support allegation. Eugenia Thomas had not been instrumental in placing Ed. —. Supreme 49 S. Court denied *Certiorari *2 dissenting.
Buffington, Judge, Circuit Fish, Boston, Mass., Frederick P. Davis, Stephen Philbin, and W. H. John City, York Gordon, M. all New Thurlow Mahaffy, Wilmington, -and William G. appellant. Del., for City, Jr., E. of New Darby, York Samuel 111.,and Reiehmann, Chicago, Ernest R. ap- Wilmington, Berl, Del., Ennalls E. pellees. WOOLLEY, and BUFFINGTON, Before Judges.
DAVIS, Circuit * * ap- or un- DAVIS, Judge. This is an whether * * * condition, re- peal patented, of the District Court a decree lessee understanding that the straining Corporation of Amer- the Radio use or deal ica, from or thereof shall not hereinafter called the *3 * ** competitor or indirectly goods, in of enforcing directly or contracts the a seller, competitors of the where for the sale vacuum tubes embodied lessor or of radiо agreement lease, sale, the such contract for paragraph in 9 of the between or denying condition, agreement or under- and sale or such substantially for standing may to bill be to lessen com- motion dismiss the defendant's petition monopoly any in indispensable parties. or tend to create a want of engaged line 15 14. plaintiffs The in the manu- of commerce." TJSCA § tubes, by facture and vacuum known The the District sale of conclusion reached audions, upon in receiv- Court propositions, as which are used radio was based three ing brought sets. The under sec- which suit it found were the ev- established 26) Clayton (15 paragraph tion Act TJSCA idence. These are 9 con- § that enjoin par- enforcing (1) to the defendant from stitutes a goods, contract for the sale of agraph agreement (2) 9 of its with its licensees. on condition that the should plaintiffs alleged paragraph goods competi- not use in this or deal the aof tor competitors (3) violates sections 1 and 2 of the or of seller, the the Sherman (15 2) Act TJSCA and section 3 of the of such contract for or such con- §§ sale Clayton (15 filing 14). Act dition “to compe- TJSCA On lessen § bill, injunc- the monopoly a motion was made for an tition or tend to in" create a pendente tion After arguments lite. two tubes. vacuum The correctness' of counter affi- the affidavits, reply depends upon based court’s conclusion wheth- davits, granted injunction, the court the but er or not these three propositions are sus- stayed operation pending its issuance tained evidence, the law and for section appeal. Clayton this requires the Act Paragraph agreement 9 of the license established in order bring paragraph to provides that: agreement within the inhibition of “Nothing con- herein contained shall act. any conveying strued as expressly licenses says that section 9 of by implication, estoppel to or otherwise does not а contain contract manufacture, vacuum ex- use or sell goods, meaning for the sale of within cept pur- to use and sell the vacuum tubes Act, simply section 3 Corporation pro- chased from the Radio as agreement, license covenants, lawful Corporation vided herein. The Radio here- restrictions, conditions of license. by agrees to sell to the the li- licensee and paragraph, however, story. tells its own hereby agrees provides censеe to It expressly Radio “the Cor only number, Corporation poration hereby agrees Radio to to the li sell as the number of vacuum tubes to be used agrees censee and the licensee parts of the circuits licensed hereunder and Corporation Radio the number, required initially ap- operative only number, of vacuum tubes to be licensed under such paratus agreement, used circuits licensed here tubes to be sold the Radio Corporation required initially oper to make under and to the licensee at the terms and at ative the licensed under * * being prices which then sold agreement, prices at at the which to other manufac- Corporation Radio being sold Radio Cor- are then buying quanti- in like turers of radio sets poration other of rádio manufacturers purposes. But the sale same quantities ties buying sets in like for the same Corporation to by the Radio such tubes The Uniform purposes." Sale Goods grant- licensee shall not be construed as Pennsylvania, Act, Jersey, in in New force ing except to sell licenses many states, defines in, in, for use goods tubes for the sale of as: “A contract sell and sold hereunder." agrees goods whereby seller is a contract held The learned District property goods to transfer ’’ provisions paragraph violate sec- buyer price. for a consideration called Clayton Act, provides tion Comp. of N. J. 4647. Such Statutes that: Cyc. “a tract is dеfined * * * to agrees unlawful whereby “It shall be seller to transfer or make a or contract for sale lease sale buyer price Talking Ed. v. Victor agrees pay. A Leeds & Gatlin buyer pays which the Co., 325, 29 agreement Machine 213 U. contact to also an sell is termed By the 53 Ed. Cye. 27. term