AMERICAN ROLL-PAPER CO. V. KNOPP.
But it is said that this is also a bill for an infringement, as well as for an interference, and that in such case every question which might properly be put in issue in an ordinary suit for infringement may be raised here; citing Holliday v. Pickhardt, 29 Fed. Rep. 853. We do not so read the pleadings. The bill prays that the Brush patent be adjudged void by reason of its interference with the patent to Faure. The answer prays that the Faure patent may be declared void; that the plaintiff may be restrained from disposing of it, or making use of it directly or indirectly. There is no allegation in either that would justify us in treating either pleading as a bill for an infringement. Indeed, it is very clear that an answer to a bill under this section could not be treated as a bill for an infringement. . Separate orders will then be entered, denying the petition to dismiss, overruling the demurrer to the supplemental bill, and sustaining the demurrer to the amended bill.
(Circuit Oourt, E. D. Missouri., E. D. November 8, 1890.) L I.
PATENTS lI'OR INVENTtONS-PRESUMPTION 011' PRIORITy-INPRINGEMBNT AND INTERFERENCE·.
Where two patents interfere, there is a rebuttablll presumption that the inventor who first applied for a patent was the first inventor. Where two patents interfere, and the later.in date was first applied for, the owners of the latter cannot have damages for an infringement by the owner of the other without first obtaining an adjudication under Rev. St. U. B. § 4918, providing for suits to determine questions of interference, that the other isvoid.
. . .
SAME-RIGHT TO DAMAGES.
A count under that section for an interference and a count for infringement may be joined In the same b i l l . . .. .
In Equity. Geo. H. Knight, for complainant. Paul Bakewell, for defendant.
THAYER, J. In this case it appears that the roll-paper machine manufactured aud sold by defendants is manufactured strictly in accordancewith the specification and drawings of letters patent of the United States No. 394,121, owned by defendants, and issued to Edward L. Knopp December 4, 1888, the application for which was filed September 8,1888.. Complainant's contention is that defendants'machine embodies substantially the same inventi.on claimed and described in letters patent of the United States No. 409,028, granted to the complainant, as assignee of Leo Ehrlich, on August 13, 1889, the application for which appears to have been filed December 2, 1887, and was renewed March 28, 1889. Its contention is also that the machine is an infringement ofthe Ehrlich patv.44F.no.8-39
I'.EI)ERAL REPORTER ·. vol.
ent. but deciding, that it is substantially the same invention:, apd that Ehrlich device. possesses still Cj1nnot recover: in, this case, (defendants' patent having been first granted,) unless it is shown in some way that Ehrlich was the inal and firsHpventor of the device; and it has not beet;l so shown to my satisfuction, ;There is evidence in. the record as to whether Knopp or Ehrlich was the original and. first inventor, unless the that Ehrlich's applicat,ioq,for a patent WaS first filed creates a presumption that he was the first inventor. But the date of an application for a patent does not necessarily or,: ordinarily inqicate the true date at which the invention wll.'$ made,1>eGause inyentors sometimes,. if n<;>t often, fail to make an application for a patent for months after the .invention is complete. In $;; 1?p..r it appears, as before stated, that Knopp first obtained a patent, application for one placed on file. Under tlie circumstances. and in the absence of other av.idence on the subject. the court will not presume that Ehrlich was the nrst inventor, and the burden is on complainanL to establish that fact. It is just as reasonable to infer that Knopp was the first inventor. I have not stopped to consider whether, in a bill of this character, which is merely a suit for infringemenh it is for the complainant to show that Erlich was the first iilVEmtor of thE! 'alleged ihfringing device, a:nd thus invalidate the prior For present purposes, it is sufficient to say that, if the fact iIi question' may be shown, it has not oeen, and a decree ,mustg(j against t4e9omplainant on that . Another feature of the case justifies comment. It was admitted at the hearing that the complainant is not manufacturing,and has not manufactured, any machines under the Ehrlich patent, or put them on the any IIianner. It is manufacturing a. machine made under a patent five years previous to the Ehrl1ch.patent, which it evidently considers' superior to the Ehrlich machine, a'ildsE:emsto be ing the to ot1?,er manufacturerfil of roll-papei" machines out of the market. Whatever its technical right to make such use of the patent may be, its conduct in this respect evidently deprives the public of whatever advantages the Ehrlich invention possesses, contrary to the true policy of the patent laws. . The bill is dismissed.
(Jalluary 8, 1891.),
'raAYElh1..; 1. UnUElr the authQrities cited, it must be conceded that, ,iu theab,seD.9Elof proof showing the true date of each invention. the presumptiqn is. that eac4; i)ilventiQu Wal;l made at the time the respectwere ,filed,. Bate8 v. Coe, 98 U. S. 23, 34; Pem'l'lington Rep. 46ih,1)cme v.Manufacturing Co.,a,Biss. 380. cording was,·filed December 2, 1887, on Sept,ember,8, as thereis no EhrliQh'lI Qp.ginal applicatioJl was modified oratnendild