80 F. 119 | U.S. Circuit Court for the District of Washington | 1897
In the order denying the complainants’ application for a provisional injunction, there was reserved to the complainants a right to renew the application upon a further showing, which they have taken advantage of. In support of the new application, it has been shown that since the former hearing (77 Fed. 980) the decision of the United States circuit court for the Northern district of California in the case of Bowers v. Von Schmidt, 68 Fed. 572, has been affirmed by the circuit court of appeals (80 Fed. 121), and that a petition for a rehearing has been denied, so that the validity of the several claims of the Bowers patents involved in the present suit have been established by an adjudication and final decree of the court of last resort. The defendants herein still dispute the validity of the claims referred to, on grounds which they allege were not considered in the Von Schmidt Case, and the showing in their behalf includes new and additional evidence which they contend is sufficient to prove that the Bowers patents are absolutely void, for the reason that the commissioner of patents had no power to grant the same, and for the further reason that the machinery and apparatus which Bowers claims to have invented was described in patents granted in England, long prior to the date of the alleged inventions of Bowers and of Von Schmidt; and they contend that the evidence of anticipation was not introduced in the case referred to, for the reason that in the controversy between Bowers and Von Schmidt they each claimed the rights of an original discoverer and first inventor of the machinery for dredging, covered by the Bowers patents, so that both parties were interested in excluding from consideration of the court evidence tending to prove anticipation. I find from the evidence and documents on file that the litigation between Bowers and Von Schmidt was carried on in earnest, and, as all the proceedings in the patent office, from the first application made by Bowers until the final issue of the letters patent sued on in this case, were before the court, I must consider that the decision comprehends all questions as to compliance on the part of Bowers with requirements of the patent laws, and the power of the commissioner to issue the
New evidence in support of the defense of anticipation, to be available in opposition to the granting of a provisional injunction, must be of such force as to have probably produced a different result if it had been introduced in the preceding litigation. I have given due consideration to the showing made by the affidavits and documentary evidence submitted on the part of the defendants, and the voluminous and able arguments by counsel in their behalf, and have been duly impressed; and yet, upon reflection, I regard it as probable that, if the evidence of anticipation had been considered by the court in the Von Schmidt Case as it was by the commissioner of patents, the result would not have been different. Upon the final hearing of this case I will make an analysis of the patents in suit, and the necessary comparisons with the several devices described in the patents and publications which are supposed to be anticipations; but I am not called upon to do so at this time.
The defendants deny that the dredger Oakland, and the apparatus connected therewith, infringes any of the claims of the Bowers patents sued on. They contend that the chief merit of the Bowers machine is in the rotary excavator with inward delivery, which, in operation, loosens and digs up solid material, and also does the work of forcing the material so dug up into the suction pipe, and is, therefore, a carrier as well as a digger; and they claim that the machinery which they are using has an excavator constructed upon principles known long prior to the Bowers invention. Their excavator exerts no force of itself to bring within its own center the material operated upon, or cast it into a receptacle in which to be conveyed to a place of discharge. Here I find the greatest difficulty in the way of a satisfactory decision. The authorities support the rule contended for by the defendants,—that to warrant the granting of a provisional injunction in a patent case, infringement must be proved beyond a reasonable doubt. Now, I am not willing to be convinced of any material fact in the case beyond a reasonable doubt, until the final hearing and a full consideration of the proofs which may be taken according to the methods best calculated to elicit the truth. The practice of having the execution first, and trial afterwards, may simplify proceedings, but must result in hardship to defendants more frequently than otherwise.