ably a subject 'of contention between' the counsel;, ,The contention,was whether One or two billsin:ust be brought, and the fact that the licensor and the exclusive licensee be joined was nQt:a :subject of dispute. But this bill cannot be sustained without disregarding the opinion of the court for this oircuitttpon the question onaw whichis raised by the demurrer.' ' The defendant also dertiurs because the allegations of the bill. Inr&-' gard to title' either patent are'not sufficient. ,The allegations are that, by mesne assignments and grants, it ,became, prior to the bringing of ibis suit, and now is, the party interested in said letters patent; "all of which, by said assignment and grants; now in' court produced and shown, will more fully appear." The objection is that the bill does not show how the ,complainant is intel'ested, whether as aSsignee, grantee, or whether it is solely interested, or the extent of the The allega,with the profettand exhibit of the "assignments and, grants," which show the nature 'and character of the ,interest, are sufficiently definite;':The demurrer, so' far forth as it relates to the wlio mustu'tlite in a suit upon'the Beecher patent, is sustained. Leave is given 'to'ainend. .
(C'£rcuU COUH, D.lndW1'l.a. :November 9, 1889.)
P.A.TJmTB POB INVBNTIONII-INFlUNGBMENT-1'RBLlMINA.BY INroNOTION..
A prol'i,sl9nal injunctionwill not be granted, against theinfringemEint of a patent ,whose validity is iiepelident upon the 'result of an appeal in a former suit for it!! infringement.Where it, appears that defendant;,9-asbeliln oarrying Qn its business iQ good faitll,and In of the alleged infnngelDent, ',and that a stoppage would be an frreparable whlle plahitiffhu an adequate remedy in damages. '
In Equity. On motion,for provisional injunction. 'Rodney MaBO'Tt, for complainants. Parkinaon &:Parkin8orl;,' for:defendant.
'. GRESHAM, J. The above oomplaimilnts brought suit on four patents, in the eastern district of Michigan, against William A. CoombS, as the user ora'roller-mill, made by this suit, for the manufactUre 'of flour;' The answer attacked the validity of all the patents, and 4enied infringement. .The complainants abandoned one of the parent3 at the held twooftqem invalid, and sustainedtbe . sec.;md; third, fourth, 'aiidfifth claims 'of the other, the Gray which consisted apElCUlial' oonstmction and arrangement of devices fOr 'adjusting the 'rolls vetticfdly, as well as horizontally, whe11ebyany uQevenness ih rolls"ol'in their journals or bearings, may be compensated for; surfaces kept exactly in line," and also "in special devices for separating the rolls when not in action; andihbther details." 'Tbeusual decree ,was entered
against the the casewa!l sent to a' Jnaster. The answer in, the suit here sets up substantially the same defenses that were relied on in the Micbigancase,cwhich was clefendedby an aSFiocjation of five, mill furnishers; of which the defendant, the Richmond City Mill-Works,. ,The motion for a provisional injunction is based in part upon the decree in on the thElory that thet;ewas privity tween the defendant there and the defendant here. Prior to the commencement of the Michigan suit, Allis, the then owner of the Gray patent, sued Freeman for its infringement in the western district of Wisconsin,l and after a hearing the court (Judge BUNN) held the patent invalid, and dismissed the bill for:want of equity. The complainant appealed, and then assigned the paterit to the parties. or some of them, who became complainants ,in the Michigan suit, ,and they dismissed the appeal. Why this was done we do not know. IIi Gray's first application for a patent he claimed broadly the means for adjusting the rol4lr bearings, ,iHespectiveof the particular location of the supporting pivots, which were adjustable, and irrespective of other details of construction. 