CAMPBELL V. lfA.¥QR, ETC;, :OF'THE ,mTYOF NEW YORK.
'J;l;t6 tqe Wood,light is nokcontroverted,.l' It is, urged, ,also, on the part oftbe defendant, that the laches of the complainant in E!nforeingit5 ,rights against: lihe estop itfrom insistiJ;1gupQn 9btainingan injunction This doctrine oflac4es,as .r npderstand it,is, generally, applicable to preliminary injuI}.<;tion,only. When, upon a final hearing a, party, clearly, appears to be entitled tl) an' injunction, unless he has been guilty of thltt, as a general rule,the injuncftion, as a part of bisc9mplete 1emedy,would not, ordinarily, be denied on, the ground of la<;QfS It is quite possible, that a,case may arise, where laches, surrounde4&n4attended by other circumstances, may render it grant an injunction, as aj>art of the relief afforded ',at thefiOlu 'hEl!U'ing. But, if so, this is not. a. case of tMt class. When it apparept, as inthiscasp , after repeated,exhaulltive examinations of the patents, thlj.t Pon injunction at the ,final hearing is, inevitable, it the court, tbat an injunction, pBltdente lite, should be granted. Let be granted, restraining, till the final, hearing, or the fUJ;1:h!lJ! order pf the court, tbe .infringement of the first aU claims of complaiAAn$ts,patent, upontbe execution of a,bond to be approved bytbe clel'k of ,I dol1!1rs.· :. i r, -'
::.
C.utt>:hELL 17. MAYOR, .. i
Ere.,
OF- THE
CITY
OF NEW YORL
(C(rcuU Oourt, 8. D. New York; February 4,i89Ll . 'i
i:
L P
Under Rev. st. U. S. § 4920,wllicb reqUires that, where the defense to a sulHn eqliit. ''10.r, t, of a Jlatent is Pr,ior', k,nowle,dge,:or, use 01, tbe patent by,otl\.r., .notioe.shall b!3 given WIth ot ,thenamea andresi· deuoo8of the'persOlls havinlt such knowledge,or making SucbUs6,and of the place " M the \lIle, it is 'not necessary that such Doticealiould be uJiderGath. ' '
. IN,' EQUITY-PrmADINO.
,.
.. BUB-oAN8!11'EJUINDER OATa...,.PLEADINO.
. Wlie,re,C4;)lIlplainant's cpunsel in such suit consent to an o,rder tbat the answer :.hail.be considered as amended by the insertion of such defense and the reqUired .: iilOnSel\t is a waiver of funher oath. ', , ASIDE. , ":
..
.,', " .Wh'er6 the,order allowing tbe amendment made on motion supported davits, was oneba"'illg drawlugsattaclIed shliwing tbe course otthe $e operation of tbe, reliefvalve, which was.tbe Invention in suit, the '1act'tMt"8uc'l drawing gives Ii. wrong impression ali to tbe operation of the!valve 1. ,no' ground ,for vacatingt.heorder. as baving been procured by falsehood aild fraud; : i . . . . '
was
{i.:i'/:
':'.1
; WHEI'£ER.tJ.. : Tl¥abiUJa brought JllIlUeaKnibbaJor,a relief .valiVe i:n steam;
of a patent,to ,and .was sustained
244
FEDERAL REPORTER,
vol. 45.
