(concurring),
The controversy here is between the two defendants, Parissi, an inventor, and Padua Alarm Systems, Inc., a corporation original*352ly formed by him, but with which he is now at odds. The subject matter is royalties, payable by plaintiff General Time Corporation for the manufacture and sale of a “Silent Alarm Clock,” patented by Parissi, but claimed by Padua to be covered by and subject to the terms of a co-licensing contract between it and Parissi. Plaintiff, a Delaware corporation, being faced with the conflicting claims of these New York defendants, brought suit for a declaratory judgment in the diversity jurisdiction of the court below and obtained permission to deposit the accrued royalties with the court, After a trial, the court construed the co-licensing contract, together with the license agreements to plaintiff, as giving Padua superior rights to the royalties and ordered the moneys on deposit in the court, as well as those paid Parissi directly, to be turned over to Padua. Parissi now appeals.
The story goes back to 1920 when the company was incorporated as Padua Holdup Alarm Corporation, to exploit certain of Parissi’s inventions of that date. Parissi himself was an incorporator and owner of sixty per cent of the stock, and from 1920 to 1938, as president, vice-president, and general manager, controlled its operations and management. He remained as a director with an active interest from 1938 to 1941, but his domination of the corporation was reduced. In 1941 he ceased to be an officer or employee and went to work elsewhere, He has disposed of stockholdings so that he no longer has stock control of the corporation; as this case shows, armed warfare now obtains between them.
The devices originally exploited by the company were holdup alarm systems for banks, soon extended for use in mercantile establishments. From this Parissi's interests turned towards signalling instruments generally and beginning in 1931 he worked upon systems of light signals for telephone circuits. On March 9, 1937, he obtained three patents, Nos. 2,073,585-6-7, each for a “Tel? ephone System” and each for a light, signal or “silent alarm” “in a telephone system” as all the many claims in each patent spedfied. On November 9, 1937, he obtained Patent 2,098,631 for “Electric Lighting Fixture,” consisting of a combined switch and three-way socket for an incandescent lamp so fashioned as to permit of the use of the light for ordinary as well as flashing or signalling purposes. Parissi claims that he offered the original ideas to Padua, which would have nothing to do with them; so he developed the devices himself and secured patents on them on his own time and at his own expense. But when Parissi came to seek exploitation of the patents, Padua made claims to them. Specifically in 1939 the .parties arranged a favorable license with the Western Electric Company; to as-sure good title to the licensee Parissi arranged to make Padua a co-licensor, the license was jointly given, and Western Electrie paid an initial $5,000, which wa* paid by Padua to Parissi on September 23. Immediately thereafter Parissi and Padua en-tered into the contract of September 26, 1939, which is the basic agreement in this sm*'
In this contract Parissi recites his owner-ship of the four patents — specifically described by number, date of issue, and sub-ject — states that he “is duly cognizant of the possible existence of certain moral or financial obligations” to Padua because of ai,¿ an(f assistance in securing the patents an(f jn subsequent “transactions or negotiations pertaining thereto,” and specifies that he desires “voluntarily and without adrnission of legal necessity therefor, to fully and forever liquidate and discharge any and all obligations of said nature or semblance, Therefore, for the above-expressed intent ^d purpose, both parties hereto agreed to accept the following terms and considerations: Party of the First Part herein, agrees to grant and does hereby grant to Party of the Second Part herein, the right and, privilege, jointly with Party of the Pirst Part, to consummate any and all agreements or contracts relating to any or above recited patents or any claim or claims contained therein ” (I have add-fd emphasis to the part of most significance our later discussion.)
Other terms provided that all returns from sales or licenses should be paid to Padua, but only for the length of time that it “shall maintain its present corporate existence”; upon a sale, transfer, or devolution *353of its corporate franchise, all its rights were to cease and all royalties or other payments due for the devices became payable to Parissi. And Padua agreed to pay Parissi $1,000 upon the execution of every subsequent contract of license for telephone control apparatus units and further to pay him ten per cent of all royalties received, in- , f , . , „ 1 volvmg the above recited patents, together with an additional ten per cent to his patent , , , r , lawyer to whom he was obligated on an /. & _ earlier conditional fee arrangement, as well _ . ® , as five per cent to its own secretary, McRed- , % . , * ? mond, for compensation and reward for ex-penmental work and in negotiating the Western Electric contract.
