80 F. 700 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1896
As the court understands the plaintiff’s statement the demurrer cannot be sustained. The suit is founded on an alleged implied contract for the use of several machines-covered by distinct patents. The defendant was not a licensee; but having purchased the machines from one who was, he proceeded to-use them with knowledge of the facts and after expressed notice, that if he did so he would be held liable to make compensation for' such use. The reference in the statement to contracts with the former licensee and to the notice, is made by way of inducement, and to strengthen, the implication in favor of the contract sued upon. This latter contract is similar in all respects to such as arise where one uses a patented machine without authority and with knowledge of the facts. I do not think the statement is liable to any other construction than that just stated. That the plaintiff so understands it, is made plain by the following language taken from his brief:
“Tbe contracts between the plaintiff and the Pennsylvania Tack Works are not the foundation of the claim against the defendant but are set up as inducement only.”
In the defendant’s brief it is said:
“If the defendant used the machine and if the patents are valid the plaintiff may have a right of action for the infringement in which the measure of damages would perhaps be the license price paid by the Pennsylvania Tack Works or other licensees if there are any, but it is obvious on reading the statement that no facts are alleged from which a contract can be implied.”
We think the cause of action set out is substantially the one just described and that all facts necessary to justify an implication of a contract to pay for the use are sufficiently averred. The claim is not
