BALL" SOCKET F.(SfENEk CO. fl. BAt!>
sideration, the owner" Mit patent undoubtedly may main.tain suitJJ for infringement against the manufacturer and user of the patented device simultaneously. Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. 244; Kelley v. Manufacturing Co., 44 Fed. 19. True, pending a test suit against a manufacturer involving the validity of a patent, in which a preliminary injunction against him has been denied, courts in other jurisdictions have declined to enjoin preliminarily the users of the device. But the Edison patent has been sustained under circumstances which entitle the adjudications to high regard. It is the accepted doctrine that the decision of the supreme court, after exhaustive" litigation upon the merits, sustaining a patent, will ordinarily be regar<ledas conclusive on a motion for a prelimi· nary injunction, thelpresumption against the existence of any valid defense against the patent prevailing at that stage of" the Purifier Co. v.Christian, 3 Ban. & A. 42, 51; American Bell Tel. Co. v. Southern Tel. Co., 34 Fed. 795; American Bell Tel. Co. v: McKeesport Tel. Co., 57 Fed. 661. I think the same effect ought here to be accorded to the decisions of the United States court of appeals for the second circuit sustaining the Edison patent. In each of these cases a preliminary injunction in the form prescribed by the courts of the second circuit will be allowed.
BALL & SOCKET FASTENER CO. T. BALL GLOVE FASTENING CO. (Circuit Court of Appeals. First Circuit. No. 57. February 21, 1894.)
On petition for rehearing. The facts are fully stated in the prior -opinion of this court, reported in 7 C. C. A. 498, 58 Fed. 818. Before PUTNAM, Circuit Judge, and NELSON, District Judge. PUTNAM, Circuit Judge. The appellee filed, October 30, 1893, a ,petition for a rehearing in this cause, and a brief in support of it. The matters which it desired to reargue were two, and were stated 1n the following:
"Your honors, in considering the Mead buttonhole member, have mentioned, and apparently have considered. only one of the forms of this device 8S "made by the appellant. The record discloses a number of forms of the Mead deVice, and it is only by an examination and knowledge of each and all -of these buttonhole members that they can be considered as a whole. or separately. The appellee, your petitioner, does not believe it necessary to present arguments to change in any degree the construction given by your honors to the fourth claim ot the Kraetzer patent No. 306,O:!1; it desires the opportunity to present the various buttonhole members which the record discloses the appellant has made, and to show that, under the very con.struct1on which your honors have put upon this claim, it covers these devices. · · · In relation to Kraetzer patent, No. 200,067, it is respectfully desired to argue what the record discloses the 'eyelet' of that patent is."
The brief had prefixed to it a drawing showing the appellee's con· -struction of what it styles the Mead fastener as made by the appell1ant with a so-called "perforate cap," and the Mead fastener as made
.. ()Q. (:ap," and the stated "only t4e Mead fastener '
by 'appellant with /;lso-called that tile court had ,apparently the perforate cap"" and added:
,"We a!!k you now to consider the Mead fastener willi the imp'ertorate cap, lfAde a1m9St, in the. minutest .detail, ill acCordance with the language of the fourth claim of the Kraetzel' pAtent No.. 300,021."
Thereupon the court entered the following order:'
"The'apt>eIlant and apt>ellee may each, on or before January I, 1894; f1.1e a br1lilron: the question llny of the various buttonhole members which the,appeUant haEJ mllde:are covered by the construction the c!>iUl;t ¥as already .put .1lPOll of the, Kraetzerpatent No, 'and lire within the, confract ot the partiE!Sj. llllq upon the .further question :wtiatthe r6Cot'dtliec]'Oses the 'eyelet' of Kraet2;er patent No. 290,067 to be,....thebriefs, to I be Jimlted to the above .questlonit, :and to contain referI!uc hparts of the rjlCord as on In,tbi,aconnection; a'nd will dispose of the matter on tpe briefs without oral or further arthe gument, 'IUl1es$ It shall hereafter otheiwille order." . . . .
Undenfcolorof. thiSJOrder the appellee flIed an:'elaborate brief,taxing the oou.rtwitha:new discussion, of:the large.r part of the entire case,' and ,closing "with the proposition: "; .
