PARDY et al. v. J. D. HOOKER CO., 148 F. 631

ROSS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The court below, upon a consideration of all of the evidence in the case, adjudged that George Pardy was not the inventor of the invention patented, that the patent is void, and dismissed the bill at the complainants’ cost. It appears from the evidence that in the year 1887 J. D. Hooker was engaged in manufacturing pipe at Eos Angeles, and conceived the idea of making a machine to rivet such pipe, instead of doing the work by hand. George Pardy was at the time a mechanic and patent solicitor.

Hooker employed him to get up such a machine for him, and, according to the evidence, undoubtedly gave Pardy his own ideas as to how the desired object could be accomplished. It also clearly appears, both from the oral testimony and from the letters in evidence, that the distinct agreement between Hooker and George Pardy was that Hooker was to pay all the cost of the work and pay Pardy for his services, and was to own and control any patent that should be issued covering the machine.

In accordance with that agreement, the first and only machines built by George Pardy were installed by Hooker in his establishment at Los Angeles, and used by him not only without objection by George Pardy during his lifetime, but under his supervision. It appears, further, that a third machine was installed by Hooker after George Pardy’s death, which has been continuously used ever since by Hooker and his successor in interest, the defendant in error, J. D. Hooker Company, and that, as early as November, 1893, the appellant William Pardy knew of such use.

The testimony of Hooker is to the effect that he paid all the cost of the machines and paid George Pardy in full for his services rendered under their agreement. Whether or not that be true, the present is not a suit to recover for such services or for such expenses, but only for an infringement of the patent issued to the appellant William Pardy, as the executor of the estate of George Pardy, and for an accounting of profits.

We are of the opinion that such suit cannot be sustained, in view of the distinct agreement between Hooker and the deceased ■ Pardy, above alluded to, to say nothing of the appellants’ laches. We are of the opinion, however, that the court below was, in view of the evidence, in error in adjudging that George Pardy was not the inventor of the machine patented. TTooker knew, or must be held to have known, that such patent could not have been issued except upon oath that George Pardy was the inventor. Hooker did not himself apply for such patent, and there is nothing to indicate that he ever contemplated doing so.

It is true, as has been said, that he gave Pardy bis own ideas and employed him to get up such a machine as he (Hooker) desired, but the accomplishment of the desired end was evidently left to Pardy.

This is conclusively shown hv this extract from the letter of Hooker to Pardy of December 23, 1887: ‘•It lias always seemed to me that the motion to crush the rivets should he like the movement of the die machine at. the Mint; you know how nicely that has to work, but you doubtless have investigated that movement.” The principle of the invention in question is not at all “like the movement of the die machine at the Mint,” but, on 'the contrary, effects the riveting process by a roller movement.

We are of the opinion that the decree dismissing the bill at the complainants’ cost is right, but that the court should not have adjudged the patent to be void, or that George Pardy was not the inventor of the machine patented. The cause is therefore remanded to the court below, with directions to modify the judgment in accordance with the views above expressed, and as so modified it will stand affirmed.