59 F. 781 | U.S. Circuit Court for the District of Vermont | 1893
This suit is brought upon patent No. 872,062, dated October 25, 1887, and granted to the orator, for a combined buckle and buttonhole of metal, having an offset forward to rest upon the upper edge of the button to prevent unbuttoning, and lias been heard upon a motion for a preliminary injunction. This improvement, although small, seems to be sufficiently novel and useful to support a patent. The defendant admits making use of the same thing. The patent alone would not warrant a preliminary injunction for this infringement; but Hie patent appears to have been acquiesced in generally, and to have been operated under, with the orator, by the person who look it to, and’makes use of it for, the defendant. This adds sufficiently to the presumption of validity to warrant a preliminary injunction without any express adjudication of validity. The answer sets up prior knowledge and use of one Churchiil, whose affidavit is produced, stating that he showed the orator “how to make an offset in the loop by bending the wires composing the loop,” and that the offset of the patented articles “is the identical change suggested” by him. An answering affidavit of the orator stall's that Churchill’s suggestion was of an inward bend of the wires, and not of this offset. This contradiction might raise sufficient douht to defeat this motion if what Churchill says he did would defeat the patent. The conception of an invention is not making it; the embodiment of it is. The orator produced this invention; Churchill did not. According to his statement, as understood, he merely made a suggestion which, perhaps, forwarded it. This
