property therein enumerated, are expressly declared to be vested in assignee of the bankrupt. By section 5062 the assignee is required to sell all the estate of the bankrupt upon such terms as he thinks most for the interest of the creditors.

It cannot be denied that under this authority the assignee could make sale of the interest of a bankrupt patentee in the most valuable patents in the remotest corner of the country, in Alaska, or at the Dry Tortugas, and, unless his discretion in this respect was restrained by a court, upon the ground that its exercise was manifestly injurious to the interest or the estate. If the fact that the operation of the patent is co-extensive with the Union is sufficient to infer the absence of the power of sale under a decree, as suggested in 14 Howard, it is not easy to see why the same difficulty should not prevent the exercise by the assignee in bankruptcy of what would be his unquestioned right of the disposition of the patent right.

If the contention on the part of the patentee in this case is correct, then it results that there may be a class of property in this country, yielding great revenues from the royalties, which would be exonerated by this special exemption from the responsibility which attaches to all other classes of property-payment of the honest debts of the debtorand that one possessed of such patent rights, by skillfully refusing to invest his revenues in any other description of property, may successfully baffle his creditors, though they may have supplied him with the very means which enabled him to achieve the success of his patent.

We have been referred to two decisions alleged to have been made in this court-one by Justice Wylie and the other by Justice Mac Arthurin which it is stated that the position contended for by the patentee in this case was sustained; but an inquiry from those judges has satisfied us that the cases went off on other points.

We have been referred to some decisions which it is alleged are at variance with the conclusions at which we have arrived, but a careful examination of them has satisfied us that such is not the case. The case in 1 Holmes's Reports, page 152, which decides that the trustee in insolvency, under the Massachusetts statute, has no title to a patent right, proceeds upon the express words of the statute, which declares that only those species of property which can be seized by execution at law pass to the assignee; and as it is settled that a patent right cannot be taken under an execution åt law, the statute necessarily excluded it as assets from the trustee in insolvency. The case in 1 Gallison, 485, simply declares that a sheriff who had sold under execution a number of patented machines for a debt due by the patentee could not be held liable under that provision of the patent law which declares that the sale of patented machines without the consent of the patentee should subject the vendor to suit for damages.

In the case in 4 B. Monroe, 596, Cooper v. Gunn, it is decided that where an author had conveyed the copyright of a book to a trustee

for the benefit of his wife in fraud of his creditors a judgment recovered by the trustee against the purchaser of the patent right for part of the purchase-money could be subjected in equity to the payment of a judg ment recovered by a creditor against the patentee, and the remark of that court relied upon by the patentee's counsel in this case as sustaining their position were not required in the case, and, in our opinion, do not support their contention.

We have been appealed to with great earnestness to decide in favor of the inviolability of the right of the patentee, for the reason that patentees as a class, notwithstanding the benefits they confer upon the community, seldom participate in the profits which are derived from their inventions; that they live laborous lives and die poor; and it is urged that it would be an additional hardship to deprive them of the exemption supposed to be secured to them by their grant from the United States.

Assuming the correctness of this supposition, and that it is true that they seldom reap the benefit of their labors, it results that what is supposed to be the present state of the law exempting those interests from sale does not operate very beneficially in their behalf. If, notwithstanding the assumed exemption, they receive such slender profits from their labor, a change in the law could not place them in a worse position. It may be that they might profit by a condition of things which would expose their interests at public sale to competition, and thus bring the merits of their inventions more prominently before the public.

For these reasons we are of the opinion that the decree below should be reversed, and we will sign a decree directing the sale of the interest of the patentee for the payment of the judgment creditor,* and directing him to execute the assignment required by the statute, and, in default of such assignment within a limited time, appoint a trustee, with authority to execute the same.

PATENTS-ASSIGNMENT TO PAY JUDGMENT-RECEIVER-SUPPLEMENTARY PROCEED

INGS.

A patent right issued under the laws of the United States may be required to be assigned to a receiver, under proceedings supplementary to execution, who may sell the same and apply the proceeds in satisfaction of the judgment.

APPEAL from Fourth District Court, San Francisco.

