3. Joint Owners.-Joint owners of a patent right are owners in common thereof, and in the absence of any specific agreement, are not partners.3 They are not liable to each other for an individual use of the patented invention. A conveyance of a joint owner's portion may be made and a license granted by one under which the licensee will not be liable to the others. How far the joint owners are accountable to each other for profits made is undecided." The executor takes the patent in trust for the next of kin, as the grant of personal property to a man and his heirs means to him and the next of kin according to the statute of distribution. Shaw Relief Valve Co. v. New Bedford, 19 Fed. Rep. 753; Pelham v. Edelmeyer, 25 Pat. Off. Gaz. 292. Contra, that they are not personal assets but a franchise to be held in trust for the heirs. Goodyear v. Hullihen, 2 Hughes (U. S.) 492; s. c., 3 Fish. Pat. Cas. 257 Where a devise has been made in the will which would include the patent, the personal representative takes it in trust for devisee. Stimpson v. Rogers, 4 Blatchf. (U. S.) 333 1. Dunham v. Indianapolis etc. R. Co., 7 Biss. (U. S.) 223; s. c., 2 Bann. & Ard. Pat. Cas. 327; Whitney v. Graves, 3 Bann. & Ard. Pat. Cas. 222; S. C., 13 Pat. Off. Gaz. 455; Vose v. Singer, 4 Allen (Mass.) 226; Duke v. Graham, 19 Fed. Rep. 647. 2. Pitts v. Hull, 3 Blatchf. (U. S.) 201. They can enter into partnership and stipulate that one shall have sole control of the business. Kinsman v. Parkhurst, 18 How. (U. S.) 289. But a mere agreement to account to each other does not make them partners. Fraser v, Gales, 20 Reporter 427. 3. Pitts v. Hall, 3 Blatchf. (U. S.) 201. A right restricted to a partnership and not extending to assigns does not pass to corporations organized by the co-partners. Lock v. Lane etc. Co., 35 Fed. Rep. 289. 4. Vose v. Singer, 4 Allen (Mass.) 226; De Witt v. Elmira etc. Mfg. Co., 66 N. Y. 459; Parkhurst v. Kinsman, 9 N. J. Eq. 600; Dunham v. Indianapolis etc. R. Co., 7 Biss. (U. S.) 223; s. c., 2 Bann. & Ard. Pat. Cas. 327; Whiting v. Graves, 3 Bann. & Ard. Pat. Cas. 222. 5. May v. Chaffee, 2 Dill. (U. S.) 385; s. c., 5 Fish. Pat. Cas. 160. 6. Dunham v. Indianapolis etc. R. Co., 7 Biss. (U. S.) 223; s. c., Bann. & Ard. Pat. Cas. 327; De Witt v. Elmira etc. Mfg. Co., 66 N. Y. 459; Clum v. Brewer, 2 Curt. (U. S.) 506; Mathers v. Gran, L. R., 1 Ch. App. 29. 7. "The exact mutual rights of part owners of a patent have never yet been authoritatively settled. If one part owner derives a profit from a patent, either by getting the royalties from its use, or purchase money for sale of rights, it would seem that he should be accountable to the other part owners for their portion of such profit. And probably a bill for an account would be sustained therefor." Aspinwall Mfg. Co. v. Gill, 32 Fed. Rep. 697; Gates v. Fraser, 9 Ill. App. 638. An agreement to divide license fees will compel accounting. Gates v. Fraser, 9 Ill. App. 624. Or where inventor agreed to take patent for benefit of himself and tenant in common. Blakeney v. Goode, 30 Ohio St. 350; Marston v. Swett, 66 N. Y. 206. An agreement between joint owners to account for the sales of the right to use a machine, does not compel them to account for profits on sales of machines to those having the right to use, or for profits of manufacture. Hubenthal v. Kennedy, 76 Iowa 707. Estoppel of Joint Inventors.