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7. That A. B. shall instruct workmen ;
--and not intermeddle with the manufacture unless required.
8. That C. D. and E. F. may grant licences;
under the Great Seal of the United Kingdom, for the sole use, benefit, and advantage of the said invention, or of such part or parts thereof as they shall think fit, within the United Kingdom, the Channel Islands, the Isle of Man, and the Colonies, or for such of the said Colonies as they shall think fit, and for the term or terms for which such letters patent are usually granted, and shall immediately thereupon, at the like cost, assign the same letters. patent to the said C. D. and E. F.
5. In case such letters patent shall be obtained, the said A. B. shall, if required by the said C. D. and E. F., or either of them, during weeks from the date of the assignment of the said letters patent, personally teach, instruct, inspect, and assist all the workmen, servants, and others who shall be named for that purpose by the said C. D. and E. F., or either of them, in the said new method of manufacture, and all the processes and details thereof, and shall use his best endeavours to render such workmen, servants, and others, adept and skilful in the said method of manufacture, and in all the processes and details thereof (f); and after the said letters patent shall be obtained, the said A. B. shall not (unless required as aforesaid) in anywise interfere or intermeddle with the said manufacture for which the said letters patent shall be granted, but the same shall be carried on and conducted solely by the said C. D. and E. F., their licensees and assigns.
6. The said C. D. and E. F. shall have power to grant licences for the use of the said invention, and to assign the said letters patent and the benefit of the said invention upon such terms as they shall think fit, and to make any such disclaimer of or alteration in the specification as alter, the speci- shall be allowable by law, and to apply for and obtain
--and assign the patent;
--and disclaim part of, or
(f) It is of great importance to procure the personal assistance of the inventor in instructing the workmen; and, therefore, this clause should always be inserted.
any extension or prolongation (g) of the term of the said. letters patent, and generally to act in regard to the said letters patent and the said invention in every particular FOR OBTAINING as if they had originally invented the new method of manufacture, without any communication with the said A. B., or any other person.
7. The said A. B. shall receive from the said C. D. and E. F. one equal moiety of the net profits to be derived by them from the use of the said invention, and of all annual or other sums of money or considerations whatsoever, to be paid or rendered by their licensees or assignees in respect of the use or assignment of the said letters. patent or invention, or of any share or interest therein; and all costs, charges, losses, damages, and expenses to be incurred in respect of the said letters patent, and the specification of the said invention, or in respect of the carrying on of the said manufacture, or of resisting any infringement of the said letters patent (h), or in respect
-and apply for an extended term.
9. A. B. to
receive half of
the net profits.
Costs to be paid by C. D. and
(9) The statutes 5 & 6 Will. 4, c. 83; 6 & 7 Vict. c. 38; and 7 Extension of & 8 Vict. c. 69, empower the Crown, on the advice of the Judicial patents. Committee of the Privy Council, to extend the term of patent privileges for not more than fourteen years beyond the first fourteen ; but an extension will be granted only upon the petitioner establishing first the merit of the invention, secondly, that the parties interested have done all in their power to bring it into public use and turn it to advantage, and thirdly, that from circumstances beyond their control they have been unable to obtain adequate remuneration: Re Markwick's Patent, 13 Moore's P. C. 310: and the assignee of a patent applying for an extension does not, except under the special circumstance of his having materially assisted the inventor or enabled the patent to become of public utility, stand in the same favourable position as the inventor: Re Norton's Patent, 1 N. R. 557.
(h) Formerly the remedy of the patentee in case his patent were infringed, was dilatory and expensive, involving the double procedure of an action at law for the damages sustained from the invasion, and a suit in equity for an injunction to restrain the illegal use of the invention, and an account of the profits already made by the infringer from such use: Coryton, p. 263. But the Patent Law Amendment Act, 1852 (15 & 16 Vict. c. 83, s. 42), and the Common Law Procedure Acts of 1852 and 1854 (15 & 16 Vict. c. 99, s. 6; 17
Patentee's remedies for infringement.
of anything relating to the premises, shall be borne by the said C. D. and E. F.
8. Nothing herein contained shall prevent the said A. B. from using the said invention in any way he shall to be precluded think proper, in any place to which the letters patent to be obtained as aforesaid shall not extend.
10. A. B. not
from using the invention in foreign coun tries.
11. A. B. not to
be a partner with C. D. and E. F.
9. Nothing herein contained shall extend to constitute a partnership between the said A. B. and the said C. D. and E. F., or either of them, or give the said A. B., his executors or administrators, any right whatever to interfere with the affairs or business of the said C. D. and E. F., or either of them, further or otherwise than by requiring from time to time proper accounts of the returns and profits derived from the use of the said invention; and if the said A. B., his executors or administrators, shall do, or attempt to do, or cause to be done, anything in the character of a co-partner or co-partners (i) of the
Community of profits constitutes partner. ship.