"There cllnbe 110 question whatever that all Of appeillint's buttonholemem.. bers, C()m.e \ll1tliln' ,the secoll(h1alm of tyatent 290,067.'/:
The appellee, however, fails to point out any evidence in the record that the appellant manufactured fasteners with the imperforate cap, appeljaqt. that t4ere apy sucb. evi4ence, and. the court has been unable to find 'any. . All the exhibits put in proof have the perforate cap. Thel'efdre, we not called' o:d to consider any propositions based on that distinctioJ). With reference to the point touchiIl;g the "eyelet" of the Kraet7er patent No; 290,Ofl1, which :we permitted should be covered by the briefs referred to, because there was some confusion arising from the peculiar use 'of the word,inithe paten't,the appellee now says that it was used to designate the buttonhole member as an entirety. This was the. view taken by'us;;'so that no fUl'ther'consideration need be given t4at topic. ForJthat reason,and because the court, in its formel"conclusions, considered only the perforate cap, and there is no evidence in the record that appellant manufactured the impl:lrforatecap,and withont. any intimation whether or not this distinction is essential, the petition for a rehearing must be denied. · ,r,rhe appellee has appar¢htly proceeded on the theory that the manes in the case were wif,hthe l\fead, patent of fleptember 8, 1885, some of the drawings attached to which show imperforate caps. This is erroDe(jus, as the sole .issues werewitb'· sruch. fasteners' only asthe eviden<:efnthe record shows were manufactul'ed'by appellant. ,The appellee also refers us to Fastener Co. v. Kraetzer, 150 U. S. 111, 14 Sup, Ot. 48. In our view, this decision tends to confirm the conclusion reltched ,by us Jji" the case at bar, the supreme court (page '116, 150' n. S.,· and page 4'8, 14 Sup. Ct.) recognize "different prfnciples" of. construction aS1; between the Mead fasteners and those constructed by Kraetzeras shown' to that court, although the latter had the sembla.niCeof a button, on which the appellee l'e"
EDISON ELEe. LIGHTe<>. t1. ELECTRIQ ENGINEERING"' SUPPLY 00.
lies so much in this case, and an elastic ring, which answers for the Kraetzer eyelet, if the latter is to be so broadly construed as the appellee claims. Petition for rehearing denied. Mandate according to the order entered October 27,1893. may issue forthwith.
EDISON ELECTRIC LIGHT CO. v. ELECTRIC ENGINEERING SUPPLY CO. (Circuit Court, N. D. New York. March 21, 1894.) No. 5,949.
PA'I'IjlNTs--,-LIMITATION BY FOREIGN PATENT.
When. for the purpose of limiting the duration ot an American patent, defendant Introduces a foreign patent fora shorter term: to the same inventor, he Is not bound to show further that the fore11Ol patent has not been especially when thl're is no proof that the foreign law authorizes extensions. Bate Refrigerating Co. v. Hammond Co., 9 SuP. Ot:. 129. U. S. 151, explained. The Edi.son patent No. 2Ii5.:n 1. fotl an electric lamp and holder for the same, shows patentable invention as to claims 2 and 8, which l·elate especially to tb,e $OCket for holding tb,e lamp.
SAME-INVENTION-ELECTRIC LAMP HOLDERS.
The. Jo/lnson patent, No. 251,596, for an improvement in sockets or holders for electric lamps, Is void for want of invention as to claim 5, which Is· for an exterior metal covering protecting the interior portions of the socket.
The Berg-cann patent, No. 257.277, for an Improvement in electric lamp sockets, shows invention as to claim 2. which covers a form of construction In Which. the contacts are compressed, Instead of drawn apart, while screwing the lamp Into the socket.
Bill by the Edison Electric Light Company against the Electric Engi:J.eering & Supply Company for infringement of patents. On final heal"i.ng. C. E. Mitchell and Richard N. Dyer,for complainant. Alfred Wilkinson, for defendant. COXE, District Judge. This 8uit is based upon five patents owned by.the complainant. All of tht:'m relate to improvements in for incandescent electric lamps. They are 1'0. 251,596, granted December 27, 1881, to Edward H. Johnson, 1'0. 257,277, granted May 2, 1882, to Bergmann, No. 2U5,311, granted October 3, 1882, to Thomas A. Edison, No. 2B3,552, granted February 12, 1884, to Sigmund Bergmann, and No. 2B8,fi58, granted May 13, 1884, to Sigmund Bergmann. The last of these patents, No. 298,658, was, at the argument, withdrawn from the consideration of the court. Regarding No. 293,552 it is admitted that at one time, tbree years or more ago, the defendant made sockets which infringed. As I understand the situation, therefore, there is no objection to a decree for an injunction and an account, so far a8 this patent is concerned. It remains to consider the other three. v.60F.no.3-:W