In consideration of an exclusive license, for the term of about one year, to manufacture certain grate bars under a patent, and of the undertaking of the plaintiffs to convey said patent to the defendants, on terms set forth in a written contract, the defendants undertook to pay the plaintiff the sum of $83.83 on the first day of each month until the expiration of the year, the sum so paid to be counted as a part of the agreed price of the patent, if the defendants should elect at the end of the year to buy the patent, but otherwise to be regarded as payment for the license. Before the second monthly payment fell due, the defendants discovered that the patent was void for want of novelty in the alleged invention, and refused to make further payment for that reason, and informed the plaintiff that they regarded the agreement as of no effect. The plaintiff seeks to recover the amount of the instalment agreed to be paid on the first day of the second month.
The only consideration for the promise of the defendants was a right under the patent. The patent being void, the license gave no rights which the defendants had not before; and the assignment, if made, would not have conveyed any, because the patent gave none to its owner. The case is, therefore, within the principle repeatedly declared by this court, that the grant of an interest in or a right under a void patent is not a valid consideration for a promise by the grantee. Bliss v. Negus, 8 Mass. 46. Dickinson v. Hall, 14 Pick. 217. Bierce v. Stocking, 11 Gray, 174. Lester v. Palmer, 4 Allen, 145. Nash v. Lull, 102 Mass. 60. Howe v. Richards, 102 Mass. 64, note. Jackson v Allen, 120 Mass. 64.
By the notice to the plaintiff, the defendants abandoned all benefit of the license, and left it open to the plaintiff to test hi» title to the invention by suit against them for infringement.
Exceptions overruled.