Page:Federal Reporter, 1st Series, Volume 9.djvu/422

DOWNTON W. YABGEB MILUNU 00. 407 �he is estopped to claim that the use: of those rolls is an iuf ringement of his patent. That, I think, is plain enough ; fornot only did Yaeger & Go. buy these rolls for the express purpose of using them of Down- ton as well as AUis & Ce, but Downton took his proportion of the amount paid therefor. Therefore, s\,a respects those rolls, it is too plain for controversy that Downton is estopped. �Now, as to the others purchased by Yeager & Co., after it is claimed they had notice that a controversy had sprung up between AUis & Co. and Downton, and were put in without Downton's consent, and after notice that, "If you do that, I (Downton) will hold you respon- sible." If these are the facts, then they went on at their peril. �Now, if the proofs shall show that they made a valid contract for, or bought and paid for, these rolls before they received notice of Downton's rights, then these additional rolls will stand on the same footing as the others; but otherwise, not. Another ma terial point argued, and to be decided, is this : that Downton had disabled him- self from maintaining a suit against anybody by reason of the assign- ment I first read. It being claimed that that was an assigiiment (aa distinguished from a license) of his entire rights under the patent to Allia & Co., and therefore that he had made an entire unconditional assignment of his rights, and could not bring an action against any- body for invading those rights, which he could have brought had he not made the assignment. So the question is whether this is an assignment of his rights under that proeess patent : �" In consideration of the sum o£ $125, to me in hand paid, I hereby sell, assign, and set over to Edward P. Allis & Co., of Milwaukee, Wis., the exclu- sive right to manufacture and sell rolls for crushing grain or middlings or other substances." �Now, he had no patent for rolls. , BJe had no more right to make rolls than anybody else in the world. He had a patent for a pro- eess. �This is not a suit between Downton and Allis & Co., but a third party, against whom Mr. Downton, as patentee, bas brought a suit. He produces his patent, and claims that they have infringed it. They corne in and say, "You cannot main tain this suit, because you have assigned all your rights, under this prooess patent, to another party, and, if we are liable to any one, we are liable to them, i. e., Allis & Co.., and not you." The defendants are setting up this contract as an assignment, and, in my view, in order to enable them to. avail themselves of it as snch, it must appear, on its face to be a complete assignment of Downton's rights; if not, he can maiutain this suit if ��� �