AM. DIAMOND ROCK BORING CO. V. RUT. MARBLE 00.
It is argued that because the other parts were made to be used with those that infringed, in violation of the plaintiff's right, the plaintiff has the same right to have their uance in use restrained as the continuance in use of the infringing parts. But this ground does not appear tenable. There is no forfeiture of other property as a penalty for infringement of a patent. Had there been a decree for the destruction of the machines to prevent further infringement, it would have extended only to the infringing parts, if they could be destroyed without destroying the other parts; and these could be. Needham v. Oxley, 11 Weekly Rep. 852. The object of the injunction is merely to secure to the plaintiff its exclusive right during the term of preventing the de-· fendants from taking any part of it out of the term and enjoy.. ing it, and not to punish the defendants for any wrong done by them, either during the term or after. Motions denied.
AMERICAN DIAMOND ROCK BORING COMPANY MARBLE COMPANY.
(Circuit Oourt, D. Vermont. March 8, 1880.)
PATENT-BILL TO ENJOIN AFTER EXPIRATION OIl' PATENT-WHAT MUST BE ALLEGED.-A
bill to enjoin the use of a patented device, after the expiration of the patent, must allege that the defendant is using rna· chines manufactured during the existence of the patent, or that the ora-tor fears such use.
In Equity. Charles F. Blake, for orator. Prout « Walker, for defendaut. WHEELER, D. J. This cause has been heard upon a motion for a preliminary injunction against infringement of a patent, the term of which has expired. The bill alleges that the defendants have, since the date of the patent, and since the title to it became vested in the orator, infringed by using machines embodying the patented invention. and that the orator fears the defendant will continue to use such machines;
but does not allege that the defendant is using m::1Chines made during the term of the patent in infringement upon it, nor that the orator fears such use. Without these allegations the case is not within the decision in Crossley v. Derby Gas-Light Co. 4 Law Jour. N. S. Pt. 1 Chan. 25, and shows no ground for relief by injunction. The other cases in favor of the orator, in which similar motions have been made, stand in the same way, and are to follow this. Motion denied.
AlIIERICAN DIAMOND ROCK BORING
Co. v. and others.
(Circuit Court, D. Vermont.
PATENT-INFRINGEMENT ENJOINED DURING
May B, IBBO.)
TERM-NoT ENTITLED TO
party who, during the term of a. patent, has been enjoined from using a. machine infringing thereon, is not, upon the expiration of such patent, entitled to be relieved frum such injunction as to a. machine manufa.ctured during its existence.
DISCHA.RGE UPON EXPIRA.TION.-A
Charles F. Blake, for plaintiff. Edward J. Phelps, Walter C. Dunton and Aldace F. Walker,
for defendants. WHEELER, D. J. This is a motion to discharge the injunction on account of the expiration of the term of the patent. At the time of the expiration the defendants were using machines made during the term of the patent for use, in violation of the plaintiff's exclusive rights. It is argued for the defendants that to continue the restraint upon such machines after the expiration of the term of the patent is in effect to extend the term of the patent. The grant to the patentee was of the exclusive right to make, use, and vend to others to be used, the invention during the term. The right to exclude others from making, using and selling was the essential thing, and really all that was granted. He had the right to do all these himself, to any extent, without the grant. The exclusive right was