-A joint patentee cannot set up the invalidity of the patent against his co-owner. Stearns v. Barrett, 1 Pick. (Mass.) 443. Where two joint inventors apply for a patent and one of them subsequently obtains it, the other has a joint interest in the invention and patent. Vetter v. Leutzinger, 31 Iowa 182. Trust Doctrine Between Joint Owners. -An issue of a patent to one of two joint owners of a patent enures to both. Vetter v. Leutzinger, 31 Iowa 182. 4. Assignment. (1) DEFINITION.-An assignment is a conveyance of the whole interest in a patent or any undivided part of such whole interest, in every portion of the United States.1 (2) DEFINITION OF GRANT.-A grant is a conveyance of the exclusive right under the patent to make and use, and to grant to others the right to make and use, the thing patented within and throughout some specified part or portion of the United States.2 (3) RIGHTS AND LIABILITIES OF TERRITORIAL GRANTEE.— A territorial grantee has a right to sell within his territory articles to be used outside of it in the territory of the patentee or of a grantee subsequent in time to him.3 A purchase from him will not protect a purchaser who buys the goods in the territory for the purpose of selling them outside.4 (4) REQUISITES OF ASSIGNMENT.-Any patent or an interest therein5 1. Potter v. Holland, 4 Blatchf. (U. S.) 206; s. c., I Fish. Pat. Cas. 327; Gaylor v. Wilder, 10 How. (U. S.) 477; Blanchard v. Eldridge, 1 Wall. Jr. (C. C.) 337; s. c., 2 Robb Pat. Cas. 737; Pitts v. Jameson, 15 Barb. (N. Y.) 310; Buss v. Patney, 38 N. H. 44; Meyer v. Bailey, 2 Bann. & Ard. Pat. Cas. 73; s. c., 8 Pat. Off. Gaz. 437; Tyler v. Tuel, 6 Cranch (U. S.) 324. Other cases do not strictly carry out this definition, but what are now called grants are also called assignments. Baldwin v. Libbey, 1 Cliff. (U. S.) 150; Farrington v. Gregory, 4 Fish. Pat. Cas. 221. But a grant carrying the above rights, is an assignment regardless of its form of words. Nellis v. Pennock Mfg. Co., 13 Fed. Rep. 451; s. c., 22 Pat. Off. Gaz. 1131. 2. Potter v. Holland, 4 Blatchf. (U. S.) 206; s. c., I Fish. Pat. Cas. 327; Whittemore v. Cutter, 1 Gall. (U. S.) 429. Contents of Instrument Prevails.The fact that the form of an assignment or grant was adopted to serve ulterior ends, does not make the instrument less an assignment or grant. Siebert etc. Oil Cup Co. v. Beggs, 32 Fed. Rep. 790. Anything less than these is only a license. Theberath v. Celluloid Mfg. Co., 3 Fed. Rep. 143; Hill v. Whitcomb, I Holmes (U. S.) 317; s. c., I Bann. & Ard. Pat. Cas. 34, s. c., 5 Pat. Off. Gaz. 430; Still v. Reading, 4 Wood (U. S.) 345, s. c., 9 Fed. Rep. 40; s. c., 20 Pat. Off. Gaz. 1025; Gamewell Fire Alarm Tel. Co. v. Brooklyn, 14 Fed. Rep. 255; Stanley Rule etc. 3. Adams v. Burke, 17 Wall. (U. S.) 453; Washing Mach. Co. v. Earle, 3 Wall. (C. C.) 320; Simpson v. Wilson, 4 How. (U. S.) 709. And it is unimportant whether the vendor knows that the goods are to be used outside or not. Hobbie v. Smith, 27 Fed. Rep. 656; Hobbie v. Jennison, 40 Fed. Rep. 887; Contra, Washburne etc. Co. v. Southern Wine Co., 37 Fed. Rep. 428; Hatch v. Hall, 30 Fed. Rep. 613. The patentee cannot, however, sell for use in a territory for which he has made a grant. Ferrel v. Smith, 29 La. Ann. 811. 