Hurlburt v. Carter & Co.

Coxe, J. The complainants’ patent, No. 288,048, was granted to John H. Frink, November 6, 1883, for an improvement in duplicate sales-slips. The patent has never been adjudicated. There is no proof of acquiescence. True, a general statement that the patent has been recognized and respected by the public appears in one of the affidavits, but it is unsupported by facts. Names, places, and figures are wanting. An indefinite averment of this character avails but little, especially when it also appears by the moving papers that infringing devices in large numbers have been openly sold and used since January, 1887, in the complainants’ own city. The defendant insists that its copying-books are manufactured under a reissued patent owned by it, and that the complainants’ patent is invalidated by a prior patent granted to John R. Carter. These defenses necessarily involve a careful analysis of the patents referred to, and a determination as to the validity of the reissue. Although they do not, as now presented, offer a formidable barrier to the complainants’ recovery, yet, in the light of the final hearing, they may, perhaps, assume a different aspect. It is strenuously asserted, and not satisfactorily denied, that the defendant has invested large sums in its business with the knowledge of the complainants, and that the latter have been guilty of inexcusable laches in asserting and maintaining their rights. The defendant is amply responsible, and will suffer greater injury if the injunction is granted than the complainants will if it is withheld. The cause is one which, if due diligence is used, can be prepared for argument at the next term of the court. In these circumstances, even though it be conceded that the defendant has not succeeded in casting serious doubt upon the validity of the [803] complainants’ patent, it would seem that the safer and wiser course will he not to permit this severe and arbitrary writ to issue at the present time. Fish v. Sewing-Machine Co., 12 Fed. Rep. 495; Brown v. Hinkley, 6 Fish. Pat. Cas. 370; Hockholzer v. Eager, 2 Sawy. 363; Spring v. Sewing-Machine Co., 4 Ban. & A. 427; Keyes v. Smelting Co., 31 Fed. Rep. 560; Kittle v. Hall, 29 Fed. Rep. 508, and cases cited on page 511. The complainants are at liberty to move, upon proper proof, fora bond, and, if the final hearing is unreasonably delayed by the defendant, this motion may be renewed.