Bonsack Mach. Co. v. National Cigarette Co.

LACOMBE, Circuit Judge. This is a motion to punish for contempt. When the suit was originally brought, defendants were using a machine which the court has, after argument, held to be an infringement of complainants’ patents. The defendants are now using a machine which in some respects differs from the infringing machine already passed upon, and it appears that it is made under a patent issued subsequent to the decree. The weight of authority is clearly against the proposition that in such a case the question of infringement is to be settled on a motion to punish for contempt. The new machine is brought into court with prima facie proof that, in the opinion of the patent office, it is .patentably different from the machine of complainants. Whether it. is an infringement or not should be settled by application for injunction, not for commitment for contempt. Buerk v. Imhaeuser, 2 Ban. & A. 465, Fed. Cas. No. 2,107; Onderdonk v. Fanning, 2 Fed. 568; Wirt v. Brown, 30 Fed. 187; Truax v. Detweilar, 46 Fed. 117. Motion denied.