4. Standard Folding Bed Co. v. Keeler, 37 Fed. Rep. 693; Standard Folding Bed Co. v. Keeler, 41 Fed. Rep. 51, Hatch v. Adams, 22 Fed. Rep. 434; Hatch v. Hall, 22 Fed. Rep. 434; Hatch v. Adams, 30 Fed. Rep. 613; American Paper Barrel Co. v. Laraway, 28 Fed. Rep. 141, Union Paper Bag Co. v. Nixon, Flipp. (U. S.) 491; s. c., 2 Bann. & Ard. Pat. Cas. 244; s. c., 9 Pat. Off. Gaz. 691. 5. The assignment of a patent is reg. ulated by the statute, which must be followed strictly. Gayler v. Wilder, 10 How. (U. S.) 477 But as patents are now granted to the patentee and his legal representa. shall be assignable in law by an instrument in writing,1 and the patentee, or his assigns or legal representatives may, in like manner, grant and convey an exclusive right under his patent to the whole or any specified part of the United States. (5) FORMAL REQUISITES OF ASSIGNMENT OR GRANT.-Any instrument containing operative words showing an intention to assign and a sufficiently clear designation of the subject matter tives, they are assignable as other chattels by force of the grant. Blanchard v. Eldredge, 1 Wall. Jr. (C. C.) 337; s. C., 2 Robb Pat. Cas. 737. States have no right to restrict sale of patents or determine the form of the assignment. Hollida v. Hunt, 70 Ill. 109; Crittenden v. White, 23 Minn 29, Cranson v. Smith, 37 Mich. 309; Patterson v. Commonwealth, 11 Bush (Ky.) 311. In Indiana a statute providing that the patentee must file a copy of the patent right in the county where any sale took place, was passed upon, but a decision of its validity not given. Hankey v. Downey, 116 Ind. 118; New v. Walker, 108 Ind. 365. 1. Horne v. Chatham, 64 Tex. 36; Campbell v. James, 18 Blatchf. (U. S.) 92; s. c., 18 Pat. Off. Gaz. IIII; s. c., 2 Fed. Rep. 338. The various rights of selling, using and making under the patent, cannot be assigned separately. Gayler v. Wilder, 10 How. (U. S.) 477; Suydam v. Day, 2 Blatchf. (U. S.) 20; Sanford v. Messer, 1 Holmes (U. S.) 149; s. c., 5 Fish. Pat. Cas. 411; s. c., 2 Pat. Off. Gaz. 470. A single claim under a patent may be assigned. Pope Mfg. Co. v. Gormully etc. Co., 34 Fed. Rep. 893. An agreement which is not an assignment or grant, need not be in writing. Blakeney v. Goode, 30 Ohio St. 350; Springfield v. Drake, 58 N. H. 19. Nor need the assignment of a right to canvass for and sell a patented machine. Springfield v. Drake, 58 N. H. 19. Nor an agreement to assign an interest in a contemplated invention. Burr v. De La Vergue, 102 N. Y. 415. Assignment by Written Instrument. -The instrument of conveyance must be in writing. Baldwin v. Sibley, Cliff. (U. S.) 150; Jordan v. Dobson, 4 Fish. Pat. Cas. 232; s. c., 2 Abb. (U.S.) 398; s. c., 7 Phila. (Pa.) 533, Davy v. Morgan, 56 Barb. (N. Y.) 218; Gibson v. Cook, 2 Blatchf. (U. S.) 144; Case v. Redfield, 4 McLean (U. S.) 526; Black v. Stone, 33 Ala. 327; McKeman v. Hite, 6 Ind. 428; Moore v. Bare, 11 Iowa 198; Stone v. Palmer, 28 Mo. 839; Holden v. Curtis, 2 N. H. 61; Boyd v. McAlpin, 3 McLean (U. S.) 427; Galpin v. Atwater, 29 Conn. 93. Seal. But need not be under seal. Godfried v. Miller, 104 U. S. 521; s. C., 21 Pat. Off. Gaz. 711. Verbal Assignment.