Messrs. Wheaton & Scrivener for the appellant.
Messrs. Winans, Belknap & Godoy for the respondent.

MCKEE, J., in delivering the opinion of the court, said:

The question is, has a court of equity power to compel its assignment and sale for the benefit of judgment creditors? In 1852 Mr. Justice Nelson, in Stephens v. Cady (14 How., 528), held that a copyright to print and publish maps of the State of New Hampshire could be reached by a creditor's bill and applied to the payment of debts of the owner of the copyright, under a decree compelling a transfer in conformity with the provisions of the act of Congress. That, however, was mere obiter, because the decision of the question was not necessarily involved in the case. And afterward, in 1854, in the case of Stephens v. Gladding (17 How., 447), which was a branch of the case of Stephens v. Cady, Mr. Justice Curtis declined to pass upon the question, because neither the copyright nor any interest in it had been attempted to be sold. But in 1875 the supreme court of New York, in the case of Barnes v. Morgan (3 Hun., 703), took up the dictum of Mr. Justice Nelson in Stephens v. Cady and approved of it as a sustainable legal proposition. An order had been made at special term directing the defendant in the case to deliver to a receiver appointed under supplementary proceedings certain patents and models appertaining thereto. From the order defendant appealed to the Supreme Court. Assignability of the patents by the voluntary act of the owner under the act of Congress which created them was conceded, and according to the authority of Hesse v. Stevenson (3 B. & P., 577), Nias v. Adamson (3 B. & Ald., 225), and Côles v. Barrow (4 Taunt., 754), it had been established that patent rights of a bankrupt pass by act and operation of law to his assigness in bankraptcy for the benefit of creditors. In Hesse v. Stevenson, Lord Alvanley, in delivering the opinion of the court, used this language:

It is said that although by the assignment every right and interest, and every right of action, as well as right of possession and possibility of interest, is taken out of the bankrupt and vested in the assignees, yet that the fruits of a man's own invention do not pass. It is true that the schemes which a man may have in his own head before he obtain his certificate, or the fruits which he may make of such schemes do not pass, nor could the assignees require him to assign them over, provided he does not carry his schemes into effect until after he has obtained his certificate; but if he avail himself of his knowledge and skill, and thereby acquire a beneficial interest, which may be the subject of assignment, I cannot frame to myself an argument why that interest should not pass in the same manner as any other property acquired by his personal industry.

Patent rights being, therefore, assignable by the voluntary act of the owner and by act and operation of law, it followed that a court of equity could compel the defendant to assign them to a receiver, to be sold and applied to the satisfaction of judgments against him, and the Supreme Court affirmed the order of the special term. "If," said the court, "the use of a monopoly which such a grant confers is not sufficiently productive in the hands of the inventor to pay his debts, the privilege bestowed, being a right of property, as declared by Chief-Justice Taney, should be transferred to the person designated by law and sold for the benefit of the creditor. It would be marvelous, if not un

just, perpetuation of the ideal if an inventor, having obtained a patent, thus divulging his secret and at the same time acquiring a property in it for practicable purposes, should be permitted to hold it unused against his creditors until, either by compromise or the lapse of time, his obligations should be discharged, and this, too, although it might be one which, by assignment or upon manufacture of the thing invented, would readily yield enough to pay all existing liabilities." The case of Campbell v. James (10 Reporter, 103), decided May 1, 1880, in the United States circuit court of New York, to which we were referred in the argument, is not at all in conflict with the authority of Barnes v. Morgan. This case arose out of a bill of equity, in which the defendant was chargeable with the infringement of a patent claimed to be owned by the plaintiff as assignee; and the principal questions involved in the case were the validity of the assignment alleged to have been made by the owner and the right of the plaintiff under it to recover as well for the infringement before the assignment to him as for that after. There is nothing in the case which involves the power of a State court in equity to compel the assignment of a patent according to the act of Congress for the benefit of judgment creditors of the owner. Of course the United States courts have jurisdiction of any questions which arise as to the title itself; but as the thing itself is not exempted from seizure and sale by the laws of the State we think, upon principle and authority, that the order of the court below was correct.

Order affirmed.

