Turner Brass Works v. Appliance Mfg. Co.

• Decision Date: 04 August 1908
• Docket Number: 28,979.
• Citation: Turner Brass Works v. Appliance Mfg. Co., 164 F. 195 (N.D. Ill. 1908)
• Parties: TURNER BRASS WORKS et al. v. APPLIANCE MFG. CO.
• Court: U.S. District Court — Northern District of Illinois

164 F. 195

TURNER BRASS WORKS et al. v. APPLIANCE MFG. CO.

No. 28,979.

United States Circuit Court, N.D. Illinois, Eastern Division.

August 4, 1908

George T. May, Jr. (Frederick W. Moore, of counsel), for complainants.

Dyrenforth Lee, Chritton & Wiles (William B. Davies, of counsel), for defendant.

KOHLSAAT Circuit Judge.

This cause is now before the court on motion for a preliminary injunction. The bill seeks to restrain defendant from infringement of patent No. 873,544, granted to Harroun December 10, 1907, for an automobile fender. The defense rests upon want of validity alone. The following facts are relied on by complainants to bring the cause within the requirements of the courts in cases where a preliminary injunction is sought: Both Harroun and one Schureman were applicants in the Patent Office for patents covering substantially the device of the patent in suit. An interference being declared, Schureman abandoned all further effort, and his claims, so far as pertinent, were awarded to Harroun. Thereafter Schureman organized the defendant company and proceeded to manufacture the device of his original application, in substance, paying no regard to the rights granted to Harroun.

Both complainant and defendant, respectively, claim to have established a fair business. There was, so far as shown, no contest in the Patent Office; nor does it appear that Schureman knew what matters were urged by Harroun in support of his application. There is no sufficient ground shown for charging him with bad faith in asserting the invalidity of the patent in suit, in view of the prior art, as defendant now does assert; so that the cause does not come within those decisions which deal with that question.

No continued public acquiescence is claimed. Unless the action of the Patent Office in awarding priority on interference amounts to the prior adjudication contemplated in Standard Elevator Co. v. Crane, 56 F. 718, 6 C.C.A 100, the court would seem to be without authority to enjoin defendant in limine.

Primarily the only question raised in interference proceedings is that of priority. Of course, should the examiner discover indubitable nonpatentability in the subject-matter of the applications, it would be his duty to reject both applications, as not presenting any matter or rights upon which he could act; but, generally speaking, the only vitality a patent so issued could possess, as to validity, in the absence of matters creating an estoppel, even against the defeated party, would be that bare presumption which attaches to a grant of...