-A verbal assignment, however, gives an equitable right. Burke v. Partridge, 58 N. H. 349. Acknowledgment.-An acknowledgment before a notary public dispenses with the necessity of proving the signature of the assignor. New York Pharmical Association v. Tilden, 14 Fed. Rep. 740; s. c., 23 Pat. Off. Gaz. 272. U. S. Rev. Stats., § 4898 provides: "Every patent or any interest therein shall be assignable in law by an instrument in writing; and the patentee or his assigns or legal representatives may, in like manner, grant and convey an exclusive right under his patent to the whole or any specified part of the United States. An assignment, grant or conveyance shall be void as against any subsequent purchaser or mort gagee for a valuable consideration, without notice, until it is recorded in the Patent Office within three months of the date thereof." This section is confined to assignments after the grant of the patent. Wright v. Randel, 19 Blatchf. (U. S.) 495; s. c., 8 Fed. Rep. 591. 2. Campbell v. James, 18 Blatchf. (U.S.) 92; s. c., 2 Fed. Rep. 338; s. C., 5 Bann. & Ard. Pat. Cas. 354; s. c., 18 Pat. Off. Gaz. IIII. Where it is ambiguous from the words whether or not an instrument is intended as an assignment, the intention of the parties may be considered, Kearney v. Lehigh Valley R. Co., 27 Fed. Rep. 699. to be assigned1 and the parties to the contract,2 is sufficient. It is to be construed, as in any other contract,3 by the whole agreement, and under the ordinary rules governing the interpretation of written contracts.5 (6) ASSIGNOR.-The instrument of assignment follows the ordinary rules governing the contract and the State laws where the contract is made, as to the rights of agents,8 corpora 1. Harmon v. Bird, 22 Wend. (N. Y.) 113; Myers v. Turner, 17 Ill. 179; Hill v. Thuermer, 13 Ind. 351; Washburne etc. Mfg. Co. v. Haish, 4 Fed. Rep. 910, s. c., 19 Pat. Off. Gaz. 173; Nellis v. Pennock Mfg Co., 13 Fed. Rep. 451; s. c., 22 Pat. Off. Gaz. 1131; Campbell v. James, 18 Blatchf. (U. S.) 92, s. c., 5 Bann. & Ard. Pat. Cas. 354; s. c., 2 Fed. Rep. 338, s. c., 18 Pat. Off. Gaz. IIII. 2. Where the parties can be ascertained it is sufficient. Fisk v. Hollander, 4 McArthur (D. C.) 355. 3. Washburne v. Gould, 3 Story (U. S.) 122; s. C., 2 Robb Pat. Cas. 206; Morse v. O'Reilly, 6 Pa. L. J. (Pa.) 501; Philadelphia R. Co. v. Trimble, 10 Wall. (U. S.) 367; Eureka Co. v. Bailey Co., 1 Wall. (U. S.) 488; Perry v. Corning, 1 Blatchf. (U. S.) 195; Hope Iron Works v. Holden, 58 Me. 146; Taylor v. Collins, 102 Mass. 248; Seibert etc. Oil Cup Co. v. Phillips Lubricator Co., 10 Fed. Rep, 677; Seibert Co. v. Beggs, 32 Fed. Rep. 790; Wilson v. Chickering, 14 Fed. Rep. 917. Intention of Parties.-It should be construed to carry out the intention of the parties. American etc. Pavement Co. v. Jenkins, 14 Wall. (U. S.) 452; s. c., 1 Pat, Off. Gaz. 465; Hall v. Speer, 6 Pitts. L. J. 403; Perry v. Corning, 7 Blatchf. (U. S.) 195; Wetherill v. Passaic Zinc Co., 6 Fish. Pat. Cas. 50; s. c., 2 Pat. Off. Gaz. 471. Law of the Land.