Curry v. Charles Warner Co.

Citations

• 16 Del. 98

Syllabus

<p>Patent, Assignment. Profits.—Where a patentee sells his rights under the patent of an entire process under an agreement to receive as part of the consideration therefor á specified share of all profits to be derived by the purchaser from the use and employment of the patented invention, the word profits means acquisition beyond expenditure, or the excess of sale or value received over costs.</p> <p>Same.—Under an agreement for the sale of a patent in part consideration of a share of the profits of its use and employment, where the patented invention is a process covering an entire manufacture, and not improvement on, addition to, or combination of any other machine or process, the profits are not to be measured by the advantages gained in excess of those resulting from any other process of manufacture, but by taking the total sales of the manufactured product, and deducting all legitimate costs and charges of the manufacture and sale.</p> <p>Same.—In estimating profits of the use of a patented invention it is not permissible to take such items of the business as may show gain and reject such as show loss, but the entire business must be taken when that is covered by the use of the patent.</p> <p>Same. Tender.—Where, under a contract for the sale of a patent party in consideration of the payment forthwith of a specified share of all sales of the invention in whole or in part, the patent was assigned to a corporation and payment received in its stock, a tender of the specified share of such stock made one year and four months after the assignment, was not such as to interfere with the right to recover the value of the stock as of the date of the assignment.</p> <p>Covenant. Construction.—In an action for the breach of a covenant it is to be construed most strongly against the plaintiff covenantor.</p> <p>Witness. Refreshing Memory. Memorandum.—A witness may refresh his memory from a memorandum which he has made from books of account and verified.</p> <p>Attorney an