KANE '/I. HUGGLlIiS CRACKER & CANDY CO.
used it is the duty of the court to protect the patentee, however ingenious may be the mode of infringement. The motion for an injunction is therefore sustained.
KANE t1. HUGGINS CRACKER
Co. et al.
(Cirtmit Court, W. D.
Missouri, W. D.
December 11, 1890.)
PATlIllllT8 POR INVENTIONS-IN1i'RINGEMBNT-INrnNOTION.
Nor will injunotion be granted against the president of suoh corporation, who has been retained as an employe by the purchaser of the business of the corporation.
In -the absence of a prior adjudication of the validity of a patent and of proof of general acquiesoence therein, the court will not grant an injunction pmdente lite on a bill to restrain infringement, where the proof leaves it uncertain as to the patentability of the patented article, and where it appears that respondents have and valuable property. and are perfectly solvent, and the measure of compl81nant's damageun case his patent 18 finally established can be easily ascertained.
Banning, Banning k Paysun and Huston &: Pa7"l"ish, for complainant. Goudy, Green &: Goudy, Offield, Towle &: Linthicum, and Warner, Dean k Hagerman, for defendants.
PHILIPS, J. This is an application for injunction for the infringement of letters patent granted one George D. Moffat of Chicago, Ill., assignor of Thomas Kane, letters No. 356,394, dated January 18, 1887, entitled "Candy, and process of manufacturing the same." The Huggins Cracker & Candy Company is a corporation of the state of Missouri, at Kansas City, Louis Huggins is a citizen of the state of Missouri, residing in this district, and the American Biscuit & Manufacturing Company is a corporation of the state of Illinois, at the city of Chicago. Where the patent is clear on its face, and its validity is not assailed aliunde, injunction is not only an appropriate, but may be termed the natural, remedy for an infringement. Injunction is, however, an extraordinary remedy, and the discretion of the chancellor obtains in granting the writ in patent cases, as in other applications for injunction in equity. No further discussion of the meriUl of the patent in question will be indulged than is deemed necessary to warrant the conclusion reached on this application for a temporary writ. As to the Huggins Cracker & Candy Company the writ is refused, for the reason that I am satisfied, on the showing now made, that some three months prior to the filing of the bill herein this company sold and conveyed its stock, material, and plant to the American Biscuit & Manufacturing Company, since which time it has not employed the patented device in qnestion. As the office of the writ is to restrain an existing
user, it will not be granted afterthe use has ceased. Brammer v. Jones, 3 Fish. Pat. Cas. 340. It is true the bill avers that this transfer was and is simulated; that the Huggins Cracker & Candy Company but entered into what is commonly known as a "trust," retaining its corporate autonomy, still pursuing its customary business, with corporate responfor its profits, and sibility, looking only to the success of the being subject to sueh compact. It is also true that some evidence of the continued business, eo nomine, by the Huggins Cracker & Candy Company is presented by the use of the letter-heads of the company in certain correspondence of Louis Huggins, its former president. But the counter-affidavits so clearly show an absolute sale and transfer and the retirement from such business by the corporation, as such,that it would be unreasonable to hold that the complainant had made out a prevailing prima facie case sufficient to warrant a restraining order against the corporation. As to the respondent Louis Huggins, the facts disclosed are that he was the president of the Huggins Cracker Candy Company, and, when the sale and transfer were made to the American Biscuit & Manufacturing Company, he was retained by the latter company merely in charge of the concern in Kansas City. At the time of filing the bill herein, he was only the employe of the American Biscuit & Manufacturing Company. Whatever he did in the matter of the imputed use of the patented device was for and On behalf of the latter corporation. In such case the injunction, if granted, should go against the corporation, and not the servant; for if the corporation be enjoined, the servant's occupa. tion is gone. The more important question is as to the right of an injunction pendente lite against the American Biscuit & Mallufacturing Company. The record proofs and the evidence aliunde leave it uncertain as to whether or not Moffat was the first discoverer of the alleged patented device. A patent was granted on the 23d day of December, 1884, No. 309,720, to William P. and James W. Kirchoff, for an improved process of, and apparatus for, the manufacture of candy. There was no contention at the hearing that this Kirchoff process is not substantially identical with the process claimed by the Moffat patent, and the proofs confirm this. It is true there was an interference contest had before the patent-office, at the instance of the complainant, prior to the grant of the Moffat patent, and that the Kirchoffs withdrew from the contention in favor of Moffat, and authorized the issue of the patent to him. But the fact remains that, while Moffat asserts that he was the discoverer of the claimed process and resultant product anteIior to the Kirchoffs, and had so publicly proclaimed his discovery, and that the Kirchoffs simply took advantage of his pecuniary inability to prosecute his invention to patent, and availed themselves of the fact to intercept his application by filing an earlier caveat, yet the Kirchoffsmake affidavit that they conceived the invention in November, 1875, and made an apparatus to carry out the process as early as May. 1882, and practically and publicly used the same in 1882, while Moffat claims to have made his discovery in October, 1881, and put it to prac·