Jockmus v. London

Second Circuit

Jockmus v. London

265 F. 12, 1920 U.S. App. LEXIS 1374

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 25, 1920

DocketNo. 160

StatusPublished

This text of 265 F. 12 (Jockmus v. London) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jockmus v. London, 265 F. 12, 1920 U.S. App. LEXIS 1374 (2d Cir. 1920).

Pincite

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). Having pointed it out as too plain for discussion that this is a common pa.tent bill for injunction and accounting, the only question presented here is to ask whether plaintiff has shown any title justifying such suit. The bill avers him to be the absolute owner, and London a mere infringer. This means, having regard to the nature of patent rights, that Jockmus is the only person entitled to prevent others, from making, using, or vending the patented article, and London a tort-feasor for violating the prohibition. Bauer v. O’Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150.

But a glance at the written agreements shows that London has some rights, which necessarily are to be subtracted from Jockmus’ rights,. It is plain that the relation of these two men from, and indeed before, the issuance of the patents, was what they intended to express in the agreement'of December, 1917.. They perhaps expressed it very badly, but, until that document is reformed or vacated for fraud or mistake, courts are bound to interpret it according to its wording, and, the words being simple, nothing outside those written words is permitted to change the legal effect of the language used. It is not uncommon that men use words without any comprehension of their legal effect, but that does not per se change the effect of the words they use.

Just as a conveyance of land in fee may by other writings be turned into a mortgage, so may the absolute grant of a patent right be turned into a lesser estate. In this instance, it is clear from the written instruments that, when London conveyed the patents to Jockmus, he received back (or perhaps in legal effect reserved) the rights described [14]*14in the agreement of December, 1917. Those rights are, and always have been, to decide whom he will sue as infringer and (before May il919) keep for himself all he can recover. But this is the whole right of a patentee.

It .is true that the rights may be transferred to an exclusive licensee, and that the equitable owner of a patent has a title that will support action. Kennedy v. Hazelton, 128 U. S. at 672, 9 Sup. Ct. 202, 32 L. Ed. 576. It is the opinion of a majority of this court that Jockmus is not the absolute owner of these patents, nor has he equitable title thereto, because he has not and never had any right to sue on the patent; that right became London’s when he received the grant, and he has never parted with it. Nor is Jockmus an exclusive licensee, because the phrase means (inter alia) one solely entitled to pocket recoveries from infringers, which is not true of Jockmus.

There is but one category left to which plaintiff may be assigned— a nonexclusive licensee — and a majority of the court so holds. This measure of title is confessedly insufficient to support an action such as this. This was the result below, and of it appellant’s present counsel (in effect) bitterly complains, because to suppose that men would go through all this apparatus of papers only to give Jockmus a license is absurd. It is absurd; but we indulge in no such supposition. Through the mist of writings, and with very little reading between lines, the intention, not of both parties, but of Jockmus, is almost certain conjecture. ■ It cost him a good deal of money to prepare machinery for making under London’s patent, it was uncertain whether anybody wanted the things except London and his controlled or allied concerns (the other defendants herein), and he thought by the papers in evidence, starting with legal title to the patents, to keep London’s trade. He did so for at least five years; then London went elsewhere; hence this' suit. What London had, either in his minid or up his sleeve, cannot even be conjectured, as he was not called on to testify; but 'enough has been said to show that this particular suit cannot be maintained to enforce either what Jockmus got or what he in all probability wanted to get.

Decree affirmed, with costs.

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HOUGH, Circuit Judge

(after stating the facts as above). Having pointed it out as too plain for discussion that this is a common pa.tent bill for injunction and accounting, the only question presented here is to ask whether plaintiff has shown any title justifying such suit. The bill avers him to be the absolute owner, and London a mere infringer. This means, having regard to the nature of patent rights, that Jockmus is the only person entitled to prevent others, from making, using, or vending the patented article, and London a tort-feasor for violating the prohibition. Bauer v. O’Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150.

But a glance at the written agreements shows that London has some rights, which necessarily are to be subtracted from Jockmus’ rights,. It is plain that the relation of these two men from, and indeed before, the issuance of the patents, was what they intended to express in the agreement'of December, 1917.. They perhaps expressed it very badly, but, until that document is reformed or vacated for fraud or mistake, courts are bound to interpret it according to its wording, and, the words being simple, nothing outside those written words is permitted to change the legal effect of the language used. It is not uncommon that men use words without any comprehension of their legal effect, but that does not per se change the effect of the words they use.

Just as a conveyance of land in fee may by other writings be turned into a mortgage, so may the absolute grant of a patent right be turned into a lesser estate. In this instance, it is clear from the written instruments that, when London conveyed the patents to Jockmus, he received back (or perhaps in legal effect reserved) the rights described [14]*14in the agreement of December, 1917. Those rights are, and always have been, to decide whom he will sue as infringer and (before May il919) keep for himself all he can recover. But this is the whole right of a patentee.

It .is true that the rights may be transferred to an exclusive licensee, and that the equitable owner of a patent has a title that will support action. Kennedy v. Hazelton, 128 U. S. at 672, 9 Sup. Ct. 202, 32 L. Ed. 576. It is the opinion of a majority of this court that Jockmus is not the absolute owner of these patents, nor has he equitable title thereto, because he has not and never had any right to sue on the patent; that right became London’s when he received the grant, and he has never parted with it. Nor is Jockmus an exclusive licensee, because the phrase means (inter alia) one solely entitled to pocket recoveries from infringers, which is not true of Jockmus.

There is but one category left to which plaintiff may be assigned— a nonexclusive licensee — and a majority of the court so holds. This measure of title is confessedly insufficient to support an action such as this. This was the result below, and of it appellant’s present counsel (in effect) bitterly complains, because to suppose that men would go through all this apparatus of papers only to give Jockmus a license is absurd. It is absurd; but we indulge in no such supposition. Through the mist of writings, and with very little reading between lines, the intention, not of both parties, but of Jockmus, is almost certain conjecture. ■ It cost him a good deal of money to prepare machinery for making under London’s patent, it was uncertain whether anybody wanted the things except London and his controlled or allied concerns (the other defendants herein), and he thought by the papers in evidence, starting with legal title to the patents, to keep London’s trade. He did so for at least five years; then London went elsewhere; hence this' suit. What London had, either in his minid or up his sleeve, cannot even be conjectured, as he was not called on to testify; but 'enough has been said to show that this particular suit cannot be maintained to enforce either what Jockmus got or what he in all probability wanted to get.

Decree affirmed, with costs.

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265 F. 12, 1920 U.S. App. LEXIS 1374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jockmus-v-london-ca2-1920.

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