LICENSES-Continued.

2. LICENSE TO MANUFACTURE, SELL, AND USE.-An instrument which is
in terms a transfer by complainant to defendant of the exclusive right
"to manufacture and sell and vend" certain patented articles, the pur-
chasers to have the right to use the articles, which expresses that it is
intended for the purpose of vesting in defendants all the rights of com-
plainant in the manufacture and sale of such articles, but which ex-
pressly provides that complainant shall retain the ownership of the pat-
ent, and in which defendants stipulate for payment of royalties and to
do all reasonable things for the successful manufacture and sale of the
patentable articles, is a mere license. *Hatfield v. Smith et al., 330.
3. SAME ESTOPPEL.-Where defendants admit that they have manufactured
and sold under such license, and that they have assigned whatever
rights they had thereunder, they will not be permitted to plead that
they were led to make the contract by complainant's false and fraudu-
lent representations, nor that the patent was invalid, as complainant
knew. *Id.

4. REVOCATION.-A contract granting the right to make and sell an article
under a patent, within a specified territory, whether or not it amounts
to an exclusive license, and containing no limitation on its face, cannot
be terminated by the grantee without the consent of the grantor, and
the latter can recover the royalty fixed by the contract, even though
the grantee has previously given notice of the termination thereof.
*St. Paul Plow Works v. Starling, 426.

5. INFRINGEMENT.-Under such a contract the grantee, at all times during
the existence of the patent, can set up the contract as a defense against
a claim for infringement and limit his liability to the royalty fixed by
the terms of the contract. * Id.

6. ROYALTIES-FRAUD.-Where a patentee induces a manufacturing com-
pany to accept a license under the patent representing that rival manu-
facturers were paying the schedule rates, when they were really paying
only one-half of those rates, the company so imposed upon is not liable
for the royalties agreed upon and is entitled to decree canceling the
license. Hat-Sweat Manufacturing Company v. Waring et al., 470.
LIMITATION OF UNITED STATES PATENT BY FOREIGN PATENT
PREVIOUSLY GRANTED.

1. DURATION OF PATENT-REVISED STATUTES UNITED STATES, SECTION
4887.-Under section 4887 of the Revised Statutes, a United States patent
runs for the term for which the foreign patent was granted, notwith-
standing the lapse or forfeiture of the foreign patent by the nonobserv-
ance of a condition subsequently prescribed by the foreign patent law.
*Consolidated Roller-Mill Company v. Walker, 257.

2. SAME-SAME.-By the Austrian patent law the "longest duration of privi-
leges is fixed at fifteen years," and every patentee whose privilege has
been granted for a shorter period than the longest may claim its pro-
longation for one or more years within the fixed longest period, pro-
vided such prolongation be demanded before the privilege has become
extinct. In the original grant of an Austrian patent the allowance of
the franchise was for one year, but on request it was four times extended,
from year to year, and at the end of the fifth year the franchise was suf-
fered to expire. A United States patent to the same patentee, and for
the same invention, was issued after the Austrian patent was granted
and during the first year it was in force. Held, that by the original
grant of the Austrian patent the patentee was invested with the right,

LIMITATION OF UNITED STATES PATENT BY FOREIGN PATENT
PREVIOUSLY GRANTED-Continued. '

at his mere option, to have the patent prolonged for the full term of fif-
teen years, and that, under section 4887 of the Revised Statutes, the
United States patent ran for that term, notwithstanding the expiration
of the Austrian patent at the end of its fifth year. *Id.

3. DECISION Of Foreign PATENT OFFICE.-—Under the Austrian patent law
the ministry of commerce, in deciding the question of the length of the
term which appertains to every Austrian patent, exercises a judicial
function, and its opinion on that subject will be followed here, agree-
ably to the established rule that the courts of the United States adopt
the construction of a statute of a foreign country made by the courts of
that country. *Id.

4. FOREIGN AND DOMESTIC PATENTS.-The tests of identity, under section
4887 of the Revised Statutes, are as follows: Is the principal invention
in each the same; is the thing patented abroad the same in all essential
particulars as the thing patented here; would the home patent bɔ in-
fringed by a structure made in accordance with the provisions of the
foreign patent? *Brush Electric Company v. Electrical Accumulator Com-
pany et al., 477.

MACHINES. See Division of Application, 1, 2, 3, 6.

