61 F. 650 | D.R.I. | 1894
This is a motion for a preliminary injunction under a bill in equity to restrain an alleged infringement of letters patent No. 370,614, issued September 27, 1887, to Thomas F. N. Finch, for furniture nails. The grounds on which the motion is based are: First, the decision of the patent office on the question of priority of invention;, and, Secondly, the decree of the circuit court for the southern district of New York in the suit brought by this complainant against Edward H. Faulkner and others. The respondents Bailey and Talbot were the patentees of the device in question under letters patent No. 248,269, and were put in interference with Finch, under whom the complainant claims; and the contest was ended by an award of priority to Finch. In that proceeding these respondents made the point that no patent, should issue, because the device had been in public use for two years, and this issue was also decided against them. The patent here in- suit then issued. The decision of the patent office, which was confirmed on appeal, making the observation that there is no provision of law for the raising and decision of this question in the patent office, , still goes on to decide the question on the ground' that. it is within the inherent power of the commissioner to look into the question when raised, for the purpose of enlightening his conscience in the matter of the issue of the patent. The examiners in chief add that the proceeding at most is merely to determine whether a patent shall issue, and that the rights of the .parties remain unaffected to test the matter in the courts, where a decision may be reached “which shall have the binding force of an adjudication, determining the rights of the parties.” This statement expresses, as well as I could hope' to express it, my opinion that this decision is not to rank as a judicial determination, on which I could properly rely in ordering a preliminary injunction.
The Faulkner suit was brought to enjoin those respondents from