Bowers Dredging Co. v. New York Dredging Co.

• Citation: 77 F. 980
• Court: United States Circuit Court, District of Washington
• Decision Date: 16 December 1896
• Parties: BOWERS DREDGING CO. et al. v. NEW YORK DREDGING CO. et al.

77 F. 980

BOWERS DREDGING CO. et al. v. NEW YORK DREDGING CO. et al.

United States Circuit Court, D. Washington, Western Division.

December 16, 1896

John H Miller and Campbell & Powell, for complainants.

R Percy Wright and E. C. Hughes, for defendants.

HANFORD District Judge.

The patent upon which this suit is founded is described in the opinion of Judge McKenna in the case of Bowers v. Von Schmidt. 63 F. 572-584. The bill of complaint and affidavits on part of the complainants show that the Bowers Dredging Company is a corporation organized under the laws of the state of Illinois, and is operating and transacting business in the state of Washington, and, by an assignment from the patentee, has the sole right to use the invention covered by the above-mentioned letters patent, within the boundaries of the state of Washington, except at Gray's harbor; that said patent was duly issued to Alphonzo B Bowers, in the year 1885, and that, since the date thereof the utility and value of the patented invention have been recognized and admitted by many persons interested in the use of machinery for dredging and deepening the channels of rivers and waterways, and the invention has been successfully used in numerous places within the United States, and large amounts of capital have been expended in the construction of machinery according to the specifications and drawings of said patent, and operated successfully under licenses from the patentee; that a large number of suits and actions have been commenced and prosecuted for infringements of said patent, which suits and actions have been compromised and settled; that in a suit in equity upon said patent by Alphonzo B. Bowers, against A. W. Von Schmidt, in the United States circuit court for the Northern district of California, after a trial upon the merits, a decision and decree were rendered by the said court in favor of said Bowers, and against Von Schmidt, whereby the 10th, 15th, 25th, 53d, 54th, and 59th claims of said patents were upheld, and the validity thereof established; that subsequently an action at law and a suit in equity were commenced in the United States circuit court for the Northern district of California, by the said Alphonzo B. Bowers, against the San Francisco Bridge Company, for infringing the several claims of said patent above enumerated, by using a certain dredging vessel and machinery named the 'Atlas,' and sometimes called the 'Oakland'; that, in said action and suit in equity, the defendant therein, in its defenses, disputes the validity of said patent; but no attack upon said patent in any judicial proceeding has been successful, and a great deal of testimony has been taken, to be used upon the final hearing in the said suit in equity, which, in the opinion of counsel, is amply sufficient to establish the validity of said patent. The bill of complaint also avers that the New York Dredging Company has entered into contracts for dredging in the harbors of Olympia and Everett, and in Swimomish Slough, within this state, which contracts were obtained by bidding in competition against the complainant the Bowers Dredging Company; and that, in making said improvements, a certain dredging machine, called the 'Atlas,' which is an infringement of said patent, and is the identical dredger involved in the litigation with the San Francisco Bridge Company, above mentioned, is being used; and that, by the use of said infringing machinery during the pendency of this suit, the Bowers Dredging Company will suffer damages, for which there exists no adequate remedy at law.

The defendants, without having answered the bill of complaint have, by affidavits, denied the equities of the bill, by alleging that the said patent is void for want of novelty and invention; and, if valid at all, the same does not cover nor vest in the complainants any right to a monopoly in the use of such machinery as the defendants are using, and they deny that the machinery in the dredging machine called the 'Atlas' in any wise infringes the aforesaid patent. It is also shown on behalf of the defendants that the New York Dredging Company is not engaged in making the improvements referred to, nor in the use of the dredger Atlas, but that, having obtained contracts for making said improvements, has sublet the work to the San Francisco Bridge Company, the defendant in the action and suit above referred to. The defendants also show that the decision and decree in the case of Bowers v. Von Schmidt, above referred to, has been, in effect, suspended by the taking of an appeal in said cause to the circuit court of appeals for the Ninth circuit, and that said cause remains undetermined and pending in said appellate court; and they also show that important evidence not submitted upon the trial of said cause in the United States circuit court for the Northern district of California has been discovered, which can be now produced, whereby they can prove that the said Alphonzo B. Bowers was not the...