Brush v. The Naugatuck Railroad Company. the title of the junior patentee; but an adjudication that the senior patentee was not the first inventor of the thing claimed in his patent, which was not the thing claimed by the junior patentee, does not enlarge or affect the estate of the latter. But it is urged, and it is the strength of the defendant's argument, that Weston cannot make his lamp without using the Brush clamp, and thus that the adjudication in the Condit case, which threw the claimed combination open to the public, affected the extent of Weston's enjoyment of his property, and, therefore, related to the property as much as if it affected his title. It is true, that the adjudication will, if hereafter sustained, affect his enjoyment of his franchise, in the sense that it will relieve him from the alleged liability or obligation to pay royalty to the plaintiffs; but the defect in the defendant's argument seems to me to consist in insisting that the relations to each other of grants of exclusive rights in different inventions, by different letters patent, are analogous, in all respects, to the relations to each other of grants of rights in a piece of land, by different deeds. The inventor's estate in letters patent is his exclusive right to practice his own invention for the time limited by the statute. The subsequent inventor, who has taken a patent for a different invention, is no more subject to the grant to the senior patentee than he would have been if he had not taken a patent. There cannot properly be said to be a burden or easement upon the junior patentee's estate, although there is a prohibition against the use by the public of the senior patentee's exclusive right. There is no implied condition that Weston's grant shall be subject to prior valid grants, for the grant does not touch upon the territory which had been granted to anybody else. In other words, the fact that, after the Condit suit was commenced, the Electric Lighting Company obtained patents for the devices which characterize the Weston lamps, does not give to the adjudication that the Brush patent was invalid by reason of prior anticipation by a third person, any different position or force from that which it would have had if the Weston patents had Brush v. The Naugatuck Railroad Company. never been issued, because these patents do not relate to the invention which was included in the Brush patent. Weston's freedom from the claim of Brush for royalty was, to use the language of the plaintiffs' counsel, not obtained "in his capacity as patentee, not by way of enlargement of his rights as patentee, not as an adjudication in favor of his estate as patentee, so as to make a case of 'privity of estate' in behalf of his licensees." The cases of Ingersoll v. Jewett, (16 Blatchf. C. C. R., 378,) and Pennington v. Hunt, (20 Fed. Rep., 195,) do not sustain the plea. In the first case, Ingersoll, as owner of the Heath patent, had sued Turner, a licensee under Topham's patent for the same invention, for infringement of the Heath patent. Topham assumed the defence of the suit. The question of priority of invention as between Heath and Topham was the one at issue, and was decided in Topham's favor. His title to his invention, as between Ingersoll and himself, was the subject which was adjudicated. Ingersoll then sued Jewett, another licensee of Topham, for making the same invention, and it was held, that, if Jewett had become a licensee after judgment in the Turner suit, he would have been privy in estate with Topham, and the former judgment would have been conclusive, as an estoppel. In the case of Pennington v. Hunt, Hunt sued Pennington upon the Clark patent, having bought it from King, the unsuccessful defendant in the previous suit of Pennington v. King, upon the Pennington patent, in which case King's defence. was that the Pennington invention had been previously patented to Clark. The Court sustained the validity of the Pennington patent, as against the Clark patent, and thus the validity or the scope of the latter patent was directly in issue. Hunt, having bought the Clark patent from King, after the adjudication, with knowledge of the controversy, was held to be privy in estate with his assignor, and to be bound by the judgment. The difference between these two cases and the one at bar is, that, in each of the cited cases, the validity or the scope of the patent which belonged to the defendant in The Warren. the original suit was directly in issue and was adjudicated upon. The plea of William D. Bishop, which sets up non-infringement, is within the adverse criticism of the Court upon a similar plea, in Sharp v. Reissner, (20 Blatchf. C. C. R., 10.) Both pleas are overruled. Causten Browne and E. N. Dickerson, for the plaintiffs. THE WARREN. In a collision between two steam vessels, one was held in fault, because, having the other on her starboard hand, and being bound to avoid her, she undertook to pass across her bows and not under her stern; and because she was proceeding at a speed beyond that prescribed by a statute. The other was held