Page:Federal Reporter, 1st Series, Volume 7.djvu/370

 358 FEDERAL REPORTER. �the circuit or supreme court, and it is fair to presume that they were not regarded by learned counsel for complainant as subject to objection on that account. Mr. Curtis, in his work on Patents, § 215, says: �" The taking of a naked license or pennission to work under a patent does not, without some recitals or covenants amounting to an admission, estop the licensee f rom denying the validity of the patent, or of the f act that he has used the patented thingor process, if he is subsequently proceeded against for infringeraent. It is necessary to look into the instrument and ascertain that there are recitals or covenants that will deprivc a licensee of the defences to which all other persons may resort. If, by his agree- raent, the licensee has admitted that the process or thing which he uses is the patented process or thing, and he is afterwards proceeded against for not complying with the terms of his agreement, he will not he per- mitted to show that he did not use the patented thing or process. So, too, if the deed contain recitals or statements amounting to an admission of validity of the patent, either as to the novelty or utillty of the supposed invention, or the sufflciency of the specification, the licensee will be es- topped, in an action of covenant for the rent or license duc, to deny the Validity of the patent by setting up anything contrary to the admissions of the deed." �The case of Brooks v. Stolly, S McLean, 623, may seem to be opposed to this view, but, upon principle and the weight of authority, we think these defences are not inconsistent. �The motion will therefore be overruled. �Mr. Justice Matthews, of the supreme court, concurred. ���BtTOKLEY and others v. Sawyee Manxjf'o Co. �(Circuii Uorirt, E. D. Missouri. January 3, 1881.) �CoNiKACT — Rbvebtbr OF Patbnt Right. �A patent owned by A. and B. was aasigned by them, as to certain States, to E., a corporation. The consideration of the assignment was the payment to the grantors of $8,500 cash, and the issuing of a pre- scribed number of shares of stock in E. to them. The cash was paid and the sbai-es issued. The condition of the contract required the payment of ii royalty to A. and B. and also exacted, under penalty of forfeiturc, the U9e by B. of reasonable diligence, and its beat endeav- ors to make the' corporate scheme a success, the corporation having been organizei to mauitfiijture the patented article. On the other haad, A. ami B. agreed lo exercise reasonable diligence to promole ��� �