Page:Federal Reporter, 1st Series, Volume 9.djvu/423

 408 FEDERAL REPORTER. �not otherwise equitably estopped. Now, did he by this instrument assign bis rights under the proceas patent? He aays, "I grant to them the exclusive right to manufacture and sell rolls for crusbing grain or middlings, or other substance3, » * * -vyiiicb right or process to manufacture and sell rolls is secured to me by said patent." This seems to be based on a mistake from the begining to the end. It is said, bowever, by the defendants that he meant to eonvey some- thing, and you must put a construction on it so as not to defeat the operation of the instrument. But my judgment is, since this does not operate intrinsically or expropria vigore as an assignment by Down- ton of bis rights under that patent, they remain in him, and will remain in him as against AUis & Co., until AUis & Co. shall secure, by the decree of a court in equity, if thereto entitled, a specifie execution of an assignment of the process to them. In'conclusion let me add that I only decide: �1. That the instruments executed by Downton to Allis & Co. do not, nor does either of them, amount to such an assignment of the rights of Downton, as patentee, as to disable him from suing persons generally who infringe bis patent if the same is a valid patent. �2. But whether he can maintain a suit against the purchasers of rolls from AUis & Co., who use the same in such a manner as to infringe bis patent, will depend upon the principles of the law of estoppel, Applying these principles, it sufBoiently appears that he is estopped as to the first set of rolls; but whether he is estopped as to the others will depend upon the special faicts and circumstances whicb will be considered wben the cause cornes on for final hearing. �Judge Treat does not agree in the above view as to the effect of the assignment and as to estoppel, but that being my view the case will be disposed of on this point in accordance with the views I have ex- presscd, if it shall turn on them. We have not considered the merita. They will stand for a further argument and hearing. �Tbbat, D, J. Putting a proper construction on these agreements, and taking into consideration the faot that Downton, over bis own name, published to the world that whoever bought rolls of Allis & Go. sbould have the right to use the process, I think there is an estoppel in this case, as Yaeger did buy bis rolls of Allis & Co., some of wbicb rolls were put into the mill under Downton's own superintendence. �So far as the contracta and agreements are concerned, standing as they do now, and holding that this contract is designed to eonvey something, the plaintiff cannot recover, as the right to use is given ��� �