J. F. PEASE FURNACE CO.
the patent, "any infringing machines unlawfully made or acquired, in whole or in part, during the term thereof; and that all infringing machines now in possession or use of the said defendants may be destroyed, or delivered up to your orator for that purpose." It also prays for a decree for damages in addition to profits, and for an increase of damages, and a provisional injunction. The defendl1nts demur (1) for want of gronnd for equitable relief; (2) for want of equitable jurisdiction; (3) because the bill shows that the remedy, if any, is at law. This case does not fall within the ruling in Mershon v. J. P. Peasc Furnace Go., infra. In the present case, the bill was filed 26 days before the patent expired. There was time to give notice of a motion for a provisional injunction, and to obtain it. Moreover, the bill sets fOl,th special circumstances for equitable relief, in that the plaintiff has retained the exclusive right to make and sell, and is exercising it, and is able to supply the market, and the defendants are making machines oontaining the invention, and threaten to make them in large quantities, and intend to put on the market in the season of 1885 infringing machines made before the patent expires, and have large quantities on hand which they are offering for sale; and the bill prays for an injunction restraining the sale, after as well as before the patent expires, of machines unlawfully made before it expires. Such a case is like that of Crossley v. Beverly, Webst. Pat. Cas. 119, commented on in Smith v. London rf: S. W. Ry. Go. Kay, 408, and like the cases, in this circuit, of American Diamond Rock Boring Go. v. Sheldon, 18 Blatchf. C. C. 50; S. C. 1 FJm. HEP. 870; and American Dimnond Rock Boring Go. v. Rutland Marble Go. Id. 146; S. C. 2 FED. REp. 356. The demurrer is overruled, with costs, and the defendants are assigned to answer the bill by the rule-day in October next.
F. PEASE FURNACE
(Oircuit Oourt, No D. New York.
PATENTS FOR INVENTJONS-JURTSDICTTON-REMEDY AT
L.nv-RI(v. ST. H 723 4921. A bill for infringement of a patent, and for an account of profits and'damand for and perpetual, but setting forth no speClal ground for eqUItable rehef, IS demurrable. where the patent will expire four days after the filing- of the bill, and three days after the service of the subpcena, and where, by the rules of the court, a notice of eight days, of a motion for an injunction, is required.
In Equity. Forbes, Brown J: Tracy, for plaintiff. Duell rf: Hey, for defendant.
BLATCHFORD, Justice. This is a bill in equity brought for the infringement of reissued letters patent No. 4,695, granted to the plaintiff, January 2, 1872, for an improvement in dampers for. hot-air furnaces, for the unexpired term of 17 years from May 5, 1868, on which date the original letters patent No. 77,512 were granted to the plaintiff. The bili prays for an account of profits and damages, and for injunction8 provisional and perpetual, but it sets forth no special ground for equitable relief. The bill was sworn to April 29, 1885, six days before the patent would expire. It was filed May 1, 1885, and the subpcena to appear and answer was served May 2, 1885. The defendant interposes a demurrer for want of equity, which also alleges want of jurisdiction in the court, because the plaintiff has an adequate remedy at law. It is provided by section 723, Rev. St., that "suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." If there is such a remedy at law, when the defendant is brought into the court of equity; if there is not, in good faith, at that time, a case in which the court of could, by the exercise of its jurisdiction in the ordinary course of proeedure, give to the plaintiff the most moderate measure of equitable relief which he prays, or would be entitled to, on his allegations; if the coming into the court of equity appears to be a pretense to avoid a court of law; the court of equity should not entertain the case. The jurisdiction conferred by section 4921, Rev. St., is "to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable; and, upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same, or cause the same to be assessed under its direction." Not only, as is suggested in Root v. Railway Co. 105 U. S. 189, 206, does the language of section 4921 seem to make the power to award profits and damages dependent upon the power to grant an injunction, but the general "course and principles of courts of equity" make the right to an account dependent on the right to an injunction. Higginbotham v. Hawkins, L. R. 7 Ch. App. 676; Baily v. Taylor, 1 Russ. & M. 73; Smith v. London <t S. W.Ry. Co. Kay, 408. In speaking here of "power" and "right," I refer to entertaining the suit at all, and not to the power to give proper relief, in an equity suit properly brought, where the patent expires during the pendency of the suit. This power was exercised in Lake Shore Co. v. Car·brake Shoe Co. 110 U. S. 229, S. C. 4 Sup. Ct. Rep. 33, and in Consolidated Vnlve Co. v. Crosby Vnlve Co. 113 U. S. 157, S. C. 5 Sup. Ct. Rep. 513. In the present case, the sole object of the bill plainly appears to be to obtain pecuniary compensation, in the shape of profits or dam-
MAGIN V. M'KAY.
ages, in a. case where no injunction of any kind could be obtained; for, by the rules of the court, a notice of eight days of a motion for an injunction is required. The coming into a court of equity under such circumstances will not be permitted. Betts v. Gallais, L. R. 10 Eq. 392. As the bill does not show that an action at law for damages would be an inadequate remedy for the wrongs complained of, and no bonafide ground for equitable relief is presented, the demurrer is allowed, with costs.
MAGIN v. McKAY.
(Oircuit Oourt, N D. New York. August 20, 1885.)
PATENTS FOR .lNvENTIONS-ANTICIPATION-INVENTION-MPARATUS FOR COOLING AND DRAWING BEEH.
Patent No. 248,646, granted to Charles Gordon, October 25. 1881, for an improvement in apparatus for cooling and drawing beer, held void as to claims 1, Sand 4.
In Equity. George B. Selden, for plaintiff. Josiah Sullivan, for defendants. BLATCHFORD, Justice. These suits are brought on letters patent 248,646, granted to Charles Gordon, October 25, 1881, for an "improvement in apparatus for cooling and drawing beer." The specification says: "My invention relates to an improved apparatus having for its object the keeping of beer, ale, or other liquid at a low temperature during the operation of drawing the same for consumption; and it consists in surrounding the supply-pipe through which the beer is delivered to the faucet with a cold-air passage, for the purpose of maintaining a low temperature in the liquid in the supply-pipe. My invention also consists in surrounding the cold-air passage and the faucet with a non-conducting jacket, and in the combination with the ice-box, and the lower chamber for storing the beer, of the supplypipe and the cold-air passage communicating between the ice-box and chamber, as hereinafter more fully set forth." A keg of the liquid is placed in a chamber in the cellar. A supply-pipe leads upward from it to a faucet from which the liquid is drawn for consumption. An outer pipe surrounds the supply-pipe, leaving an air space around it, its whole length, from the lower chamber to an upper ice-box, through which the supply-pipe passes, and with which the outer pipe is connected. As many supply-pipes as are used may pass through the air space. A non-conducting jacket surrounds the outer pipe. The air, cooled by the ice in the ice-box, and the water produced by the