ure prescribed, the rights of the accused will not be impaired, nor the ends of justice defeated. The apprehensions, therefore, of one of the learned counsel as to the fearful consequences which may follow in other cases if the indictment be 8ustained in this case in the face of his objections, may be considered with composure, and dismissed. In this case the objectiollfl to some of the grand jurors, that their names were not among the list of tax-payers on the last assessment roll of their respective counties, is technical only. There is no allegation in the plea that the jurors were not in all respects, as to ability and knowledge, fully qualified for the duties imposed upon them, or that the defendants were in any respect prejudiced by the absence of their names from the assessment rolL In these circumsta:'wes, the objection must fall under. the general rule of the federal courts, that omissions which do not impair any substantial right or prejudice the defense of the accused must be disregarded, unless otherwise required by posItive statute. Section 1025, Rev. St., declares that "no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." In U. S. v. Tuska it was held by Judge BLATCHFORD, then district Judge, now a justice of the supreme court, that where there is no averment in a plea in abatement of injury or prejudice to the defendant, irregularities in the finding of an indictment, consisting, among other things, of some of the grand jurors not possessing the proper property qualific!J,tion, .became matters of mere form, to be disregarded under the above statute. 14 Blatchf. 5. Without accepting this conclusion in full, the spirit which it expresses undoubtedly governs the action of the federal courts, that omissions or defects in such cases which do not prejudice the accused shall not avail to set aside an indictment or other proceeding. The demurrer to the plea is sustained, and the defendants must plead to the indictment, and it is so ordered. The same order will be entered ;n all the cases.
Co. and others.
(Oircuit Court. 8. D. Illinois. August 17.1887.)
PATENTS FOR INVENTIONS-SUIT FOR INFRINGEMENT-RESTRAINING THE BRINGING 01' OTHER SUITS.
I., having brought suit for infringement of a patent. B., one of the defendants, before answering, filed an intervening petition, in which it was alleged B. had a good defense to the suit; that he was able and competent to par any damages that might be assessed against him; that I, had t.b.reatencd to sue purchasers of the defendaut for the same infringement; and praying that plaintiff be restrained from bringing such tbreatelled suits pending the de-
, ;' FEJ)Ji;RA):. ;nEPORTER.
cisfon in ihis case; :rhepetition was alsoacqompanied by affidavits support· .lng Bo's claim to a good defense. Held, that the court had the power to make the restraininl/: order prayed for, and that the petitioner was entitled to such ord¢r.
In Chancery. Upon application of intervemng petitioner, Ball Engine Company, for restraining order. J. K. Hallock and Brown, Wheeler & Brown, for petitioner, Ball Engine Co. Gro88.&Broadwell and Offield & Towle, for complainant.
ALLEN, J. On the fifth complainant, Albert L. Ide, filed his bill in this court against the Ball Engine Company and others, alleging, among other things, that on the eighth day of July, A. D. 1884, a patent was issued to him as inventor of a bertain new and useful improvement in steam-engine governors, not known or used by others before his invention; and that on the twenty-fifth of November, A. D. 1884, he was awarded a patent for another new and useful improvement in steam-engi;negovernors; that these two several improvements, described in said respective letters patent, are capable of being employed, embodied, and uew in each and every steam-engine governor manufactured. The bill alleges that the defendants are making and constructing, using, and selling laFge numbers of steam-engine governors, embodying the inventions and devices,and substantially like and upon the plan and principle, and in imitation of the said improvements contained, in said letters patent issued to complainant; and prays for an account; and that defendants be decreed to pay over to complainant all gains and profits realized by them; and also all other damages suffered by complainant from the infringement'of rights intended to be secured by his said letters patent; and for an injunction perpetually restraining defendants front making, using, or vending governors containing the improvements and .inventions secured to complainant by said several let.ters paten t. The Ball E,ngine Company, one of the defendants, on the sixth instant, appearance in said cause, and on the ,same day presented a petition for a temporary restraining order. The petition is sworn to by F. H. Ball, and alleges, in substance, that it will in due season file a sufficient and complete answer to complainant's bill, and will make known the fact that the petitioner is the licensee of F. H. Ball under letters patent i$sued to the, said Ball No. 358,829, on March 8, 1887, for improvemel1t in steam-engine governor, and under such authority is engaged in the manufacture of steam-engines at Erie, Pennsylvania; that it is also the owner of a number of other patents on steamengines;. aull ,that the engines which it manufactures and sells are made under some or all of the patents it owns oris licensed under. The petition further states that the answer will expressly deny that any of the engines it has made or sold embody any of the inventions described and claimed in the patents named in said bill of complaint. The said answer will also allege, according to the petition, that letters patent No. 301,720,
IDE V. BALL ENGINE CO.
