Page:Federal Reporter, 1st Series, Volume 7.djvu/888

 876 FEDBBAL BBfOBTEB. �based on the Topham invention and patent, That being so, a contrary decree in the Turner suit cannot avail Jewett & Sons as against the plaintiff in respect to the Topham mat- ters. These remarks are made on the assumption that some- thing more could be looked into in the Turner suit than what appears in the decree, namely, the simple dismissal of the bill. But no decision is made as to whether such assumption is well founded or not, or as to •whether, if anything except such dismissal could be looked at, the suit could be regarded as involving any question as to the validity of the Top- ham patent, or any other question than the prior exist- ence, in what Topham did, of what Heath did, or as to whether a patentee who has failed to reco^jer against one alleged in- fringer could be thereby barred from reeovering against anothqr ; alleged infringer, under any circumstances. �The fl,pplication of Heath was filed June 3, 1871. The patent was issued to him October 10, 1871. On the twen- tieth of July, 1871, he executed and delivered ap, assignment t^,the Heath & Smith Manufacturing Company, which assign- mcnt 'vyas not recorded in the patent-office un til the eighteenth of Ncivember, 1871. The plaintiff has the title conveyed by that assignm,ent, and it is that title which is set up in the bill. That; assignment xeqites the making of the invention, a,nd of the application for the patent and its allowance. It then fiates that said company had agreed "to purohase from me all the right, title, and interest which I have or may have in and to the said invention in consequence of the grant of letters patent therefor." The "said invention" had before been named in the assignment as an "invention" in "metallic cuspidors." In the petition for the patent the invention is spoken of as an improvement in "metallic cuspidors." The assignment then transfers to the companj "the full and ex- clusive right to all the improvements made by me, as fully set forth and described in the specification which I have pre- pared and executed preparatory to the obtaining of letters patent therefor." It also says: "I do hereby authorize and request the commissioner of patents to issue said letters patent to the said the Heath & Smith Manufacturing Com- ��� �