Daniel v. Miller

DALLAS, Circuit Judge. This case has been heard upon the plaintiff's motion for a preliminary injunction, and I am persuaded that, under the circumstances disclosed by the proofs as now presented, the defendants should be restrained from continuance of the infringement complained of, which is virtually admitted, until final hearing. The several matters urged in resistance of this motion are separately staled and discussed in the defendants’ brief, and they may be briefly disposed of. 1. “Knowledge of and long-continued acquiescence by a complainant in an infringement: may, in special cases, be fatal on a motion for a preliminary injunction.” Taylor v. Spindle Co., 22 C. C. A. 205, 75 Fed. 303. But the evidence now before the court, instead of establishing acquiescence, seems to disprove it. See, also, the case above cited, in 69 Fed. 837. 2. The plaintiff does not allege either prior adjudication or public acquiescence in support of the validity of Ms patent. He stands upon the presumption of its validity, and upon the fact that he acquired it by assignment from one of the defendants, who, therefore, is precluded from asserting that it is void. The fact that he so acquired it is plainly shown, and is not controverted; and that the estoppel relied upon as against the assignor exists has not been seriously questioned. As to him, at least, there can be no doubt about it. 3. There is more room for dispute as to whether the other defendants are also estopped; but I am clearly of opinion’, upon the proofs of privity and of co-operative infringement which have been adduced, that they are. 4. Iu view of what has already been said, the attack made upon the validity of the patent need not he considered; but I may sav that, as the case iioav appears, it is not very forcible, and does not commend itself to favorable consideration. The motion for a preliminary injunction is granted.