to show that· the plaintiffs' 'claim and patent should be, confined to the "metallic frame-work." But ?>dopting this view would not help the The fact, that they have copied the "metallic framework," would remain. We say copied, because this, in effec( is what they have done. There is no material difference between the two devices. The mechanical difference in is unimportant. for'the use contemWhen constructed,-considered as plated,-::-theyare substantially identical. The meshes, or open in the "metallic frame-work," are covered by the claim, though the pateJilt may not be confined to them. The methodiof construction specified produces meshes, and the model filed exhibits them. That their uses are not specified is unimportant. The pllLintiffs have the penefit of all uses to which they 'Can be applied. The mgenious argument base4 on a, different view of the patent thus loses its effect.
(Oircuit Oourt, D. New Jf1l'8ey. July 23, 1881.)
LETTERS PA.TENT-PRELIMINARY INJUNCTION.
A injunction will not be gtahted where the defendant's affidavits make 011t a case of Teasonable doubt as to the novelty of the complainant'spatent. 2.
Semble that the same rule applies as to its
In Equity. NIXON, D. J. This is an application for a preliminary injuMtion. None should ever be granted where the answering affidavits of the defendants show a reasonable doubt about the novelty or validity of the complainant's patent. This was done at the hearing by exhibiting a certified copy of English letters patent No. 3,801, for improvements in the manufacture of plated and gilded ingots of iron and steel, and in the moulds used for that purpose, ceded to William Morse on the nineteenth of May, 1874. After an inspection and examination of the provisional and complete specifications and drawings of the said Morse patent on the argument, I intimated that they suggested a sufficient uncertainty in regard to the novelty of the complainant's patent to warrant the court in refusing the application. The counsel for the complainant afterwards submitted to me several affidavits,taken without notice, and purporting to be verified
CONSOLIDATED MIDDLINGS PURIFIER CO.
before a master in the court of chancery of New Jersey, tending to show that, a:1though the patent to Morse antedated the Illingworth patent on which the suit was brougpt, the invention of the latter was in fact perfected several weeks before the actual sealing of the complete specifications of Morse; and claimed that, under the rule. he was entitled to use such affidavits in reply to the affidavits of the defendants on the complainant's motion. But' this is not allowable. Such a would often result in determining what seems to be the vital question of a cause u,pon ex parte affidavits. The complainant must wait for his injunction until the. final hearing, when the court will be better able upon the proofs to ascertain the facts. The injunction is refused.
CONSOLIDATED MIDDLINGS PURIFIER CO. v. GUILDER.
(Circuit Court, D. Minnesota.
PATENT-ASSIGNMENT-EsTOPPEL. An assignor-of a patent, who had agreed to stop manufacturing the patented machines and had paid a license fee, agreed upon, to his assignee for the privilege of selling machines he had on is estopped from denying its validity, in a suit against him by the assignee for its infringement, by manufacture and sale under letters patent issued SUbsequently to the assignment. SAME-MIDDLINGS PURIFIERS. Reissue No. 8,386, and letters patent No. 225,218,·are SUbstantially for the same machine.
R. Mason and J. B. W. H. Sanborn, for complainant. Shaw, Levi & Gray and R. C. Benton, for defendant. NELSON, D. J. A motion is made upon bill and affidavits for a preliminary injunction pendente lite. The defendant resists the application upon affidavits, and since the notice of motion an answer is filed, which, under the rule, is used upon the hearing as an affidavit with the others presented. The bill is filed for an account, and to recover damages for an infringement of certain letters patent granted for improvements in purifying and dressing middlings, and owned by the complainant, and a permanent injunction is prayed for. The bill of complaint sets up several patents, and charges the defendant with infringing each of them. The complainant on May 29, 1879, purchased and took an assignment of all patents owned by defendant, among them reissue No. 8,386, under the following circumstances: