The franchise conferred by letters patent under the laws of the United States cannot be divided except as those laws authorize ; and by those laws no transfer of less than the whole of the patent right is valid, except an assignment of an undivided share in the whole patent, or a grant of the exclusive right within a specified part of the United States, either by an express assignment of the entire right within such limits, or at least by license to make, use and vend, and to grant to others the right to make, use and vend, the patented article therein, exclusively of the patentee himself as well as of all other persons. U. S. St. 1836, c. 357, § 11. Wilson v. Rousseau, 4 How. 672, 686. Gayler v. Wilder, 10 How. 494, 495. Howe v. Wooldredge, 12 Allen, 21, 22.
The very instruments executed by Woodbury to the plaintiff make a careful discrimination between an assignment of an interest in the patent right, and an appointment of an agent to manufacture and sell the patented article. Within the states of California and Oregon, and the territory of Washington, they purport to assign to him and his representatives and assigns an undivided half of the patent right.
But within the states of Maine and New Hampshire, and Massachusetts, (excepting the county of Essex,) they contain no words of assignment of the right, or of agreement to assign, except upon a single contingency — which has not occurred — the patentee’s failure to repay at the end of a year the sum advanced by the plaintiff. Within these limits, they do not authorize the plaintiff to convey to third persons any part of, or license to exercise, the franchise; and do not exclude or restrict the right of the patentee himself to manufacture and use the invention ; but are in words and effect no more than an appointment of the plaintiff as the patentee’s sole agent; in terms indeed irrevocable, yet giving him only an interest by way of commissions in the proceeds of the sales of the articles manufactured and sold by him in the execution of his agency; vesting in him no title, interest or lien, legal or equitable, in the subject matter of the power, and creating no trust or contract, which equity will specifically enforce in thr absence of mistake or fraud, (of *354which there is in this case no allegation or proof,) or which is binding upon an assignee of an interest in the patent, either with or without notice of the relations between the patentee and the plaintiff; and amounting to a mere personal contract between them, for breach of which the plaintiff’s remedy is by action at law against Woodbury. Hunt v. Rousmamiere, 2 Mason, 249, 250, and 8 Wheat. 203-206. Webb v. Walker, 7 Cush. 46. Fuller v. Emerson, Ib. 203. Langdon v. Langdon, 4 Gray, 189.
Woodbury not having bound himself by agreement with the plaintiff not to assign an interest in the patent itself, but only not to appoint any other agent within the territory in question ; and it not being shown that he has appointed or intends to appoint Bray or any other person such an agent; it is immaterial whether an interest in the patent has or has not been duly assigned to Bray. If it has, Bray is not liable to any one for exercising the privileges of the owner of such an interest. If it has not, any remedy for an infringemént by him of the patent must be sought in the courts of the United States. Dudley v. Mayhew, 3 Comst. 14, and cases cited.
The plaintiff cannot therefore maintain this bill, either against Woodbury, the original patentee, or against Mellen Bray, claiming by assignment from him.
Bill dismissed, without prejudice.