R. E. Dietz Co. v. C. T. Ham Manuf'g Co.

Coxe, J. Enough of the prior art was disclosed upon the hearing of the motion to show that this industry is crowded to repletion. An immense number of patents for lanterns has been granted, many of them covering slight and, apparently, trivial changes in form and construction. The valuable feature of the Higgins lantern is that it permits the globe to to bo tilted laterally without disintegrating the tubular frame of the lantern; but the patent has never passed through the crucible of judicial investigation and it is possible that a trial may invalidate the patent or compel a narrow construction of the claims. The complainants have sought to supply the want of a decision sustaining the patent by attempting to show acquiescense on the part of the public. No lantern in exact accordance with the Higgins description, drawings and claims was ever-placed upon the market. The lantern regarding which acquiescence is shown was made, under several patents, by the Matthews & Willard Company, holding at that time a license from Higgins or Stone, but the court is not quite convinced that this lantern is the lantern of the Higgins patent. If a broad construction is given the patent it might be held to cover this lantern, but if limited to a construction having the annular collar, a, holding the top of the globe, the rods, h, h, pivoted to said collar and connecting it directly to the supporting-base, F, as shown in the drawings and described in the specification, it is not easy to see how acquiescence can be predicated of the large sales alleged to have been made by the Matthews & Willard Company. If this form of lantern would not infringe the Higgins patent the fact that no one attempted to interfere with its manufacture and sale must be attributed to something besides the public respect for the Higgins patent. It is clearly shown that Stone, or his assigns, at one time had an exclusive license to manufacture and sell under the Higgins patent. The agreement of Higgins with Stone and of Stone with the Matthews & Willard Company were all recorded in the patent-office. If the yearly payments of license fees were made by Stone he still possesses such an interest in the patent as, at least, to require him, or his assigns, to be made parties to the bill. Hammond v. Hunt, 4 Ban. & A. 111; Clement Manufg Co. v. Upson & Hart Co., 40 Fed. Rep. 471; Nellis v. Manufacturing Co., 13 Fed. Rep. 451; Walk. Pat. § 400; Rice v. Boss, 46 Fed. Rep. 195, and cases cited. If the first claim is confined to the precise arrangement shown and described the defendant 322 does not infringe. Defendant’s lantern does not have the collar, a, if the word “collar” is construed, to be synonymous with “ring,” and its supporting rods are not pivoted to the collar. It is not intended to intimate that the defendant’s contention is right in these respects, but only that the question of infringement is not entirely free from doubt. The patent to Betts is but three months old; too young to be considered upon this motion. To recapitulate: The complainants’ title is involved in some obscurity; the patents have never been adjudicated; the proof of acquiescence is inadequate, and infringement is not conclusively established. Where these circumstances concur, and the defendant’s financial ability is unquestioned, a preliminary injunction should not issue, except in extraordinary circumstances. If the court can see that there is any likelihood that the defendant may succeed on final hearing it should not permit the writ of injunction to issue. Brown v. Hinkley, 6 Fish. Pat. Cas. 370; Keyes v. Smelting, etc., Co., 31 Fed. Rep. 560; Neilson v. Thompson, Webst. Pat. Cas. 278; Tillinghast v. Hicks, 13 Fed. Rep. 388; Pavement Co. v. City of Elizabeth, 4 Fish. Pat. Cas. 189; Upton v. Wayland, 36 Fed. Rep. 691; Hurlburt v. Carter, 39 Fed. Rep. 802; Walk. Pat. § 665; 3 Rob. Pat. 560. It is probably true that the complainants have reason to complain of the defendant’s course, but such considerations should not override the well-settled principles of law applicable to motions of this character. The motion is denied.