Meanwhile Parissi had been working on tly development of a “Silent Alarm Clock,” a clock which would signal first by a flashing light and then after an interval of a few minutes by the usual bell. At least as early as 1936 he was trying to interest clock companies in it, and in the' summer of 1939 McRedmond wrote a number of such companies. By July, 1939, at least one, the In- .. .... . ,, „r , gersoll-Waterbury division of the Water- ? ^ ^ . bury Clock Company had expressed interest m the idea, and thereafter Parissi and *iv ir n j .1 , ,. . . McRedmond made a demonstration to it. -r> ^ ^ ^ r ,1 . , But nothing then came of the project. Pa- • • , , rissi testified that the clock was not devel- , oped to the point of success; it employed a : . ^ j 1 single rotating cam to trip both signals and a1 . f t ®. ., the resulting intervals .between the light n « « . . . , , i, flashes and the ringing of the bell were so long as to deprive it of utility. McRedmond claimed that by carefully filing the cam this difficulty was overcome; and he produced a model, asserted to be the same as that upon which the earlier work had been done, which appeared to operate successfully on demonstrations in the courtroom below. He also said that the failure to exploit the device was due to the commitments of the clock companies to the war effort, then necessary. The sharp conflict in the testimony which thus developed need not be resolved, as I shall point out in more detail below; for it is clear that the device then under study, whatever its eventual opera•bility, was never used commercially. And although the parties apparently were not then aware of the fact, it seems concededly covered 'by an earlier patent, the Sholden patent 2,026,070, for an “Alarm Clock” is-sued to one C. E. Sholden, December 31, 1935, on an application of May 22, 1933.
After Parissi left Padua he deveIoped an ^ ^ ^ ^ si m devices he des¡red; ^ he achieyed b usin two „ , , . ,• ,, ■ , ,< ,, cams, one to start the light signal, the other tQ gtart the bdI signaL wbiIe the device ,, . . , . . * , . 11 could be incorporated m an electric clock, ,, , , . n that was not necessary and it was equally ,. , « .. ... , usable with a spring clock; it did not em-. . . . .. £ . .. ploy an electric circuit for its actuation, for a tent on it August 28j i94S) and Patent 2,444,748 was granted him T , c ln/)0 , ... ... , July 6, 1948, upon a Clock with Visible and Audible Alarm Means.” Then the difficulties presented by the prior art, and notably the Sholden patent, were discovered and an application for a divisional reissue was made March 5, 1949. The patent was reissued August 22, 1950, as Re. 23,261 with the broader claims which might cover the single cam clock now omitted.
,, ... n • • i. j , , . Meanwhile Parissi had succeeded m m. .. . ,. , . , terestmg the plaintiff m his device and on entered into a contract . , - . . . . whereby he gave plaintiff a non-exclusive . ., .. . . , . , irrevocable license in the non-telephone r ¿ TT field under the four patents of 1937. He , Al , «1 < , , further represented that he has made addi, . . , ,7 7. f tional developments relating to the subject ^ . .. , , ^ , matter of said patents, said additional de, . * -r , _ „ - velopments including a Nurses Call System , A< ~ ... and a SlIent AIarm a°ck” $ am a-aln addm£ emPhasis to matter of special significance m our later discussion.) _ Parissi in his license these additional developments” and any further improvements he might make and plaintiff agreed to pay Parissi “a royalty of Five Cents (5^) for each clock or other device incorporating the constructions- licensed in Paragraph 1 hereof manufactured and sold under this license.” Plaintiff also agreed to (and did) pay Parissi $5,000, as advance royalties. It is this sum, plus substantial additions paid into court and undoubtedly to become pay-able in the future, which is the prize here, All of these have been paid, however, for plaintiff’s use of the silent alarm clock, Plaintiff has never made any devices under *354the four patents of 1937 and no issue arises in this case as to those patents.
A supplemental agreement between Parissi and plaintiff of July 12, 1945, made only some corrections of no present importance. But a second supplemental agreement of March 28, 1949, was entered into in order to make the first agreement “moré definite”; and it specified the additional patents included, referring to three, among which was Patent 2,444,748 on the silent alarm clock. In its complaint here the plaintiff embodied the three license agreements, together with the Parissi-Padua con-' tract of September 26, 1939, and asked a declaration as to the rights of the parties to the royalties due from it. Parissi and Padua not only answered, but made cross-claims against each other. The district court upheld Padua’s cross-claim, ruling that Parissi s license agreement with plaintiff had the effect of drawing its royalty payments within the terms of the earlier Parissi-Padua contract of September 26, 1939. In my discussion I shall first deal in turn with these agreements so essential to Padua’s claim and thereafter I shall turn to the collateral issues in the case.
