tion; and it is therefore still a law of practical importance. Whenever new bankruptcy statutes are hereafter enacted, it is probable that similar provisions will be inserted also in them. Corresponding proceedings in insolvency under State laws, do not have the operation of bankruptcy proceedings in this particular. They do not confer upon the assignee in insolvency, any title to the patent rights of the insolvent.' But it is probable, that courts which have jurisdiction of such proceedings, may compel the insolvent to execute such an assignment to the assignee in insolvency as will convey the same rights to the latter, as those which, without such a document, were conveyed to an assignee in bankruptcy under the bankrupt law of 1867.'

§ 291. Death of an inventor, before the grant of a patent for his invention, causes a transfer of his inchoate title, to his executor or administrator, in trust for the heirs at law of the deceased in case he dies intestate, or in trust for his devisees in case he leaves a will disposing of the invention.' Such an inchoate title has several of the same qualities, in the hands of the executor or administrator, that it had in the hands of the deceased. If it was an unassigned inchoate title in the hands of the inventor, it is likewise so in the hands of his legal representative. If the deceased had parted with the equitable title, and had, at his death, only the inchoate legal title, the equitable title will be unaffected by the death of the inventor, and will remain the property of its purchaser. So also, if the inventor had parted, prior to his death, with the inchoate legal title, and retained the equitable title, then the latter, and not the former, will devolve upon his executor or administrator. Death of the owner of any legal or equitable title to a patent right already in existence, causes a transfer of that title to his executor or administrator, in like manner as it causes the trans

1 Ashcroft v. Walworth, 1 Holmes, 154, 1872.

9 Ager v. Murray, 105 U. S. 131,

1881.

3 Revised Statutes, Section 4896. Northwestern Extinguisher Co.

v. Philadelphia Extinguisher Co. 1 Bann. & Ard. 177, 1874.

fer of any other intangible personal property of the deceased. Such a legal representative may convey the title by assignment or by grant, by means of any suitable instrument in writing, and in pursuance of such general or special authority from the probate court as is prescribed, in that behalf, by the laws of the particular State whose court that tribunal is. Where there are several joint executors or administrators, the assignment or grant of one of them, is legally the assignment or grant of them all; and if an administrator denominates himself an executor, or if an executor calls himself an administrator, in such a document, that document will be none the less efficacious to convey the title which he holds in his true capacity."

§ 292. Tenancy in common, in a patent right, will arise whenever the sole owner of such a right, in all or in part of the territory of the United States, conveys to another an undivided interest in the whole or in part of the right which he owns. Mutual ownership of some sort arises when a plurality of persons are joint inventors of a process or thing, for which they obtain a joint patent; and also when a plurality of persons obtain, by one assignment or grant, the undivided ownership of a patent, or the undivided ownership of a patent right in a part of the territory of the United States. Whether such mutual ownership constitutes tenancy in common, or constitutes joint-tenancy is a question upon which no positive answer can at present be given. The text writer can do no more than to state the considerations upon which each of the two possible answers, if given, must be based, and to state which of those sets of considerations appear to be the more convincing.

In favor of the hypothesis of joint-tenancy, it may be said that joint-tenancy is a doctrine of the common law which is as

1 Brooks. Jenkins, 3 McLean, 441, 1844; Hodge v. North Missouri Railroad Co. 1 Dillon, 104, 1870; Shaw Valve Co. v. New Bedford, 19 Fed. Rep. 753, 1884; Bradley v. Dull, 19 Fed. Rep. 913, 1884.

Brooks v. Jenkins, 3 McLean, 441, 1844.

3 Wintermute v. Redington, 1 Fisher, 239, 1856.

4 Newell v. West, 13 Blatch. 114, 1875.

applicable to personal property as to real estate;' and that such mutual ownership of patent rights, as that now under inspection, is characterized by all of the four unities which constitute joint-tenancy; the unity of interest; the unity of title; the unity of time; and the unity of possession. In answer to this it may be said that the doctrine of survivorship is the distinguishing characteristic of joint-tenancy; and that the reasons which gave rise to that description of estate in England, never existed in the United States; and that those reasons were founded on the feudal idea that the services due to the superior lord, should be kept entire; and that the doctrine of survivorship was invented to secure that feudal end; and that it has no foundation on any principle of natural justice, or on any point of public policy relevant to American patent rights; and that, therefore, joint-tenancy and its incident, survivorship, are not such doctrines of the common law as are entitled to be incorporated into our American patent system. To this argument against joint-tenancy, it may be replied that it has as reasonable an application to American patent rights, as it has to American real estate; and that the Supreme Court of the United States has applied it to the latter sort of property." To this it may be rejoined that though the question was involved, it was not argued, in the case last cited; and that the Supreme Courts of several of the States have decided that joint-tenancy is not a part of American common law. And it may be further rejoined that even if applicable to American real estate, it is not applicable to American patent rights, because, if it were, it would often operate to defeat the reward to inventors which it is a purpose of American patent law to secure; and because the same reasons which in England excluded the doctrines of joint-tenancy from personal property used in agriculture or in commerce,'

'Blackstone, Book 2, Ch. 25, last paragraph.

