National Cash Register Co. v. Remington Arms Co., Inc.
| Decision Date | 01 February 1923 |
| Docket Number | 2927. |
| Citation | 286 F. 367 |
| Parties | NATIONAL CASH REGISTER CO. v. REMINGTON ARMS CO., Inc. |
| Court | U.S. Court of Appeals — Third Circuit |
Melville Church, of Washington, D.C., and William G. Mahaffy, of Wilmington, Del., for appellant.
Drury W. Cooper and George Ramsey, both of New York City, and William S. Hilles, of Wilmington, Del., for appellee.
Before WOOLLEY and DAVIS, Circuit Judges, and GIBSON, District Judge.
The complainant has appealed from an order of the District Court denying a motion for a preliminary injunction in an infringement suit. Letters Patent No. 1,394,256 for a cash register. The motion was not based on any one of the customary grounds, such as irreparable injury, inability of the defendant to respond in damages, or probable injury that might not be repaired by subsequent decree. Pullman v Railway (C.C.) 5 Fed. 72, 73; Standard Elevator Co v. Crane Elevator Co., 56 F. 718, 6 C.C.A. 100. Nor was the motion otherwise addressed to the discretion of the court. Rousso v. Barber (C.C.A.) 276 F. 552. It was based, first, on an allegation of fact that Fuller, the patentee, had assigned the patent in suit to the complainant and second, on the assertion that in law Fuller is estopped from denying the validity of the patent and that his estoppel extends equally to the Remington Arms Company, his employer or co-worker and therefore joint tort feasor, in the development of the alleged infringing mechanism. Piano Motors Corp. v. Motor Player Corp. (C.C.A.) 282 F. 435. In other words, the complainant, by its motion for a preliminary injunction, asked for the enforcement of what it regards as an absolute right vested in itself. In order to prevail it must, of course, establish that right conclusively.
The principle controlling the award of a preliminary injunction in patent litigation is well settled. Where the patent may be adjudged valid and the defendant an infringer an award of an injunction is purely a matter of discretion, and courts are constantly in the habit of withholding it upon such terms, as the giving of a bond and the like, as may seem just and equitable, having regard to the comparative injury that will result to the parties by granting or withholding it. Consolidated Roller-Mill Co. v. Coombs (C.C.A.) 39 F. 803; Rousso v. Barber (C.C.A.) 276 F. 552. Where a patent has not been adjudicated and where its validity has not been persuasively established by long acquiescence courts are very careful in granting a preliminary injunction at the outstart of patent litigation. When the right to a preliminary injunction is asserted on a green patent-- patent in suit was granted October 18, 1921, and action was brought November 9, 1921-- trial courts will be slow in granting an injunction and appellate courts will be even slower in reversing an order of a trial court refusing an injunction. In ordinary course, to invoke the protection of preliminary injunction against infringement pending trial, validity of the patent and infringement must convincingly appear. But for ...
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