86 FEDERAL REPOR'1'ER.
has been, for liIolonga its attention to"thewaiit in himd. It· is admitted that, in the character of coupler' un'der consideration, until a spring appeared ,reinforcing the action 6fgravity upon the latcb;thecoupler fell considerably short of success.. The previous let· tersJssued to J;Iinson,caJled to my attention at argument, failed precisely at this point. Gravity, unaided, is in a degree inert and sluggish. The insertion of the spril}.g ,gave greater alertness aI;ld responsiveness to the latch. In this di:lterence, though slight, may be found the source of the present coupler's qualities for success. This view is reinforced by the fact tbat, though many ot the preceding patents are open. to' the defendant for use, he' chose to use acotipler embodying these so-called trivial advances found'in the complainant's patents. He thus unconsciously testifies to the sn:periority of tlie<;omplainant's coupler,-a superiority that must be due to those qualities in which it dif. fers from its predecessors. On the whole case I am of the opinion that the complainant's com· bination is a truemechanica:I' organization, and that itincludes features that area patentable advanceupon the preceding art. The usual de· cree for an injunction .and accounting may be entered.
WESTINGHOUSE AIR-BRAKE CO. v. GREAT NORTHERN BY. CO. et al. Court, S, D. New York. March 29, 1898.)
When' a patent has been repeatedly sustained by' adjudications of the circuit court affirmed In the circuit court of appeals, a preliminary Injunction wlU Issue, even against a mere user, when he has been notified that he Is buying an Infringing artlcIe,and when there are no new defenses, and no special eqUities in his favor. . Public inconvenience is no grourid for entirely denying an injunction, but the court so frame the decree as to accomplish the result intended with the .least practicable disturbance to .the business of defendant, so far as the pUblic, is· therein.
!l'lCONVENIENOE. . .
INJVNCTION AGAINST USER.
This was a suit in equity by the Westinghouse Air-Brake Company against the Great Northern Railway Company and others for an infringement of a patent for air brakes. The cause was beard on a motion for preliminary injunction. Simon Sterne, for the motion. Frederick B. Betts, opposed. LACOMBE, Circuit Judge. This is a motion for injunction on the Westinl;'house patent, No. 376,837, certain air brakes now in use by defendant railway, and which were bought from the New York Air-Brake Company. The owners of the patent have finally established their rights? after a long and litigation against the manufacturers of the infringing 1::lrakes (59 Fed. 581, 11 C. O. A. 528; 63 Fed. 962;65 Fed. 99 i. 16 C;' C. A. 371, 69 Fed. 715; 77 Fed.r 616), and are now seeking to enjoin the users of such
WESTINGHOUSE AIR-BRAKE CO. V. GREAT, NORTHERN RY. CO.
brakes from continued infringement of their rights. The affidavits show that defendant railway company bought with notice that the brakes infringed complainant's patent. The affidavits of the plain· tiff distinctly assert that notice was given as far back as 1891, 1892, and 1893, and there is no substantial denial,-the most that is said by the single affiant produced. by defendant, its superintendent of motive power, being that "he does not now remember any particular interview"; that whatever statements :were made to him he regarded merely "as statements intended to prevent the purchase of competing articles" (which they undoubtedly were); and that "charges of infringement * * * are not regarded with anJ more particular seriousness than any other charges that may be made by rivals in business against each other." It is well settled in this circuit that a preliminary injunction may, in a proper case, issue against the user, and that when a patent has been repeatedly sustained by adjudications in the circuit, affirmed in the court of appeals, such injunction will issue (espe· cially when the user was notified that he was buying an infringing article), when there are no new defenses, and no special equities in favor of defendant. Manufacturing Co. v. Booth, 24 C. C. A. 378, 78 Fed. 878. A patentee who has established the validity of his patent against the manufacturer will not be compelled to litigate the same questions over again against scores or hundreds of users, or denied the only relief which can secure him the fruits of his invention dbring its lifetime, merely because the injunction prayed for is in form one pendente lite, althbugh quoad the infringing device which was made by the manufacturer, defendant in the former suit, it is in fact an injunction after final hearing. The only new evidence which it is contended bears upon the validity of the patent is the Britisnpatent 4,676 of 1887; but it discloses nothing calculated to modify the former decisions of this court and of the circuit court of appeals, although it indicates that the patentee and the court were apparently not in entire accord as to what constitutes invention. The question of jurisdiction is settled for this case in this court by the decision of Judge Coxe upon the plea. The objection of personal and public inconvenience is one which has been repeatedly considered and disposed of in this court (National Meter Co. v. City of Poughkeepsie, 75 Fed. 403), which always endeavors to arrange the terms of its orders or decrees so as to accomplish the result intended with the least disturbance to the business of a defendant, when that business is one which concerns the public. In a like proceeding against the Buffalo, Rochester & Pittsburgh Railway Company, another user of the New York Company's infringing brakes, an order was prepared by Judge Coxe providing for a gradual change. Inasmuch as defendants were able to withdraw their cars temporarily from the public service in order to put the infringing devices on them, it would seem quite practicable for them to be again temporarily withdrawn in order to take these devices off. The total number of defendant's cars
·'. 86 FEDERAL' ltEPORTER.
