CELLULOID MANUF'G CO.
v. EASTMAN
DRY PLATE &: FILM: CO.
159
. CELLULOID MANUF'a CO.
v.
EASTMAN DRY PLATE EASTMAN Co.
&
FILM: Co.
SAME
(Oircuit Cowrt, N. D. New York. Aprll 2/S, 1890.) PJ.TBNTS FOR INVBNTIONS-INFRlNGEMBNT-INroNCTION.
A preliminary injunction for infringement of letters patent Nos. 269,840, 269,848, and 269,344, issued to John H. Stevens December 19, 1882, for improvements in the manufacture of pyroxyline oompounds, will be denied where it appears that defendants are responsible, and are manufacturing under letters patent No. 417,202, granted to Henry M. Reichenbach, thin films for photographio purposes used only . on rolls owned by defendants, and alleged to be patented, and that plaintiffs have never manufactured 1llms in that form or for that purpose.
.
Motions for Preliminary Injunctions. Frederic H. Betts, for the motion. M. B. Philipp, opposed. COXE, J. This action is founded upon three letters patent, granted to John H. Stevens on the 19th day of December, 1882, for improve-
ments in the manufacture of pyroxyline compounds. They are numbered respectively 269,340, 269,343' and 269,344. No. 269,343 was, after declared valid by this court. Oelluloid Mamif'g 00. v. American Zylonite Co., 35 Fed. Rep. 301. The other two have not been adjudicated, are for analogous improvements. The principal contention here is upon the question ofinfringement. The defendants manufacture a filIll 'or photographic purposes pursuant to the formula ora patent, No. 417 ;202, owned by them and granted to Henry M. Reichenbach. These films are very thin, are made long lengths wound on spools, and are intended for use in cameras provided with roll-holders. The complainant has never made for sale photographic films in this or adapted to this use. It has, therefore, no. customers to supply in this particular branch illdustry. It is entirely clear that an injunction will subject the defendants to injury of the most serious character without corresponding advantage to the complainant. The defendants are not interfering with Gomplainant's market. The films which they manufacture have no market except as they are used in roll-holders sold by. them, and. prptecj.ed, it is alleged, by their patents. Should the deiendants cease IXlaking these.films the complainant would not be materially benefited, unless the defendants abandon their defense and take a license under the patents in suit.. That the defendants are amply responsible and able to pay any amount which theCOIl)plainant may recover against them is not questioned. If the case were one where the defendants' condUyt is,p.estroying or may destroy complainant's business the situation would ,4ifferent. The complainant may acquire the right to furnish these .6,lma and increase its business to this extent, but there can be no great hardship in holding this right in abeyance during the few months that will elapse pending the final hearing. The defendants strenuously
160.
FEDERAL iREPORTER,
vol. 42.
maintain that they do not infringe. There is no reason to dispute their good. faith in this regard. Their process is covered by a parent and their experts are confident that they do not use the Stevens process. This important question ought not to be determined on affidavits. The present aspect may be changed when the ex pnrte opinions of the affiants have passed through the alem.bie of a trial and have. thus been distilled and purified. Many theories now advanced may not be able to stand the test of cross-examination. It is sufficient that the question of infringement .should not be determined upon affidavits in a case where no serious injury will be done by postponing the decision until the final hearing. Fire Hose Mnnuj'u Co. v. Callahan Co., 41 Fed. Rep. 50; Carey v. Miller, 34 Fed. Rep.392; New York Grape Sugar Co. v.American Grape Suqar Co·· 20 Blatchf. 386, 10 Fed. Rep. 835. The motions are denied.
THE BARRACOUTA. 1 UNITlllD STATES V. THE BARRACOUTA.
Oourt,E. D. New York. April 9, 1890.) CuSTOMS DUTIES-INCOMING VESSELS-OBSTRUQTING BOARDING OI!'PIOEB.
Where it was proved that the steam-ship B., on entering the Bay of New York, was signaled by the revenue cutter to slacken her speed, in order that a boarding officer might be put aboar.d Of her, but that the B. did not slacken her speed, but continued to increase the .distance between herself and the cutter, until the latter sheered of!, and that duripg this time the master of the B. was on the bridge, it was held, on proceedings brought against the B. by the government, under sections 3068, 3088, Rev. St., that the action of the B. was a hindering and obstruction to the boarding officer, witl,lin the meaning of the statute, and that the vessel should be fined $250.
In Admiralty. Jesse Johnson, U. S. Dist. Atty., for libelant. Wing, Shoudy &; Putnam and a. a. Burlingham, for claimant. BENEDICT, J. Thi$ .is a proceeding against the steam-ship Barracouta, taken under the provisions of law contained in sections 3068 and 3088 of the Revised Statutes. In order to maintain the action it is necessary for the governrpent to show that the master of the Barracouta, on the day of her arrival in the Port of New in the rponth of September last, obstructed or hindered, or intentionally caused an obstruction or hindrance to, the custom-house officer in his effort to board the sream-ship for the purpose of carrying into effect the revenue laws of the United States. In support of the prosecution the government has proved that on the day in question the revenue officers were on board of the revenue cutter in the lower bay for the purpose of boarding incoming vessels; the Barracouta, then moving up the bay, being one of JReported by Edward G.Benedict, Esq., of the New York bar.