& 18 Vict. c. 125, s. 46), empowering the Courts of Common Law to order the inspection of documents and machinery, and an account of profits, and to grant injunctions as well as to award damages, and Sir Hugh Cairns' Act (21 & 22 Vict. c. 27), introducing trial by jury into the practice of the Court of Chancery, have greatly simplified the remedies of a patentee.
(i) In framing agreements of the nature of that in the text, it is usually necessary to stipulate expressly, that no partnership shall be created between the parties; for the capitalists who are to work the patent seldom intend to admit the inventor into partnership with them or to allow him to interfere with the management of the business, and yet they do not choose to yield him any other remuneration than a share in the net profits to be derived from the use of the invention. But, in the absence of an express stipulation, an agreement to share the net profits of an undertaking, although one party alone is to bear the losses, constitutes a partnership in it: Lindley on Partnership, bk. i. c. i.; Ex parte Langdale, 18 Ves. 301; Gilpin v. Enderbey, 5 B. & Ald. 954; Bond v. Pittard, 3 M. & W. 357; and there may be a partnership in a patent: Lovell v. Hicks, 2 Y. & C. 472; Ridgway v. Philip, 1 C. M. & R. 415; Stocker v. Brocklebank, 3 M. & G. 250. Hence, when the inventor is to be paid by a share of the net profits, the capitalist should be protected against the interference of the patentee by express stipulation, that the agreement shall not constitute a partnership. On this point such a clause as that in
said C. D. and E. F., or either of them, or their or either of their executors or administrators, or shall interfere with their or either of their affairs or business (otherwise than as aforesaid), or with respect to the said letters patent and invention, or anything relating thereto, then and in any such case the said A. B. shall lose all right to receive any part of the profits of the said invention, and the whole of the profits to be derived from the said invention,
FOR OBTAINING LETTERS PATENT.
partners inter se may yet be liable as partners to third parties.
the text will be sufficient, so far as concerns the relative positions of the parties as between themselves: Stocker v. Brocklebank, supra, without affecting the right of third parties to treat them and to deal with them as partners: Waugh v. Carver, 2 H. Bl. 325; Gilpin v. Enderbey, Bond v. Pittard, ubi supra. The general result of the Persons not authorities seems to be, that persons who share the profits of a concern are primâ facie liable as partners to third persons, but that they may repel the presumption of partnership by showing that the legal relation of partnership inter se does not exist: Collyer's Law of Partnership, p. 63; and persons who have absolute knowledge that a party is not to be liable for loss sustained in a partnership cannot make him liable as a partner: Alderson v. Clay, 1 Camp. 404; Minnet v. Whiney, 5 Bro. P. C. 489; but see Brown v. Leonard, 2 Chit. 120.
It may be observed, that a partnership is not constituted by an agreement to share the gross profits of a concern: Dry v. Boswell, 1 Camp. 330; nor by one person being the mere servant or agent of another, and receiving a share of the profits in lieu of wages: Lindley's Law of Partnership, bk. i. c. i. ; nor by a person receiving interest on money lent or an annuity not varying with the profits: Grace v. Smith, 2 W. Bl. 99; Elgie v. Webster, 5 M. & W. 518; nor the receipt of a per-centage upon the gross amount of sales to customers recommended by the party: Pott v. Eyton, 3 C. B. 32; but the receipt of an annuity determinable on the ceasing of the trade or varying with the profits makes the annuitant a partner: Bloxam v. Pell, 2 W. Bl. 999; Er parte Wheeler, Buck., 48. Of course, an agreement that an inventor shall receive a fixed sum for each article made according to his patent, or a sum varying with the market price of the article, will not constitute him a partner. It is, however, difficult to enter into an agreement of this kind before the nature of the invention is disclosed. An agreement between the licensees of a patent and the inventor for securing the services of the inventor as manager at a per-centage on the profits will be found fully set out in Stocker v. Brocklebank, 3 M. & G. 250.
What circumstances do not constitute partnership.
FOR OBTAINING LETTERS PATENT
including any balance which shall then be due but shall not have been paid over to the said A. B., his executors or administrators, and all interest in the said invention, and in the said letters patent, shall thenceforth belong to the said C. D. and E. F., their executors, administrators, and assigns, for their own use and benefit. IN WITNESS, &c.
FOR MAKING AND MAINTAINING A ROAD,
2. Recites title of A. B. as mortgagee;
AGREEMENT between the OWNERS of several HOUSES forming a TERRACE for the Preservation and Maintenance of a private CARRIAGE ROAD and FOOTWAY in front of the Houses.
of so many of
THIS INDENTURE, made, &c., BETWEEN A. B., of,