am, therefore, clearly of the opinion that it is the duty of the "court, justice, or judge to whom such application [for a writ of habeas corpus] is made, to forthwith award writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto." Rev. St. § 755. The performance of this duty the court is not at liberty, on any pretext, to evade. That on the return of the writ it is the duty of the court to inquire and determine whether the restraint is lawf(11, independently of any previous decision of the question by the collector Of his deputy, or by the surveyor, or by the inspector of customs stationed on board the vessel. 1£ the position taken in the intervention of the United States attorney be sound, an extraordinary circumstance must be noted. The restriction act has now been in operation for nearly three years and a half, and numerous cases on the return of the writs of habeas corpus issued on the application of Chinese persons have been presented to Mr. Justice FIELD, to Judge SAWYER, circuit judge, and the district judges of Washington Territory, Oregon, Nevada, and California. Similar cases have also arisen in the federal courts in Boston, New York, and Philadelphia, and on appeal have been decided by the supreme court of the United States. It has never been suggested by any judge or district attorney that the refusal to allow a Chinese passenger to land was not a restraint of his liberty, the lawfulness of which was to be inquired into by the courts, nor has the 'still more extraordinary pretension until now been set up that in such inquiry the court, whether the supreme court of the United States, the circuit conrt, or the district court, was to be controlled by the decision rendered by the collector of the port or his deputy. The demurrer to the intervention is sustained, and the district attorney is allowed to file an intervention contesting the merits of the application.
and others. 1
(Circuit Oourt,8. D. Georgia, W. D. September, 1885.)
INTEUFERING PATENTS-CASE IN EQUITY.
After a decision by the commissioner of patents in an interference proceeding awarding letters patent to an inventor whose application was tiled subsequent to tlat of another applicant who had obtaint'd letters patent covering the invention in controversy, priority of invention constitutes the material issue between the parties when thedefe Ited party tiles his bill in equity to have the patent of his adversary declared void.
In such case, the delay of complainant to file his bill for five years after the adverse decision by the commissioner of patents will be considered by the court
by Walter B. Hill, Esq., of the Macon bar.
SAWYER V. MASSEY.
as hearing upon the I:tood faith of the complainant's proceeding, no explanation of the delay being offered.
I::lAME-DECREE FOR INJUNCTION.
Where the conduct of the complainant has been stubbornly litigious, the conrt may not only declare his patent void because of want of priority, but may enjoin him from threatening or bringing other suits where such litigation will produce damage irreparable at law. SAMI,;-SAWYER v. l\hLLEH, 12 FED. REP. 725, FOLLOWED. The decision of the circuit judge in the case of l:iawuer v. Miller, 12 Fed. Rep. 725, approved and fOllowed.
In Equity. Pottle et Bayne and Hulsey et Bateman, for complainant. Lanier et Anderson, Hardeman et Davis, and Hill et Harris, for defendants. SPEER, J. This is a bill filed by Sawyer against the firm of Carhart & Curd, against the administratrix of the deceased partner, and Orren E. Massey, and agamst Elizabeth F. Massey, the executrix of Orren W. Massey, deceased. The allegations are that complainant is the inventor of a new and useful improvement in cotton-gins; that the invention was patented in 1873 and 1874; that the respondents, confederating together, are infringing upon his patents, and are largely manufacturing and selling machines embodying such infringements. The invention claimed is the construction of the swinging front cotton-board and ribs to form a circular cotton-box of the gin, such box when closed to form a major part of a circle. The respondents deny that the complainant is the inventor of the improvement described in the bill, but claim that he purloined the invention of Orren W. Massey, the husband and intestate of the respondent Elizabeth F. Massey. It appears from the evidence that Orren W. Massey was a gin maker by trade. The complainant worked for him a while in the shop, and then served him in the capacityof traveling salesman. It does not appear by any satisfactory complainant was a practical machinist, or knew more proof that about gins than he was made to understand by his short term of employment with Orren W. Massey. The latter had an inventive mind, and, in the language of one of the witnesses, was "alw!l.ys experimenting." Sawyer's patent was obtained in 1873, and it is clear enough from the evidence that Massey had conceived the idea of the improvement claimed as early as 11:'70, and that Sawyer had been apprised of the invention; that Massey had put it into successful operation in the same year; and that he had been in correspondence and communication with a solicitor of patents in the effort to protect his invention, but had been improperly advised that his designs were not patentable. When Massey learned that Sawyer had obtained a patent for his invention, he made haste to protect his design. It was, on the case made, formally adjudged by the commissioner of patents that Massey was entitled to a patent, but the commissioner left the question of priority of invention to be determined. In the opinion v.25F,no.3-10
