The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-02-19
The grants under the deed were for the long,

period during which any of the four patents To
continue, and for the additional time that any OF
them might be extended. Day was to have the
benefit ot all or any OF them, and was to pay the
tariffs agreed 50 long as he had the benht OF any
one of the patents, though the Others had expired
by lapse Of time and had not been extended. The
tai was To be paid in consideration u benefits re-
ceiyed and enjoyed; and the argument OF the COM
plainants leads 10 this result II the shirrcd goods
patent had been extended, and the vulcanized pa
tent had not been then If Day did what anybody else
had right 10 do without any permission of Good
year, viz, make elastic woven goods, any kind of
elastic India rubber goods or elastic rubber cloths
(provided it not made according to the shirred
goods paient), with threads or strands either Of
common rubber or vulcanized rubber, he would be
obliged to pay the tariff Protection To Day. in the
rights for which lie was to pay tariff, was the great
oblect VI the deed. He could not in the case sup
posed lie protected by Goodyear, for the making of
such goods would not be IN violation OF any patent.
And he could not protect himself by competition
rs to avoid the payment Of the tariff as 1t re-
spects the goods made with strands Or threads oi
vulcanzed rubber Tor the stipulation in regard to
protection by competition is limited to such goods
as are made with strands Or threads of native III
common gum" He would, therefore, be Obliged
10 pay taIif, although lie was not protected by
Gooaye ear, and was without the power of saving
himself from the payment OF such tariffs, by manu-
featuring for the purpose Of competing with such
goods.
more satisfactory construction can be put upon
the spuiatiubs IN The covenants Just referred to
one that Will make such covenants entirely consis
tent with the views already taken OF the rights con
veyed by the granting clause, and inconsistent with
the views taken OF such clause by the compaiDans.
The parties were pfoyiding in the stipuations not
only for state OF things which might exist during
the then existing patents, but also for state OF
things which might exist when one of them should
be extended and the others have expired; when
the vuicanized patent might be extended and the
SHRED goods patent have expired, ana also when
the shiled goods patent might be extended and
the yueanized patent would have expired.
afa1t pfnAn tor .,f erin at
present exists when the vulcanized patent has been
extended, and when all the other patents have eX-
pred. This being the state OF things, the shirred
goods patent having EXPIRED every one now has
right To make " shlrred or corrugated goods, COM
posed Of threads or strands OF native or common
gum" Butno one except Day has right to nahe
such goods of 81 threads or strands OF vuicanized
rubber prepared according to Goodyears patent oi
June 10, ls44. Now, there is state OF things which
the parties foresaw when they executed The deed
and incorporated in it the above covenants,
and which they, by said covenants provide
for. Day has exclusive right To
make shirred or corrugated goods" according to
the directions given in the patent of March $, io4f,
when the rubber strands OF threads composed
OF the vulcanlzed rubber; and Goodyear having
patent for the yucanlzed rubber must protect him
in that right; If he does not the obligation on the
part OF Day To pay tariff ceases. Day holds now
exclusive right to make shirred goods according TO
Goodyears patent, with threads or strands OF ma
! tive or common gum, but has right to make such
| goods IN common with any one else; and he is
| obliged 10 pay tariffs for making such goods with
| native OF common gum during the existence OF the
| extended vuIcanized patent, Tor he 50 contracted
| by tie deed unless III tie language of the deed,
| such goods be manufactured by said Day for the
purpose OF competing win such goods, and when
! so made by him for such purpose he shall not be
! liable to pay any duty OF assessment thereon.
! Tie vulcaDized patent Is now in existence; Day
| can now be protected by Goodyear when that pa
J tent is violated by the Of vulcanized rubber in
! the manufacture Of 'shiTed or corrugated goods
HD y Than supll
goods are now 10 lie made with threads strands
OF native or common gum, Day cannot be protect
ed ty Goodyear against the Manufacture OF SUCH
goods. But is he makes such goods for 1.-The pun
pose Of competing with the same goods in the
market, according TO the stipuatons in the deed
above referred TO, lie is not liable the payment OF
tariffs thereon.
On the 9TH day of November, 1916, there were
"artcie OF agreement entered into between the
parties, under their hands aud seals additional or
supplemental to the articles in the first deed, which
articles in the first deed were to be construed and
governed by the arcles i'll the deed of the said 9TH
0i November wherein they differed OF were incon-
sistent but in all other respects the first deed was
t. remain i'll tull force. BY the deed of the 9TH of
November, it was stipulated that Goodyear should
! procure and cause to be assigned TO Day To lie
| ceed, the three several Licenses to Hutchinson Il
/ Runyon, TO Ford 4 Co., and to Onderdonk Z Let.
/ son, whcb,.by The first deed, he was excused from
! doing.
And there is stipulation that the re-assignment
of said three licenses 10 Day should be condition
| precedent to the performance OF any part OF the
| covenants by him.
| In these last mentioned articles there is also a
! covenant by Day, that while Goodyear protects
! him, Day, "ip The exclusive right TO manufacture
and yend shired vi corrugated goods, he, Day.
will refrain from DONG CERTAIN things therein men
! toned thereby showing that what the partes
meant by the terms 'snjrred or corrugated goods
was, the exclusive right which Goodyear had to
manufacture and ,end such goods, under bis patent
releued III the recitis Of the deed first executed
! for Goodyear could not protect Day i'll such excu-
sve right unless he mad in him snch exclusive
/ right.
| The second deed, executed by the parties on the
| 9th day OF November A. D., 1896 was entitled
| ''memOrandum OF agreement" and wis to be aux
iliary TO the two other deeds before mentioned. It
contained q stipulation tor "a release from the
Naugatuck Company OF the right or license t.
! make any articles which by said aforementioned
agreements Day is licensed to make" After Good
! year had obtained his vucaniZed patents, namely,
! on the 10Th day Of June, 1871, by deed executed
! between him and the Naugatuck India Rubber
CCmIa dated July Is, 1884, Tor certain cofside
| ratons III the deed named, he granted unto said
! company the full and absolute license u use any
and ali vi his preparations %, India rubber and iii-
/ lrovements III the preparation of India rubber for
! manufacturing cloth or any other article OF me
! ciandise, any articles to which the same may be
| applicable for and during the unexpired term or
terms VI any patent or patents or renewals oil pa
tents owned by hlin, or la which he may have an
interest issued Of TO be issued. This absolute and
full license 80 the Naugatuck Company was also an
! exclusive one. Goodyear covenanting that he
would not grant 10 any other person q right or Ia
! ccnse to do what he had granted TO the Naugatuck
| Company license To do. There was reserved,
| however, in Goodyear the right, after the 10th OF
duly, lsii, To sell for stipulated or price III
gross the exclusive right OF making, using and
! vending his said preparations and Improvement
for any specific purpose; PROV ded that before such
sale the Naugatuck Company should have the pre-
empuve right TO become the purchasers, at and for
such stipulated price or sum IN gross.
cd tn lba
namely, on the 24th Of May, ls44 which was prior
To the issuing Of the vulcauized patent, Goodyear
had assigned to ID. l.. Suydan the two patents for
shirfed goods-the patent for Che manufacture aud
the patent Tor the machinery. This assignment
was only for the time the patent had to run, and
not Tor any extended term. The right acquired by
SuydGm, under this assignment, was conveyed back
10 Goodyear Ivy deed bearing date the 10th day OF
May, ls45.
There were certain exceptings in the deed Of
lnnudN ear 10 the Nangatmck NoinpanY. which limit.