;, :... ;. Ji'EDEBAL BEPOB'tEB.
proper beveL" But this does not describe a wedge-shaped block having the grain running parallel to one and oblique to the other of its bevelled sides, nor how two of such blocks may be produced at the same operation without waste of material by iwo cuts of a saw. All of these three patents the respondent is shown to have infringed, in causing to be laid upon two of its streets, viz., Linco,ln and Fifth avenues, wooden pavements with wedge-shaped,' tr.ansverse channels made of wedge-shaped blocks, described in patent No. 94,069, and according to the method described in patent No. 94,063. In describing the mode in which the blocks used in these pavements were made, Mr. Diester, in his deposition, sufficiently identifies them with the patented block and process, but the ex.hibits produced by him are demonstrative. . lam, therefore, of opinion (1) that the of Turner Cowing, the weQge-shapeQ. assignor to Brown, is valid, and covers the cpannel or crevice, therein described, in wooden-pavement qonstruction; (2) that the patents to Ballard and Waddell, Nos. 94,069 .Q.nd 94,0.63, are also valid, and that they secure .to said patentees exclusive right to make and use, in wooden pavements, the blocks therein described; (3) that the channel is in the pavements aforesaid, .constructed for thEl city ofPittsburg% and that wedge-shaped blocks, formed and made substa,ntill.lly, .as described and directed in Nos. 94,062-:'63, were used in the construction of said pavements; (4) that there ought to be a decree for the complainants. Inasmuch as any interference with the usa. ()fthe ",ooden pave.· ments constructed in the city of Pittsburgh, in. infringement .of. th.e complainant's rights, would only operate injuriously upon the public, without benefiting the complainants, an injunction will not be granted. But there, must be a reference to a master to ascertain profits and damages, and a decree will accordingly be entered.
(Circuit Court, N. D. flZinois.
PATENTS FOR INVENTIONS-REMEDY AT LAW.
July 7, 1882.)
Where the assignee qf damages for infringement of a patent for an invention has an adequate remedy at law for an infringement of the patent, which expired before the assignment was made, a demurrer to the bill will be sustained without prejudice to a suit at law for damages.
HAYWARD V. ANDREWS.
G. M. Spier and Banning tt Banning, for complainant. West tt Bond, for defendant. HARLAN, Justice, (orally.) On the eighteenth of September, 1869, Aaron H. Allen, of Boston, executed a writing declaring that he had granted to Schemerhorn & Co. the sole right and privilege of manufacturing and selling school furniture made according to letters patent for a tilting seat, supported on the lever principle, granted to Allen on the fifth of December, 1854, reissued on the sixteenth of January, 1861, and extended seven years from December 5, 1868. On March 8, 1880, the patentee executed to Hayward, the complainant, a written assignment of all the former's interest in a certain decree in the circuit court of the United States for the southern district of New York, "together with all claims for damages arising-aince the eighteenth day of September, 1869, against any persons, firms, or corporations by reason ofinfdngements of letters patent of the United States for a tilting seat," etc. And by that assignment Allen made, constituted, and appointed Hayward his attorney irrevocable, "for him and in his name," but for the use and benefit of Hayward, and under certain named conditions, to ask, demand, and by all lawful ways and means to recover and receive, all moneydne and to become due in a suit pend. ing in New York, and to "collect the claims for damages herein before assigned, and on payment or collection of the same to acknowledge satisfaction; ot:give other good and sufficient releases and"discharges of the said judgments and claims." The assignment WIliS recorded'in the patent-office on May '25, 1881. On the twelfth of May, 1881, Platt, assignee in bapkruptcy of Schemerhorn & Co., executed a written assignment, purporting to be made in pursuance of the order of the bankruptcy court, transferring and conveying, for the consideration of $900, to Hayward, all of his right, title, and interest, as such assignee, in and to the letters patent granted to Allen, and the reissue and extension thereof, together with all claim, demand, and action and causes of action arising to the assignee. This assignment, being acknowledged, was recorded in the patent-office on May 25" 1881. The present suit in equity was commenced December 1, 1881, in the name of Hayward and Allen against A. H. Andrews; & 00., to recover the gains ,a,nd profits realized by defendants from an alleged unlawful making, using, and selling seats embracing the patented improvedamages sustained thereby. Subsequently, on May ,25, 1882, the bill wa,s dismis,sed by as to Ailen, and on 'day Hayward filed an amended bill, to which wllisapJ>ended the copies of the foregoing written assignments.
The case was submitted to the court upon a demurrer by defendants, the chief ground of which is that Hayward, as assignee of a claim for profits and damages, becoming such after the expiration of the extended patent, could not maintain a suit in equity to recover such profits and damages. Held: (1) The case of Root v. Lake Shore J; M. S. R. 00., determined in the supreme court of the United States at its last term, [11 FED. REP. 349, note,] establishes the proposition that Allen, had he never made an assignment of his claim for damages, could not himself have invoked the jurisdiction of a court of equity. (2) The contention of complainant's counsel is that Hayward, as assignee, acquired only an equitable title in Allen's claim for infringement, and therefore could sue in equity. Waiving any determination of the general question in the form itis now presented, it is sufficient in this case to say that Hayward has a complete and adequate remedy at law. So far as the present claim for damages against defendants rests upon the assignment by Allen to Schemerhorn & Co., and the assignment by their assignee in bankruptcy to Hayward, the latter can sue in his own name at law; and so far as his cause for action rests upon Allen's assignment to him, he can sue in Allen's name, since the writing executed by Allen gives him authority to do so. There is therefore no impediment which will prevent Hayward from resorting to remedies purely legal. The demurrer is sustained, and the bill is dismissed without prej. udice to a sl,li,t at law by Hayward.
ODORLESS EXCAVATING Co.
(On-cUi' Oour'. E. D. Louisiana. May,
Where the validity of a patent has been affirmed by 8 decree of 8· federal court it; will betaken as conceded, and, upon an applicatioI} fOf &l) injunction the only question will be as to the infringement., . ,
BILLINGS, D.J. This case is submitted on an application for an injunction to prevent infringement. Complainant is the owner by assignment of two patents-the Strauss patent, issued to Louis Strauss, January 28, 1868; and the Painter patent, issued to Wi1liatnPainter On the fifth day of August, 1873. The Strauss patent· was for "an
"Reported by Joseph P. Hornor, Esq., of the New Orleans.blU'·.