Of joint inventors. The patent must in all cases issue to the inventor, if alive and if he has not assigned his interest. And if the invention is made jointly by two inven tors, the patent must issue to them both. This is equally the case where one makes a portion of the invention at one time and another at another time.
It is not necessary that exactly the same idea should have occurred to each at the same time. If an idea is suggested to one and he even goes so far as to construct a machine embodying this invention, but it is not a completed working machine and another person takes hold of it and by their joint labor a perfect machine is made, a joint patent may be properly issed to them.
But if each person invented a distinct part of a machine, each should obtain a patent for his invention; Worden v. Fisher, 11 Fed. 505.
A joint patent is invalid as to a feature previously invented by one of the patentees, which is not a necessary part of the device jointly invented ; Heulings v. Reid, 58 Fed. 868.
Of executors and administrators. Where an inventor dies before obtaining a patent, his executor or administrator may apply for and obtain such patent, holding it in trust for the heirs at or devisees, accordingly as the inventor died intestate or testate. Nothing is said as to its being appropriated to the payment of debth; but, having once gone into the hands of the executors or ad ministrators, it would perhaps become assets, and be used like other personal property.
The right to make a surrender and re ceive a re-issue of a patent also vests by law in the executor or administrator.
• The liability of a patent to be levied upon for debt. The better opinion is that letters patent cannot be levied upon and sold by a common-law execution. The grant of privi lege to the patentee would, from its incor poreal nature, seem to be incapable of man ual seizure and of sale. Even if such a sale were made, there does not appear to be any provision in the acts of congress which con templates the recording of a sheriff's deed; and without a valid record, the patentee might nevertheless make a subsequent trans fer to a bona fide purchaser without notice, which would be valid.
But this peculiar species of property may be subjected to the payment of debts through the instrumentality of a bill in equity. The chancellor can act upon the person. He can direct the patent to be sold, and by attach ment can compel the patentee to execute a conveyance to the purchaser ; see Ager v. Murray, 105 U. S. 126, 26 L. Ed. 942, where it was further held that the court might compel the holder of the patent to assign it, or appoint a trustee for that purpose; or a receiver ; In re Keach, 14 R. I. 571, but not
if no income is being received; 25 T. L. R. 815. The right of a patentee will pass to his assignees in bankruptcy ; 3 B. & P. 777; Sessions v. Romadka, 145 U. S. 29, 12 Sup. Ct. 799, 36 L. Ed. 609; but not to a trustee in insolvency in Massachusetts ; Ashcroft v. Walworth, 1 Holmes 152, Fed. Cas. No. 580. The legal title to a patent does not pass to a receiver of an insolvent owner ; but the receiver may maintain a bill to compel the owner to transfer it to him; McCulloh v. Association Horlogere Suisse, 45 Fed. 479.
How far a patent is retroactive. Section 37 of the act of 1870, following substan tially the act of 1837, provides "that every person who may have purchased of the in ventor, or with his knowledge and consent may have constructed any newly-invented or discovered machine, or other patentable ar- ' tide, prior to the application by the inventor or discoverer for a patent, or sold or used one so constructed, shall have the right to use, and vend to others, to. be used, the spe eific thing so made or purchased, without liability therefor." On the question of anticipation, by a prior device, the patentee's invention will be con sidered as relating back to his original con ception; Dixon v. Moyer, 4 Wash. C. C. 68, Fed. Cas. No. 3,931; Treadwell v. Bladen, 4 Wash. C. C. 703, Fed. Cas. No. 14,154.
Marking patented articles. Sec. 38 of the act of 1870 declares that in all cases where an article is made or vended by any person under the protection of letters patent, it shall be the duty of such person to give sufficient notice to the public that said ar ticle is so patented, either by fixing thereon the word "patented," together with the day and year the patent was granted, or when, from the character of the article patented, that may be impracticable, by enveloping one or more of the said articles, and affixing a label to the package, or otherwise attach ing thereto a label containing a like notice ; on failure of which, in any suit for the in fringement of letters patent by the party failing so to mark, no damage shall be re covered by the plaintiff, except on proof that the defendant was duly notified of the infringement, and continued after such no tice, to make, use, or vend the article pat ented. The burden of proof is on the plain tiff, in a suit for infringement, to allege and prove actual or constructive notice of the patent ; Coupe v. Royer, 155 U. S. 584, 15 Sup. Ct. 199, 39 L. Ed. 263.