MARKING PATENTED ARTICLES. See Designs, 29.

MASTER'S REPORT. See Damages and Profits, 1, 8, 9, 10, 11; Suits for In-
fringement, 2.

MATERIALITY. See Motion to Take Additional Testimony, 3.

MEASURE OF DAMAGES. See Damages and Profits, 2, 3, 13, 14, 15, 16, 17, 18, 20.
MECHANICAL SKILL. See Invention, 2, 7.

MISJOINDER. See Bill in Equity.

MISTAKE. See Interference, 8; Reissues, 4.

MODEL. See Drawings, 1.

MODEL FILED AS AN EXHIBIT.—A model should not be indorsed upon the file-
wrapper and be considered a part of the application unless the applicant
has been required by the Office to furnish one. Ex parte Beaumel, 137.
MODE OF OPERATION. See Construction of Specifications and Patents, 1, 2.
MORTGAGE OF PATENT RIGHT. See Parties to Suit, 1.
MOTION FOR REHEARING. See Rehearing, 1, 6.

MOTION TO DISSOLVE AN INTERFERENCE. See Appeal from Primary
Examiner, 2; Interference, 1, 2, 3, 7, 8, 9, 19, 20, 21, 44, 56, 60.

JURISDICTION.-Upon a proper showing the jurisdiction of the Examiner of
Interferences will be restored for the purpose of considering a motion to
dissolve the interference. Short v. Sprague et al., 166.

MOTION TO REOPEN. See Motion to take Additional Testimony; Suits for In-
fringement, 1, 2.

1. MOTION TO REOPEN-JURISDICTION.--The decision of the Examiner of In-
terferences dismissing a motion to reopen the interference for want of ju-
risdiction overruled, and Held that the motion being noticed for hearing
within the time originally limited for appeal operated to stay the run-
ning of the time limited, and therefore the Examiner had jurisdiction
to hear and act upon the motion. Shinn v. McElroy, 35.

2. ON NEW EVIDENCE-DILIGENCE.-On motion to reopen based on newly
discovered evidence found in a printed copy of testimony given in another
case eighteen months before the testimony in the present case was closed,
Held a lack of diligence on the part of the moving party not to have dis-
covered the evidence at the proper time. Edison v. Maxim v. Swan, 190.

MOTION TO STRIKE OUT TESTIMONY. See Depositions.
MOTION TO TAKE ADDITIONAL TESTIMONY.

1. NEW EVIDENCE-REOPENING OF CASE-DILIGENCE.-The primary test
in determining a motion to take additional testimony after a case has
been closed is whether the testimony was accessible or capable of being
produced at the proper time by the exercise of diligence on the part of
the party seeking its introduction. Schmiedl v. Booth, 188.

2. SAME-DEGREE OF DILIGENCE.-It is not sufficient for the party making
the motion to show that he has used ordinary diligence in the matter.
He must show conclusively that he left no stone unturned in the prepa
ration of his case, and that he was zealous and diligent in a high degree.
Id.

3. SAME-MATERIALITY.-The question of materiality is not the first to be
considered in determining the motion. If it becomes a question at all,
it is one of secondary consideration. Id.

MOTION TO VACATE JUDGMENT. See Interference, 4.
MULTIFARIOUSNESS. See Bill in Equity.

NEW CLAIMS. See Amendments, 1; Reissues, 1, 3.

NEWLY DISCOVERED EVIDENCE. See Motion to Reopen, 2; Motion to Take
Additional Testimony; Rehearing, 2, 4, 5; Suits for Infringement, 1.

NEW MATTER. See Amendments, 8; Division of Application, 9.

NEW USE. See Invention, 3; Patentability.

NOTARY PUBLIC. See Depositions.

OATH See Amendments, 2; Division of Application, 7; Injunction, 5.

OLD DEVICES. See Division of Application, 3, 4, 5; Invention, 2, 3, 5, 6, 8, 10;
Validity of Patents.

OPERATIVENESS. See Interference, 41.

PARTICULAR PATENTS. See Construction of Specifications and Patents, 1,
2, 3, 5, 7, 8; Reissues, 1.