-Assignments will not be construed in conflict with the law of the land unless the intention is clearly indicated by the terms of the agreement. Wilson v. Rousseau, 4 How. (U. S.) 646. 4. Goodyear v. Cary, 4 Blatchf. (U. S.) 271; Baldwin v. Sibley, 1 Cliff. (U. S.) 150; Washburne v. Gould, 3 Story (U. S.) 122; s. c., 2 Robb Pat. Cas. 256. 5. Words are supposed to be used in their common sense. Goodyear v. Cary, 4 Blatchf. (U. S.) 271. And no other meaning is to be given them unless it appears that some other or different meaning was intended. Goodyear v. Cary, 4 Blatchf. (U. S.) 271; Woodworth v. Sherman, 3 Story (U. S.) 171, s. c., 2 Robb Pat. Cas. 257; Troy Iron etc. Factory v. Corning, 14 How. (U. S.) 193. What May Be Referred to in Interpreting an Assignment.-The circumstances under which the agreement was made. Read v. Bowman, 2 Wall. (U. S.) 591; Troy Iron etc. Factory v. Corning, 14 How. (U. S.) 193; Wetherill v. Passaic Zinc Co., 6 Fish. Pat. Cas. 50; s. c., 2 Pat. Off. Gaz. 471; Steam Cutter Co. v. Sheldon, 10 Blatchf. (U. S.) 1. The specification where the assignment refers to it. Read v. Bowman, 2 Wall. (U. S.) 591. A subsequent confirmatory instrument. R. Co. v. Trimble, to Wall. (U. S.) 367. Doubt is to be resolved against grantor. Smith v. Selden, 1 Blatchf. (U. S.) 475; May v. Chaffee, 2 Dill. (U. S.) 385; s. c., 5 Fish. Pat. Cas. 160. Oral Testimony as Effecting Interpretation.-Declarations written or oral as to the meaning of the contract or motives for making it, cannot vary the sense of the written contract. Wetherill v. Passaic Zinc Co., 6 Fish. Pat. Cas. 50; s. c.. 2 Pat. Off. Gaz. 471. The date of delivery may be shown to be different from the date of the instrument. Dyer v. Rich, 1 Met. (Mass.) 180. Also what was the consideration. Wheeler v. Billings, 38 N. Y. 263. 6. Kinsman v. Parkhurst, 18 How. (U. S.) 289; Wilson v. Rousseau, 4 How. (U. S.) 646; s. c., 2 Robb Pat. Cas. 372. Several territorial grantees may unite in a single instrument as assignors. Ladd v. Mills, 22 Blatchf. (U. S.) 242; s. c., 20 Fed. Rep. 792. 7. Fetter v. Newhall, 21 Blatchf. (U. S.) 445; s. c., 17 Fed. Rep. 841. 8. Agent.-Contracts may be executed tions, married women2 and others.3. (7) EXECUTION AND PROOF Of Assignment.-The manner of executing and proving an assignment follows the State practice.4 (8) CONDITION.-A condition in an assignment does not reduce it to a license;5 if the condition is precedent, the assignee takes no title until performance, otherwise where the condition is subsequent.7 (9) COVENANTS.8 by the agent of a corporation, but the agent should, in the body of the contract, name the corporation as the contracting party and sign as its agent or officer. Gottfried v. Miller, 104 U. S. 521; s. c., 21 Pat. Off. Gaz. 711; Bellas v. Hays, 5. S. & R. (Pa.) 427. And where the assignment is executed by the agent, there must be proof of the agent's authority. Sone v. Palmer, 28 Mo. 539. And the authority must be under seal to authorize an assignment under seal. Bellas v. Hays, 5 S. & R. (Pa.) 427; Stetson v. Patten, 2 Me. 358. Administrator and Executor.