sell. whatever mo- single A element, defendant 'old whose calls the contained put nopoly into a new paragraph 9, they express expired, us cannot be seem to apt ele- languаge combination as a constituent a contract the sale of monop- meaning ment, within the thus its individual section oly years for 17 would more. This revived securing may be, patent, be a method of or a However that new says evading law, means of the patent dou- so-called is lawful length bling the patented products, patent. within the life of a A field of *4 patent may single “a not covenant in be secured on ele- which would be lawful equally licenses, one license ment inclusion. is 25 The vacuum tubes lawful in an operation if element the solely its electrical circuits licensed relates to the man the circuits, under It these patented contracts. article itself.” If .ufaeture such, unpatented it single not the that, independent be.conceded ele- prop as an ments, that osition, protected. the may sound, While yet, statement be if right fendant has the the exclusive to manufac- sale is made on the condi ture, lease, tion, sell the combinаtion, agreement, or does understanding that the not right have the to withhold from shall not the deal in the of his manufacture, and sale competitors, others a and the of condition, use/ single elements, one of agreement, composing understanding may be to circuits, longer protected which is no lessen competition, or tend to patent. patentee may In monopoly, words, create a pro it is unlawful and prevent not manufacture, use, individual hibited 3 of Section еlement, single unpatented illegal that act an and sale of a contract, defines “and use, make, patent right which the world is free to privilege confers no sell, by simply including it as element make an contracts themselves illegal, and- certainly patented put it in a new -combination. To not to directly make those viola patented differently, inclusion tive of valid statutes of the United States.” Machinery unpatented United bination of an element ddes not Shoe Corр. v. United give patentee of mo- States, 451, the combination a 363, U. S. element, of nopoly L. each and the exclusive Ed. 708. use, element, make, A and sell that patentee, says, the defendant long as independent exclusive of the combination. So and sell to li censees, covering was in patent for their use vacuum tubes completing li of existence, patentee censed element by it, any manufactured protected, it could combination was patented combination, element of the even not in the combination without though that be included element is old and free from but, so; patent patent to do monopoly. license when The learned District expired, rights, Judge, authority tube element of the case of Unit patentee, be- vested in the ed were theretofore Corp. Shoe v. United public, came not supra, overruled this contention. A li patentee of the combination. censed combination need not sep consist of says that, for the sake arate elements, each of which is efficiency, durability, uniformity, entitled to patent monopoly. individual tubes, particular to have these pro is the desirable new combination that law sets or placed licensed may by it, tects. in these Some the elements new, initially operative. patented, old, pat others to make on which circuits true, but, if may may true, patented. not be expired, ents have or never This Of pat difference, for excellence the individual it makes course, protects the law vi- justify the evasion product does not as the new elements, as well ented combi composed olation of the of new old elements. nation in the Supreme novelty Court said patentable con Act. As In such cases Machinery Corp. v. together these and old case of United Shoe bringing new sists combination, States, supra: new and not United elements into a good the machines patentаbility matter how in the of each element. Goss “No be, may or how effi- (C. 3) Company Printing-Press C. A. F. United v. Scott lease service, liberty its it is not American Bell cient United States v. Tel. prohibited by upon conditions 224, 249, its machines Co., S. Ct. Congress all manufacturers The licensees are the United a valid law of States. sets, only and the tubes which deny protection has undertaken ordinarily buy required to make are those as come patent to such initially operative licensed Clayton Act, and if the terms within grant duty agreement. under this The licenses constitutional, the sole the statute is to the licensees cover ed it in accordance to enforce of the court is “all letters of the United States terms.” with its frequency useful tuned receivers patented prod A sell his a ® * respect it has a with to which desires, any price he to whomsoever uct at grant alleged It is licenses.” will, he restrictions he and under whatever patents “there are 38 involved.” advantageous, he prоvided conceives legal right This assumed to include vac- doing Con- does not