(dissenting). I am in accord with so much of the majority opinion as upholds the trial court in its conclusion that the plaintiff is not estopped to assert such rights as plaintiff might have acquired under its contract of January, 1911. I am also in accord with so much as holds that such contract of January, 1911, was a valid and subsisting one and that the obligations of Cheshire were not put at an end by the termination of his employment with the plaintiff.
/The contract of January, 1911, being but a modification of the preceding contract, needed no new and additional or other consideration than that which supported the original. Foley v. Marsch, 162 Wis. 25, 30, 154 N. W. 982; Schoblasky v. Rayworth, 139 Wis. 115, 117, 120 N. W. 822; Montgomery v. American C. Ins. Co. 108 Wis. 146, 159, 84 *305N. W. 175; Brown v. Everhard, 52 Wis. 205, 207, 8 N. W. 725.
I am in further accord with the holding that there would be nothing inequitable, unconscionable, or contrary to public policy in the enforcement of plaintiff’s contract as against the defendants if it can properly be held to cover and include what is claimed by plaintiff.
I do, however, dissent from the conclusion arrived at by the majority in this case that the paper-handling and feeding device as proposed to be used by defendants in connection with the new form of cylinder press is not within plaintiff’s contract.
The paper-handling and feeding device upon which the letters patent were first issued and duly assigned to plaintiff was for a novel idea, not for the mere embodiment thereof in the particular device which plaintiff attached to the platen press. This idea, the product of Cheshire’s inventive genius, became secured to the plaintiff by what all the members of this court hold was a lawful, valid, and binding contract and one that upon the grounds of public policy could not be denied enforcement. This invention became of commercial and substantial value by the speculative expenditure of large sums of plaintiff’s money. The patent obtained from the government and assigned to plaintiff did give the plaintiff that which is recognized as a legal and defensible monopoly in the same during the life of the patent. U. S. v. U. S. M. Co. 247 U. S. 32, 57, 38 Sup. Ct. 581. By the combination of a “paper-handling and feeding mechanism,” so described by Cheshire himself in his new applications, with the so-called new form of cylinder press, the defendants are now being permitted, so far as a judgment of a state court can go as to such subject matter, to proceed with what will evidently be a serious and substantial impairment in the commercial value 'of that which was originally obtained by plaintiff.
That plaintiff may have no desire to use or be unable to use the precise form in which this “paper-handling and *306feeding” mechanism, idea is found in the physical embodiment thereof as proposed for the new form of cylinder press, is entirely immaterial. Having secured a right to this ^as an invention and patent, plaintiff has the right, even though not using it, to exclude competitors from using it. Henry v. A. B. Dick Co. 224 U. S. 1, 29, 32 Sup. Ct. 364; U. S. v. Winslow, 227 U. S. 202, 217, 33 Sup. Ct. 253.
The original device for which plaintiff paid Cheshire a substantial sum was of no commercial value then to plaintiff except as it might be used in connection with the, Gordon or platen press. The latter plaintiff must secure upon such terms as it could from some third person -manufacturing or controlling the manufacture of the same. The idea embodied in the original paper-handling and feeding device was necessarily considered as a unit of itself, and for the purposes of letters patent it must necessarily be so; for patents, are grahted for ideas as units, not as fractions,, ñor for mere combinations of separate patented or patentablé units. As such original unit it acquired commercial-valué’ from being attached to the platen press. There -was -no new unit created by the application of this paper-handling and feeding device to the platen press so as to make such a new idea or combination so that as such it became the subject of letters patent. It was the same unit before- being attached to ,the- platen press that it was after being so attached, and ’vice versa.
' In what defendants now propose to use, the individuality of the idea of a paper-handling and feeding device is as clear and distinct in the specifications prepared by Cheshire himself and in the application of the idea to the new form of cylinder press as it is under the original applications and subsequent use. The details of the form of its becoming embodied in a device are different, but the idea, the subject of invention and of letters patent, is as much present in the one as in the other, and can be seen with as little difficulty in the latter device as in the former.
*307If some person other than Cheshire had originated the idea embodied in the change of position of the cylinder in the so-called Cheshire cylinder press to which defendants assert rights and then Cheshire had been induced to apply to such new idea of a press the paper-handling and feeding mechanism as embodied in his subsequent applications here involved, it would seem plain that his so applying such- a “paper-handling and feeding mechanism” to such third per-* son’s new idea of cylinder press would be a violation of the spirit and the letter of plaintiff’s contract. That Cheshire’s inventive genius was broad enough to cover the0 two fields— the new form of cylinder printing press as well as that of a paper-handling and feeding device — in no manner destroys the rights acquired by plaintiff as to the one field of that inventive genius that was originally developed by ■Cheshire at plaintiff’s- suggestion and on its money. • :
The idea of a paper-handling and feeding device as a unit was not swallowed up by its application to the platen press so as to lose its identity. I fail to see by what alchemy it can be held to have mysteriously disappeared, become absorbed, and swallowed up by its mere application to another form of press which accidentally happened to be also the result of Cheshire’s inventive genius.
The Gordon press with the original paper-handling and feeding mechanism attached thereto becomes of more commercial value than the Gordon press as a hand feeder. It is quite possible that the new form of cylinder press- now suggested by Cheshire will be of no substantial value except and unless a- “paper-handling and feeding device” can be attached thereto. This demonstrates nothing more than the substantial value and worth of that which plaintiff purchased from Cheshire in the original instance. It no more malees the combination of such device with the new cylinder press a separate and distinct unit than did the added value to its combination with the Gordon press make that combination something more and independent.
*308To my mind the situation demonstrates that the parties intended by the contract of January, 1911, that Cheshire’s inventive genius, so far as it related to a “paper-handling and feeding device,” was to be at plaintiff’s service for the term of seventeen years, and it paid substantial and valuable consideration for such an agreement. The defendants are now permitted to take advantage of the identical thing so pledged in good faith to plaintiff. I think, therefore, the plaintiff was entitled to the relief for which it prayed.
Vinje, J. I concur in the foregoing dissenting opinion of Mr. Justice Eschweiler.A motion for a rehearing was’ denied, with $25 costs, on September 25, 1920.