Commercial Acetylene Co. v. Widrig

• Citation: 190 F. 201
• Decision Date: 09 June 1910
• Docket Number: 4,046.
• Parties: COMMERCIAL ACETYLENE CO. et al. v. WIDRIG et al.
• Court: U.S. District Court — Eastern District of Michigan

190 F. 201

COMMERCIAL ACETYLENE CO. et al. v. WIDRIG et al.

No. 4,046.

United States Circuit Court, E.D. Michigan, Southern Division.

June 9, 1910

Jno. P Bartlett, Winter & Winter, and J. J. Gafill, Jr., for complainants.

Jno. Faust, for defendants.

DENISON District Judge.

This is a motion for preliminary injunction (under patent No 664,383) to prevent defendants from refilling the 'Prest-O-Lite' tanks, now in common use upon automobiles for supplying acetylene gas to the burners.

The general legal principles involved are settled, as to one branch of the case, by the Morgan Envelope Case, 152 U.S 425, 14 Sup.Ct. 627, 38 L.Ed. 500, and the familiar line of cases applying that rule, and as to another branch of the case, so far as the Sixth circuit is concerned, by the two button-fastener cases (Heaton-Peninsular Company v Eureka, 77 F. 288, 25 C.C.A. 267, 35 L.R.A. 728, and Elliott v. Rupp, 131 F. 730). These principles have been applied to the patent here involved, and to somewhat similar circumstances, by Judge Quarles in Commercial Acetylene Company v. Avery, 166 F. 907, and in Commercial Acetylene Company v. Auto-Lux Company, 181 F. 387.

If the only question involved were whether an outright purchaser of one of these tanks infringed the patent by recharging it with acetylene gas, I should hesitate, except for the effect of Judge Quarles' opinion, to direct a preliminary injunction. The tanks, fully charged, are sold by complainants for about $16, and are recharged for $2. The gas which is contained in them is thus evidently only a small fraction of their total value. They are mere containers for the gas. They are sold for the very purpose of having the contained gas used, and if no contract was involved in each case, except the ordinary contract of sale, there would be strong reasons for urging that such sale implied the right to continue to use in the only possible manner, viz., by recharging.

On the other branch of the case, I have no doubt whatever. The special contract, by which the otherwise general sale becomes restricted and constitutes a conditional license, is sufficiently made out by the plates attached to the devices and by the general and well-known system which has been in use now for three years. It may be that an individual purchaser, who did not notice the plate, and who supposed that he was buying an unrestricted title, might so excuse his oversight that he would have...