would obviously very readily suggest itself to the common mind, and the conception does not rise to the dignity of invention. The only claims of the patent which are involved in this suit are the first and third, and the proofs as to the state of the art leave so little for them to rest upon that they cannot be sustained, and the bill must therefore be dismissed with costs. [United States Circuit Court-District of Massachusetts.] GEAR v. FITCH. Decided October 7, 1878. 16 O. G., 1231. 1. Where a plaintiff' in an action at law pending when he became bankrupt has bought the right of action from his assignee in bankruptcy before any plea was interposed, it is too late for the defendant to plead in abatement, and the case should proceed as if he never had been bankrupt. 2. In equity the bankruptcy of the complainant and appointment of an assignee would not abate the suit, but only require a supplemental bill to be filed; and the reconveyance to the complainant pending the suit renders such proceeding un. necessary. 3. A conveyance or assignment of the right to maintain suits under a patent after the grant has expired-mere choses in action-is not required to be recorded under section 4898, Revised Statutes. 4. In assigning a right in action the person to be notified is he against whom the action is pending, so that he may not pay the wrong person. 5. It is regarded as sufficient evidence of infringement where it is charged that the defendants used the machine, a witness is introduced who saw the machine in the possession of the defendants, and the answer does not explicitly deny the infringe ment. Thomas L. Livermore for complainant. D. Hall Rice for defendants. LOWELL, J.: A patent for improvements in molding-machines was issued to Nathaniel Gear, November 8, 1853, and renewed for seven years in November, 1867. The patent was pronounced valid by Judge Shepley in 1873, Gear v. Grosvenor (1 Holmes 215), but the bill in that case was afterward dismissed on a rehearing, in which it appeared that one Scott had an assignment of the invention which, under a then recent decision of the Supreme Court, was held to include the extended term of the patent. See the note to the case, 1 Holmes, 224. The bills in these cases were filed November 5, 1873, and evidence is given in the record that the complainant at that time held an assignment from the administrator of Scott, which supplies the defect found in his title in the case against Grosvenor. In the defendants' brief it is said that this assignment is not sufficiently proved; but the complainant. swears to the signature of Smith, the administrator, and to having paid him the money, and copies from the records of the probate court prove that Smith was Scott's administrator, which is all that could be asked. When the argument was opened the defendants asked leave to amend their pleadings so as to set up certain matters occurring since the bills were filed, namely, that in January, 1874, the complainant had conveyed all his rights in the patent and in the damages to one S. K. Lovewell, on certain terms of sharing profits and damages with Gear; that in February, 1874, Gear was made bankrupt, and that T. F. Nutter has been duly appointed assignee of his estate and effects, and the prayer was that the complainant be ordered to file a supplemental bill. The evidence upon which this motion was made was printed in the record. Judge Shepley had refused a similar motion, but as it was argued again we have looked at the point. Before the motion was made to Judge Shepley, a bill had been filed against Lovewell by the assignee of Gear's estate in bankruptcy, which had been compromised by leave of court, and Lovewell had conveyed all his interest in the subject to Mr. Nutter, the assignee in bankruptcy, and Mr. Nutter had conveyed to Mr. Livermore, and he to the complainant, so that the complainant has all the title he had when the suit was begun. It was for this reason that Judge Shepley denied the motion. These last mentioned conveyances from Lovewell to Nutter, and from Nutter through Livermore to the complainant, were made after the extended term of the patent had expired, and were, therefore, assignments of a right of action only. Where a plaintiff in in action at law pending when he became bankrupt had bought the right of action from his assignee in bankruptcy before any plea was interposed, it was held to be too late for the defendant to plead in abatement, and the case proceeded as if he never had been bankrupt. Gerrish v. Gary, 1 Allen, 213. In equity the case is stronger, because bankruptcy and the appointment of an assignee would not abate the suit, but only require a supple. mental bill to be filed, and perhaps under our bankrupt law, which provides that the assignee shall be admitted to prosecute pending actions even that might not be necessary. But in whatever mode he is to be made a party, there is no occasion to make him one after he has reconveyed his interest to the complainant in the suit. The plea of matters occurring since the original pleadings is met by a replication of other matters still later. The defendants objected to the admission of those assignments in evidence because they had not been recorded in the Patent Office. But we have already seen that they were mere conveyances of the right to maintain these several suits or other similar actions-mere choses in action, in the narrow sense-after the patent itself had expired, and there is no law