Page:Federal Reporter, 1st Series, Volume 10.djvu/490

 478 7EDEBAL BEFOBTEB. �grantee, be held privy to Stromberg's previous grant? It will be admitted, I think, that if Stromberg acquired a valid title to or interest in this patent, or a part of it, after bis sale of the machine to Miller, he would not be permitted to turn about and sue Miller for infringing the patent by the use of the machine which he bad himself sold to Miller. Suppose, for example, that at the time Stromberg made sale of the machine to Miller he had no title, but that afterwards he acquired an interest or title, would he be permitted then to prosecute a suit against Miller for infringement ? I think not ; and the point appears to be well made by counsel for defendant that, in a suit for infringement, the whole interest in the patent must be represented by the complainants in such suit ; so that, if Stromberg had been in fact a part owner of this patent at the time the present suit against Miller was brought, he would have been a necessary party to the suit ; and if Gottfried's present title bas its source in the grant which Stromberg made to him in 1879, as appears to be the fact, then be is in the position of privy to Stromberg's prior grant, and can no more prosecute a suit against Stromberg's prior grantee than could Stromberg himself. �On the whole, therefore, while it may be technieally correct to say tbat by the transfer from Holbeck to Stromberg and Comegys to Stromberg the latter did not acquire a perfect legal title, neverthe- less, when we consider the fact that the complainant in this suit bas once declared, in an agreement which he made with Stromberg, that the latter was jointly interested with him in the patent, and in a sec- ond agreement ratified and confirmed all licenses which Stromberg had previously granted to use the machine, and all acts of Stromberg,- and when we consider that in suits which have been previously pros- ecuted in this court Stromberg was made a party thereto as jointly interested with Gottfried & Holbeck in the patent; and when we find further that if Stromberg acquired no interest in the patent by virtue of the transfer from Comegys to him after the first assign- ment from the Barrel-Pitching Machine Company to Smith, Holbeck, and Comegys, then Gottfried acquired no title by the transfer to him- self and Holbeck from Smith, made December 11, 1875, and that Gottfried's present title bas its source in the transfer to him from Stromberg in 1879, — it seems to me that the complainant is in a posi- tion where he is as much disabled from prosecuting Miller for infringe- meat as Stromberg would himself be ; and, considering the case in all 'ts aspects, I am constrained to hold that the bill should be dismissed ��� �