1 Hughes 59 | U.S. Circuit Court for the District of Maryland | 1877
The injunction in this case
Petition now is for an attachment against defendant for violating this injunction by making and selling machines containing a threshing and a hulling machine combined, as patented to complainant in the first claim of his patent.
The defendant denies that it has done this, but claims that the machines made and sold by it are substantially different from what it made before the issuing of said injunction, and from the machine described in complainant’s patent, No. 1,299.
This is largely a question of fact, and many affidavits have been submitted to the court by the counsel for the respective parties.
The complainant has filed the affidavits of Frank Millward, an expert, Joseph W. Dou-gall, John C. Birdsell, complainant, and Hiram King, four in all. The defendant has filed affidavits of William C. Dodge, J. F. Iteigart, L. W. Downing, Jacob Downing, Jacob W. Zantzinger, John Weller, S. C. Dowin, and A. Miller, eight in all.
In considering the question of a violation •of an injunction, the court cannot but regret that they have not been furnished with models of the machine patented by Birdsell, and the machine which he alleges to be a violation of the first claim of his patent. The court can always best judge from models whether one machine differs in principle and mode of operation from another. In the absence •ol' such evidence the court must look to the testimony of the experts who have examined the two machines. Now, it is a rule governing courts of equity in such cases that they will never attach a defendant for contempt where the violation of the injunction is not plain, and proved to the satisfaction •of the court. So far from a violation being proved in the case, the evidence of the witnesses clearly shows to this court that the -two machines are different in their mode of ■construction, and it is for the court to decide whether there is a substantial difference in the principle upon which they act. Now. the expert produced by complainant swears that they are substantially the same, but the two experts on behalf of defendant, Reigart and Dodge, both men of great experience in such matters, testified that the machines now made by defendant do not contain a feature of Birdsell’s first claim. This, the court thinks, is fully sustained by the written evidence in the case. Bird-sell’s patent is for a combination of a pure threshing cylinder with a pure hulling cylinder; the defendant’s machines contain a combination of two hulling cylinders, and although the upper cylinder may in some measure separate the straw from the head by rubbing or threshing, it is not a pure threshing cylinder; this has been done in machines made and patented before the date of Birdsell’s patent, as will be seen by the diagrams I, K, and L attached to the deposition of Dodge, filed in this ease. The court will therefore dismiss the motion for an attachment in this case.