United States Gypsum Co. v. Bestwall Mfg. Co.

• Decision Date: 08 April 1923
• Docket Number: 3179.
• Parties: UNITED STATES GYPSUM CO. v. BESTWALL MFG. CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

290 F. 800

UNITED STATES GYPSUM CO. v. BESTWALL MFG. CO. et al.

No. 3179.

United States Court of Appeals, Seventh Circuit.

April 8, 1923

W Clyde Jones, of Chicago, Ill., for appellant.

L. A Janney, of Chicago, Ill., for appellees.

Before BAKER and EVANS, Circuit Judges, and GEIGER, District Judge.

BAKER Circuit Judge.

In July, 1919, appellant secured a decree that its patents No 1,029,328, June 11, 1912, and No. 1,034,746, August 6, 1912 were valid and were infringed by the appellee, Bestwall Manufacturing Company. That decree was affirmed by this court in January, 1921. Bestwall Manufacturing Co. v. United States Gypsum Co., 270 F. 542.

When the accounting was taken up before the master, appellant, on April 2, 1921, moved that a second alleged infringement be included; but the master ruled (Murray v. Orr & Lockett Co., 153 F. 369, 82 C.C.A. 445) that the fact of infringement ought first to be determined by the District Court upon an issue made by a supplemental bill filed by appellant and an answer thereto filed by appellees. Appellant accordingly filed its supplemental bill in June, 1921.

No prayer for a preliminary injunction against the second alleged infringement was included in the supplemental bill. Appellant was proceeding at intervals to take testimony by deposition until June, 1922, when appellant for the first time expressed the need for protection by means of a preliminary injunction. This appeal is from an order denying that application.

In 1920, while the original case was pending in this court on appeal, the American Cement Plaster Company, the Beaver Board Companies, and the Beaver Products Company bought into the litigation and were made parties defendant to the motion now on review.

Appellant says that the business done by appellees in the alleged new infringing product had become so large by June, 1922, that appellant asked for a preliminary injunction. But appellant had filed its supplemental bill a year before without asking for a preliminary injunction; and preparation for a final hearing in the District Court had proceeded to such a point that it was probably not apparent to the District Judge, and it is not apparent to us, that any substantial gain in time could be obtained by expending efforts to get a preliminary injunction on a contest by affidavits rather than by putting the same amount of energy in speeding a final hearing. At all events, in balancing the...