violate the law in so. protected uum tubes as a element we think that the learned District sequently li- grant and the combination, agree- properly held that this license censes for the combination with restrictive ment is a contract the sale of the licen- constrain clauses agree- inclusion in a license exclusively sees to deal ment for a combination not remove it does and tо refrain from with its com- Clayton Act, from the inhibitions of the *5 petitors because of the belief of licensed applies goods which “whether protection freedom hand, and on the one unpatented.” or infringement and of the litigation fear of of vac Was the contract sale provisions para- other. The of this pur that uum tubes made condition legal right, graph, upon based this assumed or deal in the chaser should not use Judge said, as the learned District “are competitor of the The Dis of a seller? quite express as effective as could Judge “ex trict found that there was no practically be, compel use tubes ef plicit condition or to that receiving in all sets fect,” him but that the evidence before licensees, except upon risks which practical that conclusive willingly manufacturers not will incur. paragraph prevent the licensees Was the effect of the contract for sale using in tubes other than or cоndition, agreement, understanding defendant; pro those sold that its substantially competition lessen or did express visions effective as cove monopoly? tend to create The court be, practically compelled nants would that the facts rec found disclosed the use of the tubes of the in all defendant ord him indicated that con before “the except receiving licensees, sets made tracts the sale of tubes embodied upon in risks which manufacturers will nоt agreements the license are an efficient in cur; agreements pro and that such strumentality lessening competition sub hibited Standard stantially, and tending,.as well, to make the Magrane-Houston Co., 258 Fashion Co. v. ® * * monopoly of the defendant com 346, 355, U. Ct. Ed. S. S. understanding plete.” This be Corp. United Shoe v. United tween the defendant and the licensees 451, 457, 458, monopoly actually of the L. Ed. resulted by the defendant part The first radio tube business paragraph 9 absolute- cent, ly expressly per of somewhere between requires extent the licensees to per tubes from and 95 cent. but part second limits this restriction it had to the intimates that initially tubes used to make operative large part of the business before the apparatus licensed under agreement; made, plaintiffs say that tract was is, purchase tubes, that the licensee of others and the business their business required initially not to make the circuits and been taken has decreased generally opеrative, than the others defendant. defendant and The third part paragraph restricts competition has been sub- results show granted the licenses to sell the creat- stantially and a lessened tubes for use in the made and introduction of defend- enforced ed. This agreement. The first and patrons sold under of the licensees ant’s tubes paragraph big advantage third restrict over gives the defendant hedge in- for the sale of the in the first of tubes other manufacturers provided part. naturally tubes the second replace patrons for these stance with, out tube” taken "noneombination that were in old. tabes the same kind is associated field, free commercial puts other This purchased. sets when mech- electrical with the combination great disad- of tabes at a manufacturers here in- combination anism the vantage, overcome so cannot "noneombi- volved, it to be the old ceases long to en- permitted as the dеfendant commerce, and nation tube” of unrestricted paragraph. The force the of re- "combination tube” becomes the District effect of the found that the my To mind much of stricted use. contract, condition, agreement, or under- from re- in this case arises standing compe- confusion lessen was to garding tubes” and tition, monopoly. these "noneombination and tended create the "combination tube” as one justified think We the evidence divergent finding. thing. same This leаds to the plaintiff views For and defendant. The defendant contends ways. parting here bill comes the should be dismissed for want of indis pensable plaintiff says: parties. "Radio be- licen the. sees, being commerce, cause old article says, adjudicated, and an have an indispensable unrestricted parties, and should to sell and use joined. any way, been far as and the prevents So it has been called to our attention, no unrestricted suppresses licensee has asked to use therefore competition.” in party. hand, be made Their silence would On the other feeling you says: "True, dicate that do not share the fendant have a party indispensable long An is sell and defendant. use a radio tube so as it ais tube,’ one who the suit that you bears such relation to ‘noneombination but when your no decree can be entered