Blackstone, Book 2, Ch. 12. 3 Mayburry v. Brien, 15 Peters, 37, 1841.

Phelps v. Jepson, 1 Root (Con

necticut), 48, 1769; Sergeant v. Steinberger, 2 Ohio, 306, 1826; Harris . Clark, 10 Ohio, 5, 1840.

5 Blackstone, Book 2, Ch. 25, last paragraph.

should in America exclude those doctrines from personal property created by invention and used in manufactures. And it may be further rejoined that, even if, in the absence of contrary legislation, the doctrines of joint-tenancy would apply to American patent rights, yet those doctrines have been substantially abrogated throughout most of the United States, by means of those State statutes which have repealed or emasculated those doctrines within the several States, and by virtue of Section 721 of the Revised Statutes, which has adopted those State statutes. To the last rejoinder it may be surrejoined that Section 721 of the Revised Statutes does not adopt the State statutes on this subject; because that section is identical with Section 34 of the Judiciary Act of 1789, and because the latter provision has been held by the Supreme Court, to apply only to cases arising out of the laws of the States. To this surrejoinder, there may be a rebutter that this part of the decision in the United States v. Reid, has apparently been overruled in later Supreme Court cases.' To the mind of the text writer it appears that those of the foregoing arguments which deny joint-tenancy in patent rights, are on the whole more convincing than those which affirm it. All mutual ownership of such rights, will therefore be treated in the following pages, as though it were, undeniably, tenancy in common.

Inasmuch, however, as the question has never been decided by the Supreme Court, it would be prudent to avoid, as far as possible, the circumstances which created a jointtenancy at English common law; for if joint-tenancy should be held to exist in any patent right, its doctrine of survivorship would deprive the heirs or devisees of a dying jointtenant, of their just inheritance, and would confer that inheritance upon the joint-tenant who survived.'

'United States v. Reid, 12 Howard, 363, 1851.

Vance. Campbell, 1 Black. 427, 1861; Haussknecht v. Claypool,

1 Black. 431, 1861; Wright v. Bales, 2 Black. 535, 1862.

3 Blackstone, Book 2, Ch. 25, last paragraph.

§ 293. The circumstances, which, unless avoided, may be held to create a joint-tenancy in a patent, can, where joint inventors become joint patentees, be avoided by means of a joint assignment of the patent to a third person, and a separate reassignment to the patentees, of their respective undivided interests. Such an operation will turn any jointtenancy into a tenancy in common, because it destroys the unity of title, and if the separate reassignments are executed and delivered on different days, it also destroys the unity of time. Where a sole inventor sells an undivided interest in his invention or his patent, the objectionable circumstances can be avoided by simply assigning that undivided interest to the purchaser; instead of doing the common, but unscientific, thing of assigning the whole invention, or the whole patent, to himself and to that purchaser jointly. And in a case where a sole patentee assigns his patent, or grants a territorial right therein, to a plurality of purchasers, those circumstances can be avoided by simply executing and delivering a separate paper to each purchaser for his undivided share; instead of making one document convey the whole right to all the purchasers together. Indeed any device which will destroy either of the four unities of a jointtenancy, will destroy that tenancy, and at the same instant will destroy the right of survivorship. If the unity of possession is destroyed, the ensuing estate of each owner is an estate in severalty; but if that unity is preserved, while either or all of the others are destroyed, the joint-tenancy is converted into a tenancy in common.'

§ 294. One tenant in common of a patent right may exercise that right to any extent he pleases without the consent of any co-tenant. He may make, use, and sell, specimens of the patented invention to any extent, and may license others to do so, and neither he nor his licensees can be enjoined from a continuance in so doing. Nor can any recovery of profits or damages be had against any such

1 Blackstone, Book 2, Ch. 12.

2 Clum v. Brewer, 2 Curtis, 523,

1855; Aspinwall Mfg. Co. v. Gill, 32 Fed. Rep. 697, 1887.