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RECENT CASESmade, forcing a probably dependent beneficiary to pay premiums for the balance of theinsured's life expectancy is a material change in the value of the promised benefit.Modern Woodoen v. White, 70 Colo. 207, 199 Pac. 965 (1921); Roblin v. Supreme Tent,269 Pa. 139, 112 Atl. 70 (1920); Fryer v. Modern Woodmen, 179 N.W. 16o (Iowa 1920);Sweet v. Modern Woodmen, 169 Wis. 462, 172 N.W. 143 (1919).The instant case joins a small minority in finding the by-law reasonable on thepractical basis that in the large percentage of the "disappearance" cases the insuredis in fact alive and the member is either attempting to defraud the insurance companyor has deserted his family. Steen v. Modern Woodmen, 296 Ill. 104, 129 N.E. 546 (1921);.lf cGovern v. Brotlrhood of Locomotive Firemen and Engineers, 31 Ohio C. C. 243 (19o9)aff'd, 85 Ohio 460, 98 N.E. 1128 (1911). This is especially true of mutual companieswhere many members are migratory workmen. The insurance is against death notdesertion. These courts point out that disappearance does not have the same value inindicating death as it did when the presumption was formulated because then travelwas hazardous. Excellent communication and police records render unlikely actualdeath being uncommunicated. These factors have led to a weakening of the presump-tion of death in at least one state. In New York it is now necessary to prove thatdeath was the "probable cause" of uncommunicated absence before the presumptioncan be invoked. See Butler v. Mutual Life Ins. Co., 225 N.Y. 197, 121 N.E. 758 (1919).Seemingly, therefore, in spite of the present weight of authority, it is becoming in-creasingly more difficult to say that future retroactive by-laws like the one in theprincipal case were not reasonably within the intention of the parties.Mortgages-Effect of Appointment of Rent Receiver on Existing Leases-[Illinois].-The plaintiff, who had been appointed receiver to collect rents on the mortgagee'sbehalf pending foreclosure, sued a tenant to compel payment of rent under a leasemade with the mortgagor subsequent to the mortgage and without the mortgagee'sconsent. The tenant contended that the appointment of the receiver terminated thelease. Held, for the plaintiff. The appointment of a receiver constitutes taking ofpossession by the court, not by the mortgagee, and does not constitute an eviction.First Nat'l Bank of Chicago v. Gordon, No. 38867, not yet reported (Ill. App. 1936).The instant case is the first Illinois decision on the point. For a thorough discussionof the problem, see Teft, Receivers and Leases Subordinate to the Mortgage, 2 Univ.Chi. L. Rev. 33 (1934).Patents-Applicability of Notice Provision to Non-manufacturing Patentees-[United States].-In a suit by the plaintiff for patent infringement, the defendantcounterclaimed for infringement of its patent. The defendant had not manufacturedthe patented article and had not given the plaintiff any notice of the patent until thefiling of the counterclaim. Section 4900 of the Revised Statutes provides: "It shall bethe duty of all patentees .... and all persons making or vending any patented article.... to give sufficient notice .... that the same is patented .... by fixing thereonthe word 'patented.'" It further provides that anyparty "failing so to mark" shall re-cover damages for only those infringements occurring after notice. R. S. § 4900, 35THE UNIVERSITY OF CHICAGO LAW REVIEWU.S.C.A. § 49 (1929). From a judgment of the circuit court of appeals, denying thedefendant's claim for damages for infringements prior to the filing of the counterclaim,the defendant appealed. Held, reversed. Section 4900 does not apply to non-manufac-turing patentees; the defendant may recover for infringements taking place both beforeand after notice given by the filing of the counterclaim. Wine Ry. Appliance Co. v.Enterprise Ry. Equipment Co., 56 Sup. Ct. 528 (1936).By the decision in the instant case, the Supreme Court has resolved a long standingambiguity in section 4900 which has given rise to a sharp conflict in the decisions oflower federal courts. On the ground that the words "it shall be the duty of all patentees"clearly include non-manufacturing patentees, courts have reached a result contrary tothe instant decision and non-manufacturing patentees have been required to giveactual notice as a condition precedent to recovery for infringement. Son v. PressedSteel Car Co., 21 F. (2d) 528 (D.C. N.Y. 1927); American Caramel Co. v. Thomas Millsand Bro., 162 Fed. 147 (C.C.A. 3d 19o7); Churchward International Steel Co. v. Betlde-heem Steel Co., 262 Fed. 438 (D.C. Pa. 1919); Flat Slab Patents Co. v. Northwestern GlassCo., 281 Fed. 51 (C.C.A. 8th 1922); Van Meter v. U.S., 47 F. (2d) 192 (C.C.A. 2d1931). Other courts, however, have urged, as did the Supreme Court here, that thewords "failing so to mark" imply the existence of an opportunity to mark. Olsson v.U.S., 72 Ct. Cl. 72, 102 (1931); Wagner v. Corn Products Refining Co., 28 F. (2d) 617,638 (D.C. N.J. 1928). Since manufacturing patentees alone have the opportunity tomark, the words "all patentees" have been limited to exclude non-manufacturingpatentees. Olsson v. U.S., 72 Ct. Cl. 72, 104 (1931); Campbell v. City of N.Y., 81 Fed.182, 184 (C.C. N.Y. 1897); Ewart Mfg. Co. v. Baldwin Cycle-Chain Co., 91 Fed. 262(C.C. Mass. 1898). Most of these decisions rest on or refer to Dunlap v. Schofield, 152U.S. 244 (1893). However, this case is not in point because it involved a manufactur-ing patentee who failed to mark. See Curtis, The Marking of Patented Articles, 21Col. L. Rev. 305, 31o (I921). Section 4900 