Page:Federal Reporter, 1st Series, Volume 3.djvu/154

 THBBEEATH V. CELLULOÏD MANUf'G CO. 147 �1. I think it is quite clear, from the terms of the contract, that it must be construed as a mere license to use celluloïd, rather than an assignment of a patent-right. The differ- ence between a license and an assignment was determined by the supreme court in Gayler v. Wilder, 10 How. 477, where it was held that any assignment of a patent, short of the entire and unqualified monopoly, is a mere license. Cartis, in his work on Patents, says that while an assignment vests in the grantee the exclusive right, either for the whole coun- try or for a particular district, of making and using the thing patented, and of granting that right to others, a license is an authority to exercise some of the privileges secured by the patent, but which still leaves an interest in the monopoly in the patentee. Sections 212-3. �In the present case, the instrument executed by the parties to transfer a right to use or manufacture the patented article is called by them a license, and not an assignment. This is not conclubive, but suggestive of their intention; and ail pre- tence of an assignment is negatived by the clause in which the grantorco venants to proseeute, at its own expense, every party or parties that unlawfully infringe the letters patent, or any one or parts of the same, remaining in its possession, so far as they pertain to carriage, hamess, and trunk trimmings. �Not only did the grantor retain the patents, but it also retained the use and control of the invention, except so far as the same could be applied to a particular branch of industry or manufacture, to-wit, hamess, carriage, and trunk trim- mings. It promises and agrees, for a stipulated price, to promptly fill ail orders of the licensees for the material re- quired by them in said manufacture, and in the event of its failure to fill them vdth reasonable promptitude — to-wit, orders for less than 100 pounds per day on demand, orders for 100 pounds upon 10 days' notice, and orders for any other amount up to 600 pounds upon 60 days' notice — the licensees are at lib- erty to prepare the said material, for the purpose and use afore- said, to any extent needed in their business, by rendering quarterly statements under oath of the amount of their manu- facture, and by paying therefor the royalty of one dollar per ����