802
FEDERAL REPOR'l'ER,
vol. 39. & CO., Limited. September 14, 1889.)
HURLBURT
et al. v.
CARTER
(Oircuit Oourt, No D. New York.
PATENTS-INFRINGEMENT-PRELIMINARY INJUNCTION.
On bill for. infringement of It patent, it appeared that the patent had never been adjudicated, and that many infringing devices existed. An averment in the moving papers that the patent had been recognized by the public was Dot supported by facts. The defense involved the validity of two patents. Defendant had invested large sums in business, with the knowledge of complainants, who were guilty of laches in asserting their rights. Defendant was amply responsible, nnd it appeared wonld suffer greater injnry from a pre· liminary injunction than complainants would if it were refused. He'd, that a preliminary injunctio·n would not be granted, even though defendant did not cast serions doubt on the validity of complainants' patent.
In Equity. On motion for a preliminary injunction. Bill by Charles A. Hurlburt and others against Carter & Company, Limited, to restrain an alleged infringement of a patent. Wells W. Leggett, for complainants. W. Caryl Ely, for defendant. COXE, J. The complainants' patent, No. 288,048, was granted to John H. Frink, November 6, 1883, for fln improvement in duplicate sales-slips. The patent has never been adjudicated. There is no proof of acquiescence. True, a general statement that the patent has been recognized and respected by the public appears in one of the affidavits, but it is unsupported by facts. Names, places, and figures are wanting. An indefinite averment of this character avails but little, especially when it also appears by the moving papers that infringing devices in large numbers have been openly sold and used since January, 1887, in the complainants' own city. The defendant insists that its copying-books are manufactured under a reissued patent owned by it, and that the complainants' patent is invalidated by a prior patent granted to John R. Carter. These defenses necessarily involve a careful analysis of the patents referred to, and a determination as to the validity of the reissue. Although they do not, as now presented, offer a formidable barrier to the complainants' recovery, yet, in the light of the final hearing, they may, perhaps, assume a different aspect. It is strenuously asserteo, and not satisfactorily denied, that the defendant has invested large sums inltsbusinesswith the knowledge of the complainants, and that the latter have been guilty of inexcusable laches in asserting and maintaining their rights. The defendant is amply responsible, and will suffer greater injnry if the injunction is granted than the complainants will if it is withheld. The cause is one which, if due diligence is used, can be prepared for argument at the next term of the court. In these circumstances, even though it be conceded that the defendant has not succeeded in casting serious doubt upon the validity of the
CONSOLIDATED'ROLLER-M'LL CO. tI. COOMBS.
1803
it would seem that the safer and wiser course will be not to permit this severe and arbitrary writ to issue at the present time. Fish v. Sewing-Machine Co., 12 Fed. Rep.495; B?'own v. Hinkley, 6 Fish. Pat. Cas. 370; Hockholzer v. Eager, 2 Sawy. 363; Spri'ng v. ing-Machine Co., 4 Ban. &A. 427; Keyes v. Smelting Co., 31 Fed. Rep. 560; Kittle v. HaU, 29 Fed. Rep. 508, and cases cited on page 511. The complainants are at liberty to move, upon proper proof, for a bond, and, if the final hearing is unreasonably delayed by the defendant, this motion may be renewed.
CONSOLIDATED ROLLER-MILL CO. (Circuit Court, E. D. llfic7tigan.
'1).
Comms.
July 22, 188{l.)
PATEKTS FOR IKVEKTIONs-INJUNCTION-SUSPENSIOX OF WRIT.
After an adjudication upon the merits in a patent case. an injunction will not be suspended unless public interests are involved. or the issuing of the writ will involve the stoppage of a manufactory in the operation of which a large number of persons are interested. Hence. where the defendant used but one machine. and the evidence tended to show that the patented device might be taken out of such machine without great expense or long continued stoppage, it was held that the injunction ought not to be stayed.
(Syllabus by tlte Court.)
In Equity. On motion to stay injunction. Plaintiff obtained against the defendant the usual decree in patent cases for an injunction ngainst further infringement, and a reference to a master to compute danwges. Defendant moved to stay the issuing of the injunction upon the ground that plaintiff was not a manufacturer, but derived its profits from selling or licensing its machine, and that the damages to defendant by stopping his mill would be out of all proportion to the amount of plaintiff's license, or to any damages that would be occasioned to it by defendant's continued use of machines. R. Mason, for plaintiff. Parkinson & Parkinson, for the motion. BROWN, J. We are asked by this motion to determine whether after an adjudication adverse to the defendant upon the merits of a patent case we ought to stay the issue of an injunction until final decree. So far as preliminary injunctions are concerned, it is entirely well settled that while the patent may be adjudged valid and the defendant an infringer the award of an injunction is purely a matter of discretion, and courts are constantly in the habit of withholding it upon such terms, as to the giving of a bond and the like, as may seem just and equitable, having regard to the comparative injury that will result to the parties by granting or withholding it. Parker v. Sears, 1 Fish. Pat. Cas. 94; Howe v. MOI'ton, ld. 586; Morris v. Manufacturing Co., 3 Fish. Pat. Cas. 67; Tracy