1. CLUETT-SHIRTS.-Letters Patent to Robert Cluett, No. 156,880, granted
November 17, 1874, for an improvement in shirts, examined and Held
invalid for want of patentable novelty. *Cluett et al. v. Claflin et al., 397.
2. COOLEY-ANTICIPATION.—Letters Patent to William Cooley, No. 187,516,
dated February 20, 1877, covering the "process of treating milk for rais-
ing cream by sealing with water and air the cover applied directly to
the vessel containing the milk" is not anticipated by earlier patents for
preserving milk by an apparatus similar to the patentee's apparatus,
since the earlier patents did not disclose a process for raising cream.
*Vermont Farm Machine Company v. Gibson, 490.

3. DAY-BRUSH-ELECTRIC LAMPS.-The first claim of Letters Patent No.
147,827, granted February 24, 1874, to Matthias Day, for an improvement
in electric lamps, declared not to be infringed by the defendants' lamp,
constructed according to the drawings and specifications of Letters Pat-
ent No. 219,208, granted September 2, 1879, to Charles F. Brush. *See-
ley et al. v. Brush Electric Company et al., 296.

4. EDWARDS-TELEGRAPH KEY.-Letters Patent No. 270,767, issued to E. A.
Edwards, January 16, 1883, for a telegraph-key, adjudged valid and in-
fringed by Letters Patent No. 352,317, granted November 9, 1886, to
C. A. Haskins, for a telegraph-sounder. *Western Electric Company v.
La Rue, 368.

5. EGGE-MANUFACTURING CHAIN FROM SHEET METAL-INFRINGE-
MENT.-Letters Patent No. 202,528, dated April 16, 1878, to Frederick
Egge, for an improvement for manufacturing chain from sheet metal

PARTICULAR PATENTS-Con inued.

by machinery, examined and held to be a pioneer invention and in-
fringed by another machine which contains the same system of in-
strumentalities in the same groups and order and which, broadly con-
sidered, performs the same functions in substantially the same way as
the corresponding mechanisms of the Egge machine, and with the same
result. *Smith & Egge Manufacturing Company v. Bridgeport Chain

Company, 486.
6. SAME CONSTRUCTION OF CLAIMS.-Claims 1, 2, and 3 of the Egge patent
must not be construed as being for a result or for a process or for methods
of accomplishing a result, irrespective of the machinery by which the
work is accomplished, but for sets of mechanism. *Id.

7. GATELY-PACKING.-Letters Patent No. 86,296, granted January 26, 1869,
to Dennis C. Gately, assignor to the New York Belting and Packing
Company, sustained and held infringed. *Magowan et al. v. New York
Belting and Packing Company, 512.

8. GRAY-ROLLER GRINDING-MILL-MECHANICAL SKILL.-The first claim
of Letters Patent No. 228,525, granted June 8, 1880, to William D. Gray,
for an improvement in roller grinding-mills, declared invalid, as evinc-
ing only the exercise of ordinary mechanical or engineering skill. *Con-
solidated Roller-Mill Company v. Walker, 257, 310.

9. SAME-PRIOR STATE OF ART-CONSTRUCTION OF CLAIM.-In view of the
terms of the specification and the prior state of the art, said claim must
be limited to the specific organization shown and described, and could
not be so construed as to cover a roller-mill manufactured in accordance
with Letters Patent No. 334,460, granted January 19, 1886, to John T.
Obenchain. *Id.

10. HOFF-COAL-HODS.-The claims in Letters Patent to Charles Hoff, No.
279,871, June 19, 1883, for an improvement in coal-hods, examined and
construed. *Hoff et al. v. Iron-Clad Manufacturing Company, 332.

11. SAME-SAME.-In view of the prior art which shows that it is old to crimp
in and fold the ends of boxes of pasteboard and other stiff material, and
also that it is old to turn the edge of metallic cylindrical vessels or pack-
ages to hold separate bottoms or heads of such vessels or packages,
Held that, if the first claim of the Hoff patent can be supported at all,
it can only be for the formation of the entire bottom of the crimped ma-
terial, and the resultant increase in thickness. *Id.
12. SAME-SAME.-The Hoff patent is not infringed by the patent to H. S.

Reynolds, No. 304,033, August 26, 1884, as the coal-hod therein described is
made by partially forming the bottom out of the metal composing the
body, and closing the aperture and completing the bottom by a cap. *Id.
13. KNIBBS-RELIEF-VALVES.-Letters Patent No. 43,920, to James Knibbs,
for a relief-valve in steam fire-engine pumps, sustained and held in-
fringed. *Campbell v. Mayor, etc., of New York, 551.

