Appeal from the Superior Court of Cook County; the Hon. A.L.
MAROVITZ, Judge, presiding. Reversed.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 18, 1963.
This is an appeal from a decree confirming a Master's report entered by a Chancellor in the Superior Court of Cook County on October 26, 1962 ordering the defendant, Deno A. Del Vecchio, to assign his United States Patent No. 2,868,380, covering a flood control unit, to the plaintiff, Elra F. Howe.
The plaintiff, Elra F. Howe, brought this action based on an express agreement to assign patents entered into between the plaintiff and the defendant, Floodmaster Manufacturing Corporation. The defendant, Deno A. Del Vecchio, ran an independent concrete products business and was engaged by Floodmaster Manufacturing Corporation to install flood control units, to prepare designs and plans for the manufacture of flood control units under licensed Howe patents and to make modifications and improvements thereon. Del Vecchio had no written agreement with Floodmaster Manufacturing Corporation in regard to the patents with which he was working.
On June 20, 1957, Del Vecchio filed an application in the U.S. Patent Office and was granted Patent No. 2,868,380 on a flood control unit. He refused to assign the patent to the plaintiff.
Since the Floodmaster Manufacturing Corporation is no longer in business the Master found that Floodmaster Manufacturing Corporation and its President, Ben Goldman, were no longer in the picture and that the patent should be assigned directly from Del Vecchio to the plaintiff.
The plaintiff-appellee's theory of the case is that regardless of whether one be called an employee where he is hired to improve a licensed device, and he does so, such patentable improvement must be assigned to the licensor, without regard to the precise legal relationship or contract of employment existing between the licensee and the inventor.
The appellant's theory of the case is that the decree is not supported by the complaint, and that to allow the decree to stand would be to deny him an opportunity to meet the issues.
The amended complaint of the plaintiff states:
"Defendant Deno A. Del Vecchio . . . was during a part of the time complained of herein an employee of Defendant Floodmaster Manufacturing Corp." (Emphasis supplied.)
"Defendant Deno A. Del Vecchio, was on and after May 4, 1955, in the employ of defendant Floodmaster Manufacturing Corp., in charge of the manufacturing operation at said facility . . . and was required by an express agreement with his employer, Floodmaster Manufacturing Corp., which agreement on information and belief was oral, to devote his efforts to the design of a flood control unit based upon data and information received from plaintiff, and further was required to exercise his inventive ability to produce improvements and/or inventions in ...