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they are nevertheless at liberty to regulate their reciprocal rights according to their own desires.1 They may unite their interests more closely by additional agreements, or one may deprive himself of a portion of his rights in favor of the others. In reference to third parties, however, all the jointowners of the patented invention are regarded as a single proprietor. Infringement by a stranger violates the right of all in whom the property in the patented invention vests, and all must join in actions to redress the wrong; the damages which they recover being apportioned among them according to their individual but undivided interests in the patented invention.2

§ 798. That joint-owners of a pat ent may subdivide it at pleasure, see Vose v. Singer (1862), 4 Allen, 226.

That an agreement of co-owners to account, if observed by them for a time, is not within the Statute of Frauds where the contract has been ful. filled on one side by the transfer of the interest in the patent, and might have been fully executed on the other within the year, see Fraser v. Gates (1885), 118 Ill. 99.

That an agreement of co-owners to account to each other is a continuing agreement, and enures to the benefit of a bankrupt owner who purchases the interest from his assignee in bank ruptcy, see Fraser v. Gates (1885), 118 Ill. 99.

That an agreement to account to each other does not make the co-owners partners, see Fraser v. Gates (1885), 118 Ill. 99.

That joint-owners of a patent who are also partners are bound to account to each other for the use of the invention, see Freeman v. Freeman (1884), 136 Mass. 260.

That co-owners, being also co-partners, may hold each other to account for royalties and prices received for the invention, see Burr v. De La Vergne (1886), 102 N. Y. 415.

That owners not named as licensors in the license are entitled to their share of the royalties, if they were partners with the nominal licensor when the license was granted, see Rogers v. Reissner (1887), 41 O. G. 351 ; 80 Fed. Rep. 525.

That an agreement between a patentee and an improver of the patented device to take out a new joint patent makes them, in equity, joint-owners of the improved invention, and each can restrain the other from using it except for their joint benefit, see Duke v. Graham (1884), 19 Fed. Rep. 647.

That where the patentee and the inventor of an improvement re-issue the original patent for the improved device in their joint names, each can restrain the other from using the patent except for their joint benefit, see Duke v. Graham (1884), 19 Fed. Rep. 647.

2 That a suit for infringement against a stranger should be brought in the names of all the joint-owners, and the damages recovered be distributed among them according to their respective interests in the patented invention, see Herring v. Gas Consumers' Associa tion (1878), 3 McCrary, 206; 21 O. G. 203; 3 Bann. & A. 253; 9 Fed. Rep. 556, and cases cited under §§ 937-945, 1070, 1098-1102, post.

§799. Joint Grantees.

Joint grantees occupy toward each other in respect to their limited territorial ownership the same relations which subsist between the joint-owners of the entire interest for the whole United States. Within their local boundaries the complete property in the invention and the monopoly is vested in them as co-owners, and each may practise the invention, dispose of his own interest, or license others in the same manner as a joint assignee. Their several rights may be increased, diminished, or changed in character by mutual agreements, and in enforcing them against infringers they act as a collective body, in whom the indivisible monopoly resides. Owners of different territorial interests may similarly combine their privileges, or enter into contracts with each other whereby their rights, as otherwise defined by law, are variously modified.1

SECTION III.

OF THE TRANSFER OF LETTERS-PATENT: EXECUTORS AND
ADMINISTRATORS.1

§ 800. Property of Decedent in Patented Inventions Vested by

Federal Statutes in his Executor or Administrator.

Upon the death of any owner of a patented invention his interest vests immediately in his executor or administrator, by virtue of the statutes of the United States.2 The title of

§ 799. 1 That owners of different territorial rights do not mingle their rights by appointing a common attor ney to convey, see May v. Chaffee, (1871), 5 Fisher, 160; 2 Dillon, 385.

That two assignees of different territory may appoint an agent to manage for both, and may thus restrict themselves in perpetuity from doing any thing to injure each other, see Ladd v. Mills (1884), 20 Fed. Rep. 792; 22 Blatch. 242.

§ 800. 1 For a discussion of this subject, in another connection, see §§ 404406, and notes, ante.

2 That the interest of the owner of a patented invention vests, upon his death, in his executor or administrator, see Shaw Relief Valve Co. v. New Bedford (1884), 19 Fed. Rep. 753; 28 O. G. 283; Bradley v. Dull (1884), 19 Fed. Rep. 913; 27 O. G. 625.

That the executor or administrator in whom the patent vests is the one

the administrator or executor is not derived from the local laws of the State in which he was appointed, or in which the property is situated, though his official character may be determined by such laws. His title rests upon the acts of Congress which control alike the nature of his ownership and the extent of his authority and obligations.1

§ 801. Nature of the Property of an Executor or Administrator

in the Patented Inventions of his Decedent.

The property in a patented invention in the hands of an executor or administrator is not personal property belonging to the decedent's estate, nor assets liable to the claims of creditors or of distributees. It is a franchise which he holds, not in his official capacity under the probate laws, but in a different and special capacity under the Patent Laws. It does not enter into his dealings with the estate as such, nor is he accountable for it to the personal representatives of the deceased. Though he is often said to be a trustee, in whom the patented invention vests for the benefit of the owner's

appointed at the domicile of the deceased owner, see Hodge v. North Missouri R. R. Co. (1869), 4 Fisher, 161; 1 Dillon, 104.

That the executor or administrator owns the entire interest of his decedent in every part of the United States, see Hodge v. North Missouri R. R. Co. (1869), 4 Fisher, 161; 1 Dillon, 104.

