57 F. 842 | U.S. Circuit Court for the Northern District of Illnois | 1893
The patent involved in these suits has passed under the review of the supreme court of the United States, Telephone Cases, 43 O. G. 377. 126 U. S. 1, 8 Sup. Ct. Rep. 778,) and its validity sustained. The history of the Bell telephone patents is the history of an enormous litigation, involving the truth of alleged anticipations sought, to be sustained by a marvelous mass of evidence. The invention was attacked as perhaps no other invention was ever before attacked. It was sustained, and its integrity established by tlie decision of the highest and the ultimate judicial tribunal of the land. That decision must be held conclusive. If there was omission of evidence in that case, sought to be here supplied, by ex parte testimony, I do not feel at liberty, in view of the many decisions of the federal courts sustaining this patent, to now give ear to such testimony upon the hearing of a motion for a preliminary injunction.
I entertain no doubt that the defendants Infringe this patent. Mr. Chief Justice Waite declared:
“The patent itself is for the mechanical structure of an electric telephone, to be used to produce tlie electrical action on which tho first patent rests. Tlie third claim is for the use in such instruments of a diaphragm, made of a. plate of iron or steel or other material capable of inductive action; the fifth, of a permanent magnet, constructed as described with a coil upon the ends nearest tlie plate; Hie sixth, of a sounding box as described; the seventh, of a speaking- or hearing tube, as described, for conveying the sound; and the eighth, of a permanent magnet and plate combined. The claim is not for these several tilings in and of themselves* but for an electric telephone in the construction of -which these things or any of them are used.”
It would serve no useful purpose at this time and upon this motion to consider the claimed differences in the construction of the various devices. Whatever the variations in parts, the function performed is the same, the result attained is the same. That re-
The remaining question arises upon section 4887 of the Bevised Statutes, which provides as follows:
“No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent he declared invalid, by reason of its having been first patented or caused to he patented in a foreign country, unless the same has been introduced into public use in the United States for more than two years prior to the application. But every patent granted for an invention which has been previously patented in a foreign country shall he so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it he in force more than seventeen years.”
The patent in suit was granted January 30, 1877. The inventor, through Morgan-Brown, an agent in London, applied for an English patent by filing a provisional specification on the 9th day of December, 1876. In May, 1877, the English patent was issued, sealed on the 15th of May, but antedated to December 9, 1876, and conditioned .that on or before June 9, 1877, a complete specification should be filed. The English statute permits this antedating of patents, hut provides by St. 1852, (15 & 16 Vict. c. 83,) as follows:
“See. 24. Any letters patent issued under this act, sealed and bearing date as of any day prior to the actual .pealing thereof, shall be of the same force and validity as if they had been sealed on the day as of which the same are ■expressed to he sealed and bear date, providing always that (save where ■such letters patent are granted for any invention in respect whereof a complete specification has been deposited upon the application for the same under this act) no proceeding in law or in equity shall he had upon such letters patent in respect of any infringement committed before the same were actually granted.”
An injunction will issue.