notwithstanding the construction and sale of an engine, the Gov. Hill, by the Amoskeag Manufflcturing Company, more than tWo years prior to the application containing the invention, beca.use that use was without the knowledge and consent of the inventor. 9 Fed. Rep. 500, 20 Blatchf. 67. AfterwardR it was ordered to be dismissed on' account of that sale. 35 Fed. Rep. 504. ,Then leave was granted to the orator to take further evidence as to surreption in that use, and the exact time of that sale, and to the defendant to take further evidence as to any other use of the invention by that company more than two years prior to the application. 36 Fed. Rep. 260. After that the defendant moved for leave to ,amend the answer by setting up prior use, and to whom known, on the engines of the steamers Powhatan and Knoxville; and pl'esented certified copies of drawings in black of these parts, with letters, lines, and arrows in red; attached to affidavits inwbich the' affiants stated theyha:d'put on the, red to show the course of the water in operation. The, motion was granted on termS, and an order to that effect was drawn by the defendants, and approved as to form by the orator'S counsel, and signed; ,'''that the original answer filed be, and the same herebY'is, cion.. sideted llsamended,alld is amended, by inserting" iIi na.med the proposed amendments in hrec verba, and that the replictttioti i stand "as the replication to the answer as thus amended, without further replication thereto," which was filed. Much evidence has been taken and closed as to the Gov. Hill, other use of the invention by the Amoskeag Manufacturing Company, and the engines of the steam-ships, without or replication. of record by the examiners many lengthy objections to the taking by the defendant of the evidence of other use of the invention. by; the Amoskeag Manufacturing Cpmpany, on the ground that it was not within the leave gf/.tnte<l, ,and of that ,as to use in ofthe because of rio setting up knowledge of it, and moved thatilllthis evideneebesuppressed for these reasons; and have dence, moved that the order allowing the amendment of the answer be set aside for forgery, falsehood, and fraud about itsproourement. These motions have. now been.heard to settle the record for fiPM; hea,ring.The . objection to the evidence of other use by the Amo.skeag iManufacturing Company of the without any foundation iswitliiri the express terms of the order whichprovidedfortakingjt. COuqsel for orator,:to show want of an ariswer,ut'ge that ansiVers iOlust made on oath. or on behalf of defendants,.unless..waived, .and that an order of court is not a good substitute for one. While this is generally true as to answers either denying the equity of bills, or up defellses, the ,8ubstaIlce,of to a pate.nt, of pp.or'kiiowledge and·useofthe:invention 'by' others, isthnt the pdwntee'WM not·anqriginal and the first inventor; and notice of the of persons alleged to have invented, ha'd"kndwledge'o1,'or llsed'the'invention before, and the place where used, is required to be given with the pleading in actions" aflawl'0r ini,thlf·AllSwEit in 8uits.in equity.,.on patents. Rev. St.§ 4920., :Theeffect of; 'ihe :noti'l8
co.
II. KEPLINGER.
245
would not be added to by the oath. The 'approval of the form of the order providing that the, answer was to be considered to be and was thereby amended, by making the specific necessary insertions, was a waiver of any further oath, if otherwise necessary, and made good the notice without dependence upon the force of the order as made by the court. No further amendment of the answer, as a foundation for evidence of this defense, appears to have been at all necessary. The lines, arrows, and letters in red do, in view of the ,evidence,afterwards taken, give a wrong impression as to the movement of the water by the opera7 tion of the relief valves of those en?;ines. This is relied upon to su ppOft' the charge of falsehood. ' But it rested somewhat on opinion, and may have been, and probably was, an error of judgment, rather than a willful misstatement of fact, and honest, rather than wicked. Whichever it was, no ground whatever 'appears for anyeharge of fraud or wrong-dO.' ing in presenting' the affidavits and to the court in support of' the motion for leave to amend the answer. And if some misstatements or malpractice had intervened, although to be much the tion was proper, the answer was in effect amended; the evidence has r been taken on'eaoh side fol'what it will prove', and the order sought to' be vacated fully carried out. Undertbese circumstances, it 'Could not. now properly be set aside for that cause, any more'than'anexecuted' jtidgmentcould' be for perjuryof some of the Witnesses" which counsel. might have knownof or suspected. perjury;: fraud were sO groundless, ,and are made in thiS,n,iotiOll in such Ii:' sca.ilda]ous manner" that the, I!lotion, is drawn with unreasonable prolixity to greatly needless length, ought not to remain' upon the files of the court, but should be suppressed. ,'Let ail order be, entered denying all these motions, and overruling all,' objections to evi7; dence therein involved, andsl1PpressiI;lgthe motion to set aside the ofder granting leave toamend the answer,' and leaving the cause upon the .calendar to stand for hearing in ,due C9urse, upon the issues raised and remaining therein.
LAMSON CASH
Rv.
CO. ft. KEPLINGER.
'(OLrcw£t oO'U1't, N. 'D. Oh1.o, E. D. June 9.1890.)
1.
PATIINTS PO.1NVBNTION-NOVJWrT.
:t;
Claims 1 aJJ4 fa of patent number 8OS,006, Issued :August 6, 1884 to Harris H. Hayare not void for want of Jl,ovel!'>Y; den, for imp.rovementB in and invention. ' , , ,', , ,':' ,',,' , ;.
The Hayden patent desoribes a mechanical send-oft to Impart an Inltlal impetus' to the carrier as follows: ,"A repl1lllents a wille-war. B, the 8111)·ports; I, lIo' perforated slide,ooostrUoted to meW'e ireely on the way, and having a [llug:er,p; a ,is pnl1e1', .·uPPQ1't.ed by an arm,"E,exteDdiDg' ,from the the sUPPPr!t B; 0,$ pprd I>aBsi;ngfrc:lmtJ:!e · slide, OV6t".'t'he puney&, and extending tOlloJlolni wlthm reacb o,t the operator.", · When Qoorl'isr isln contact with:the'ftnger of tbeslide, a sudden pull or- the ¢brd' w.U1, 8lide· the way,and, ilqpart.. the qqttired· impqllle:tG: the..-
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