MATTHEWS V. SPANGENBERG.
(Oircuit Oourt, 8. D. N8'UJ York.
PATENTS FOR INVENTIONS-VIOLATION Oll' INJUNCTION.
Where defendant has been guilty of a contempt in disregarding the injunction of the court, but the act of contempt does not app.ear to be at all willful or defiant, but merely the exercise of a supposed right under advice taken and given in good faith, it does not deserve punishment as such, but he should make the orator whole as to the damages sustained thereby.
In Equity. A. v. Briesen, for orator. Philip Hathaway, for defendant. WHEELER, J. This cause has now been beard npon motion of the orator for an attachment against the defendant for an alleged violation of the injunction heretofore granted,restraining the defendant from infringing letters patent, reissued No. 9,028, grahted to the orator,da.ted January 6, 1880, for a soda-water apparatus. Onthe papers it appears that the defendant has continued the use of an apparatus called the 'Gee Invincible apparMus, which was at the hearing in chief adjudged to be an infringement, except that he has not used the parts which draw syrup; and that he has paid to the orator the damages found by the master to have been sustained by use of this apparatus by the defendant. It is argued for the defendant that this payment has freed the use of this machine from the operation of the patent. The damages recovered by the orator are not for a sale for use, which would probably free the whole use, nor for the use now complained of, which would probably be a satisfaction for that 'use and entitle the defendant to have it, but were for a prior use of the infringing device, and made satisfaction only for that use·. The use complained of has not been paid for, and is not justified by the payment made for something else. A part of the patent is for that part of the apparatus f()r containing and drawing the syrups; and a part for that part containing and drawing the waters. As the defendant has since the injunction, used the former part, he has 'not infringed that part of the' pat nt. The qualities of the liquids have nothing to do with the working of either part. The syrups CQuld any of them 'be contained' and drawtl in the parts for the waters, and the waters in the parts for 'syrups, as well as in the parts assigned to them in use, so far as the liquids themselves are concerned·. The patent is not for stonngand.dl'aw-
ing particular liquids, but is for apparatus for storing and drawing liquids in particular modes. As to that part of the patent which covered apparatus for the waters and was held to be valid, the defendant infringes it, although he does not use the other part. The sixth claim of the patent is for a (lombination of parts. It would not be infringed but by use of that combination. The parts drawing syrups enter into the comthere the same office that the bination in the same way, and corresponding parts drawing "vaters do. The use of either is the use olthe combination, without the use of the other. The defendant, by using those parts for drawing waters, has used so much of the pat· ented invention. He must, therefore, on this showing as be adjudged guilty of a contempt. The act does not appear to have been at all willful or defiant, but merely the exercise of a supposed right under advice, taken and given in good faith, and is not considered to deserve punishment as such. He should merely make the orator whole. .The defendant is adjudged guilty of the contempt charged, and is sentenced therefor to pay the damages sustained by the orator thereby, to be ascertained by the master, to the orator, with the costs of these proceedings.
(DistriCt Gour', E. D. Penns.lI/vania. Februl\ry 14, 1883.)
ADMIllALTY DIVIDED. l'RACTlCE ApPOR'rIONMENT OF COSTS WHERE DAMAGES ARa
Full costs in admiralty proceedings do not always follow a judgment for partial damages. 2.
BAME-LrBELFOR COLLISION-JOINT NEGI.IGENCE.
Where a collision resulted from joint negligence and the lijlelnnt recovered a judgment for half damages, there being no cross-libel, or allegation of damage in respondent's answer, the costs may also be divided.
Motion for Allowance of Full Costs to Libelant. The owners of the schooner S. B. Hume recovered a judgment half upon a m;lel for collision against the steam-ship Penndecree reserved the sylvania, reported in 12 FED. REP. 914, question of costs, whereupOn the libelant moved for an allowance of full costs·
. "Reported by Albert B. Guilbert, Esq., of the Philadelphia bar.