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'·.
FORD V. KURTZ.
improvement in apparatus for cleaning privies," and consists in the combination of a reservoir or receiving tank, a deodorizer whereby the fetid air is passed over burning charcoal or a gas-burning stove, and 80 forcing pump, together with an apparatus for emptying privy vaults. The invention set forth in the Painter patent is for "an improvement in pump valves," to be used in "combination with a flap valve, the stiffeners or braces being arranged to prevent collapsing." Complainant shows that the validity of these two patents under which it claims has been confirmed by a decree of the United States circuit court for the fourth circuit and district of Maryland, in the case of this complainant and Burton A. McCauley. The only question, therefore, is that as to infringement. The evidence upon the point of infringement is a description of defendant's method by August Guerin and the opinion of Joseph Jouet. This testimony is very explicit, and l if the facts stated by Guerin and the opiniollsand deductions of Jouet are correct, show an infringement of both patents. To meet this evidence the defendant introduced the affidavits of Michael Kern and Peter Frisht, which substantially deny any infringement. The affidavit is a joint one, and is largely in the nature of an opinion, and while its language shows scientific discrimination, it is not stated or shown that the affiants are experts. I think, therefore, the injunction should issue, with leave to the defendant to move to dissolve upon his filing his answer upon fuller showing, if he shall so be advised. Let the injunction issue.
FORD 'V. KURTZ
oourt, N. D. Illinois.
Where the infringement was neither wjlful nor malicious, only the-net profits realized from the manufacture and sale of the patented articles w:ill be allowed. 2.
Where the defendants were willing, at the outset, and offered to pay the amount of net profits realized by them, and costs have been unnecessarily accumulated, the _parties should pay their own costs, and each party pay half the master's f e e . ' , .
Bellou'8, for complainant. Mf'. Sherburne, for defendants.