Page:Federal Reporter, 1st Series, Volume 7.djvu/369

 NATIONAL MAHUF'g CO. V. MEYBRS. 357 �permit the complainants to withdraw their replication to en- able them to raise the question. �In equity, a defendant has the right to set up as many defences as he may have, providing they are not inconsistent. Sharp V. Carlisle, 5 Dana, 488 ; Wood v. Wood, 2 Paige, Ch. 108; Hopper v. Hopper, 11 Paige, Ch. 46; Daniell's Ch. Pr. 727. �Defences are inconsistent where they cannot both be true ; but where there are different defences and they may all be true, though entirely different in their nature, they are not inconsistent. Applying these rules to the present case, can it be said that the defences in this answer are inconsistent? May it not be true that these patents were invalid, and yet that the respondent, honestly supposing them to be valid, took from the patentees or assignees a license to make and sell the invention supposed to be secured by them ? And when the party is sued for an infringement of the patent, may he not first defend by showing the invalidity of the patents ? And, if he fails in this, may he not show that the patentee had granted him a license ? We think he may. But we are re- ferred to Bump on Patent Law, 140, as holding a contrary docitrine. We have not had an opportunity of examining all the cases the author refers to, but those of Birdsall v. Perega, Blatchf. 251, and Magic Buffle Co. v. Elm City Co. 13 Blatchf. 151, were actions brought upon the coutract and agreement for license to enforce its provisions ; and so Lawes V. Purser, 38 Eng. L. & E. Eep. 48 ; Crossby v. Dixon, 10 H. of L. Cases, 293 ; and Eureka Co. v. Bailey Co. 11 Wall. 488, were all actions upon the contracts for license, some of them containing express covenants acknowledging the validity of the patents. There can be no doubt that in all sueh cases the defendant would be estopped to deny the validity of the patent. But that is not this case: here the complainants bring their bill, not upon an agreement of license, but they express'y aver that no license existed, and it is purely a bill for damages and to enjoin further infringement. In Babher Co. V Goodyear, 9 Wall. 788, these two defences were set up in the answer, and uo exceptions were taken to it, either in ��� �