[Download] "Moffitt v. Garr Et Al." by United States Supreme Court " eBook PDF Kindle ePub Free
eBook details
- Title: Moffitt v. Garr Et Al.
- Author : United States Supreme Court
- Release Date : January 01, 1861
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
Mr. Lee and Mr. Fisher, of Ohio, for plaintiff in error There may be a surrender of letters patent which is not made for the purpose of reissue under the 13th section of the act of July 4, 1836. The plea does not aver that the plaintiff's patent was surrendered under, or by virtue of, the 13th section of the patent act; nor does it aver that it was surrendered for the purpose of obtaining a reissue; or that it was surrendered because of a defective or insufficient description or specification; or because the claim was too broad; or because the patent was from any cause void or voidable; nor even that the patent was cancelled. The question of the right of a patentee to surrender his patent, before the act of 1836, and independently of any statute authorizing him to do so, was fully considered in the discussion of the case of Grant vs. Raymond, (6 Peters, 218;) but neither the court, nor either of the distinguished counsel, seemed to doubt, for a moment, that he possessed such power. Batten vs. Taggart, (17 How., 74.) If the right to make such a surrender exists independently of any statute, the making of the surrender does not imply or involve any statutory or other defect in the patent. And where a patent has been so surrendered or abandoned, an action may still be maintained for infringements committed before the surrender or abandonment. If the patentee surrenders his patent as the end of six years, it is the same as if it had been originally granted to him for six years, and that, for violations of his exclusive privileges committed during those six years, his remedy is as complete as if the patent had stood to the end of his term. It would seem as if this proposition did not admit of doubt or argument. If the surrender of the patent vacates it from the first, then the patentee has been a trespasser from the beginning. He may have been the first and original inventor of a useful improvement; his patent may have been regularly issued; it may have been tested and declared valid in the courts of last resort; and his right to enjoy his monopoly to the end of the full term may have been indisputable. Yet, if he surrenders the latter half of that monopoly to the people, he renders the first half void. He ought to be compelled to refund every penny he had received as patentee, whether peaceably or by the judgment of a competent tribunal. This would be monstrous. But, if he has any rights under the first half of the grant, he is entitled to full rights. If he is entitled to keep the pay received from those who have used and paid, he is also entitled to demand and recover his pay from those who have used and not paid. He might have brought and maintained such an action before the surrender. Why not as well afterward, when suits may be brought any time within six years after the expiration of a patent for infringements committed before? The right of the patentee, we insist, is not divisible. That portion of it which is in possession is no more legal than that which remains in action.