Brush Swan Elec. Light Co. v. Thomson-Houston Elec. Co.

• Decision Date: 07 November 1891
• Citation: 48 F. 224
• Parties: BRUSH-SWAN ELECTRIC LIGHT CO. et al. v. THOMSON-HOUSTON ELECTRIC CO.
• Court: U.S. District Court — District of Connecticut

48 F. 224

BRUSH-SWAN ELECTRIC LIGHT CO. et al. v. THOMSON-HOUSTON ELECTRIC CO.

United States Circuit Court, D. Connecticut.

November 7, 1891

Morris W. Seymour and Wm. G. Wilson, for Brush-Swan Company.

F. L Crawford and Charles R. Ingersoll, for Brush Electric Company.

SHIPMAN J.

This is a bill in equity, which is brought under the patent laws, to restrain an alleged infringement of letters patent No 219,208, dated September 2, 1877, to Charles F. Brush. The bill alleges that the Brush-Swan Electric Light Company of New England, a New York corporation, which will hereafter be called the Brush-Swan Company, is vested with the exclusive license and agency for the sale of the described patented improvement throughout a specified territory of the United States, by virtue of sundry contracts, which are annexed to the bill, with the Brush Electric Company, an Ohio corporation, hereinafter called the Cleveland Company, which is, by assignment, the sole owner of the patent. These two corporations are the complainants. The bill further alleges that the defendant, the Thomson-Houston Electric Company, a Connecticut corporation, is and has been making, selling using, and renting to others to be used, infringing electric lamps within the territory named in said contracts.

The matter now under consideration is the Cleveland Company's motion to strike out its name as a party complainant, because the bill has been filed without its authority or consent. It is conceded that the bill was brought by the solicitors of the Brush-Swan Company without the knowledge of the Cleveland Company, and that no express authority to bring suits in its name had been given either in said contracts or otherwise but it is contended that, by virtue of the license, the licensee has the implied consent and authority to use the name of the owner of the patent as a co-complainant, and a vested right to bring a suit in its name, whether with or against its will. The facts in this case are peculiar. The various contracts 'of license and agency' give to the Brush-Swan Company an exclusive agency and license for the sale, within a specified territory, of 'the dynamo electric machines and apparatus made and sold by, or the patents for which are controlled by, the parties of the first part. ' The patents are described. The Brush-Swan Company is not to sell apparatus of the described character, except that sold by the Cleveland Company, without its consent. The Cleveland Company is to fix prices, and the agent is to have a discount of 20 per cent. The parent company has no right to sell machines or apparatus within the specified territory, except under circumstances to be mutually agreed upon, and in such case it pays to the Brush-Swan Company the 20 per cent. discount. The contracts are, in their important features, contracts of agency between a principal manufacturer and a selling agent. In some of their features they have the appearance of contracts between a manufacturer and a person who is, under certain limitations, to have the exclusive right to purchase and deal in the manufactured articles within a specified territory; but they are probably contracts of license, under the patent laws, to sell within a specified portion of the United States a patented improvement manufactured by the owner of the patent. The licensor became distrustful of the licensee; thought that it had broken its contract; desired to put an end to the...