14. MCBURNEY-PACKING.-Letters Patent No. 24,569, granted June 28, 1859,
to Charles McBurney, describe a packing for the stuffing-boxes of pis-
tons made of alternate layers of canvas and India-rubber, the whole
being vulcanized into one homogeneous mass. Gately's specification
alleges that the McBurney packing was not sufficiently elastic to operate
satisfactorily and his improvement consists in the combination, with
the McBurney packing, of a vulcanized rubber backing of pure gum,
which lies between the portion of the strip of McBurney packing and
the walls of the stuffing-box. On suit brought by Gately's assignee for
infringement, Held, first, a substantial discovery or invention within

PARTICULAR PATENTS-Continued.

the requirements of Atlantic Works v. Brady (C. D., 1883, 214; 107 U. S.,
192, 200;) second, Gately's work involves not simply the display of the
expected skill of the calling, but shows the creative work of the inven-
tive faculty, within the case of Hollister v. Benedict Mfg. Co. (113 U. S.,
59, 73.) * Magowan et al. v. New York Belting and Packing Company, 512.
15. MYERS-HANDLE-SOCKETS FOR SHOVELS, ETC.-Patent No. 208,258,
granted September 24, 1878, to H. M. Myers, for an improvement in
handle-sockets for shovels, spades, and scoops, claiming a combined
socket and straps for attaching the handle to the blade, Held anticipated
by the spade known as the "Ames California spade," and a bill for its
infringement consequently dismissed. *Myers v. Groom Shovel Com-
pany, 560.

16. RICHMOND-ARTIFICIAL DENTURES.-Letters Patent to C. M. Richmond,
Nos. 277,941 and 277,943, granted May 22, 1883, examined and held invalid
on account of more than two years' public use prior to the filing of the
applications upon which the patents were granted. *International Tooth
Crown Company v. Gaylord et al., 390.

17. SMITH-REFRIGERATOR.-The George F. Smith reissue of October 22, 1878,
No. 8,463, for improvement in refrigerators (original patent No. 193,563,
July 24, 1877) sustained and held to be infringed. *Alaska Refrigerator
Company v. Wisconsin Refrigerator Company et al., 492.

18. STONE-FOUNTAIN-PEN.-Letters Patent No. 260,134, issued June 27, 1882,
to M. C. Stone, and No. 311,534, issued February 3, 1885, to P. E. Wirt,
for fountain-pens, in which the ink is led to the nibs by capillary at-
traction between the pen and a lip which extends into the ink-reservoir,
are infringed by a pen in which the ink is drawn from the reservoir
by capillary attraction, though in it the atmospheric pressure which
sustains the ink and regulates its flow is assisted by a disk with holes in
it instead of a nozzle, as in Wirt's pen, and though the extension of this
disk into the reservoir differs from the lip in Wirt's pen, since these
parts, though differing from each other, do the same thing in substan-
tially the same way. *Wirt v. Hicks et al., 395.

19. SAME.-Said Letters Patent are not anticipated by British Letters Patent
to J. Butcher, No. 2,858, October 2, 1869, and American patent to A. F.
and C. M. H. Warren, No. 14,425, March 11, 1856, for pens having chan-
nels for guiding the flow of ink by gravity which might produce capil-
lary attraction to aid the flow. *Id.

20. WOFFENDEN-DESIGN FOR RUBBER MATS.-The first claim of Letters
Patent No. 11,208, granted George Woffenden, May 27, 1879, for a Design
for a rubber mat, declared invalid as being too broad in view of old and
well-known instances of producing contrasts and variations in light and
shade or stereoscopic effects by depressions or elevations in the surface
of materials. *New York Belting and Packing Company v. New Jersey Car
Spring and Rubber Company, 253.

PARTIES TO SUIT. See Assignments, 2, 3; Contracts, 1; Suits for Infringe-
ment, 11; Suits to Annul Patents, 1.

1. MORTGAGE.-The recording of a mortgage of a patent right in the Patent
Office is equivalent to a delivery of possession and makes the title of the
mortgagee complete toward all other persons, as well as against the
mortgagor; and the mortgagee is the only person who can thereafter
sue for an infringement of the patent by third persons. *Waterman v.
Mackenzie, 320.