The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-02-19

7
had reference to the former patent, and the Iofer
patent only In that liquidation the use Of the later
| patent was not included The object OF the parues
was as is confessed, 10 secure to Day, the grahee
| of the former patent, in the manufacture OF tAe
goods secured by that patent, the further exclusive
| right to use the latter patent And the ih.en. Oh
the parties in making this latter stipulation was 10
secure that object There is nothing IN this stipu-
lation to show that it had reference 70 any o'nef
| object.
| 4. That he (Goodyear) would not manufacture or
| import any corrugated or shirred goods; There Is
nothing in this stipulation to show that these terms
were used in any different than that given to
/ them in the other stipulation. 10 apply them in
| this stipulation as meaning elastic woven goods,
| would lead to this result: II Goodyear should
! manufacture or import elastic woven goods, COM
| posed of threads or strands OF common gum which
! everybody has right TO manufacture and import,
! and which never were subject Of controversy be-
fore the settlement which resulted IN the grant III
question, then all the covenants which Day had en-
| tered into would be discharged.
| Another covenant on the part OF Goodyear IS
! that Horace II. Day, his representatives and as.
| signs shall have and enjoy the like tull, free ana
exclusive right, license and privilege to MAKE ana
| use, in the manufacture of shirred or corrugated
| goods, any improvements made, or to be made by
said Goodyear, of which he, his representatives.
or assigns, may become the holders or owners, Tor
which patents have been shall be obtained which
relate to shirred corrugated goods, or the ma
chinery for preparing or making the same, or the
composition, stuff or fabric OF which they mty DC
|
| ishng such composition, stuff or fabric; and also
the right to such composition, stun or faDric III
| the manufacture of all the other articles III the
grants above enumerated" And II Is Claimed thie
| the provisions in this covenant are also lnconss-
| tent with the views we have already taken oi the
| rights granted 10 Day.
The subject matter of the grant in the first clause
| was an existing thing, to which Goodyear had an
exclusive right, and certain rights to other existing
| things the use of which would make the enjoyment
| of the grant more valuable The provision as to
the future inventions, improvements or patents OF
Goodyear, secured TO Day the use OF them only as
to the shirred or corrugated India rubber goods,
| and the hose, air beds, air pillows, Days patent
boat and Giifiths patent cotton hoater.
| After full and careful consideration of this
covenant, discover nothing IN itinconsistent
wifi the construction putupon the granting clause.
| BY the SHRED or corrugated goods mentioned
in this covenant, meant the shlrred or CORFU
| gated goods to which Goodyear had an exclusive
| right, such az were made according to the patent
| OF March 9, 1874; and the composition, stun or
! fabric" mentioned refers TO the material of which
corrugated goods, made according to that patent,
might be composed.
! Ihe first covenant on the part Of Day is, that he
| will pay to Goodyear a tariff OF three cents per
| square yard for all shirred or corrugated goods to
| be made or used by HIM during the term OF said
patents (the four mentioned III the recital To the
deeds), any of them, OF any renewal or eXten-
sion thereof or OF any new patent taken out on the
! surrender of an old one Then follows this stipula
tom 1T being understood aud agreed by the par
| ties that all SHRED OF corrugated goods OF any
| kind, made used by sad Day or his assigns, shall
| be considered as made. and used under tins agree
ment, and subject tn said tariff or assessments eX-
cepting from the operation of this clause, however,
all shirred OF corrugated goods made with strands
| or threads Of native or common gum, when such
! goods may be manufactured by sand Day for the
| purpose OF competing with such goods; and when
| SO made by him for such purpose he shall not be
| liable to pay any duty assessment thereon"
In order TO put proper construction upon the
stpulations contained III this covenant, ana TO UNI
derstand their true meaning, they should be con-
sidered in connection with covenant on the part
OF Goodyear, in which he agrees that he Will, at
his expense and cost, prosecute all and every
person, or persons, or bodies corporate, who shall
infringe, to the injury of said Day, in the OF the
privilege hereby granted and conveyed, all or any
of the patents above enumerated or referred to, by
the manufacture or sale OF shlrred or corrugated
goods and that he will, with all due diligence carry
on such prosecutions TO final Judgment against each
and every volator OF the same, or unti It shall be
| judiciaiiy and beyond appeal decided that said pa.
tents violated as aforesaid are not valid in law
1t is claimed by the compliments that this cove
nant Oh the part OF Day, when taken IN connection
with this latter covenant on the part OF Goodyear
! clearly shows that the parties were dealing with
| woven goods, or some species OF goods not made
! under Goodyears shiTred goods patent; particular
| Nv when those two covenants are considered IN
! connection with another covenant, wherein 1t is
mutually agreed that in the event OF any other per-
son manufacturing, or importing. or selling shrred
! or corrugated goods, except such shirred goods as
are made with strands or threads of native or COM
mon gum, such rs is generally used by woven sus
pender makers, and thereby materially impalring
The profits which would accrue TO Day when III the
exclusive enjoyment OF the privileges granted that
then the tantis agreed TO be paid are to cease.
There was granted the right to al least two kinds
! Of ''sbiTed or corrugated goods
| !. The right TO make such goods according 10
| the Goodyear patent, when the strands or threads
OF rubber were OF native or common gum. And,
! second, the right 10 make such goods according 10
such patent with the additional night to use IN the
| ~ hon sfr nis or ~
rubber, prepared according TO the patent OF june
l5 1874 There was also an additional rIgnt To use
the patented machine 10 make such goods These the
defendant claims were all the rights conveyed by
| the hrst granting clause.
At the time vi the grant, India rubber woven elias
| tic goods, with strands or threads OF common rub-
| Der, and which the compliments claim were inclu-
| ded under the name OF 'shirred or corrugated
| goods could be made without infringing the
| patent of March ., 1874. The exclusive right to
make said woven goods was not III Goodyear to
| grant. The right was in the pubic.
From the covenants last above recited Ii appears,
First, that Day TO gay tariffs on ali "sHIrreI o.
, corrugated goods" inc!uGed IN the grant, Oh AZ
| TEMPTED 10 be included. second that Goodyear
was 10 protect Day in the enjoyment OF all rights
| which had been secured u mIn by patent and
granted TO Day, and he did not his right to tarlif
on all goods made should cease. Third, that some
time during the continuance oil the 3raht, 1t might
! 80 happen that Goodyear would not have 1t IN nis
power to protect Day in the exclusive right 10 MT
/ puiacture "A kind Of 'shirred or corrugated goods
which were composed OF threads or strands OF COM
| mon rubber, and upon which Day had agreed 10
| nay tariff Fourth, that in the latter event Day
was to protect himself and that when he did pro-
tect himself by the manufacture of such goods, to
compete with the like kind of goods ia the market,
he should no, pay tariff on such goods 50 made ioi
| such purpose, although he should continue to pay
tariff the other kinds OF goods made IN pursuance
Of the grant,
Taking the stipulatons in these several agree
| ments in connection with each other, 1t is argued
| Inv tho m
| about other goods under the name OF shirrcd or
corrugated goods than suclas were made accord
ing to the Goodyear Patent; that Goodyear could
protect Day by suits ana Wy inJnncuons, so that he
could have the monopoly in the market OF such
goods a. were made according 10 the patent: and
as during the period OF the grant IL might so
happen that there would be kind of shirred or
corrugated goods" made OF threads or strands Of
common rubber, upon which Day was to pay tard,
| brought into the market, which would not be in
| Yinlniinn Of the latent of GoodNear of Mnrch D.