Hardwick v. Galbraith

Per Curiam,

The learned judge of the court below held the affidavit of defence insufficient, in which we think he was clearly right. The averment that the plaintiff’s patent was invalid, and conferred no valuable right upon the defendant, as his licensee, is without force. There are many respectable authorities which hold that a licensee under a patent cannot in any way question its validity during the continuance of the license. We need not discuss these authorities, however, as the parties to the agreement of license evidently contemplated the possibility that the patent might be declared invalid in the future. This appears by the 6th paragraph of the agreement, which provides that “ the party of the second part agrees to pay the said license fee or royalty, as hereinbefore provided for, during the term of the said letters patent, numbered 353,135, and dated November 23, 1886, or the term of the said letters patent, numbered 359,862, and dated March 22, 1887; it being understood, however, that in case the said patents shall both be declared invalid by any court of competent jurisdiction, the payment of the said license fee dr royalty shall thereupon cease.” From this it is plain that the payment of the royalty was to continue until the patent had been declared invalid by competent authority.

Nor is there any more force in the averment that the defendants expected a monopoly and were disappointed. The agreement which they signed did not grant them a monopoly, and they must have so understood it, if they had common sense, and that is to be presumed. It was a mere license to use plaintiff’s process in their own mill. The plaintiff had the right to grant a similar license to every other carpet mill in the country, and its exercise could do the defendants no injury of which they could justly complain. They received just what they bargained for, and no sufficient reason appears why they should not pay the plaintiff what they agreed to pay him.

Judgment affirmed.