'the rejected by the patent-offi6e. Gray submitted to the decision,andfiled another application,withclaims limited to special deVices for hil:l adjustments, and the application, with the claims thus limited, was allowed. Judge BROWN, who heard the Michigan case, did not hold Gray to the limitations imposed upon him by the patent-office, but construed his claims broadly, and somewhat as if the patent were a pioneer. Indeed, he interpreted the claims as ifno limitations had been introduced into them by amendment to meet the requirements of the patient-office. Certain foreign patents,. properly or improperly, caused the patent-office to reject Gray's original application. He submitted to the decision as stated above, and amended his claims by limiting them to the" special devices" by which he made bis adjustments. and if he is held to these limitations, and his claims are not expanded by construction, this suit must fail, and the appeal from tbeMichigan decree will .be reversed. It is not necessary, however, for the court, at this time, to express an opinion as' to the correctness of the rulings of the learned judge who: entered the decree in the Michigan case, or of the effect of that decree upon the defendant in this sllit. The defendant is a manu-. facturer, and the complainants are not, and if the supreme court should hold the Gray patent invalid, and reverse the decree in the Michigan suit, this defendant might, and probably would, suffer irreparable illjury, while, if the decree of the Michigan court is affirmed, the complainantscan recover full damages and profits for the use of their patented improvements. The defendant owns and operates an extensive establishment, and has a large capital invested in the manufacture of roller-mills. It cannot be said upon the proofs before the court that the defendant has not been carrying on its business in good faith, and in the belief that it was not trespassing upon the rights of others,and a sudden stoppageMits business might be ruinous to it. The chances are more than
eve'nthat it'the courtshould now issue a provisiollal injunction as prayed for in serious injury to the defendnnt without benefit to The motion for a provisional injunction will be denied; when the defendant files an undertaking, with security, to be aP'" proved by the clerk of the court, for the payment of any decree that may be rendered in favor of the complainants on final hearing.
CELLULOID MANUI"C CO. fl. CELLONITE MANUF'C CO.
(Oircuit Oowrl,; 8. D. New York.
November 6, 1889.)
PATENTS FOR INVEN'l'IONS-PROFITS FROM t78E-FnrDINGS OF MASTER.
In an aotion to recover profits arising from the use of a pat.entsolvent, the malland during the same period treated it with other solvents, but, owing to a defect in the pyroxyline, its treatment with, the various solvents resulted in a product which could not be sold at a profit; but that, if defendants had not used the solvent in question, they would have used others; and that, by reason of the patent solvent being cheaper, defendan.ts saved a sum wbjch complainant Was entitled to recover as a profit. HeUl. that the conolusion of .the master was correct.
tel' in ohanoeryfound that defendants uSE\d the solvent for treating
EQUITy-REPORT OF MASTER-FiNDINGS OF'FACT-WAIVE,R.
The reason for the rule reqUiring objections, to the findings of a master in ohancery to be first made to him on the draft of his report does not fully obtain where the objeotion is.to ,the prinoipal finding of,faot, as he probably would not have changed his conclusion; but it is no hardship' to reqUire of the dissatisfied party that he so state his objections, or be to have waived them.
SAME-CONOLUSIONs OF LAW.
Where theniaster is correct in bis findings of fact, but errs as to conclusions ot law, the rule requiring exceptions to his report is not applicable.
In Equity. ,On exceptions to master's report. J. E.Hindon Hyde, for complainant. JfJhnR. Bennett,. for defendant.
WALLACE, J. The exceptions filed by the defendant to the report of the mRster,towhom it was referred to take an account ,of damages and pr0fits, impugneveryimpor.UtI!t finding of the master upon matters of faet,and' also his conclp::;ioh of law upon the facts ·. The testimony taken before the master has been examined 8ufficientlyto ascertain that. it' justifies his' findings of fact. In tl;1eview most favorable to the fendant;. the master has only found against the defendant. upon fac,ts.as to which there iI; a fair conflict of testimony. His findings, therefore, should not be disturbed. Ma8t:m v. Oro8by, 3Woodb. & M. 258. Although the testintonybel\ring upon the exceptions bas been thus examined, it. is not to be understood that: the courtis of the opini<m.that the def ndant is entitledfu have 'these exceptions considered. In his draftreport the master made the same: findings,and no objel'ltiona to .them were interposed by the defendant: According to. the correct practioe; no exceP'" tions to a report can be considered which were not taken before the master in the form of objections to his draft of the report. ,The.