Goodyear v. Bishop

10 F. Cas. 642, 4 Blatchf. 438, 2 Fish. Pat. Cas. 96, 1860 U.S. App. LEXIS 567

Opinion

NELSON, Circuit Justice.

The motion is resisted on the ground that the suit is brought in the plaintiff’s name for the benefit of his licensees, the Union India-Rubber Company. This company is the owner of an exclusive right to the patent of Goodyear for making wearing apparel out of vulcanized India-rubber. A suit at law to protect this right, is properly brought in the name of the patentee. See Goodyear v. McBurney [Case No. 5,574]. In' that case, the defendants set up a release of Goodyear, and the court permitted the parties in interest to answer the release by Showing their interest, and notice of the same to the defendants before the release. The principle there held governs this case.

Whether the interest of the licensees is technically an assignment at common law, or by the patent act [of 1836 (6 Stat. 117)], we hold it not important in the application of the principle. It is sufficient they possess such a right under the patentee as entitles them to the protection sought, and of that there can be no doubt. We agree that the nominal plaintiff may claim indemnity against costs, which, on a proper application, would be provided for by the court

It is said that Goodyear, or those representing him, has stipulated to sue infringers, and that the remedy of the licensees is pn this covenant. But, if so, the stipulation does not necessarily take from the party his remedy which the law has provided for him by proceeding directly against the wrong doer.

The motion is denied, with costs. Let this rule be entered nunc pro tunc, as of November 7, 1859, Goodyear having died since motion.

[Subsequently, on the trial, the jury found a verdict for the plaintiff. Case No. 5,559.

[For other cases involving this patent, see note to‘Goodyear v. Central R. Co., Case No. 5,563.] _