has also been held inapplicable to manufac-turers using process patenis. U.S. Mitis Co. v. Carnegie Steel Co., 89 Fed. 206 (C.C.Pa. 1898); Wagner v. Corn Products Refining Co., 28 F. (2d) 617 (D.C. N.J. 1928). See77 U. of Pa. L. Rev. 704 (1929). But these decisions can be distinguished from theinstant case since the inability to give notice of a patented process by marking is dueto the nature of the patented subject matter rather than the failure of the patentee touse the subject matter of the patent.The decision in the instant case is unfortunate because it defeats the purpose ofsection 49oo. The patent records often afford inadequate notice to prospective manu-facturers and section 4900 was designed to give a fair warning to them by requiringmarking or giving of actual notice, at least, by manufacturing patentees. Since theneed for notice on the part of the prospective manufacturer is not reduced by the factthat the patentee has failed to manufacture, it is not reasonable to suppose that thelegislature intended to exempt a non-manufacturing patentee from the notice require-ment. It is of course true that a non-manufacturing, as distinguished from a manufac-turing, patentee has had no opportunity to give notice by marking. But since the ulti-mate purpose of patent law is to increase the supply of useful articles by rewardinginventiveness, it is socially desirable to encourage the manufacture by patentees. 33Law Notes IO5 (1929); 9 Conn. B. J. 140 (1935). To allow damages only for infringe-ments occurring after manufacture or notice might stimulate patentees to manufac-ture.RECENT CASESPractice-Appeal by Defendant to Whom New Trial Has Been Granted-[Ohio].-The defendant moved for a directed verdict at the close of the plaintiff's testimony andat the close of the entire evidence. Both motions were overruled and a verdict returnedfor plaintiff by the jury. The defendant then moved for judgment and for a new trial.The defendant's motion for judgment was overruled but his motion for a new trial wasgranted, on the grounds that the verdict was against the weight of the evidence. Nojudgment was at any time rendered for either party in the trial court. The defendantappealed, citing as error the overruling of his motions for a directed verdict and forjudgment after verdict. Held (one judge dissenting), the order granting a new trialwas a final order which would support an appeal from errors in the trial by the de-fendant to whom it was granted. Michigan-Ohio-Indiana Coal Ass'n v. Nigh, 131Ohio St. 405, 3 N.E. (2d) 355 (1936).The statement of the dissenting judge that an order granting a new trial was not afinal order sufficient to support an appeal was in accord with earlier Ohio decisions andwith decisions of other jurisdictions. Continental Trust Co. v. Home Fuel & Supply Co.,99 Ohio St. 453, 126 N.E. 5o8 (igig); Huff v. Pennsylvania R.R. Co., 127 Ohio St. 94,187 N.E. i (i933); Hunt v. United States, 53 F. (2d) 333 (C.C.A. ioth 1931). But tworecent Ohio per curiam decisions held an order granting a new trial a final order.Hocking Valley Mining Co. v. Hunter, 130 Ohio St. 333, 199 N.E. 184 (i935); Cin-cinnati Goodwill Industries v. Neuerman, 13o Ohio St. 334, i99 N.E. 178 (1935). See al-so Smith-Hurd's Ill. Rev. Stat. 1935, c. I10, § 201, Ill. C. P. A. 1933, § 77.The court in the principal case insisted that granting a new trial to the defendantshould not preclude him from appealing from the overruling of his motion for adirected verdict. The objection to allowing such appeal by the defendant after he hasmoved for and obtained a new trial is that he is thereby afforded too great an oppor-tunity to delay action in the case without any detriment other than the costs of appeal.And by so delaying he may force the plaintiff to accept a relatively unfavorable settle-ment.Where an order granting a new trial is not a final order, it is clear that no appeal canbe taken from error in the trial by the party to whom a new trial is granted. Bloom-berg v. Bloomberg, 148 Wash. 638, 269 Pac. 852 (1928); Wolfe v. City of Miami, 1r4 Fla.238, 54 So. i96 (1934). In Iowa the appellate court (on an appeal raising the suffi-ciency of the evidence) usually remands for a new trial only, even though it feels thatthe trial court should have directed a verdict or given final judgment. i Iowa BarRev. 57 (i935). And in the federal courts, the jury's return of a verdict for one partyprecludes the entry of a final judgment for the other party even though the court ad-mits that the evidence was insufficient to support the verdict. Slocum v. New YorkL. Ins. Co., 228 U.S. 364 (1913); cf. Baltimore v. Rediman, 295 U.S. 654 (i935); see alsoRules of Civil Procedure for the Federal Courts, rule 56 (prelim. draft 1936). Againwhile a statute seems to provide for final judgment on appeal from the granting of anew trial, Pennsylvania courts have been very reluctant to upset the ruling grantinga new trial. See Purdon's Penn. Stats. 1931, tit. 12, § 682; March v. Philadelphia Co.,285 Pa. 413, 132 Adt. 355 (1926).The Indiana courts have suggested that the defendant in moving for a new trial haselected not to pursue his remedy for the overruling of his motion for judgment nonobstante veredicto. See Lousiville Ry. Co. v. Miller, 141 Ind. 533, 37 N.E. 343 (1894);King v. Inlanu Steel Co., 177 Ind. 201, 96 N.E. 337 (igii); Evansville Ry. Co. v. Cook-

Recent Cases: Patents. Applicability of Notice Provision to Non-Manufacturing Patentees

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Recent Cases: Patents. Applicability of Notice Provision to Non-Manufacturing Patentees

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