#### Louis Kulesza et al., Appellants, v. Steve Kalisz et al., Appellees.

Gen. No. 42,688.

*673Opinion filed December 13, 1943.

Harold O. Mules, of Chicago, for appellants.

Mitchell Kilahowski, of Chicago, for appellees.

Mr. Justice Niemeyer

delivered the opinion of the court.

In 1942 plaintiffs brought a class suit to establish an equitable lien upon certain patents covering car wheels, axles, etc., for the benefit of themselves and several thousands of other holders of notes totaling $85,000,000, given in consideration of $2,500,000 loaned to the inventor and original owner of the patents prior to 1920. On motion of defendants, sued as the present owners of the patents, the second amended complaint was dismissed. Plaintiffs appeal.

Defendants assign several grounds for the dismissal of the complaint. However, there is a - controlling reason which would have justified the court, upon its own motion, taking such action. The complaint shows that through the lapse of time the subject matter of the litigation has wasted away, so that granting relief would be futile, benefiting no one. The latest patent involved was issued in 1908. All patents had expired by 1926. With their expiration all rights to manufacture, sale or use thereunder ceased (Kellogg Co. *674 v. National Biscuit Co., 305 U. S. 111; Delong Hook & Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359), as did the right to institute equitable proceedings, for infringement. Root v. Lake Shore & M. S. R. Co., 105 U. S. 189; Rice & Adams Corp. v. Lathrop, 278 U. S. 509. Furthermore, the federal statute (U. S. Code, Title 35 Patents, sec. 70) provides that “in any suit or action brought for the infringement of any patent there shall be no recovery of profits or damages for any infringement committed more than six years before the filing of the bill of complaint or the issuing of the writ in such suit or action.” Therefore, nothing remains but an abstract principle, devoid of tangible significance, and for the vindication of that equity will not entertain jurisdiction. 19 Am. Jur., Equity, secs. 20, 21. Nicholson v. Nicholson, 67 Mont. 517, 522.

Upon oral argument plaintiffs advanced the proposition that if interest in the patents was established, they might appeal to Congress for a renewal of the patents. If this power of renewal exists the exercise of it rests solely in Congress as a matter of favor or grace and creates no right or interest in plaintiffs recognized in law. Their position is not unlike that of a person who seeks to protect the estate of a rich relative in the hope or expectation that if the estate is preserved the active litigant may inherit a share of it. This expectancy, subject to defeat by the lawful act of the owner of the estate, is too conjectural and remote to be recognized as a legal right. Sanborn v. Carpenter, 140 Wis. 572.

The order of the circuit court is affirmed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur.