DRAINAGE 90NST];tUfTION CO.
system lllore or lessclOf:iely. The evidenceJfails,"however, iIl;,showing that the defendant has infringed the' specialcombinatiolls described, in the first claim of the Belden patent, and the second in the Mack patent, and the bUl.must therefore be dismissed, at costs.of'complainant.
OO'll-rt.,lV. D. Iowa, E. D. JanuIl7; 3,1890.)
In BUl for injunction., Oharles Miller, for I. N. WMttami,fordefendant.
. SIDRAS. J. " In, tlds tbat the lamps used iJ1,llgbting certain ,portiAnllof tbe city cif ceda.rRapids are :furnished tinder a contract between the city alld the West. g el'Jl street-x.,,i,ght Co,' ,mp.an,Y,'j it be,in,gChar, ed in the bill, tbat,';a,UCh lamps ,IntI',inge 1"at,teN patent .and ,No. 286.211: In tbe suit brougbt 1;Iy, tJ\8 Western Street-LIght Company It has 'been deCIded tMt thecbargec;lf mfringement ,'ps not :madeout,amllt,follows tbat, the complainailt'has aa.ground foreiljoining :t!:l'e ei"ty. Ante, 48. ,TheblllJI
Co. 'D. CITY: oi' CHELSEA.
(Oircuit Oourt, D. Massachusetts. January 8,1890.)
P.£.TlIll<TS FOR INVENTloNs-Il<FRINGEMEl<T-IMPLIEIl' LIOENSB.
, In a suit for the infringement of letters patent No. 278,839, issued June 5, 1883, to
George E, W,a,ring, Jr' l for improvements draining towns, it appeared.W!Jt !lefendant '!l1lli'i:Jaid" royalty on the fillSh t4nk8ll8ed, and that, before it put in its system of sewers, plaintiff had notified defendant, in response to a question, that a of 10 oents p.e/.' fP?t" .defendant acted under'an Imphild"Ubettse;'a bill for inJunction alid: aooountlbg would not lie; the proper remedy being an action at law for recovery of the .
';-' ':J ":" /"',
l ,-' , .. " ; . . , :' , · '. .",'. .' , ,. ,
In Wlolty. " Billf9rinjuD¢ionand , &nj., Thur,stan a.nd Georgll O. G. 00al6, for complainant.
' f<,>t :defendalit.
1883 the defendant built a system of sewers in what is ,yill E3 9fthat -to)!Ji1h, Wil,liap} CIty Col, 'sents cor.poia#on,: .system , and jj'afticulai'ly'the"FibldfIush tem. In his letter of July 31, 1883'. McClintock says:
of'$1(Jrin,eaCh fluih ,,,"
FEDERAL REPORTER, vol. 41.
()nthe'.systeOl· of sewers that used these flush tanksto keep it clean. We don't wisbto iDfringe on anyone's rights, and would like to know just what that be !loswered .before We proceed. " On·Au.gu.st4th,in reply to this, Waring writes: "You have got Rogers Field's royalty right, but Drainage Construction Company has a royalty of ten (not one) cents per foot." It should be remembered that the patent in suit is for a system of sewers constructed so as to exclude storm water, in combination with automatic flush tanks. As,a result of this defendant, throughits ordered eight flush tanks, which\.wereduly shipp'ed by the plaintiff.' The defendant paid for these flush tanks the sum of $211.36, includiIig$80 for royalty. Under these circumstances, I do not see how anyinjimction can issue defendallt of these tanks. In view of the whole against theuse by theseI?arties, it seems tR ,me that. this is their ;true po$iti<)n:,Sofaras. the defendant has usedAhe sewerage system .. in $uit, it should pay the license. ,ees as ,outlmed !n,war1l3g's lettero£ August 4th. In other words, I thmk the facts'·in' this impiiedlicense.This is' evidently Waring's understanding of the situation; for he states that he expected to receive a royalty for sewers from the defendant, and that he supposed this suit was brought against the city f6'r stich royalty. I do not think the evidence in this case warrants the bringing of a bill in equity for an injunction and account:' If the 'plainti'ff has a claim; 'it lies i'nthe direction of an action at law for royalties upon an implied license. Bill dismissed.
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" r,.'·'· , NATi'ONALRuBB1l:RCO.
BOSTON RUBBER-SHOE Co·
TO DENY V ALInITY OF PATEWI'.
Plaintiffs granted defendants license to manufacture and sell rubber shoes embodying certain by;tbem, on der quarterly statements ot. tbe number thus manufact';lred. and pay a certain, royalty ther.a<ltt·. ;Doefllnda:nts manufactured· uude!' such hoense for three years, and paid the royalties as provided, and then refused so todlh, that, in BIl action to recover the royalties, defendants were estopped frotils6ttirig up the invalidity of the patents as a bar to recovery.
AGAIli8T.INFRINGj!)H:RNT. . .... .
'.'.i.. '.' 'Iii ,theabs'enceof l:tnyexpresscoveMl1t.ln t)le license that plaintiffs would protect
4'.om:infringem,ents of the patent, no such covenant will be implied to deright. of recovery. " .'
,;iAction' by 'the Na.ttonal Rubber" C6rnpany t6 royalties on ·ce,iti\in under.a Iic'Emse to, the, Boston Rubber-Shoe Company. i:"'1J:F':'T!tlfr8wn,':R. M.Mor8e" W. M. for plaintiffs. -' . E. Maynadier;' for . "
NELSON, J.-, .The plaintiffs, the National Rubber'Company, being the .'Oltoorlil>by;lUlsignmen1i of the Evoryand' Heston, patent 59,375, for an