JOHNSONV.BROOKLYN& C. R. CO.
& C. R.,CO.
& H. P.
(Oircuit Oourt, E. D. Nfj/J) York. October 24,1888.)
PATENTS FOR INVENTIONS-INFRINGEMENT-ExpIRATION OF PATENT.
Aninjunction against the infringement of a patent for I'D invention consist· ing of a combination of known appliances, is not violated by using the com' bination after the expiration of the patent.
On motion to punish for contempt. Duncan, Curtis « Pa.ge, for complainant, cited:
Bimsetl v. Shaliol, 1l2 U.,S. 487. 5 Sup. Ct. Rep. 244; Suffolk 00. v. Hayden. 3 Rout v. Railway Go., 105 U. S. 189; Needham v. Oxlp-y, 8 Law T. (N. S.) 604; Frearson v. Loe. 9 Cli. Div. 48; Boring 00. v. Marble 00.,2 Fed. Uep.,356; Boring Co.v. 1 Fed. Hep. 870; Belting Co. v.Magowan. 27 Fed. Rep. Ill; Powder Co. v.Powder,Oo., 9 Fed. itep. 316: Goodyear v.Mullee. 5 Blatchf. 429; Hamilton v. Simons, 5 Biss. 7'l; Wells v. Rep.2p; Craig v. Fisher. 2 Sawy. 345; McKay v. Machine 00.,20 O. G. 372. 12 Fed. Rep. 615; Wetherill!. Zinc Co., 5 O. G. 460; Phillips v. City of Detroit. 16 O. G. 627; Wilson v. Simpson. 9 How. 109; Ohaffee v.Belting 00.,22 How. 217; Farrington v. Oom ·· 4 Fish. Pat. Cas. 216: Gotlfried v.Brewiug 00·· 8 Fed. Rep.
Prost« Q)e, for defendants, cited:
Reaper Co. v.Johnstm. 24 Fed. Rep. 739; Mershon,v. Furnace 00., Id. 741; Lord v. Machine 00.· Id. 801; Vulve 00. v. Val've 00 .· 26 Fed. Rep. 319: Safety- Valve Ooy. Gage Oq·· lI3 U. S.157! 5 Sup. Ct. ltep. 513; B01'lng 00. v. Sheldons, 2 Fed. Rep; 353: Telephone 00. v. Kitl5ell, 35 Fed. Rep. 523.
LACOMBE,;f patent (Newman, No. 117,198, July 1871) is for "the combination of an oscillatingplatfortn, arranged foroperationby the weight of the draught animals (of a horse car) with a (4oriS'.:ontally moving) switch." In the combination only was found novelty and ih"entiort sufficient to induce the court to sustain' the patent.", John'8fl1L v. Railroad. 00., 33 Fed. 'Rep. 499. Rocking or oscillating platforms generally, and as devices for automaiicswitches, were known to the art before the date of Newman1sinvention. Horizontally moving switches old. , It was only the inventor's "ingenIOus assembling of known were the case above cited,recognized as :appliances" whicbJudge patentable. lnithe case at bar the Use of several infringing machines in defendants' tracks being sh<;)wn, injunctions were granted the life of the patent.· Thereupon defendants ceased· the use of the patented combination, discbnnecting the oscillatinK tables from the switch-tongues, and employing men or boys to operate the switches. 'Some weeks, however, attertheexpiration of the patent, they substituted new switch'tongues fl)tthose in use wnenthe il1junctioll was granted, connected them with the oscillating tables, and are now ,using the of parts thusform.edi. Complainant contends that this isa violation of the ipjn.nption to puuish defendants ,ror oontem,pt.His,#J6tion is based upon the principle that an infringing article or machine made
before the expiration of the patent cannot be used after such expiration, anr! that, upon sufficient cause shown, an injunction against such use will be indefinitely continued. The authorities cited sustain this proposition mainly upon the theory that the court could during the life of the patent order the destruction of the machine or article, and that the injunction forbidding its future use is merely the practical equivalent of such destruction. The contention of the defendant as to the effect upon this proposition of Root v. Railway Co., 105 U. S. 189, need not be now considered. The case at bar is not within those authorities. All the parts of the patented article were old; their manufacture, sale, ac.cumulation, or use was free to all. The patentee's monoply extended only to their combination. The infringing article would be destroyed when the combination of its parts was broken up, and the further destruction of those parts themselves which by the patent would be an interference with defendants' property not warrantedbyany ofth a .fluthorities cited. The combination of parts in the defendants' infringing artioles(having been once bona fide broken up, a recombination of the (lId parts alter the complainant's monopoly has expired will not be joined. 'Motion denied. .
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(Ot'rcuit Court, S. 1. ,
York. December 1,1888.)
COLJ,tsION......VES$J!lLSAT BULH:·HEAD-OBSTRUC'j.'ING C,ij:ANNEL.
The ship T. moored at il. bulk·head with her bQw projecting about .16 fee' into a canal 157 feet wide, leaving sufficient spa()e for 'vessels to pass. wards a bark moored at a bulk-head on: the other.side,with her bow project" ing so far,into,tlle canal that it would be difficult fqrv6BselS The S., with a car-float in tow, and in an unfavorable condition of the tide, attempted to pass between the vessels, and collided with the' T.Held; that the T. was also in,fault in remah;ling in hcr position after the ,hark moored on the other and the damages should be divided. . '.'
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'. The T. was a"tramp" steamer, occasi.onally visiting the port gf ' New York, and WA.S under' a charter for " voyage l to Bombay, under which she would have earned, above expenses.ll>. J per day. The charter stipulated. for demurrage at the rate,of £45 per day, while that the custortiaiy allowance at 't'l1e' port of New York for detention of vesse1s the size of the Twas $262 per day. The vessel had no engagemantbeyond the immediate v.oyage, and it was not shown that after her arrival at destination,she found immediate employment. Held, that neither the demurrage rate specill.edhi the eh'Iirtel'. nor the customary demurrage rates at the port oiNew York. suppliedI' satisfactory criterion of the loss sustained by detention: quring . ,repairs; that. the amount .of the consequeu,tialloss 'f.aa the the market value for the use of the vessel or her probatile net dunng the period of detention; and one way of ascertaining tMsWM'bj flnding what . she W8S, earning at the time, or immediately before' anel after the eQllision; lI:nd that if at the time, she was employed under a a long period of tIllie, the average daily earnings under the charter may be taken' asthe'criterion. '. ,'! !.::;,:;'
BA¥E-DAMAGEs-DETENTION OF VESSEL.