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.
HARLAN, Justice, (orally.) The findings of the master in this case are correct. The infringement by defendants of complainant's patent was neither wilful nor malicious. The case does not justify a decree against them beyond the net profits realized from the manufacture and sale of the patented articles. That sum is found to be $28.06. For that sum the complainant may have a decree. In reference to the costs the conclusion is justified by the record that the defendants were willing at the outset, and through their attorney offered, to pay to the complainant the amount of the net profits realized by them, but the complainant was desirous of mulcting them in damages, under circumstances not calling for such a course. Costs have been unnecessarily accumulated, and I think it just that the parties be required to pay their own costs, and each party must pay one-half of the master's fee, as it may hereafter be fixed by the circuit
and others.May 3, 1882.)
(Oircuit Court, E. D. PennsyZfJania.
PATENT-APPABATt18 FOR ENAMELLmG MOt1LDmG8.
Letters patent No. 163,825 for an improvement in apparatus for enamelling mouldings sustained.
Bill for an Injunction to Restrain the Infringement of a Patent. Charles Howson, for complainant. . J. W. Shortlidge, for defendants. Bt1TLER, D. J. A very few lines will explain our views of this case. Letters patent No. 163,825, for an "improvement in apparatus for enamelling mouldings" were issued to the plaintiff May 25,1875, containing a single claim, as follows: "An enamelling-box divided into two compartments by a slotted partition, and having openings at the end, in a line with the slot in the partition, all substantially as, and fOf, the purpose set forth." The bill charges infringement of this patent. The defences set up, and urged at the hearing, were first, that the patent is invalid, and, second, that the defendants have not infringed. The first was based principally on an allegation of prior use. As respElcts this it is sufficient to say that in our judgment, the allegation is not A written review of the testimony would be of no value.
"'Reported by Frank P. Prichard, Esq., oHhe Philadelphia bar.