SEIBERT CYLINDER OIL CO. t1. WILLIAM POWELL CO.
'SEIBERT CYLINDER OIL CO. t1. WILLIAM POWELL CO.
(Circuit Court, 8. D. Ohio. May 23, 1888.),
P A!rENTS FOR INVENTIONS-ExpIRATION-ENGLISH P
'ST. U. S. § 4887.
Rev. St. U. S. § 4387, providing that "every patent granted for an invention which has been previously patented in a foreign countrl shall be so limited as to at the samE!, jJme with the foreign patent, does not apply to a patent issued subsequent to the filing of application and provisionalspeciftcation for an English patent on ilie same invention, btlt prior to its issuance. although such patent was, antedated as of the date of application, as the patentee's right therennder did not come into existence until the patent was sealed. '
In Equity. Suit for infringement of patent.' Peck &:' Rector and Edmund Wetmorej for complainant. George J. Murray, for respondent. SA'GE,1'. This suit is for infringement of patent No. 138,243, granted 29th of April, 1-873, to complainant's assignor, John Gates, fOl'an improvement in lubricators fOTsteam-engines. The bill was filed the 22d of November, 1887. The defendant pleads to the jurisdiction of this in equity that the invention described in complainant's patent was patented in 'England by William Burnett, assignee of said Gates, 24th of April, 1873, for the term of 14 years, which grant was determined before the commencement of this suit. From the stipulatioJa of facts on file it appears that Burnett filed his application and provisional specifi.cation 24tij April, 1873; that letters patent were sealed to him 24th of June, 1873,tmd dated April 24, 1873; that his complete specification and drawing were filed 21st October, 1S73; that the invention des()ribed and claimed therein is the same as that covered by the patent sued upon in this cause; and that said letters patent expired before the filing of complainant's bill. Under 15 & 16 Viet. c. 83, § 24, as construed by the court of exchequer in Saxby v. Hennett,L. R; 8 Exch. 210, the patent to Burnett took effect as upon the day of the date it bore; for by section 23 of the act, the old act of Hen. Vr.:, forbidding the antedating of patents, was in repealed; sectia!? 24 enacts that letters patent, where antedated, are to be of the same validity as if seaIed on the day they bore date. The court say, KELLY, C. B. "The lord chancellor is the judge of whether the grant shall'be made, and what d'ate it shall bear; but when once made, this section operates." The application for an English patent is made by filing either a provisional or complete specificalion. the fifth rule of October1, 1852, more than 21 days must intervene between the filingof and the seaI:ng of the patent. The regular course of procedure involves a reference of the application to the law officers, an exalllitiatiQJ;l. by them"a certificate. baCk, and then an advertisement from 10 to 20 days.. T4is is sllcpeede.s!"by a notice to proceed, and advertisement of21 days; then the warrant is is-
sued, and the preparation and sealing of the patent consumes from 10 to 20 days., 'Notice is gi.ven, so that anyone interested may lodge a cai'eat against the grant of the patent. An appeal lies from the decision of the law officers to the lord chancellor. The law officers may decline to seal the patent, as ll1,:lY the lord chancellor on appeal. Section 4887, Rev. St. U. S., provides that "every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent." When Le patent in suit in this cause was issued, the application for the English patent, and the previsional specification, had been on file five Burhe'-t waf? not then a..patentee. He waS only an appli0ant for a patent, without any of the rights of a patentee. Sixty-one days intervened before the sealing of his patent. That was his grant, and until then he not only had no grant, but could not be certain that the law officers would not refuse to make one. The antedating of that grant had the effect, by imparting to it, under the provision, of the English statute, the sa.'ne validity as if sealed on the day it bore date, to make liable as an infi.:inger anyone who after tha.t date manufactured, used, or sold the invention, and to limit the duratiQn of the grant to the period of 14 yearsdrom that date. Nevertheless, patentee's exclusive right first came into existence when his patent was sealed, which was subsequent to the issuing of the pater.t tQcomplainant's assignor, on which this suit is founded. And upon the Ejealing of his patent, and until the filing'of hiscoIhplete specification, which was upon the 21st.of October, 1873, his rights were 'uoh so vested that he could assert them in any court. The reiat:onback of the English patent by reason of its date, and by virtue of the EngHshstatute, does not sustain the defendant's contention that the invent:on had been previously patented in England. Emerson v. hippert, 31 Fed. Rep. 911. The plea is overruled·
(Circuit Oourt, N. D. l:linoia. February 20,1888.)
PATENTS FOR INVENTIONS-INJUNCTION-GRANTING ON QUIRING
In a suit to restrain defendants from infringing plaintiff's patent. an injunction wa\lissued on notice to defendants, after a full healing on the q llestion on conditiOIJ that plaintiff !tIe a bond to indemnify defendants for ally damages they migbt sustain. On final bearing tbe bill was dis.missed for want of equity. HeW. tbatplaiJitiff was liable on tbe bond.
IN VALUE OF ARTICLE.
; .:PJ!l'intl.lf o1Jt!l'ined an i,njunctioD against res.training from . makIng or selling a fOldlDg-be.d, on the that It mfrmged p.lamtlff'S patent.: 'Onfinal 'bearing the bill was dismissed for w.ant of equity, and defendy.nts·fileda suggestion of damages. .It appearedtbat witbin a year after the/ ·Injunction issued tlj.e demand for that class of beds fell off 80 much that it . was unprofitable to manufacture them; tbat when suit was begun one of the -defendants had'ollhand for sale 10 beds, and hl\d some money in ad-