WIRT 11. BROWN.
use by the defendants may render the taking of an account the more diffiGult, bQHhe mere intricacy of an account will not furnish ground fdr equitable interference .intbe absence of jurisdiction of the principal cause, of which.the accountis only an incident. Hipp v. Babin,19 How. 271j Ri)ot Vi. Railway 00., 8upraj Campbell v. Ward, 12 Fed. Rep. 150j Lord v. TJ'hitehead &- Atherton M. 00., 24 Fed; Rep. 801 j Adam8 v. Bridgewaw I. 00.,26 Fed. Rep. 324; Consolidated, etc., 00. v. Ashton, etc., Co.,ld. 319; Broo1clJ v. Miller, 28 Fed. Rep. 615. In (}kJ,rk v; Wooster, 7 Sup. Ct. Rep. 217, cited by the complainant's conns-el, the' court below had jurisdiction at the inception of the suit, thQugl1()l). anarrpwground, as the patents had but a short tb:ne to runj yet, as the defendants did not ask for the dismissal of. the bill for want of jurisdiction, the appellate court refused, after the ease had been tried and determined, to reverse the decree. The supreme court, speaking by Justiee BRADLEY, said:
"The court below had jurisdiction of the case, and could retain the bill, if, in its discretion, it saw fit to do so, which it,.did. It might have dismissed the bill if it had deemed it inexpedient to grant an injunction; but that was discretion, and with that discretion it is not our a matter in its own province to interfere, unless it wils exercised in a manner clearly illegal. We spe.no, in tlle of its exercise in thiscas.e. "
tiono:f that portion of the bill which prays for an injunction to restrain
Inthe case at bar, as already indicated, this court never had jurisdic-
the infringement of the ventilator patent, and it was equally without power to order an account as incident thereto. An order will therefore be entered to open.and reform the interlocutory decree heretofore made, in accordance with the petition, but without costs to the defendants.
WIRT 11. BROWN.·
(Oirouit Court, E. D. NIfW York. January Ii, 18B7.)
PATJll:NTS FOR rnVENTIO:NS-1:NJU:NCTION-NEW PATljl:NT-CONTEMPT.
Where defendant was enjoined from making a certain kind of pen, and thereafter made a different· pen, on which he obtained a patent.,held. on motion to attach for contempt of injunction. that the fact that a patent had been issued to defendant entitled him to have the question of infrmgement determined on a motion to prevent the making of this form of pen, and that the present motion should lie denied.
In Equity. On motion to attach for contempt. W. S. Logan, for plaintiff. Charle8 H. Bulkley, for defelldant.
BENEDIcT, J. The motion for an attachment in this case the sa.me question that arose in Onderdonk v. Fanning, 2 Fed. Rep. 568. JReported by Edward G. Benedict, Esq., afthe New York bar.
The defendant has not, since the injunCtion was issued, made any pen similar in all respects to the pens he made prior to the injunction. The pen he is shown to have made since the injunction was not presented when the injunction was granted. Since then the defendant has obtained a patent for the form of pen presented on this motion.' It may be that the pen now complained of infringes upon the plaintiff's patent. but the fact that a patent has· bElen issued to the defendant, which covers this form of pen, should, I think, entitle the defendant to have the question of infringement determined on a motion for an injunction to prevent the making of this form of pen, instead of by a motion to attach him for contempt by violating an injunction issued to prevent the making of another form-of 1'Cn. Motion-denied.
WIRT, 'D. BriOWN. I
«(Jircuit (Jourt. B. D. Hew l'ork. January 21. 1887.)
PA.TENTS FOIl INvEN'1'IONS-'!NFRINGEMENT- SIMILAR COMBINA.TION-MODI1l'IOATioN-biJuNOTION.
The fact that defendant used 8 combination of his own in his self-feeding pen wall not sufficient to overcome the fact that his combination was merely additional to plaintiff's combination, which he was using. and to prevent whicll an inJuJ:lQtion would be granted.
In Equity. On motion for lnju,nction. W. S. Logan, for plaintiff. Charles H. Bulkley, for defendant.
BENEDICT, J. This is a motion for an injunction, founded upon letters patent No. 311,554, issued to Paul E. Wirt, dated February 3, 1885. The first claim of the patent is for a combination, the elements of which are (1) the ink reservoir; (2) a nozzle fitted to the ink reservoir, and carrying apeD;; (3) a rubbC?r shaft extending through the nozzle and tp.e upper space .between the inner face of the nozzle and the upper part of the pen,and held within the nozzle at an intermediate, point of its length,-one end of the shaft extending beyond the .nozzle into the ink reservoir, so as to draw the ink downward from the reservoir, while the other end lies over the pen, so that, when the pen is pressed upward in writing, it comes in contact with the shaft to produce capillary attraction, and cause the feeding of the ink down upon the pen. The pens made by the defendant, of which the plaintiff have in combination (1) an ink reservoir; (2) a nozzle fitted to the reservoir, and carrying a pen; (3) a rubber shaft extending through the nozzle in the space between the inner face of the nozzle and the upper surface of the pen, and held within the nozzle at an intermediate point
lReported by Edward G. Benedict, Esq" of the New York bar.