Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit and brief in support thereof (1916)

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70 24 Exhihit C. 71 The sale of the projecting machine carried with it, in the absence of any restriction, an implied license of nse. Mitchell vs. Haivley, 16 Wall., at page 547. The notice which was attached attempted to impose the condition that it should only be used with films containing the invention of a patent which had expired "and upon other terms to be fixed by the Motion Picture Patents Coimpany." The condition as to use only with the specified films we have held illegal for the reasons given in our opinion heretofore rendered. The condition as to which a re-argument is desired relating to a continuing royalty was not brought to the notice of the defendants and cannot, therefore, be regarded as limiting the implied license which accompanied the sale of the machine. (Corteljjou vs. Johnson^ 207 V. S., 196; Lovell-McConnell Mfg. Co. v«. Waite Auto Supply Co., 198 Fed., 133.) The clause '^upon other terms to be fixed" in no way specified the nature of these terms and in particular in no way mentioned a continuing royalty, or the amount thereof. There is no evidence, moreover, that any ^^other terms" were ever fixed or demanded. We 72 think such a vague condition insufficient to limit the implied right of user passing to the vendee of the machine, and consequently unenforceable. The appellant offered evidence at the trial, which was excluded, that the Prague Amusement Company had knowledge of the terms upon which the Motion Picture Patents Company was accustomed to grant permission to use a machine put out by its licensed manufacturers, but this evidence, had it been allowed, would not have obviated the difficulty with the form of the notice. If the terms that were customary had been known, there