named in said bill of complaint, is void by reason of the invention therein described and claimed having been made and used prior to the alleged invention by the said Ide, and that the said answer will give names of persons and their residence who made and used the said invention before the said Ide claims to have invented it. The petition further states that the said complainant, Ide, has threatened and is threatening to sue the purchasers of defendant's engines on the patents on which suit has been brought against the defendant. A threatening circular issued by Ide is made a part of the petition. The petition further represents that the making of such threa'ts, and the bringing of such suits against the vendees of petitioner, will work irreparable injury to it; that it is entirely able and competent to pay any and all sums of money that may be assessed against it by the courUor having infringed any good and valid patent named in said bill of complaint; and concludes by praying that the complainant, having elected to bring his suit against petitioner, the patentee, and others engaged in the manufacture, should be estopped and restrained from bringing suits at law or equity against the purchasers or vendees of any engine or engine-governor made by petitioner, during the pendency of this suit, until the questions to be at issue in this court and suit are determined. The petition is supplemented by affidavits from a number of able and distinguished mechanical and civil engineers, stating, in substance, that the affiants are familiarwith,the letters patent issued to Ide in 1884, as well as the patent issued to F. H. Ball, No. 358,829, in 1887, and fully understand the inventions respectively set forth; that the Ball invention is an entirely"differeritthing from the Ide invention, and is for a different purpose; and that the devices shown in the Ball patent do not and could not perform the functions of the devices shown in the Ide patent, and vice verBa. Complainant has not thought proper, upon the pending motion, to inany evidence, in the form of affidavits or otherwise, tending to show that the Ball patent infringes upon what was covered or secured to him by his letters patent of the eighth of July and the twenty-fifth of November, 1884, but that there is no power authorizing the court to restrain him from bringing suits on his patent against anyone, and as many as he chooses at the same time, before that patent is adjudged to be invalid; that the granting of the letters patent cover the right to sue all or any, whether manufacturers, their vendees or users, who infringe. With the prima facie case established on complaiUfil;lt's behalf by his . several letters patent issued in 1884, alone and unaided, it is insisted that, this prima facie case has been successfully met and overcome by the evidence supplementing the pethion, yet the court is powerless from temporarily restraining the bringing a multiplicity of suits, which might result in irreparable injury to the petitioner, pending the suit involving the validity of the Ide patent. I cannot assent to this view. If the Ide patent is valiq.,and the Ball patent infringes upon the rights secured to complainant, that fact can be determined at an early
'. ,FEDERAL REPORTER.
day by complainant's prompt prosecution of his pending suit against the defendants. If some inconvenience or injury to complainant is caused in the mean time by the user of goods in the manufacture, of which his patent was infringed, it is better that he submit than that the courts be flooded with suits against the users. Public policy would seem to favor the rule that litigation for the purpose of ascertaining and sustaining the validity of a patent should be between the patentee and alleged infringing manufacturers. A doubt has been expressed upon the argument as to the authority of the court under the pleadings t<;> issue the order asked, no answer being on file,nor cross-bill for affirmative relief interposed. While hesitating, I have concluded that the application should be disposed of on its merits. The :complainant has invoked the chancery jurisdiction, and the petitioning defendant, without reference to the mere form of its pleading, ill, view of the record before me, seems entitled to the order prayed for in the petition; and, to the extent of restraining prosecuting suits against the purchasers Of users of the Ba,ll engine patent until the pending litigation involving the validity of the several ,patents terminates, the order will be granted.
CELLULOII> ':MANUF'G CO. 'l'. AMERICAN ZYLONITE Co.
(Oircuit Court, D. Maaaacltuaetta. September 7, 1887.),
PATENTS FOR INVENTION-PATENTABLE NOVELTY-IMPROVED PROCESS FOB MAKING CELLULOID. '
In an action for the infringement of letters patent issued to John W. Hyatt, February 5,1878, for an "improvement in the manufacture of sheets of celluloid and other plastic compositions, " the specifications and claims describing the invention as relating to an apparatus and process consisting in piling a number of rough sheets of celluloid upon a grooved plate in a chase or mould; subjecting the celluloid to heat and great pressure, by which it is solidified into a single compact, rectangular slab. and portions of it are forced into the grooves; then cooling it, so that it shrinks. and those portions operate as clldches to hold the slab firmly in place; then planing the slab into sheets; and finally stretching these sheets upon a frame to prevent their wrinkling or warping while drying: held, that the process and apparatus was a patentable novelty.
Letters patent issued February 5,1878. to John W. Hyatt, for an improvement in the manufacture of celluloid and other plastic compositions. describing in the apparatus the plate for retaining the plastic composition in place, provided on its upper surface with grooves. apertures, or indentations, uJ'lon which the matedal in shrinking can exert tension, held infringed by defendant's device employing an iron plate perforated by holes with screw threads, with plugs of zylonite screwed in, and depressions left around the heads of the plugs. into which portions of the celluloid are pressed and welded to the zylonite plugs, and pressed into the apertures around the heads of the plugs.
Letters patent issued February 5, 1878, to John W. Hyatt, for an improvement in the manufacture of celluloid and other plastic composition, the prothen heating cess consieting of subjecting the slab of celluloid to