DE VER WARNER V. BASSETT
(Oircuit Oourt, D. Connecticut. April 5, 1881.)
PATENT No. 197,913-IMPROVEMENT IN CORSETS-MoTION FOR PRELIMINARY INJUNCTION-CONSENT DECREE NO FOUNDATION,
A decree by consent in one circuit is not such an adjudication of a patent as will lay the foundation for a preliminary injunction in another circuit.
Munson <t Philipp, for plaintiff. Wooster <t Torrance, for defendants.
SHIPMAN, D. J. This is a motion for a preliminary injunctionto restrain the defendants from the· alleged infringement of. two, letters patent, each issued to the plaintiff for an improvement in corsets. The first patent was issaed April 10, 1877, was surrendered, and was re-issued March 5;' 1878;/ being No., ,8,114.. The other patent was issued Decembei!4, 1877; ilind'is· No. 197,913. No 'adjudication has ever been; ha,d,inr'egard'to re-issue ;No. 8;114; sluHm upon the' hearing that the 1did not: ask for a iu3·unction..under this 'or ahout De') cember:'29, 1879, the plaintiff filed his-bill ofoomplamt in the United States circuit, court for the, eastern· distr,ictof: Michigan against the' DetroH. Skirt' & . Corset Company; \ alleging the infringement of both patents. ,AhoutJanuary, 10,1880, a motion for preliminary injunction was afteria hearing, a temporary injunction was granted to restrain the: defendants from the infringement of ' No. 197,913. A rehearing was allowed on motion of the defendalDts,: and the injunction was again ordered to issue. A settlement was afterwards made, and a consent decree was entered against the defendants. This is not such an adjudication upon the patent as, in my opinion, should lay the foundation for a preliminary injunction in another circuit. It was a hearing upon affidavits, and although the learned court came to a deliberate conclusion, which was adhered to upon re-examination, the
V. SWIFT & OOURTNEY & BEEOHER 00.
adjudication is not equivalent to one rendered upon final hearing. ' The reliance of t;he plaintiff for an injunction is upon the acquiescence of the public in the validity of the patent. It bas been in existence about three years, and during that time the patentee says he has sold over 600,000 pairs of corsets made in conformity with the patent's description of the invention, and that no infringements have taken place except such as have been abandoned by agreement. The life of the patent ,4as not been long, but the sales have 'oertainly been very and indicate that the article is very popula1J,.and.it seems that its success would naturally have invited imitators. But in the absence of an adjud,icatlon ftill of the art and final"hea.r,ing, I am veryJoth togrl'mt ian because, although this patent may have heretofore' been respected, out of the multiof which have been wQrn: it tha.tit should hereafter, be ascertained that .8omemanufa.cturer hadumade and sold a style\fhi.ch be,in my an unwise: temporary, i'n5\illotion in this case. " , , ' " "", The motion is denied.
SOHOERKEN .'27. THE SWIVT
Court, S;D. New YO'I'M.
April 28, 1881.)
Courts of the United States take judicial. notice of foreign nations, and their seals of state, but not of their inferi\lr officers or departments and their seals.
2. FOHEtGN PA'1'EN'r-SEcTION 893, REv. ST., CONSTRUED-AUTHENTICA.nON OJ/' FOREIGN PATlllNT-Al1'1'ItE:NTICATION OJ/' FRENCH !,>ATENT.
Section 892, Rev. St., provides that copies from the United States patent-office, certified by the commissioner of patents, shall be evidence in all cases where the originals would be evidence; and section 893,. Rev. St., provides that copies of foreign patents, authen·