Page:Federal Reporter, 1st Series, Volume 9.djvu/784

 DOWNTON V. ALLIS. 769 �urged npon the attention of the court ; and the court bas endeavored to give to the cases the consideration which their importance re- quires. �Among other things, it is claimed in behalf of the complainant that he was led to enter into the arrangements evidenced by the con- tracta ref erred to, by false and fraudulent representations on the part of Allis, with reference particularly to the latter's capacity to manu- facture the rolls mentioned in the process -patent contract; and with reference also to his pecuniary ability to engage in and carry forward such manufacture. Without adverting to the testimony bearing upon this question, in detail, it is enough to say that it does not support this claim. �It has been contended also by counsel for the complainant that in the case of Downton v. Yaeger Milling Co. 9 Fed. Eep. 402, decided by Judge Dillon, this proeess-patent contract was construed ; and that the relations of Allis to that litigation were such that the construction there put upon the contract should be held res adjudicata here. I differ from counsel upon that point; that is to say, I do not think that the relations of Allis to that controversy were such as to make the decision in that case binding upon him. At the same time, I concur in the construction which Judge Dillon put upon this con- tract in the case cited. In other words, I am of the opinion that under a fair and proper construction of that instrument the right and title to the proeess-patent did not pass to Allis'. �In considering this question, we have to bear in mind that there is a plain distinction to be taken between the process which was pat- ented and the mechanism to be necessarily made and operated in the use of the process. The thing that was patented to Downton was not the right to make rolls for crushing grain or middlings; it was not the right to make a particular form of mechanism by which this thing could be done; because, so far as the record here shows, anybody would have the right to make rolls or to make the mechan- ical implements by which the process might be used. It was the process itself that was patented, and that invention, I think, was not transferred to Allis & Co. by the contract in question, nor by all the contracts which have been referred to, when combined or considered together. By referring to the patent we find that what the patentee claims as new, is "the herein described process of manufacturing middlings flour by passing the middlings, after their discharge from v.9,no.l3— 49 ��� �