129 U.S. 151 (1889), Bate Refrigerating Co. v. George H. Hammond & Co.

Citation:129 U.S. 151, 9 S.Ct. 225, 32 L.Ed. 645
Party Name:BATE BEFRIGERATING CO. v. GEORGE H. HAMMOND & CO.
Case Date:January 21, 1889
Court:United States Supreme Court

Page 151

129 U.S. 151 (1889)

9 S.Ct. 225, 32 L.Ed. 645

BATE BEFRIGERATING CO.

v.

GEORGE H. HAMMOND & CO.

United States Supreme Court.

January 21, 1889

Appeal from the Circuit Court of the United States for the District of Massachusetts.

COUNSEL

[9 S.Ct. 225] John Lowell, William M. Evarts, C. A. Seward, Paul H. Bate, and Richard N. Dyer, for appellant

B. F. Thurston, George H. Lothrop, and John R. Bennett, for appellee.

OPINION

BLATCHFORD, J.

Page 152

This is a suit in equity, brought in the circuit court of the United States for the district of Massachusetts, December 16, 1886, by the Bate Refrigerating Company, a New York corporation, against George H. Hammond & Co., a Michigan corporation, founded on the alleged infringement of letters patent No. 197,314, granted to John J. Bate, November 20, 1877, for the term of seventeen years from that day, on an application filed December 1, 1876, for an 'improvement in processes for preserving meats during transportation and storage.'

The plaintiff is the assignee of the patent. The bill alleges infringement, within the district of Massachusetts and elsewhere in the United States, by the making, using, and vending of the patented process, and alleges that the defendant has been engaged in the business of shipping fresh meat from the port of Boston to ports in Great Britain by means of the process claimed in the patent. The claim is as follows: 'The herein-described process of preserving meat during transportation and storage, by enveloping the same in a covering of fibrous or woven material, and subjecting it when thus enveloped to the continuous action of a current of air of suitably low and regulated temperature, substantially as and for the purpose set forth.'

The defendant filed a plea, setting up, among other things, that, on the 9th of January, 1877, letters patent of the dominion of Canada, No. 6,938, for the same invention as that described and claimed in No. 197,314, were granted to the same John J Bate, for the term of five years from the 9th of January, ary, 1877; that, after No. 197,314 had expired,

Page 153

at the end of the term of five years for which such Canadian patent was granted, the circuit court of the United States for the district of New Jersey, upon being advised of the grant of such Canadian patent, vacated and set aside an injunction which it had theretofore granted, by an interlocutory decree made in a suit in equity founded on No. 197,314, brought by the Bate Refrigerating Company against Benjamin W. Gillett and others; that thereafter Bate and the Bate Refrigerating Company procured the rendition of a judgment by the superior court for Lower Canada, declaring the Canadian patent to have been void ab initio, and vacating it and setting it aside; that such judgment of the superior court for Lower Canada being brought to the attention of the circuit court of the United States for the district of New Jersey, that court reinstated said injunction; and that afterwards the superior court for Lower Canada, in a suit brought by Sir Alexander Campbell, minister of justice and attorney general for the dominion of Canada, against Bate and the Bate Refrigerating Company and others, adjudged that its said prior judgment had been 'arrived at through the fraud to the law and collusion' of Bate, the Bate Refrigerating Company, and another other person, 'deceiving the attorney general, the advocates, and the court, employing and paying counsel on both sides, as well, seemingly, against themselves as on their apparent behalf,' and revoked and annulled its said prior judgment. The plea concluded by averring that No. 197,314 expired on the 9th day of January, 1882, and that the circuit court, sitting as a court of equity, had no jurisdiction to hear and determine an action in equity for the infringement of the patent. The bill was then amended by averring that the application for the Canadian patent was not made until December 19, 1876, while the application for No. 197,314 was made December 1, 1876; and that the Canadian patent was not actually or legally issued until on or about June 26, 1878, on or about which date a model of the invention, as required by law, was filed in the Canadian patent-office. [9 S.Ct. 226] The amendment to the bill also set forth the two judgments of the superior court for Lower Canada, and averred that, by virtue of an act of the

Page 154

parliament of the dominion of Canada, assented to May 25, 1883, (46 Vict. c. 19,) the original term of the Canadian patent was actually fifteen years, instead of five years, ant it would not terminate before the 9th of January, 1892.

Subsequently the defendant filed an answer to the bill, setting up, among other defenses, want of novelty in the patented invention, but not denying that it had used the invention subsequently to the granting of the patent; and also setting up the granting of the Canadian patent for five years from January 9, 1877; that No. 197,314 was void, because it was issued for seventeen years, and its term was not limited by the commissioner of patents to five years from January 9, 1877; that the Canadian application was not made until after the application for No. 197,314 was filed; that Bate did not file a model in the Canadian patent-office until after the grant of the Canadian patent; and that the Canadian patent was actually patented to Bate on the 9th of January, 1877, and took effect on that date, although not actually delivered to the patentee until after the filing of the model. It also sets forth the two Canadian judgments, and avers that, on the 30th of November, 1881, Bate made a petition to the commissioner of patents for Canada, for the extension of No. 6,938, in which he averred that, on the 9th of January, 1877, he 'obtained a patent for the period of five years from the said date, for new and useful improvements on apparatus and process for ventilation, refrigeration, etc.,' and that he was the holder of that patent in trust for the Bate Refrigerating Company, and prayed that it might be extended 'for another period of ten years;' that, on the filing of that petition, an extension of the patent was granted, on December 12, 1881, 'for a second period of five years' from January 9, 1882; that a further extension of the patent was granted, December 13, 1881, 'for a third period of five years' from January 9, 1887; that the plaintiff is thereby estopped from denying the fact that No. 6,938 was legally granted, January 9, 1877, for a period of five years; that by virtue of the act of 46 Vict. c. 19, the original term for which No. 6,938 was granted was not fifteen years instead of five years; that said act can have no effect on the

