Hoe v. Boston Daily Advertiser Corp.
| Decision Date | 08 February 1883 |
| Citation | 14 F. 914 |
| Parties | HOE and others v. BOSTON DAILY ADVERTISER CORP'N and others. |
| Court | U.S. District Court — District of Massachusetts |
B. F Thurston, Munson & Phillip, and F. P. Fish, for complainants.
B. F Lee, for defendant.
This is a motion for a preliminary injunction to restrain the further use of that part of the machinery of a printing-press for newspapers which is mentioned in claim 3 of patent No 131,217, issued to the plaintiffs September 10, 1872. In a suit by these plaintiffs against one Kahler, in the southern district of New York, [1] Mr. Justice BLATCHFORD has decided that the patent is valid and that claim 3 refers to a distinct part of the machinery, and embodies a sufficient and independent invention, and that the defenses of want of novelty and non-infringement, and certain more technical points taken in that case by the defense, were not sustained by the evidence. The improvement is a useful and ingenious one, and the only doubt of its novelty appears to have arisen from the fact that it was left for a long time unused, and, in the mean time, one Campbell had made, or nearly made, a similar invention. Infringement depended upon the construction of the third claim. The technical points were that the invention was made by one of the patentees alone, and that the preliminary oath was taken before a person not authorized to administer it. Besides giving the weight which must always be given to a deliberate decision of a circuit court, I have examined the record of Hoe v. Kahler, and agree with the conclusions arrived at. I see no reason to suppose that any new evidence is likely to be produced in this suit. The defendants bought a machine of the successors of Kahler, and are indemnified by them; and they concluded their purchase after notice of the plaintiff's rights. The contest is, in fact, between rival manufacturers.
Is this a case for an injunction? The improvement in question is but part of a large machine, upon which the daily newspaper of the defendants is printed, and a change of this part of it though possible, is difficult, and might embarrass the usual course of business of the company, and would cause much expense to the defendants, or, rather, to their guarantors. Nor would it be of any advantage to the plaintiffs, except to coerce a settlement, for they do not use printing machines, but make and sell them in the market. Whatever they are entitled to in the way of damages, amounts, in effect, to a royalty. Their real damage was suffered when this machine was bought, and is not affected by the amount or duration of its use. Acting on this view of the matter, the parties have been negotiating for the payment of a license fee, but are very far apart in their estimate of its amount. The only advantage which the plaintiffs could derive from an injunction, would be to put them in a better situation than they are now in, or than the defendants will then be in for the further conduct of the negotiation. If the case were in such a situation that I could now decide the question of damages, I might, perhaps, order an injunction, unless that amount were paid within a...
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...in the past decade.10 But there is nothing new under the sun. Patent law has long grappled with species of holdup. In Hoe v. Boston Daily Advertiser Corp., the patent-in-suit covered "but part of a large machine, upon which the daily newspaper of the defendants is printed[.]" 14 F. 914, 915......
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Hoe v. Kahler
...of the correctness of the views announced in the former decision herein is afforded by the decision of Judge LOWELL in Hoe v. Boston Daily Advertiser Corp., 14 F. 914, which was a suit brought on claim 3 of the same patent. states that he has examined the record in this suit, and the opinio......
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...35 U.S.C. § 283. It is not intended as a club to be wielded by a patentee to enhance his negotiating stance. See Hoe v. Boston Daily Advertiser Corp., 14 F. 914 (C.C.Mass.1883). Here, as the District Court noted, the appellee manufactures a product; the appellant does not. In the assessment......
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