Page:Federal Reporter, 1st Series, Volume 8.djvu/532

 518 FEDERAL REPORTER. �Jordan and Leander E. Smith, and by them sold and assigned to the plaintiffs, were valid, and that one of them had been mfringed.* The improvement consisted in adding to the well-known "Coes" wreneh a nut underthe step-plate, by which much of the strain upon the wooden handle of the wrench was diverted to the main iron bar. This was new and useful. The aecounting bas net been had, and, of course, no final decree bas been rendered. �The defendants now petition for leave to open the case and file an additional answer setting up the newly-discovered f act, as they believe it to be, that Lucius Jordan, one of the patentees, was the sole inventor of the improvement. Jordan & Smith were partners in the manufacture of wrenches, and Smith advanced money for expenses at the patent-office, and they agreed to be joint owners of the patent ; but the defendants aver that thi& was merely a business arrange- ment, and that the application should have been made by Jordan alone, accompanied by an assignment of the invention to himself and Smith. The law is so, if the facts are as they are assumed to be. Jordan's affidavit that be was the sole inventor is filed, and other affiants testify that they have heard Jordan speak of himself as the inventor, and never heard Smith make any such pretension; that the talk of the shop, at the time the patent was obtained, was that Jordan made the invention. Jordan swore, on bis application for the patent, that both were inventors, and he bas sold the joint patent and received bis share of the money. Smith is dead. The transac- tion is not recent. TJnder these circumstanees, if the defendants' affidavits alone and uncontradicted were the evidence at a final hear- ing, they could hardly avail to persuade me that the invention was wholly Jordan's. But they are met not only by proof that Jordan and Smith have repeatedly spoken of the invention as joint, but by affirmative evidence that Smith made a wrench before Jordan began to experiment, in which the atep-plate was sustained by a set-screw at the place where the prient puts the nut. After this, the partners talked over the matter and consulted, and the joint application was made. Upon these affidavits the defendants contend that Smith was the sole inventor, which is equally useful for their purpose. I sup- pose that the wrench which Smith made would be an infringement of the patent; but that does not prove that it anticipated the pat- ent. The nut is decidedly better for the purpose of the improve- ment than the set-screw. If the Smith wrench had been made by a third person, and had proved to be useful, it would have limited ��� �
 * 3 FED. Rkp. 225.