while it stands. Magniac v. Tlwmson, 15 How. 281; Bac. Abr. "Ex.ecution," D. There is another view of this question which has been touched upon formerly in this case, and that is that the recovery of the profits of the sale for use vested the title to the use in the purchaser of the machines. Stone-cutter Go. v. Sheldons, 15 FED. REP. 608. It was upon this ground that the recovery of the profits against the Windsor Manufacturing Company was based. Stone-cutter Go. v. Windsot' M(tntlj' 9 Co. 17 Blatchf. 24. This view is supported by several decided cases, (Perrigo v. Spaulding, 13 BIatchf. 389; Spauldin,g v. Page, 1 Sawy. 702; Allis v. Stowell, 15 FED. REP. 242;) and it is not inconsistent with Blake v. Greenwood CMnetery, 16 FED. REP. 676. There, merely nominal damages had been recovered against a manufacturer of the infringing machine, with an injunction. The defendant purehased the machine, and set up the former recovery as a bar to a recovery for the infringement by its use by him. This was held to be no bar, because there had been no recovery for this use, or for the profits or damages on a sale for use. Where an owner of a patent has compensation. for the sale of a specific machine embodying the invention, that machine is forever freed from the monopoly. Bloomer v. MWinger, 1 Wall. 340. A compensation by recovery in an actIon for the same thing should have the same effect. Although there has been an interlocutory decree for the orator, still, as upon the master's report the orator is not entitled to recover, a final deeree for the defendants is proper. Fourniquetv. Perkins, 16 How. 82; American Diamond Drill Co. v. Sullivan Machine Co. 21 FED. REP. ';4. The interlocutory decree is understood to have been entered by consent, without hearing; and some other have been ha.d which may affect questions of costs, and those questions are left open. Let there be a decree dismissinR the bill.
NlIIW YORK GRAPE SUGAR
PEORU GRAPE SUGAR
PEORIA STAROH MANuF'a
(Oireuit Court. N. D. IZlinois.
October 20, 1BB4.)
PATENTS FOR INVENTIONS-SEVERAL PATENT8 ApPLICABLE TQ SAME PROCEss-IN, FRINGEMENT":-ExPIRATION OF ONE PATENT-j\lIoTION '1'0 DISMISB·
. WherEi a bUl. in addition to the usual charges of infringement of three pat:ents therein. states. 'that II these several ll)liters patent are applicable to the same process,and so used by defendants," and it appears tjlat it may bejmposslble'to award damages for infringemelltof two of the patents. without wlso tak.ing 'into considetriliion the value of the· other patent, a motion to dismiss the bill as to such patent, because it was lio near its expiration that l\n injunction could not be granted it, may be overruled. Betts v. GalUas, L. RIO Eq,393, distinguishea;
NEW YORK GRAPE SUGAR 00. V. PEORIA GRAPE SUGAR
InEquity. Dent et Black and Cratty Bros., for complainant. Banning et Banning and George F. Harding, for defendants. BLODGETT, J. This is a bill filed for an inj unction and accounting against the defendant by reason of the alleged infringement of t,hree patents,--,-the first issued June 11, 1867; the second issued September 8, 1868; and the third, on the fifteenth of April, 1873,-all of said patents being issued to J. J. Gilbert for "improvement in the manufacture of starch," and having been, as averred by the bill, duly signed to complainant. Defendants move to dismiss the bill as to the first-mentioned patent on the ground of want of, jurisdiction in equity, beeause this patent was so near its expiration that an injunction could not have been properly granted under it. I think a demurrer to so much of the bill as relates to the first patent referred to would have been the better method of raising the question, but as the argument proceeded upon the right of complainant to relief in equity on this patent, under the case made in the bill I will consider only the merits of the question discussed by counsel, without reference to the mode of practice which was adopted in getting at it. Since the decision of the supreme court in Root v. Railway Co. 105 U. S. 198, that equity has no jurisdiction ina suit upon an expired 'patent, when the only relief sought is an accounting for profits and damages, the decisions at the circuit have not been uniforIll as to such jurisdiction in cases where the patent expires after the commencement of the suit, and before decree. In th,e opinion in Root v. Railway ,00. the court cites approvingly Betts v. Gallais, L. R. 10 Eq. 393, in which Vice-chancellor JAMES helJi that he would not entertain a bill for the mere purpose of giving relief in damages for the, infringement of a patent where it had been .filed so immediately before the expiration of the patent as to render it impossible to obtain an injunction. The bill in this case, in addition to the usual charges of infringement of these three patents, sta.tes that "thesesevera.l letters by the patent are applicable to the same process, and are s'o, defendants." It therefore seems to me that, as there is no questjon made as to complainant's right to relietin equity as to the patents, and as it is charged that all patents are used in ,acqrnmon process, it may be impossible to award damages for ,the ment of the two later patents without also taking into consideration the value of 'the first patent. I am therefore of opinion that, upon the case made by the bill, it may be necessary to consider the value i11 of all these patents to the complainant in the common which defendants are alleged to use them, and t.hat it may be ditfi,cult, if not impossible, to determine their separate value, or the separate profits made by defendants in their use. The ,bills ',in cases were filed more than three months befor,e the expiratipn of the first patent, and the court cannot, therefore, say,.Jl,s wal;l said by,Yicechancellor JAMES, that it is impossible to have given complaInant an
injunction on the oldest patent, or even to have rea.ched a final decree on the merits before the expiration of the patent. An answer was due at the first rule-day after the filing of the bill, and, for aught the court can say, the case might have been brought to a hearing upon the bill and answer, and decree rendered before the expiration of the earlier patents. There was certainly time to have given notice and argued the application for an injunction, which, the court must assume from the language of Vice-chancellor JAMES, there was not time to do in the case decided by him. It seems to me, therefore, that the case made by this bill is exceptional to those which have been cited in support of the demurrer. The motion to dismiss as to the patent of June, 1867, is overruled.
(District Oourt, W. D. Pennsylvanza. October Term, 1884.)
ADMIRALTY PRACTICE-.JURY TRIAL-REV. ST. §
Section 566 of the Revised Statutes does not give a trial hy jury in a caulle of admiralty and maritime jurisdiction which concerns a vessel employed in commerce and navigation upun the rivers Monongahela and Ohio.
In Admiralty. Sur rule to show cause why that portion of the respondent's answer demanding a jury trial should not Le stricken out, etc. Knox If Reed, for libelant. Barton et Son, for respondent. ACHESON, J. The respondent claims a trial by jury under section 566 of the Revised Statutes. But the right to such trial in causes of admiralty and maritime jurisdiction, by the express terms of that section, is not general, but restricted to causes arising where the vessel is "at the time employed in the business of commerce and navigation between places in different states and territories upon the lakes and navigable waters connecting the lakes." Gillet v. Pierce, 1 Brown, Adm. 553 ; The Erie Belle, 20 E'ED. REP. 63. In this case, at the time the cause of action arose, the vessel was employed in the rivers Monongahela and Ohio. Now it is very clear that these rivers come not within the terms "lakes and navigable waters connecting the lakes." The Hine v. Trevor,4 Wall. 555, '566. Moreover, the vessel here was not employed in commerce and navigation between places in different states, but was plying alto. gether within the Western district of Pennsylvania. The request for a jury trial must be denied, and the rule to show cause made absolute; and it is so ordered.