11 F. 900 -

900

FEDERAL

MARKS

v.

CORN

and others.

(CirC'Uit Court, S.

n. New

York. October 19,1881.)

INJUNCTION.

Where the question of infringement is so doubtful as to make it improper to grant 3n injunction except as the result of a final hearing, a preliminary in· junction will be refused.

C. W. Betts, for plaintiff. G. M. Plympton, for defendant. BLATCHFORD, C. J. Understanding the subject-matter of the motion for an injunction herein to be whether a cap constructed substantially like the cap annexed to the affidavit of Samuel Corn, sworn to October 6, 1881, infringes reissue No. 7,808, Division B, I am of, opinion that the question of infringement is so doubtful as to make it improper to grant an injunction except as the result of a final hearing in the case. The cap in question, whether made so that the upper edge of the part which may be called the protector swings beloW' the lower edge of what may be called the body of the cap, or whether made so that such upper edge does not swing below the lower edge of such body, seems to be unlike in structure to the cap of the patent, and unlike in structure to any of the caps held to be infringements in the suit against Fox and in the suit against Schwartz. The same ultimate results may be accomplished in protecting the ears and the neck, when desired, and in removing the protector up and down, when desired, and in having a finished appearance in the cap when the protector is up, but the claims of the patent are for the means of effecting such results. It would seem that the defendant's cap has no upper edge of a protector, in the sense of the patent, and no separate protector attached to the cap by a tape or cloth, as in the patent. The second claim, equally with the other two claims, must be construed as applying only to such a separate protector as the patent shows. The motion is denied.

'WEEKS WEEKS

V.

BUFFALO SCALE CO. SCALE Co.

January 23,1880.)

'901

V.

(Circuit Court, N. D. New York.

PATENTS-DECREE FOR ACCOUNTING-INJUNCTION.

Where the plaintiff's reissue was not. open to objections, and defendant's exllibit was an infringement, and none of the claims of the reissue are impeached for want of novelty, and the defendant did not acquire any right to the use of plaintiff's invention, the plaintiff is entitled to an interlocutory decree for an accounting, and an injunction.

James A. Allen, for plaintiff. E. G. Spmgue and E. B. Perkins, for defendant. BLATCHFORD, C. J. 1. The plaintiff's reissued patent is not open to the objection that it is for different inventions from those shown by the specifications and drawings of the original patent, or. that -it was unlawfully reissued in its present form. 2. Defendant's Exhibit C infringes all the folir claims of thereissue, and contains only a single beam, within the meaning of. that term in the reissue. 3. Defendants Exhibits D and F do not infringe any .of the 'claims of the reissue. 4. None of the claims of the reissue are successfully impeached for want of novelty, either by any of the prior patents or publica. tions, or by any of the prior structures, or by the evidence a·s to the suggestions or doings of Usher, Scoville, Linen, Civer, Bidwell, or Smith. 5. The defendant did not, by the contracts relied on, or by any relation between it and the plaintiff, acquire any title to or interest in his patent, or any right at all to make or use or vend the inventions covered by the original patent, or by the reissued patent. The plaintiff was at no time a copartner with the defendant, and' the authorities cited for the defendant do not apply to the facts of this case. 6. The plaintiff is entitled to an interlocutory decree for an account,and an injunction as to structures like Exhibit C. The question of costs is reserved till the hearing on the master's report.