First. In my view, the only proper question here is whether or not the Parissi-Padua contract of September 26, 1939, in-eludes in fair intent such later developments as the royalties hele in question relate to. And to me it is quite reasonably clear that it does not. The contract is in terms limited to the four patents specifically named and described, as is made additionally clear by the words I emphasized above, namely, “any or all of the above recited patents or any claitm or claims contained therein.” There could hardly be clearer language of limitation than this. The background and surrounding circumstances also support this view. A dispute having arisen as to Parissi’s possible obligations, at least partially moral, he desires to settle it for all time by the adjustments and payments outlined above. Nothing at all is said as to the silent, alarm clock, although the parties had been tinkering with it for more than three years, The whole transaction is instinct with the understanding that the parties were settling their differences permanently. It is now suggested that the contract seems improvident on Parissi’s part. Of course it was, if ^ ls susceptible to the indefinite expansion now claimed by Padua and allowed by thé trial court. But on its face, and with the limitations there expressed, it suggests fairness a. complete adjustment and release, will1 lump sum and royalty payments to Parissi and satisfaction of his counsel s con-tingent claim, but with the main speculative return g°in£ t0 Padua. So Parissi’s own claim of lack of consideration cannot .be up-held; obviously there was adequate consideration.
Second. While the point just discussed seems to me decisive of the case, I now turn ^o the license agreements which have been given s,uch operative effect below. As I understand it, the interpretation I have suggested above of the 1939 contract be-tween Parissi and Padua would be accepted by all except for the form and language of the 1945 license, particularly as supplemented by the 1949 amplification. How those iater agreements, with another party can serve to expand the definite earlier contract j submit, never made clear. Seemingly it ¡s thought that Parissi has added his later invention to a single indivisible patent pool and that because of this willful act he can no ions'®1, separate the new contribution ^rom the °id and has lost all. This is a coil-cePt apparently somewhat analogous to that fungible goods, as, for instance, wheat intentionally commingled in a grain elevator where the wrongdoer is compelled to suffer because his contribution cannot be identified. The district judge has phrased ^ that -^e licensing agreement contemplates a total consideration for a total privileSe- Xt ma7 not now be split either by the Parties or the Court. But it is believed that such a conclusion cannot be sustained on reason or authority,
The essential difficulty found by the court appears to stem only from the fact that the license under which Padua now claims the royalties related in form to several patents —eventually to a total of seven — but constituted only a single agreement. There is no other ground for holding the payment pro-visions indivisible. They certainly take care of all questions conceivable as to ap*355portionment; plaintiff is to pay five cents on each clock produced under the license, See Ming v. Corbin, 142 N.Y. 334, 37 N.E. 105. There is nothing in the general law of indivisible contracts so-called (i. e., contracts where the consideration applies as a unit) to govern this quite different situation of a third party’s rights under an earlier agreement. See 3 Corbin on Contracts, §§ 694-697, 1951. Certainly the case specifically relied on, Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312, contains no such holding. That dealt with an entirely different matter — the validity of licensing agreements covering a large number of patents under the antitrust precedents barring “tie-in” arrangements. The holding that such aggregate licensings are not per se a misuse of the patent grant says, at most, that a patentee may pool his patents, at least some- , .... ft • i what; it is far from affirming any compul- , . , , , Jr . ~ L sion upon him to do so, and that, too, at the behest of third parties.
Other analogies, less pressed, seem even more far-fetched. Padua can hardly hope to claim as third-party beneficiary, since (even if New York law would otherwise permit) the licenses not only show no intent or desire to benefit Padua, but are instinct with the contrary purpose. Nor can the reference to future developments m the 1945 license-in the words I have italicized above-be taken as an admission or a basis for estoppel to include this device m the earlier transfer. Passing the point whether such a fundamental relinquishment of rights could properly be discovered m an agreement so collateral to the mam transfer, it is at once clear that the statement is too innocent and colorless to have the effect suggested. In this crowded field of invention, so crowded as to require the division and reissue of Parissi’s patent as recounted above, a statement to one not a party to the initial transfer that he had made additional developments relating to the subject matter of his earlier patents seems innocuous indeed. These several additional patents were “related” to Parissi’s earlier telephonic signal patents as these in turn were to Parissi’s still earlier holdup alarm signals. But there is nothing in this perfectly true and obvious statement to make the patent in question a part of a transfer of the earlier specifically described patents. To anticipate here a matter discussed below, it is far from the specific relinquishment of claim such as was made by Padua in 1946 in answering a state court suit by Parissi raising this issue. Finally Padua’s attempted ratification and adoption of the license, by so stating in its answer herein, seems to me quite meaningless.