in fault for starting up, after being stopped, when she saw that the first vessel was intending to cross her bows, and was coming on at full speed. Although the District Court divided the damages, it gave full costs to the libel lant. This Court apportioned equally the costs of both parties in that Court; and, as both parties had appealed, the costs of both parties in this Court were equally apportioned. (Before BLATCHFORD, J., Eastern District of New York, July 11th, 1885.) THIS was a suit in rem, in Admiralty, in the District Court, for a collision. That Court made a decree apportioning the damages. (11 Fed. Rep., 443, and 17 Id., 705.) Both parties appealed. This Court found the following facts: "1. On the 14th of January, 1880, the libellant Shortland was the owner of the side-wheel steamboat G. T. Olyphant, which was a passenger steamboat, running between pier 17, East River, and Hunter's Point, Long Island. 2. On the afternoon of that day, shortly after 3 o'clock, The Warren. the said steamboat left said pier 17 on one of her regular trips, being tight and staunch, and in charge of a competent master and crew, the master and a competent wheelsman being in her pilot-house in charge of her navigation, and a competent engineer in charge of her engine. 3. About the same time, the side-wheel steam-ferry-boat Warren left her slip at Williamsburgh, on one of her regular trips on the ferry between Grand street on the Brooklyn side, and Grand street on the New York side, of the East River. The distance from slip to slip is about half a mile. The width of the river is about one-quarter of a mile. The tide was strong ebb, and setting towards the New York shore, and the weather was fair. When about in the middle of the river, the Warren, then heading for about the New York slip, stopped her machinery to permit the steamboat Harlem to cross her bow, the Harlem then being bound down the East River, nearer the New York shore, intending to make a landing at the outer end of the pier at the foot of Grand street, which forms the southern boundary line of the lower ferry slip on the New York side, into which the Warren was bound. 4. When the Olyphant was about off Corlear's Hook, those in charge of her perceived the Harlem coming down the East River, a little on the starboard hand of the course of the Olypliant, and intending to make said landing, which she indicated to the Olyphant by blowing one whistle. 5. Those in charge of the Olyphant also saw, at the same time, the Warren, in the middle of the river, with her machinery stopped, drifting with the tide, and waiting till the Harlem should be so far down the river as not to interfere with the entrance of the Warren into said New York ferry slip, it being then known to those on the Olyphant that the Warren was bound for said ferry slip. 6. An eddy extended out from the New York docks, variously estimated at from 50 to 100 feet wide, and the Olyphant was hugging the New York shore, to take advantage of this eddy and not stem the tide. Her course below the point The Warren. of Corlear's Hook was about parallel with the outer ends of the New York piers, making her head towards Williamsburgh. 7. The Olyphant answered the whistle of the Hariem with one whistle, and the helm of the Olyphant was thereupon ported a little, and her course changed sufficiently to enable the Harlem to make her landing inside of the course of the Olyphant, and the wheel of the Olyphant was then steadied, and her course was straightened up parallel with the line of the piers, and she passed about 50 feet outside of the Harlem, as the latter was about to make her landing, the Olyphant intending to pass between the Warren and the New York shore, and being on a course to do so, and such intention being manifest to those on board of the Warren. 8. Just as the Olyphant passed the Harlem, the Warren, which had all the time, by the drift of the tide and her momentum, been nearing the New York shore, started ahead and blew one whistle to the Olyphant, which the Olyphant answered with one whistle immediately, and the wheel of the Olyphant was at once put hard-a-port, and her head was turned off shore, so that she sheered out five or six points before the collision. The bells of the Olyphant, and also those of the Warren, were rung, in quick succession, to slow, stop and back, before the collision. 9. The Olyphant was running at the rate of from 11 to 15 miles an hour, and so continued until she was but a short distance away from the Warren, and until it was too late to avoid a collision. 10. The port bow of the Warren struck the port side of the stem of the Olyphant, turning her stem down the river, and forcing her back towards the New York piers, and sinking her. 11. The collision took place about 100 feet out from the Broome street pier, and a little below it, the Olyphant being, at the time, about half in the ebb tide and half in the eddy. 12. The value of the Olyphant, at the time of the collision, was $16,000. She was totally lost, except that her boiler, and some of her furniture, was saved, and realized to the |