Page:Federal Reporter, 1st Series, Volume 9.djvu/572

 HEBKINO V. GAS CONSUMBRS' ASSOCIATION. 65T �would be compelled to respond in damages. Can a part owner in- fringe the common patent and escape all liability ? If he, can, it is obvions that, however small bis aliquot part, he can make the enjoy- ment of the patent valueless to his joint owner. He bas, by virtue of the joint ownership, a right to use the patent, but he bas no rigbt, more than a etranger, to infringe the same. If there is an infringe- ment the right of recovery is in the party wronged. Ail the joint owners should ordinarily be parties plaintiff, but if the wrong-doer is one who is guilty to the damage of the other joint owner, the latter should not be left remediless. As to such infringement they are strangers. AU the joint owners are on the record, and the amount of the recovery determines their respective interests. The infiringer cannot escape the consequences of his wrong to his joint owner by averring that he was by his infringement injuring not his joint owner alone, but himself also. In other words, he cannot, under cover of bis interest in the common patent, shield every wrong- doer who may infringe that patent. He can, as to the other part owners, by infringing, become liable to them for the wrong done. The amount of recovery will be in proportion to their respective in- terests. Were this not so, the door would be open to the grossest frauds by one joint owner against all other joint owners. �The case of Pitta v. Hall, 3 Blatchf, 204, and the comments thereon in Curtis, Pat. § 108 et seq., do not cover this case. The question there diseussed pertains to the use by one joint-owner of the common property. The difficulties in maintaining an action for an infringe- ment against a joint-owner who merely uses the common patent may be insurmountable. As to that no opinion is expressed. In this case an entirely new and distinct proposition is presented, viz. : one of the several joint owners is not using the common patent, but an infring- ing patent. His defenee is that inasmuch as he had a right to use the original patent without question from his joint owners, despite the decision in Pitts v. Hall, supra, he bas a right also to, use any infringing patents, on the ground that his right to use the original, being vested in him, his use of other and infringing patents did not cause any wrong or injury to himself as joint owner. In other words, the defendant contends that as one joint owner he could use the com- mon patent without being liable to account to the other joint owners ; that he could not be sued as an infringer for using what he had a right to use by virtue of his proprietary interest ; and therefore, if he used an infringing device, he was only injuring himself in what he had a proprietary right to forbid. ��� �