E. Ingraham Co. v. Germanow, 9 F.2d 912

E. Ingraham Co. v. Germanow

9 F.2d 912 | 2d Cir. | 1925

PER CURIAM.

We held upon the last, appeal in this suit that, although decree had been entered upon defendants’ consent, and although the issues were not litigated, defendants were as much bound by the adjudication to which they had agreed as though, the later (Silver) suit had never been brought. That means, in our opinion, that claims 3 and 4 of patent 14,458 are, so far as these defendants are concerned, as valid and enforceable as though all the courts in this circuit had upheld the claims, instead of upholding the Silver defense thereto.

The proposition now is that the infringement, so called, by defendants is and always has been contributory; that contributory in*913fringement is the intentional aiding of one person by another in the unlawful making or selling or using of the patented article (Henry v. Dick, 224 U. S. 1, 32 S. Ct. 364, 56 L. Ed. 645, Ann. Cas. 1913D, 880); but under the Silver decision there is no patented article, because the patent is invalid. Wherefore it is impossible for the defendants, by merely aiding another to do what he can do, although they cannot, to be guilty of any infringement at all.

The argument seems to ns specious rather than sound, for it assumes the invalidity of the patent and treats the personal inability of defendants to manufacture the completed article which the claims describe merely as a personal misfortune arising out of inadvertent consent given, it is said, on the advice of one who was not skilled in patent law.

This, as we have indicated, is an incorrect view of the extent of the consent decree. By it the defendants were not only estopped from making, using, and selling the entire article described in claims 3 and 4, but they were bound to admit in all and every relation regarding this article of manufacture with this plaintiff the validity and enforceability of these elaims. For them the claims are good, no matter what they may be for other people. It follows that these defendants can no more aid some one else to make the article than they could make it themselves.

It is further assigned for error on this appeal that the theory of damages adopted by the court below was erroneous and the amount granted excessive. We have examined this matter, and are unable to perceive that any rules of law were violated, or that there was any abuse by the lower court of such matters as lay in discretion.

The order appealed from is affirmed, with costs.