in the ease which bine my ‘noneombination tube’ with justice parties do thereby your will before the electrical *6 affecting injuriously court without his ‘noneombination tube’ in a field which in the contract be did not rights. my exist 'fact or till commerce patent field, you us inserted the benefit created such left fore were have character field of commerce, are of such ‘noneombination tube’ injuri you not be rights will ‘combination use of the’lieensees tube’ have patent is the entered ously monopoly, the decree. de the field of a affected gives to to my new, sell tubes the law me as a sire of reward for use- ful, affirmed, the de and inventive licensees. If the decree is use of combination pres old, to the licensees as ‘noneombination fendant sell tube’ of commerce.” Now, will ent, and the licensees which of these contentions is the true but, if advantage, view? their if it it, ease, elsewhere. Turning free to the facts not, be will indispensa patent receiving think that a radio set do not We injuriously patent which consists of a for a combina- parties, whose ble ease the tion of a tube by the decree. The and certain electrical affected right Corp. v. United make and vend appliances, United Shoe against one can patented contention combination. No supra, settles right" select the ny patentee defendant. he assemble shall is affirmed. material or articles decree making article, and, of that hav- use right Judge (dissent- unquestionable selection, he ing this BUFFINGTON, Circuit by requiring his controversy can exеrcise it turns certain ing). This making article, use such ma- patented First, here we are facts. basic If the pat- as he selects. wit, a radio terials articles combination, to patented awith put patent and his work his entee does not receiving patented combination That set. one market, no could patented device co-operating first, consists of two elements — restricting thereby contend he was mechanism; and, sec- electrical certain merce, would be no commerce for there Standing alone dis- tube. ond, a radio also, if in So, making combination, his device to restrict. patented associated patentee the market such article for barter, buy, sell, free to every one is materials his licensees determine what tube,' and a commercial such a radio could used, how such or articles should style a "noneombination I herein tube ’’ ‘ regarded commer- presale selection ‘noneombination tube tube. With such in the field of commerce be- restriction cial But when such has no concern. ease WEEDIN, Commis- CHEE v. complet- MOY CHONG patented fore the combination Immigration. sioner of such sale, entered and, subsequent ed contracts, tying up no Appeals, There is here field? Ninth Circuit. Court September 4, royalty use, replacement no restricted fact, no conditions of No. 5448 provisions, patentee seeks to dom- kind, which the patented it has inate the article after sale entered the field of commerce. analysis In the this ease turns on last purpose meaning Now me that such un it seems to tying up reasonable articles after had entered into field extending commerce, and thus limited bridling patent into the general commerce, the mischief Con gress -the passing had view in Act, and it strike had no intent to down implied repeal of a the well-known patentee, well, assigns making his his article of material as he pursuance provision fit in sаw of the broad “Every patent law, viz.: * * *' grant shall patentee, years, the term of 17 assigns, heirs or * ‘J exclusive discovery.” the invention or USCA § 40. This to select his logi own considered and materials was well cally Westinghouse vindicated in Electric (D. Fibre Co. Mfg. Diamond State Co. v. right of as C.) 268 F. where *7 gear car signee for a ma require licensees to use certain with and by the owner of the terials furnished saying: there patent; court (cid:127) and ma- “The to make the patented article, and entering terial into the them, making if such exclude others unpatented as parts and material ease, an inevitable to be would seem part pat- adjunct patent and a evidence in this is no monopoly. There ent assignee, case monopoly to ever surrendered plaintiff, see, therefore, public. I do not granting a license manu- reserving to gears, but facture the Conrad continue to make licensor Lysons, Seattle, Wash., Fred H. gear to surrender to material, Bellеw, Seland, Schendel, Dillon of Minne- monopoly to make the the licensor’s public Minn., apolis, appellant. gears, entering or to material into Revelle, Atty., Thos. P. U. S. An- within the create a ‘line of commerce’ thony Savage, Atty., Asst. U. S. both of meaning of Act.” Seattle, (John Dunton, F. Wash. Im- foregoing, I In am of addition migration Wash., Service, Seattle, opinion this should not have been appellee. brief), for wit, part parties, aside until all own- set GILBERT, RUDKIN, Before DIET- parties ers and licensees, were RICH, Judges. heard.