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

is very plain that the meaning of the terms shrret
or corrugated goods as understood and used e5
goods manufactured according to the patent
March 8, 1874, and in that patent denomnated cor
rugated SHRED India rubber goods, and that nc
other kind of elastic goods was meant by the use
these terms.
But before leaving this part of the case, it should
be noticed, that the general conduct OF the par
ties has been in accordance with the views taken
~ the Court OF the agreements OF iS46, and above
81 forth. Day, until u comparatively recent period
(the fall of the year 1860, never made any claim
that this grant OF right to 'shirred or corrugated
goods included anything more than the right ia
any other than the shirred or corrugated goods pa
tented by the patent OF March g. 1874, with the fur
Their right to use in the manufacture Of the same the
other patents. IT is true that for long period he
of Goodyears patent, the validity of which, under
his hand and seal, he had acknowledged and de-
nying, also, the obligation or binding force of the
covenants which he had entered into. During that
conflict he was manufacturing the "shirred and
corrugated goods" after the manner of the patent
of March 8, 1874, and was using in such manu-
facture, the prepared India rubber, patented to
Goodyear. He was also manufacturing elastic
woven rubber goods not made according to the
SHRED goods patent, using in such manufacture
GoOdyear's prepared India rubber. The open con-
nict between Goodyear and Day terminated in Sep
TENDER, 1852. The decision of the Court in New
Jersey brought it to an end. That decision was
that the patents of Goodyear were valid; that Day
was bound by his covenants; that Day had no right
to any use OF the Goodyear patents, except what he
acquired by virtue of the agreements between him .
and Goodyear, executed in 1885, Immediately
after that decision Day abandoned the manufacture
OF elastic woven rubber goods, and sold out his .
looms for weaving the same. Soon after he trans
1erred to the Congress Rubber Company all the
rights which he had to make "shirred or CORFU
gated goods" which rights subsequently became
revisited in him. And at no time from the decision
of the Court in New Jersey, until the fall of 1866,
did he or the Congress Rubber Company, which
succeeded to all his rights, make any claim that
Goodyear had transferred to him any other right
than the right to make the "shirred or corrugated
goods described and mentioned in the patent Of
March 81 1874 though during that period other par
ties were making and selling woven elastic goods
containing India rubber, cured or vucanized ac-
cording to GoOdyear's Vulcanzing Patent to COM
pete in the market with the "shrred or corrugated
goods manufactured according to the patent Of
March 8, 1874.
The deed of the Gath day of May, 1853, executed
by Goodyear purported, Tor the consideration Of
dollar and other valuable considerations re-
ceived and to be received by him, as in said deed is
provided, to sell and convey to Day with agree
ment to confirm the same within three months from
the 18th Of June then next by such further deed of
conveyance as said Day might deem necessary,
the full, absolute and exclusive license, right and
privilege to make, use and yend his (Goodyear's)
invention OF vulcanized rubber for the term Of the
then existing patent and all extended or renewed
terms of said patents the same might or could be
used i'll the manufacture OF all braided, woven ce-
mented or sewed fabrics, such as could be cover
ed, or protected, on one or both sides, with sub.
stances other than rubber, and in all smooth eIas-
tic shirred goods And it was provided that the
terms and conditions upon which the license was to
held and enjoyed as to bonuses, not exceeding in
the whole the sum of 10000 and the tariff not ex-
ceedng five cents pound on the product should
be fixed and determined by Nathaniel Hayward
aud Thomas A. Jenckes, whose award in the pre-
misses should be final, and should be made within
three months from the 18th of June then next
On this branch OF the case two questions are sub
mitted for consideration:
/. Is this deed sufficient to convey the equitable
right which it purports to convey lit being admit
ted that it did not purpOrt to carry any legal rightly,
Hayward Il Jenckes not being shown to have acted
as III the deed is stipulated, provided at the time it
was executed the equitable right which it purports
to convey was vested in Goodyear?
2. Was the equitable right which the deed pur-
ported to convey, at the time it was executed, so
in Goodyeare that he could without the concur-
renee any one else, IL equity convey it? If either
of these questions is answered in the negative then
this deed can have effect in conveying the
equitable right, purporting to be transferred.
We will first turn our attention to the second
question.
Goodyear had the right to convey what the deed
puipofted TO transfer unless he had, prior to it's
execution, parted with that equitable right. It is
claimed by the defendant that before the execution
OF tins deed, Goodyear did part with such right to
the Naugatuck Company, by the deed to them
heretofore mentioned 1t is also claimed that he
parted with the right by other deeds, which have
been produced in evidence. twill be sufficient to
dispose OF this question to consider only the deed
to the Naugatuck Company.
That deco gave the right which it transferred
'for and during the unexpired term of all patents
issued to him, bearing any date whatsoever and
tor and during the unexpired'term or terms of any
other patent or patents or renewals of patents
owned by him, or in which he may have an interest
issued or to be issued" If by the term renewed''
Is meant extended" and if the term is to be ap-
piled to patents ISSUED to him." then il will fol-
low, especially as Day had full knowledge of the
rights granted to the Naugatuck Company, Good
year had no right to convey what the deed OF the
24th OF May purported to convey, and that Day. by
that deed, acquired no new right which can be oro-
tecied in Court Of Equity.
The parties appear to have used the term "re-
newed as synonymous with the term extended"
Thus, in the deed Of the oath of May 1853 the grant
is, the use OF the invention of vulcanized rubber
for the term OF the then present patent, "and ali
extended or renewed terms of said patent" The
then present patent was to expire within twenty
two days. There was an application then pending
Tor an extension, which was afterwards granted It
is evident that the parties did not intend, by the
term renewed 10 provide for reissue of the then
present patent, which would expire on the 18th
OF June, but that they did intend, by the term
renewed" the extended" patent which had
been then applied for. Tie Patent Office
also use the term "renew" as synonymous with
the word extend" Hence, in the extension of the
vuicanized patent which was made on the l4lh
day OF June, 1858, the language Of the Commissions
er is II, Joseph Holt, Commissioner of Patents BY
virtue OF the power vested in by the said acts Of
Congress, do renew and extend the said patent for
the term OF seven years from aud after the expira-
ton of the first term" The term renewal, Of
patents was used i'll the grant to the Naugatuck
Company. 1t was not necessary to carry the right
TO ressned patent Tor said right would be carried
without it. Either this term, or some other term or
terms synonymous with the word extended was
necessary to carry the right in extended patent;
and to carry such latter right the term RENEWAL
was introduced into the grant
The case of Wilson VS.. Rosseau & Howard. 646>
has been referred to to show that the term renew.
al" should not receive the construction which we
have given to it. The question in that case arose
upon the construction Of a covenant executed on
the 18th OF November, 1929, that in case of ANY
Improvement in the machinery, or alteration or re-
newal OF either patent, such Improvement altera-
ton OF renewal shall inure to the benefit of the re.
srective parties interested" st that time there
was no law authorizing an extension OF patent
beyond the original term of fourteen years. The
first act that authorized an extension was
passed in July. 1882. Subsequent to the