¶11. Contempt—Alleged Violation of Injunction—Trial of Question of Infringement of Patent.
¶2Where, in a proceeding for contempt against a defendant for infringing a patent in violation of the court’s injunction, the question whether the article sold by defendant is an infringement is in dispute and doubtful, it will not be determined on ex parte affidavits, but only after a regular and orderly hearing.
¶3Proceeding for Contempt.
¶4Albert B. Weimer, for petition for order for contempt.
¶5A. T. Johnson and A. B. Stoughton, for respondent.
¶7Whether or not the respondent, Henvis, is again infringing the complainant’s patents, is a question that I am not willing to decide upon the affidavits before me. In substance, the dispute arising upon the ex parte evidence resembles the ordinary controversy where infringement is alleged by a bill in equity and is denied by the answer. The validity of the complainant’s patents has been conclusively determined by the decree already made, and, upon a former proceeding for contempt, one form of ventilator that the respondent sold since the entry of the decree has been adjudged to infringe. The kind of ventilator that is now under consideration, however, differs in some respects from the kind that has already been before the court, and is averred to conform strictly to the device of an expired patent that is much earlier than the patent of the complainant. If this be true, the respondent is not guilty of contempt, but I do not think that the evidence in support of this averment is of a quality on which I ought to act. There should be a regular, orderly hearing, with an opportunity for cross-examination upon a subject of so much importance.
¶8Accordingly, Jos. C. Fraley is hereby appointed examiner and master to hear evidence on the question whether the ventilator now being made by the respondent infringes the ventilator of the complainant, and to report the testimony and his findings of fact and of law to the court at his early convenience.