BUFFALO SPECIALTY CO. v. INDIANA RUBBER & INSULATED WIRE CO., 234 F. 334

KOHLSAAT, Circuit Judge (after stating the facts as above). We are at a loss to understand how any confusion could have arisen as to the construction of the contract for a shop license. Such a license is as good and effective to vest a right in a grantee as any other, to the extent of its terms, no matter what it is called. By that instrument appellee was granted a “license under said letters patent.” That language, by all fair

interpretation, means that it was given a right, power, or authority to manufacture and market the tire of the patent (Robinson on Patents, vol. 2, § 812, p. 590; Walker on Patent Law [4th Ed.] §§ 296, 297, p. 259; 30 Cyc. p. 956, cl. 11, n. 83) without limit as to time (30 Cyc. p. 957, cl. c., n. 97).

It was also given the privilege to manufacture and use the materials named in the patent for the purpose of making said tire at its two factories in unlimited quantities, if desired.' It, however, covenanted “not to manufacture for sale, sell nor offer for sale the same,” meaning the dope, during the life of the contract, except in a local retail way from the factories, etc.

The manufacture and sale of dope was the special feature of appellant’s business, and tire manufacture and sale of it by appellee would necessarily have interfered with that business. ' That the terms “material” and “materials” referred to the dope appears from the third paragraph of appellant’s complaint in the Indiana state court.

It also appears from the language of the clause in controversy — the use of the term “manufacture and use” in the clause reading, “with the privilege to manufacture and use said material or materials” in its two factories, and the use of the terms “manufacture for sale, sell nor offer for sale,” when referring to the dope: It also is the natural construction to be placed upon the words “material” or “materials” as employed in tire contract.

We are clear that there is in the contract no attempt to limit appellee in the right to make the tire of the patent and market it, and in so doing to manufacture and use the dope to the degree it finds desirable in connection with its said two factories. The fact that such a construction was followed by appellee for so many years without objection adds strength to that conclusion. We are of the opinion that to hold otherwise would do violence to the language and the intention of the parties. The contract was not breached. Nor can infringement be predicated upon tire facts of the case.

In view of the foregoing, we deem it unnecessary to consider the other defenses raised. The decree of the District Court is affirmed.