236 F. 135 | 9th Cir. | 1916
(after stating the facts as above). The appellant contends that claims 2 and 3 were anticipated by the prior art, that they represent no patentable invention and have no patentable utility or novelty, that the court below erred in finding that the appellant had infringed said claims, and that the said court erred in not sustaining the appellant’s plea of laches.. The patent here involved has several times been before this court in controversies with parties other than the appellant here. Sherman Clay & Co. v. Searchlight Horn Co., 214 Fed. 86, 130 C. C. A. 562, and Id., 214 Fed. 99, 130 C. C. A. 575; Pacific Phonograph Co. v. Searchlight Horn Co., 214 Fed. 257, 130 C. C. A. 627. The first of those cases was brought here upon a writ of error after a jury had found a verdict sustaining the
Estoppel is also claimed from the fact that the appellee, after acquiring the Nielsen patent, issued a circular in which it said, “All of the so-called flower horns made by our aforesaid competitors are flagrant infringements of said patents” (that is, of the Villy reissue patent and the Nielsen patent), and the fact that the appellee affixed to the metal horns which it sold the patent dates of both those patents, and in a letter asserted the Villy folding horn to be “acoustically the most perfect horn,” and in another letter asserted that “the Nielsen patent and the Villy reissue patent are the earliest flower horn patents.” We are unable to discover in any of these features of the evidence ground of estoppel against the appellee. The statement that all other flower horns were flagrant infringements of the two patents which the appellee owned may fairly be interpreted as meaning that some of the competing horns infringed one and some infringed another of the two patents. The statement that the Villy horn was acoustically the most perfect horn may have been true, and yet that fact could have no bearing upon the appellee’s right to maintain the present suit; and the statement that the Nielsen patent and the Villy reissue patent are the earliest flower horn patents contains no element of estoppel.
The final answer to all these alleged matters of estoppel is that it is not shown that the appellant at any time relied upon any of the said statements, or was misled thereby, or acted thereon to its disadvantage or ■ otherwise. Nor can the acts and declarations of the ap-pellee or its predecessors in interest be construed as an abandonment
Other than the fact that the appellant continued to buy and sell the horns, and continued to deny the validity of the appellee’s patent, there is no evidence in the case that the appellant relied upon the conduct of the appellee and its predecessor in interest, or was thereby induced to expend money, to its injury, or to change its position for the worse. It does not follow, from the allegation that the appellant expended large sums of money in buying horns which it sold to its customers, that the horns were not sold to customers at such a price
We find no error. The decree is affirmed,