KELLER v. STOLZENBAOH• 49
defendants stand on an implied license. But if such license exists
it must spring from the facts heretofore stated, viz., the invention by
Keller during the partnership between him and Pfeil, the free use, with
Keller’s consent, by the firm, of the patented apparatus upon their
· boats, and the payment by the nrm of the fees, costs, and expenses
of procuring the patent, etc. But I cannot see that these facts af-
ford any solid foundation for the defense set up. In McWilliams
Mannf’g Oo. v. Blundell, 11 FED. BEF. 419, upon a substantially sim-
ilar state of facts, it was held that the firm could make no claim to
the patent, and, after dissolution, an injunction to restrain infringe-
ment issued against the late partner. Here the merit of the inven-
tion is Keller’s exclusively. He is indebted to Pfeil for no ideas or
suggestions. The letters patent were never treated as partnership
property. At the dissolution of the firm the partners made a sched-
ule of the iirm assets, at agreed valuations, with a view to a division,
but the patent was not in that schedule. The claim which Pfeil then
asserted was the right to use the patented apparatus with which the
Rainbow was equipped. Tothat extent his demand was reasonable
and just, and it was sustained. But now he practically insists upon
an equitable ownership in the patent, for he claims the unlimited V
right, individually and in connection with his present partners, to
make, use, and vend the patented apparatus. But no express agree-
ment is shown whereby the Erm or Pfeil acquired any interest in the
patent. If the firm paid the expenses connected with the issue of the
patent, etc., they received a full equivalent in the use of the inven-
· tion upon their two boats, free of royalty, and in the absence of di-
rect proof of any other or greater right in the firm, none is fairly in-
ferable from the facts as they appear.
Our conclusion that Pfei1’s right to use the invention is limited to
the construction on the Rainbow, finds support in adjudged cases.
Brrickill v. M ayor, etc., of New York, 7 FED. REP. 479; Wade v. M etcag ,
16 FED. REP. 130. Nor does this view conflict with the decisions
cited by the defendants. In the nature of the case (the invention
being a pro¤ es ) the presumed license in McClurg v. Kingsland, 1
How. 202, was unlimited, and justly so under the circumstances.
In Chabot v. American Button-hole, ctc., Co. 6 Fish. 71, the facts
were not only substantially similar to those in McC'lnrg v. Kingsland,
but there was the additional element of an express contract, the
, terms of which greatly strengthened the presumption of an unre-
— stricted license. The subject-matter of the patent in Slermnzens Ap-
peal, 58 Pa. St. 155, was a process which, if legally the invention of
one partner, was in fact the result of partnership labor, experiment, j
and development, and the dealings of the partners with each other had
been of such a character that it would have been grossly inequitable
to deny to any of them the right to use the invention. In Ken-ny’s Pat-
ent Bnttomholing Cc. v. Somervell, 38 Law Times Rep. 878, the part-
nership was formed for the sole purpose of working the patented in-
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