-Donoughe v. Hubbard, 27 Fed. Rep. 742; Bradley v. Dull, 19 Fed. Rep. 913; s. c., 27 Pat. Off. Gaz. 625; Northwestern Fire Extinguisher Co. v. Philadelphia Fire Extinguisher Co., 1 Bann. & Ard. Pat. Cas. 177; s. c.. 6 Pat. Off. Gaz. 34. The State laws cannot limit the authority of the administrator to assign. Brooks v. Jenkins, 3 McLean (U. S.) 432; Goodyear v. Hullihen, 2 Hughes (U. S.) 492; s. c., 3 Fish. Pat. Cas. 251. 1. Where the assignment was made by an officer having authority, or was ratified, it is a good execution. Eureka Co. v. Bailey Co., 11 Wall, (U. S.) 488. See as to what is a good execution for corporation. Campbell v. James, 17 Blatchf. (U. S.) 42; s. c., 18 Pat. Off. Gaz. 979; Gottfried v. Miller, 104 U. S. 321; s. c., 21 Pat. Off. Gaz. 711. 2. In New York where the property of a married woman is distinctly her own, she may, by her sole deed, assign her interest in a patent. Fetter v. Newhall, 21 Blatchf. (U. S.) 445; S. C., 17 Fed. Rep. 841, s. c., 28 Pat. Off. Gaz. 502. 3. Administrators-An administrator may assign. Brooks v. Jenkins, 3 McLean (U. S.) 432. And an assignment by one administrator gives a perfect title generally. Donoughe v. Hubbard, 27 Fed. Rep. 742; Bradley v. Dull, 19 Fed. Rep. 913; s. c., 27 Pat. Off. Gaz. 625; Wintermute v. Redington, 1 Fish. Pat. Cas. 239. Infants. An infant must assign by guardian. Fetter v. Newhall, 21 Blatchf (U. S.) 445; s. c., 17 Fed. Rep. 841; s. c., 25 Pat. Off. Gaz. 502. 4. Houghton v. Jones, 1 Wall (U. S.) 703; Fetter v. Newhall, 21 Blatchf. (U. S.) 445; s. c., 17 Fed. Rep. 841; s. c., 25 Pat. Off. Gaz. 502. 5. Littlefield v. Perry, 21 Wall. (U. S.) 205; s. c., 7 Pat. Off. Gaz. 964, Ritter v. Serrell, 2 Blatchf. (U. S.) 379; Dorsey etc. Rake Co. v. Bradley Mfg. Co., 12 Blatchf. (U. S.) 202; s. c., I Bann. & Ard. Pat. Cas. 330. 6. Pitts v Hall, 3 Blatchf. (U. S.) Philadelphia etc. R. Co. v. Trimble, 10 Wall. (U.S.) 367. Where a contract shows that arbitrage is to be a condition precedent to a right to sue upon the contract, the plaintiff must make all reasonable efforts for an arbitration before he can sue. Perkins v. United States Electric Light Co., 21 Blatchf. (U. S.) 308; s. c., 16 Fed. Rep. 513; s. c., 24 Pat. Off. Gaz. 204. But suit can be brought if arbitration fails. Humaston v. American Tel. Co., 20 Wall. (U. S.) 20. 7. Stanley Rule etc. Co. v. Bailey, 14 Blatchf. (U. S.) 510; s. c., 3 Bann. & Ard. Pat. Cas. 297. Where there is a condition of reassignment the court will decree a retransfer upon breach of condition. Andrews v. Fielding, 20 Fed. Rep. 123. A condition in a patent assignment cannot be apportioned. Tinkham v. Erie R. Co., 53 Barb. (N. Y.) 393. 8. Prosecution of Infringers.-A covenant that all unlicensed persons should be prosecuted was reasonably fulfilled by taking action that resulted in stopping all infringements. Foster v. Goldschmidt, 21 Fed. Rep. 70. Nor does this covenant apply where the parties prosecuted are declared not to be infringers. Covell v. Bostwick, 39 Fed. Rep. 421. See Brewster υ. Tuthill Spring Co., 34 Fed. Rep. 769. A covenant to proscute infringers is not a warrantee that the vendee shall en |