Page:Federal Reporter, 1st Series, Volume 9.djvu/56

 STIIiL V. EEADINU. 41 �authority, and not under authority or by virtue of said eontract between petitioners and said J. S. Sullivan & Co. Plaintifs claim to have been damaged by defendants in consequence. �This is a brief statement of the allegations in the petition down to the thirteentb paragraph. In this paragraph it is alleged that defendants agreed to make a partial compensation to plaintiffs and to cease the use of said trees; but at the very time such settlement was about to be made other persons hereinafter named, of large fortune, etc., acting together with a view of ignoring, obstructing, defeating, and intimidating plaintififs from asserting their right, issued a circa- lar; which circular is copied into the petition, ■which circulai: beiiig received by the defendants, they declined to pay petitioners aud coii- tinued the use of plaintiffs' invention, etc. �To this petition a demurrer is interposed. The first point raised is that these plaintififs cannot, under the f acts of the case, niaintain a suit in their ovm name in any event because of the sale to J. S. Sul- livan & Co. of the right to use for the period of five years, a little less than one-third of the time the benefits of the invention were secured to plaintififs. I hold that plaintififs have a beneficiai interest in the right secured to them by their letters patent, which in a proper case they may protect in a court of justice. They certainly own the remaining interest after the lapse of five years, and if that interest is of value they have a right to see that it is not destroyed. �To illustrate, let us suppose that these defendants are in fact using plaintififs' invention to their damage, and Sullivan & Co. refuse to take notice of the infringement ; or suppose that Sullivan & Co., with a view of avoiding the payment of the royalty due to plaintififs by them, have an understanding with defendants that they will not interfere with them, and they divide profits, and thus attempt to deprive the plaintififs of the royalty justly due them, — I certainly think plaintififs have such rights in their invention as that they could protect it. Plaintififs have not sold their right to the patent as patentees ; they have sold merely the exclusive right to use it for the space of five years, according to the petition of plaintiffs, and nothing more. �This point of the demurrer is, in that view of the case, not well taken. The argument of the case having taken this view of the question, I have thought it proper to notice it, and the same is over- ruled. �The material point, however, in the case is that taken and raised by the demurrer, which goes to the sufidciency of the petition to ena- ��� �