Hence I .find no basis in the license agreements for a substantial extension of the 1939 contract to justify the result below. These are all the issues passed upon by the trial judge and argued by the parties on this appeal. But some question has arisen within the court as to the possibility 0f a claim by Padua outside and beyond the contracts. To this I now turn.
, ... .. . , Third. The answer to the question just ... , . . „ 1 raised of a further possible claim to Padua ^ , . .... seems, to me, most clear; no such claim is . ^ , -n j 1 justified on the facts and Padua has not made it and would be indeed surprised at its suggestion.
IrreSpective of the lack of claim, the possibility that Pariss¡ might be considered & trustee of thig invention as one developed on its time and for its benefit seems not at all permissible on this record. As we have seen, the parties made a complete settlement in 1939> at a time wdl after considerable attention had been given t0 the development of a süent alarm dock. Against this back_ ground) any new and further burden Qn parissi must be based Qn dther a very dear and defin¡te new contract or dse such extensive use of Padua faciiities as t0 lead directly t0 the fruition of the inventive idea> For an inventor’s ideas are his own unkss he disposes of them by agreement Qr by conduct whidl may justify shop rights to bis employer. He is not bound to yidd up Ws invention by the mere fact of employment — even though it may have continued, as it did not here, until invention was achieved. United States v. Dubilier Condenser Corp., 289 U.S. 178, 53 S.Ct. 554, 77 L.Ed. 1114, 85 A.L.R. 1488, with annotation at 1512; Heywood-Wakefield Co. v. Small, 1 Cir., 87 F.2d 716, certiorari denied 301 U.S. 698, 57 S.Ct. 925, 81 L.Ed. *3561353; American Circular Loom Co. v. Wilson, 198 Mass. 182, 84 N.E. 133; McNamara v. Powell, 256 App.Div. 554, 11 N.Y.S.2d 491; White Heat Products Co. v. Thomas, 266 Pa. 551, 109 A. 685; Dysart v. Remington Rand, Inc., D.C.Conn., 40 F.Supp 596, 601. Here, whether we take Parissi’s testimony that the work was unsuccessful or McRedmond’s that it eventually produced a workable clock, it is wholly clear that this was not the clock finally used nor was the idea upon which it was based eventually employed in plaintiff’s products.
This Padua substantially concedes in its reliance upon the contracts. True, it does make allegations that Parissi abused his fiduciary position with it. But that these are supporting or atmospheric, rather than ultimate, allegations is made clear time and again. The uttermost reach of the assertion appears in Padua’s carefully and shrewdly framed final statement in its brief to us: “While the case was properly determined by the District Judge on the basis of the two contracts, and while we feel that it is unnecessary to depart from the four corners of the contracts in order to reach the proper decision, it must be always borne in mind that Parissi was not only an officer and a director of Padua but was for many years its alter ego. Consequently, it is respectfully submitted that Parissi is under a much heavier obligation toward Padua them is ordinarily the ccese of one party to a contract.” (Emphasis supplied.) But it is still as a party to a contract that he is to be held, and for that- — and that only— which the parties fairly contemplated in the making of the contract.
