Vacuum Oil Co. v. Grabler Mfg. Co.

• Decision Date: 11 May 1931
• Citation: 53 F.2d 975
• Parties: VACUUM OIL CO. v. GRABLER MFG. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

53 F.2d 975 (1931)

VACUUM OIL CO. v. GRABLER MFG. CO.

Circuit Court of Appeals, Sixth Circuit.

May 11, 1931.

Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.

PER CURIAM.

This question arises in an appeal from the usual interlocutory decree finding a patent valid and infringed, and directing injunction and accounting. The appeal was allowed by the District Court. No request was made to that court in that connection to stay the injunction or otherwise suspend proceedings pending the appeal; and accordingly (it is to be assumed) the usual injunction has issued. Application is now made to this court to suspend or stay it. We see no reason to doubt that this court has jurisdiction so to do, in aid of its general appellate jurisdiction over the cause; but, however that may be, such power of suspension is expressly given to this court by the latter part of section 129 of the Judicial Code (section 227, tit. 28, USCA). The extent to which it might be proper to revise or review the discretion which the District Court had once exercised on that subject, need not now be considered; the question arises originally here.

Doubtless, the action to be taken upon this subject is a matter to be controlled by our discretion (In re Haberman Mfg. Co., 147 U. S. 525, 529, 13 S. Ct. 527, 37 L. Ed. 266); but that discretion should be variously affected by circumstances characteristic of different classes of cases. Where a temporary or preliminary injunction is issued as an extraordinary measure of relief to prevent irreparable injury or to preserve the status quo until the case can be heard, it is normally inappropriate that such injunction should be ipso facto suspended by appeal; and accordingly it will usually not be stayed unless upon conditions which neutralize the emergency calling for its issue. An injunction issued in a patent case, after the "final" hearing, is in form interlocutory, but is final in its effect, while it exists. Such an injunction is the final relief which the bill seeks. It is not issued like the ordinary preliminary injunction, after balancing equities and for the purpose of preserving the subject-matter of the litigation; it is itself execution. The subject-matter is the defendant's right to make, sell, or use as he is doing; the injunction destroys this subject-matter, pro tanto, while in force. The considerations which make it prima facie proper that the class of injunctions first above named continue pending appeal, either do not apply, or apply with less force to this particular type of interlocutory injunction. In the very common case — if not the typical case — a plaintiff-patentee does not suffer from the lack of injunction during the pendency of the appeal excepting as to the infringement which occurs...