requiring such assignments to be recorded. Revised Statutes, section 4898, give the patentee or his assignee a right to grant and convey an exclusive right under his patent to the whole or any spec ified part of the United States, and add that a grant or conveyance shall be void as against a subsequent purchaser or mortgagee without notice unless it is recorded. This means such a grant or conveyance of the patent right as had been before mentioned. In assigning a right in action the person to be notified is he against whom the action is pending so that he may not pay the wrong person. The defendants made no settlement with Lovewell or with Nutter, and may now safely account with the complainant. It is urged that the evidence of infringement is insufficient in some of the cases. The charge being that the several defendants have used the machine, a witness is introduced who saw one or more infringing machines in the possession of each of the defendants. The objection is that the court cannot properly infer a use of any of the machines excepting those which the witness saw in actual use at the time of his visit. The complainant has called attention to the fact that the answers do not explicitly deny the infringement. Taking this circumstance with the other evidence, we think a jury would be warranted, if this were an action at law, to find infringement in all the cases. Interlocutory decree for the complainant in each case. [United States Circuit Court-District of Massachusetts.] KENDRICK v. EMMONS. Decided October 9, 1878. 15 O. G., 966. In an infringement suit the defendant rendered before the master an account of the number of machines which he had made, of which he represented some as infringing three and others only one of the claims of the complainant's patent. The complainant then alleged that he had "for many years, to the knowledge of the defendant, exacted and received from many other persons a royalty," at a specified rate, "upon all harness manufactured by the use of machines similar to those employed by the defendant," who thereupon admitted, in writing, "the license and the terms of the same as alleged" by the plaintiff. Here the plaintiff rested his The respondent then offered to verify the statement of his account that a large part of his machines infringed only one of the three claims mentioned in the original decree. The master held this evidence to be inadmissible, and assessed the damages for all the machines at the usual rate. Upon exception his action was affirmed by the court. case. Mr. B. F. Thurston and Mr. W. W. Swan for complainant. Mr. A. K. P. Joy and Mr. J. E. Maynadier for defendant. LOWELL, J.: This case turns on a very narrow point. The interlocutory decree adjudged that the defendant infringed the third, fourth, and eighth claims of the plaintiff's patent, and referred to a master the assessment of damages. Before the master the defendant rendered an account of the number of machines which he had made, some of which he represented as infringing the three claims above mentioned, and others only the eighth claim. The complainant then alleged that he had "for many years, to the knowl edge of the defendant, exacted and received from many other persons a royalty of two and a half mills per upon all harness manufactured by the use of machines similar to those employed by the defendant," who thereupon admitted, in writing, "the license and the terms of the same as alleged" by the plaintiff. Here the plaintiff rested his case. The respondent then offered to verify the statement of his account that a large part of his machines infringed only one of the three claims mentioned in the original decree. The master held this evidence to be inadmissible, and assessed damages for all the machines at the usual rate. The defendant excepted to the exclusion of the evidence and to the assessment. We think it clear that the master was right. There was no offer to prove that the plaintiff was accustomed to divide his royalty according to the greater or less amount of infringement, nor that any possible basis of computation could be found by which the master could assess the value of different claims, and we are not aware of any legal ground for such a distinction; but, without deciding this point, the evidence as it stood justified and required the master to find that, for precisely such an infringement as was admitted here, precisely this royalty had been usually demanded and paid. There was no allegation of misunderstanding, or surprise; no request for leave to withdraw or qualify the admission, and nothing of that sort has been suggested in the argument to us; and upon the written statements of the parties themselves the assessment is legal and just, and is affirmed. Decree accordingly. INDEX. [The names of court cases are designated by an asterisk (*)-Decisions of the Secretary of the Inte ABANDONED APPLICATIONS. 1. An application for letters patent for an improvement in projectiles was filed 2. Howes and Throop filed their application January 27, 1855. It was rejected, 1. Inventors may, if they can, keep their inventions secret, and if they do, no neg- 2. The abandonment of the invention, also held to have occurred by reason of the 3. The evidence to establish the fact of abandonment or dedication of an invention 4. Abandonment will not be established by mere proof of the want of such a degree 5. Mere delay in bringing suit for infringement is not sufficient to establish an |