of the court in view of the evidence, this is not even a debatable question. The testimony of Sawyer himself is to the effect that a curved rib, which forms a part of the essential design, was stolen from Massey by Moore, the partner of Sawyer. He admits that the importance of this rib was pointed out to him by Jackson Hendricks, a workman in Massey's employ. Sawyer justifies himself by saying that he did not get the "rib" in question in Massey's shop. It is not apparent how this will help him. The pattern was Massey's, and it does not matter how Sawyer obtained it; he can take no benefit from it. It further appears that when Sawyer made his original application to the patent-office he said nothing about the circular roll-box or the major part of a circle. In these features the real merit of the invention resided, and it is in an application for a reissue of his letters patent that we find Sawyer's claim to them. In the mean time, however, Massey had made application for his patent, and had specified the circular roll·box, comprising the major part of a circle. The testimony of six witnesses, only one of whom had any interest in the controversy, is to the effect that Massey was the first inventor; and in the opinion of the court the question of priority is the only material consideration. Walker, Pat. 815, 817; Pentlarge v. Pentlarge, 19 Fed. Rep. 818. The authorities of the patent-office had adjudged the questions involved in this controversy in favor of Massey. For five years the complainant had not attempted to disturb that finding. Then he filed his bill against Miller and others, which bill is identical in every respect with that now before the court. In a maturely considered opinion, notable for its directness and clearness of statement, the Hon. DON A. PARDEE, circuit judge, determined that the relief prayed must be denied. There can be no doubt as to the propriety of that decision, or of the order of the court dismissing the bill. But there must be an end of litigation, and it is manifest from the ,past conduct of the complainant, unless other and more stringent orders are granted, he will again institute, against persons who have purchased, or who may manufacture, the gin containing the patent of Orren W. Massey, proceedings which, though necessarily futile, will be vexatious and damaging to the respondents in their character, and this damage will be irreparable at law. It is, therefore, ordered and decreed by the court that the alleged patent of the complainant, so far as it affects his claim to a circular roll.box, is void. It is further ordered and decreed that the complainant be perpetnally enjoined from bringing suits or threatening suits against respondents, or either of them, or against persons purchasing or who have purchased from them, and against all others who have bought or used or are using gins manufactured in accordance with the patent of said Orren W. Massey, now the p:mperty of respondents. Ordered, further, that the complainant pay the cost of this proceeding.
. V. ARMSTRONG.
((}ircui! Court, W. D. Pennsylvania. September 1, 1885.)
Where infringement of a patented coal-washing maclline was deliberate and without palliation or excuse, held, that the infringer was jUl'tly chargeable with the full estalJlished license fee for each infringing machine, although his use of two of them had been but for three years, and of four of them for eighteen months only.
8AME-MEASUHE OF DAMAGES-FUTURE USE OF INFRINGING MACHINE.
While the patentee may, if he choose, confine himself to a recovery for past infringement, and insist that the further use of the infringing machine be en· joined, yet, if he elect as his measure of damages the full license fee established by himself, the payment thereof operates to vest in the defendant the right to use the machine during the life of the patent, or until that particular machine . is worn out.
In Equity. Sur exceptions by defendants to the master's report. D. F. Patter80n, for exceptants. George H. Chri8ty, contra. ACHESON; J. The force of the admission contained in the answer, as to the number of coal-washing machines built by the defendants. is not weakened by the proofs, and the master was right in finding the number of infringing machines to be six. The finding that the plaintiff's established license fee for each machine (exclusive of compen. sation for superintending its erection) is $350 is, I think, fully warranted by the evidence. An element thereof is the written contract of February 15,1877, between these parties, under which the defendants' first two machines embodying the invention were erected, under the supervision of the plaintiff, for the sum of $SOO. In view of that contract, in connection with the other proofs, the defendants cannot very well complain that the license fee, as reported by the master, is too high. The question most demanding discussion is raised by the sixth exception, viz.: "The master erred in assessing damages for an infringement limited to eighteen/months as to four machines, and three years as to two machines, at the rate per machine of a sum which he found to be fixed royalty for the patent term." But the master here only followed the rule, so orten approved and acted upon, that where the patentee makes his patent available exclusively by the sale of licenses for its use at a fixed sum, such license fee furnishes the just measure of his damages in case of the unlicensed use of his invention. Seymour v. McOormick, 16 How. 489,490; Sickels v. Borden, 3 Blatchf. 536; Emerson v. Simm, 6 Fish. 281; Star Salt Ca8ter. Co. v. Crossman, 4 Ban. & A. 566. This rule commends itself by its simplicity and general equity. In s\lch cases, ordinarily the unpaid license fee is what the patentee loses by the unauthorized use of his invention; and, aside from that standard, the. question of damages is involved in uncertainty, and is difficult of satisfactory solution. 'frue,