That where an inventor dies before application the executor or administra tor must apply for the patent; and where he dies pending application the executor or administrator must receive the patent, see Rice v. Burt (1879), 16 O. G. 1050.

That where the inventor dies, pending the application, the executor or administrator may file a new applica tion, but the rights of third parties cannot be affected thereby, see Ex parte Smith (1888), 43 O. G. 505; Rice v. Burt (1879), 16 O. G. 1050.

a patent is not derived from the State law but from the United States law, and there is no necessity for local State administration, in order to enable him to sue anywhere, see Goodyear v. Hullihan (1867), 3 Fisher, 251; 2 Hughes, 492.

That the official character of an administrator is not a question for the United States Courts, see Northwestern Fire Extinguisher Co. v. Philadelphia Fire Extinguisher Co. (1874), 6 O. G. 34; 1 Bann. & A. 177.

4 That State laws cannot limit the powers of administrators under the Patent Laws of the United States, see Brooks v. Jenkins (1844), 3 McLean, 432.

§ 801. That a patent in the administrator's hands is not personalty belonging to the decedent's estate, but is a franchise held in trust for the heirs, see Goodyear v. Hullihan (1867), 3 That an administrator's title to Fisher, 251; 2 Hughes, 492.

heirs or devisees,2 he is not a true trustee having a legal title to the property, but a mere instrument of the law, charged to perform certain duties in the interest of those to whom the patented invention properly belongs.

§ 802. Relations of the Executor or Administrator to the Heirs

and Devisees of the Decedent in reference to these

Patented Inventions.

The title of an executor or administrator to a patented invention is identical with that of his decedent, so far as the Patent Office, the courts, and third parties are concerned. As between him and the heirs of the former owner, or the devisees on whom the will may have conferred the ownership of the invention, the property vests in them, though managed and controlled by him. In procuring letters-patent or a reissue or an extension, in prosecuting actions for infringement or other wrongs against the property, in making contracts and assignments, and in granting licenses, he acts as if he were the independent owner of the patented invention, although accountable in equity to those in whom the beneficial interest in the invention legally resides.1

2 That a patent granted to an administrator is held by him in trust for the heirs, but the patent need not so state, see Northwestern Fire Extinguisher Co. v. Philadelphia Fire Extinguisher Co. (1874), 1 Bann. & A. 177; 6 O. G. 34.

That where an inventor dies leaving a will devising the invention, and the executor obtains a patent, he holds it in trust for the devisees by implication of law, see Stimpson v. Rogers, Smith & Co. (1859), 4 Blatch. 333.

8 In Wintermute v. Redington (1856), 1 Fisher, 239, Willson, J.: (241) “Administrators of an estate are not, properly speaking, trustees in whom is vested the legal title. The law clothes

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them with certain powers, by which they are enabled to transmit the legal title of property. They are mere instruments of the law, and the effect is given to their acts upon the same principle that title to property is transferred by the official act of a sheriff or marshal."

§ 802. 1 That an executor or administrator can assign a patent and give a good title thereto, see Donoughe v. Hubbard (1886), 35 O. G. 1561; 27 Fed. Rep. 742; Bradley v. Dull (1884), 27 O. G. 625; 19 Fed. Rep. 913.

That it is not necessary that all the executors or administrators should join in the assignment, see Wintermute v. Redington (1856), 1 Fisher, 239.

SECTION IV.

OF THE TRANSFER OF LETTERS-PATENT: JUDICIAL SALES.1

§803. Patented Inventions not Subject to Execution nor to any Ordinary Method of Appropriation for the Benefit of

Creditors.

The general principle that all the property of a debtor is liable for his debts applies to the property in a patented invention.2 No reason exists, either in the nature of the property or in the meritorious acts of which it is considered a reward, that should exempt it from the claims of creditors.3 But in enforcing such claims several difficulties arise. The property is incorporeal, and therefore cannot be seized and appropriated to the satisfaction of a judgment by any of the methods known to the common law. It is also universal, not local, and therefore cannot be directly reached, to any considerable extent, by any process issuing out of courts of local jurisdiction. It is transferable, under the Patent Law of the

§ 803. 1 For a discussion of this subject in part, see § 766 and notes,

ante.

2 That a patent is liable for the debts of the patentee, see Shaw Relief Valve Co. v. New Bedford (1884), 19 Fed. Rep. 753; 28 O. G. 283.

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8 That property does not become 'exempt from attachment" by its intrinsic nature, but by the provisions of positive law, see In re Keach (1884), 14 R. I. 571.

That a patent privilege cannot be seized and sold on execution, see Carver v. Peck (1881), 131 Mass. 291; Pacific Bank v. Robinson (1881), 57 Cal. 520; Stevens v. Gladding (1854), 17 How. 447; Stephens v. Cady (1852), 14 How. 528.

5 In Stevens v. Gladding (1854), 17 How. 447, Curtis, J.: (451) "There would certainly be great difficulty in

assenting to the proposition that patent and copyrights, held under the laws of the United States, are subject to seizure and sale on execution. Not to repeat what is said on this subject in 14 How. 531, it may be added that these incorporeal rights do not exist in any particular State or district; they are co-extensive with the United States. There is nothing in any act of Congress, or in the nature of the rights themselves, to give them locality anywhere, so as to subject them to the process of courts having jurisdiction limited by the lines of States and districts. That an execution out of the court of common pleas for the county of Bristol, in the State of Massachusetts, can be levied on an incorporeal right subsisting in Rhode Island, or New York, will hardly be pretended. That by the levy of such an execution, the entire right

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