[United States Circuit Court-Southern District of New York.]

SELDEN ÉT AL. v. THE STOCKWELL SELF LIGHTING GAS BURNER COMPANY.

Decided September 5, 1881.

20 O. G., 1377.

1. ASSIGNEE, HOWEVER REMOTE, MAY TAKE OUT REISSUE.

The privilege of reissue under section 4895, Revised Statutes, is not confined to the immediate assignee of the inventor. The word "assignee," as used in the statute, means the "assignee" in any degree, however remote.

2. CONSTRUCTION OF SECTION 4895.

The patent was issued and assignment made before the 8th day of July, 1870, within the intent of section 4895, if an assignment was made before that time which divested the inventor of his interest in the patent.

3. REISSUE OF A REISSUE.

There may be a reissue of a reissue. Section 4916, Revised Statutes, authorizes the reissue of "any patent." A reissue patent is none the less a patent within this section because it is a reissue patent.

4. ORIGINAL PATENT INOPERATIVE-DECISION OF COMMISSIONER CONCLUSIVE.

The question as to whether the original patent was inoperative or invalid by reason of the defective or insufficient specification is conclusively decided by the Commissioner by the fact of his granting the reissue.

5. COMMISSIONER'S DECISION NOT REVIEWABLE.

The decision of the Commissioner that a case provided for by section 4916 existed is not reviewable.

6. REISSUE-DIVISION..

Modified forms of an invention clearly shown in the original patent form "distinct and separate parts of the thing patented," and may constitute subject-matter of separate patents upon reissue.

7. DEDICATION TO THE PUBLIC.

There is no warrant for the suggestion "that what is described and shown in the original specification and drawings is necessarily to be regarded as so dedicated to the public that, if not claimed in the original, it cannot be claimed in the reissue."

Mr. Edwin H. Brown for the plaintiffs.

Mr. George Hill for the defendant.

BLATCHFORD, J.:

This suit is brought on two patents. The first one is Reissue No. 8,490, granted November 12, 1878, to George Selden, one of the plaintiffs, for an improvement in pocket lighting devices. The original patent, No. 50,860, was granted November 7, 1865, to Philos B. Tyler, William M. Chandler, and L. F. Standish, and was surrendered and reissued October 23, 1877, to said Selden, in two divisions, No. 7,927, Division A, and No. 7,928, Division B. No. 8,490 was granted on the surrender of No. 7,927.

The specification of No. 8,490 is signed by said Selden, and not by Tyler, Chandler, and Standish, and was sworn to by Selden, and by no one else. It is as follows:

Be it known that Philos B. Tyler, William M. Chandler, and L. F. Standish did invent certain new and useful improvements in pocket lighting devices, of which the following is a full, clear, and exact description, reference being had to the accompanying drawings, making part of this specification, in which—

Figure 1 is a side elevation of the lighter. Fig. 2 represents the same in section. Fig. 3 is a rear view of a portion of one of the repeating-matches employed, and Fig. 4 represents a longitudinal section through the same.

Similar letters of reference denote corresponding parts wherever used.

The invention relates to a novel lighter for carrying in the pocket, consisting of a case or shell adapted to inclose and protect a continuous or repeating match, and provided with appliances permanently attached to it for feeding and igniting the match, as hereinafter explained.

In the accompanying drawing,. a a1 represent a case or shell, made in the form of a shallow box, one side or plate, a, thereof being provided on its edge with a flange or rim, a2, forming a chamber or magazine for containing the repeating match or tape, which, when in plate, is covered by a hinged or removable cover, a1.

The plate or side a has a pin or arbor, b, secured to it, arranged about central to the magazine or chamber, and projecting through a perforation in the cover a1, and a hook, c, pivoted on the cover a1, and engaging with the projecting end of the pin or arbor b, serves to hold the cover in place.

Figs. 1 and 2 of the drawings show a convenient form of case for general use, representing it as approximating a circular form, or, rather, that of a short cylinder, provided with what may be termed an "eccentric extension" and an opening or outlet through the same at e, through which the repeating-match is fed outward as desired. One wall of this outlet e extends slightly beyond the other and forms a pro