Page 155

duration of No. 197,314; that by reason of the prior patenting of the invention by Bate in Canada for five years from January 9, 1877, No. 197,314, if valid at all, expired on January 9, 1882; and that, therefore, this court, sitting in equity, has no jurisdiction to hear and determine an action for its infringement.

Without the filing of any replication to this answer, the parties entered into a written stipulation, setting forth as follows: 'Whereas, the answer of the defendant corporation in this cause sets up, in addition to other defenses, that the patent on which this suit is brought, being No. 197,314, granted to John J. Bate, complainant's assignor and president, on the twentieth day of November, A. D. 1877, expired on the ninth day of January, A. D. 1882, by reason of the prior grant to said John J. Bate of a patent in the dominion of Canada for the same invention, and prays the same benefit of said defense as if the same had been pleaded...

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24 practice notes
  • 274 S.W. 755 (Mo. 1925), 24712, Shafir v. Carroll
    • United States
    • Missouri Supreme Court of Missouri
    • July 3, 1925
    ...amount. State ex rel. v. Cupples Station L. & P. Co., 283 Mo. 144; State ex inf. v. Breuer, 235 Mo. 248; United States v. Hill, 129 U.S. 169, 30 L.Ed. 627. (3) The court erred in giving plaintiff's Instruction 3, because said instruction authorized a verdict against the defendant Carrol......
  • 43 F. 575 (W.D.Pa. 1890), Consolidated Roller Mill Co. v. Walker
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • September 12, 1890
    ...an independent consideration of the question, the same practical result, in our opinion, must be reached. In Refrigerating Co. v. Hammond, 129 U.S. 151, 9 S.Ct. 225, it was held that where, under the Canada act, a patent was originally granted January 9, 1877, for the period of five years, ......
  • 57 F. 605 (S.D.N.Y. 1893), Accumulator Co. v. Julien Electric Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • July 18, 1893
    ...not the designated, term. This is not such a case. Bate Refrigerating Co. v. Gillett, 31 F. 809; Bate Refrigerating Co. v. Hammond Co., 129 U.S. 151, 9 S.Ct. 225; Opinion of Attorney General Miller, (April 5, 1889,) 47 O. G. 398; Huber v. Manufacturing Co., 63 O. G. 311, 13 S.Ct. 603, 38 F.......
  • 70 F. 383 (W.D.N.C. 1895), Bonsack Mach. Co. v. Smith
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • September 28, 1895
    ...until the foreign patent, with all of its renewals, so secured, has expired. This seems to be the result of Refrigerating Co. v. Hammond, 129 U.S. 151, 9 Sup.Ct. 225, as limited and explained in Pohl v. Brewing Co., 134 U.S. 381, 10 Sup.Ct. 577: 'There (in Refrigerating Co. v. Hammond) a Un......
  • Free signup to view additional results
24 cases
  • 274 S.W. 755 (Mo. 1925), 24712, Shafir v. Carroll
    • United States
    • Missouri Supreme Court of Missouri
    • July 3, 1925
    ...amount. State ex rel. v. Cupples Station L. & P. Co., 283 Mo. 144; State ex inf. v. Breuer, 235 Mo. 248; United States v. Hill, 129 U.S. 169, 30 L.Ed. 627. (3) The court erred in giving plaintiff's Instruction 3, because said instruction authorized a verdict against the defendant Carrol......
  • 43 F. 575 (W.D.Pa. 1890), Consolidated Roller Mill Co. v. Walker
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • September 12, 1890
    ...an independent consideration of the question, the same practical result, in our opinion, must be reached. In Refrigerating Co. v. Hammond, 129 U.S. 151, 9 S.Ct. 225, it was held that where, under the Canada act, a patent was originally granted January 9, 1877, for the period of five years, ......
  • 57 F. 605 (S.D.N.Y. 1893), Accumulator Co. v. Julien Electric Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • July 18, 1893
    ...not the designated, term. This is not such a case. Bate Refrigerating Co. v. Gillett, 31 F. 809; Bate Refrigerating Co. v. Hammond Co., 129 U.S. 151, 9 S.Ct. 225; Opinion of Attorney General Miller, (April 5, 1889,) 47 O. G. 398; Huber v. Manufacturing Co., 63 O. G. 311, 13 S.Ct. 603, 38 F.......
  • 70 F. 383 (W.D.N.C. 1895), Bonsack Mach. Co. v. Smith
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • September 28, 1895
    ...until the foreign patent, with all of its renewals, so secured, has expired. This seems to be the result of Refrigerating Co. v. Hammond, 129 U.S. 151, 9 Sup.Ct. 225, as limited and explained in Pohl v. Brewing Co., 134 U.S. 381, 10 Sup.Ct. 577: 'There (in Refrigerating Co. v. Hammond) a Un......
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