The record in the court below consistent-ly bears out this view. In its cross-daim Padua made preliminary allegations of Parissi’s interconnections and relationship with it and then alleged the 1939 contract and prayed first for a decree ordering Parissi to assign all five patents to it. As a second or alternative prayer, it asked for a decree holding the 1939 contract in full force and effect and requiring the pay-ment to it of all royalties under the Gen-eral Time licenses, and also for an in-junction prohibiting Parissi from entering into any agreement with third persons re-specting any of the five patents, specifically described by their numbers. Final prayers, eve11^ neither of the first two were granted, asked for the return of the $5,000 Paid Parissi on September 23, 1939, and the usua^ such other and further relief that ^ ^be Court may seem proper. ’ At the ^ial Padua s counsel took the unusual course of amending its prayers for relief to strike out a11 reference to the last patent, ^°; 2,444,748 — the only one important here, This is highlighted by the court s state-ment: So ^ that the affect [iic] of the amendment is to eliminate those particular patents 244748 [$¿c] from the law suit?” and counsel’s response: “We 'have asked here that they assign to us. We are re-linquishing that.” And in colloquies with the court at the end of the trial counsel further amplified his position that Padua was not making any claim under the new patent itself, or directly for what Parissi had invented after he left its employ; it was instead claiming under its contract, That is made abundantly clear from the extracts quoted in the margin.1
*357It is this background which makes understandable other developments in. the record, such as the opening statement of Padua’s counsel relying on the two agreements and concluding that “We are here to collect eighty per cent that we honestly believe we are entitled to,” not — be it noted — one hundred per cent or some figure other than the contract figure. So in its final brief below it relied again on the contracts and ended by stressing Parissi’s “desperate attempts to avoid fulfillment of his clear obligation to live up to the terms of his agreement with Padua.” And its brief to us sets forth as its only contention that the judge “was obviously correct in holding that the contracts were not sever-able and that the royalty payments made by General Time are total consideration for a total privilege.”
The trial judge accepted and acted upon this approach. lie states in his opinion: “The considerable evidence received relating to the development of the alarm clock which contains both flashing and audible signals, its status at the time Parissi ceased his employment with Padua-, the efforts made to exploit and perfect the device, have not been overlooked. No findings are made based thereon, and no discussion thereof is deemed necessary for the reason that the rights and obligations of the parties are included within the terms of the contracts, and the evidence above referred to, in the absence of fraud or invalidity, has no bearing thereon.” And so he discusses the contracts and upholds the agreements, finds that Padua has ratified the license to plaintiff, and directs a decree en-forcing the contracts and ordering the royalties paid over to Padua. The judgment he entered goes even further in its provision that the moneys received by Padua under it “shall be distributed by it in ac-cordance with the terms and conditions of its agreement with said Parissi” of September 26, 1939. Thus Padua was to re-ceive nothing over its agreed eighty per cent, while Parissi and his lawyer took the other twenty per cent. This seems to me quite conclusive as to what Padua wanted and the court gave. Its bearing on the question of appealability discussed below seems also obvious,
I add that even on Padua’s own contentions, there seems some incoherence in what it claims. At one time it apparently intended no claim of any kind as to this invention. For in 1945, after plaintiff had raised question upon finding the 1939 con-tract on file in the patent office, Parissi started suit against Padua in a state court attempting to obtain a declaratory judgment releasing him from Padua’s claim on this invention and Padua’s president in 1946 verified an answer saying as “a sep*358arate affirmative defense,” “That the Defendant does not now claim, nor has it at any time claimed, any interest in the so-called ‘silent alarm clock’ or invention thereof referred to in paragraphs of the complaint numbered 3, 4, 5, and 7 or in any contract the Plaintiff may have made in connection therewith.” On the basis of this Parissi withdrew his suit, thereby, apart from all else, providing all the elements of estoppel against Padua from making its present claim. McRedmond on the stand tried to explain away this answer by saying he did not know just what Parissi was claiming, a dubious contention in the light of the language used and surely unavailing in the absence of some fraud. For the suit itself called upon Padua for a very definite answer and it was Padua s bus:ness to know what and how it was answerln^‘
Again Padua shows some doubt how long its claim is to continue. In the colloquy quoted in footnote one above, Padua’s counsel refers to the period from 1945 to 1950 when Parissi’s first patent with its more extensive claims was in existence with a claim that “read exactly” on the clock claimed to have been made by Parissi before Parissi left in 1941. Then he adds, “Consequently we feel that we are certainly entitled to collect for that period.” Not only the implication of this statement, but the logic of his argument would clearly suggest that in no event should there be any payment to Padua after 1950, after which time no claim affecting Padua was being utilized in the Parissi device. But even for the period in question the contention appears unacceptable. General Time did not use or pay, nor did Parissi accept royalties, for a device made according to the broader and admittedly invalid parts of the original patent grant. Since no one was defrauded or injured, no reason appears why the part accepted by the parties should not have its normal effect from the time of the original license or why Padua, a stranger, should profit by the harmless assertion of illegal claim.
