BEA.Y V. RA.U.
REA.Y, Ex'r, etc., v. BA.u.
(Circuit (Jourt, S. D. New York. March 14, 1883.)
PATENTS FOR INVENTIONs-INFRINGEMENT-EvIDENCE OF.
Where defendant was called by plaintifi in rebuttal of his own testimony, and it was insisted that defendant, by one answer in regard to a date, established an infringement which had not been the subject of previous testimony, and that this answer was to overthrow his uniform denial of the infringement, and of the infringing device having been made during the life of the patent, with\lut the knowledge and permission of the patentee, held, that such testimony is not sufficient to make out a case of infriqgement.
Arthur v. Briesen, for plaintiff. Edward Fitch, for SHIPMAN, J. This is a bill in equity praying for an injunction and an account, and is founded upon the alleged infringement by the defendant of reissued letters patent No. 2,529, dated March 26, 1867, and of original letters patent No. 41,395, dated January 26, 1864 of said patents being for improvements in envelope machines, and each having been issued to George H. Beay, the plaintiff's tes· tatar, as inventor The original of the reissued letters patent was issued August 25,1868. The bill was filed October iI, 1880, afterthe expiration of No., 2,529, and shortly prior to the expiration of No. 41,395. The bill does hot allege that the defendant has for sale, or was using or was intending to use or to sell, any infringing machines which were madedurillg the term of the patent No. 2,529,in infringement of it. If such an allegation had been made, it would have untrue. When the bill was filed, the defendant, who is a manufa-p. turer 6fthis class of iron work, had no patented machines hand. When the patent expired he had one machine in stock, whIch he had made in accordance with the understanding, and the usual coul-seof business between the patentee and himself, that he should keep ma.chines in stock, so that orders might be promptly filled. " The facts of this case do not it withIn the decision of Judge WHEELER in Diamond Rock Boring Co. v. Sheldon, 1 'FED. REP. 870, but are within his decision in Diamond Rock Boring Co.v;'Rutiand Marble Co. 2 FED. REP. 355. Thet·e-a.re in this branch of the casie' no allegations upon base avrayer for' the defendant's use or sale of machines.' There is, t'herefore, no occasiont.o inquire whether theflrst-named decision 'is sequent opinion of the stipreme court in Root v. 'i65 '0. S. 189.
Infringement of patent No. 41,395 was not shown. In rebuttal of the defendant's testimony, the plaintiff called the defendant, and now insists that he, by one answer in regard to a date, established an infringement which had not been the subject of previous testimony, and that this answer is to overthrow his uniform denial of his having made the infringing device during the life of the patent without the knowledge arid permission of t4e patentee. Such testimony is not sufficient to make out a case of infringement. The bill should be dismissed.
((lircuie Oourt, 8. D. New York.
'PATlIlNT LAW-DIB:&f;IBBAL OF
Bn,x,. Where the subject of the patent in controversy in this case hRS been by the circdt court for this district not to be patentable, such declslon is con. clusive on this court, and the bill wUl be dismissed.
James C. Cloyd and Wm. J. Underwood, Jr., for plaintiff. IIoward A. Sperry, for defendant. This is a bill in equity to rE;lstrain the alleged infringement of letters patent No. 220,767, which were issued to JohnMc.Closkey on October 21, 1879, for an improved plumbers' trap of soft metal. This patent has been twice the subject of examination by Judge WHEELEa, in the circuit court for this district. McCloskey v. I?u Bois, 8 FED. REP. 710, and 9 FED. REP. 38.. The facts which the plaintifl; proved upon the second hearing are the same which he relies upon in this case. Judge WHEELER'S opinion was that the alleged invention, which is the subject 'of this patent, is not patentable. That must be taken to be the law of this circuit until either a state of facts is proved which shall present a different case, or until the conclusion 9f law upon the facts. as now shown shall be overruled by the supreme court. My own examination of the case leads me to· concur in the result which Judge WHEELER rea.ched. The intention of.thEi plaintiffin bringing this bill "as probably to present the case 'in a clear and accurate manner that cOJ;lclusion of J ndga WHEELER might be properly by the court. TlJeplea ie sustained and the. bill is dismissed.
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