(16,000), and also the number equipped with infringing devices (3,200), greatly exceed those in the other case, and require a modincatiol;lof the tel'ms of the formei' order. Complainant may take an order the same general form as that issued in the Buffalo, Rochester & Pittsburgh Case, but requiring removal of 500 within 60 days from date of entry of order, and 500 each 30 days thereafter (changes in excess of the allowance for each period to be credited to the next one), until 2,500 shall have been thus removed, and thereafter 250 each 30 days until all are removed. Order to be settled on notice.
BLAISDELL PAPER PENOIL CO. v. EAGLE PENOIL CO.
(CIrcuit Court, S. D. New York.
February 4" 1898.)
PATENTs-INTERPRETATION-VALTDl'rY-PENcILs. The Blaisdell patent, No. 461,911, for a pencil In which the marking lead or crayon is·rolled In a covering of fl.exlble material,. preferably parchmentized paper, weakened by creasing, scoring, or perforating in diagonal lines, so as to divide It Into narrow strips, which may be separately removed to sharpen the pencll,covers a meritorious Invention, but is limited to' this particular form, and i Is not Infringed, by a pencil made under the Boman patent, No. 554,212, with a covering formedb)', ja continuous· strip of wood.
This was a suit in equity by the BlaJsdell Paper Pencil Company of a patent. against the Eagle Pencil Company for Clarence Ladd Davis and ohai-ies E, Mitchell, for .complainant. Kerr, Curtis & Page and. Marcellus Bailey. for defendant. TOWNSEND, District Judge. This is a bill alleging infringement of patent No. 461,911, granted October 27, 1891, to Ii': E. Blaisdell for a pencil. The defendant denies infringement. ,In the specifications of the patent, the case, covering,or holder of 'the pencil is described as made of some flexible material, preferably parchmentized paper. Weakened lines are made diagonally across a sheet of such paper by creasing, scoring, perforating, or otherwise; thus dividing the sheet into narrow strips, which may be readny separated. This sheet is then rolled around the marking lead or crayon. Thus, to use the words of the complainant's expert, "the case or cover of the marking lead is made of a scroll of flexible material adapted for removal in pieces taking the form of a section of a conical helix or helical cone." The pencil is sharpened, or rather a portion of the lead is exposed, by removing one of the' strips. The portion thus left uncovered by any one removal will always be equal to the width of one of the strips. 'l'he inventor does not confine himself to paper, but suggests that other substances,such as thin wood, veneer, cloth, etc., may be used, and adds:
"Although I have shown the covering or caSing, 2,of my Improved pencil, in the form of a bearing weakened lines, It is evident that such sheet n;Jaybe entirely severed along such lines before being rolled upon the lead or crayon, and that the striJ;ls thus formed may then be rolled upon the crayon In the mannerdescrlbed with precisely the same' effect as when in the' form of a sheet.