This question of termination of Padua’s alleged royalty claims has also troubled my brother CHASE, who suggests as a date of termination of any payments to Padua, November 9, 1954, that being the date of expiration of the last of the four original patents to Parissi. I can see no reason, except perhaps some general equity, for such a terminating date. Either the royalties go to Padua or they do not; Padua's right can- hardly be propped up on the basis of some other, not presently, applicable patents. I realize the oddity of requiring payments to Padua after all the patents in which it has any formal interest have ex-pired. But that suggests, I submit, a re-examination of the interpretation réquiring so odd a conclusion, rather than a resuit shaped by the equities of only the chancellor’s foot.
pMrá A final question as to the appealab;lity of the judgment has. been raised Qnly wMlin the court; the parties wiu be as surprised as litigants often are to find arising questions of jurisdiction which they had never imagined. But to me the answer to this issue is also most clear. On the analysis above, the trial judge decided the only question before him for decision, Consequently the judgment was most def-initely final. No occasion for the judge’s further action to render it final under Fed. Rule Civ.Proc. 54(b) was presented, since that applies only to an order “which adjudicates less than all the claims.”
jn order that my position be not misunderstood I add that I think the same re-sujj. would follow had Padua asserted and pressed an alternative claim to hold Paris-sj as trustee for it of this patent, and had the judge made this same decision. For jj. would be wholly clear that, by this very act,.the judge was rejecting the alternative claim in favor of the one based upon the contract. (Indeed, he could not grant them both at once; this the eighty per cent feature of the contract prevented.) Certainly a judgment is not prevented from being final if the judge does not in words elaborate on every theory presented by counsel. When a judge thinks he has £na.lly adjudicated a case, and renders a complete judgment, that is final. He may have committed error in the theory he re-jected as well as in the theory he accepted; but that should be corrected on appeal— *359that indeed is the purpose of appeal. The very error should not render the judgment unappealable. The final judgment rule, traditional in federal practice, has many merits in preventing appeals on form and procedure and m limiting review to the merits. It should not be pressed to the pomt where it itself becomes an mstrur . . ment of technicality, preventing review of matters which the parties and the judge , . , . v . ,, , thought — with entire propriety — had been ...... f f aut ontativey ispose o
^ I conclude, therefore, that Parissi, and not Padua, is entitled to the royalties in issue, payable with respect to the clock patented in^ Patent No. 2,444,748, that payments with respect to this device are not covered by the Parissi-Padua contract of September 26, 1939, and that the judgment of the district court should so declare. The judgment is therefore reversed and the action is remanded for a judgment in accordance with this opinion.
. “The Court: What do you say about the proposition that this clock which is now patented by Parissi after he left and is now apparently being manufactured, or the patent at least, is being used by the General Time was a product of his mind or skill, or both, occurring after his severance from the company and not within the contemplation of the agreement?
“Mr. Kenway: To that I say first that Padua is not claiming any interest in anything he invented after he left the employ of the corporation. The second thing I say- in answer to that is this: From 1945 until 1948 as far as any patent on the clock was concerned it was represented solely by the original Parissi application. The first patent issued in 1948 and it wasn’t until 1950 that there was an application for re-issue. The resuit is that in the patent as it issued in 1948 there was a claim that reads ex-actly on that part there. The fact that from 1945 when the General Time instrument agreement was signed until 1950 when they applied for a re-issue they were under the shield there by asserting the claim in the patent itself that read exactly on the clock there. That is what *357he had before he left. Consequently we feel that we are certainly entitled to collect for that period.
“The reason I struck from the complaint the reference to the original patent was because it has been re-issued and in the process of the re-issue the claims have been narrowed down to what he invented after he left the employ. The original patent no longer exists. That was surrendered to the Commissioner of Patents and all there is is the re-issue and that has claims that we are very clear about. He did that after he left the employ for whatever worth it may be. But until that re-issue application came out the production afforded Parissi was describing the same clock before he left. “The Court: Did I get the full import
of your statement there? Did you say that the patent now issued, which is Exhibit 20 contains only claims which you concede were invented by Parissi after he left?
“Mr. Kenway: Yes.
“The Court: Well, then do you still claim then the right to recover royalties for the use of that patent?
“Mr. Kenway: Not for the use of that patent alone, but we still claim the right to receive royalties under the license in-volving the other four patents which have not expired.
“In our original pleadings we prayed that the Court assign us that clock pat-ent. After the suit was filed then the reissue came along and we felt we had no claim to the re-issue. That does not affeet the situation. We are not trying to claim royalties on any patent. We are trying to claim royalties on two agree-ments, and the Supreme Court said it wouldn’t have made any difference if they had never made a clock or never praeticed any invention in this agreement. .If they made locomotives and decided to pay royalties then I say we are entitled to eollect.”