36 F.2d 827 | W.D. Pa. | 1929
The plaintiff has filed an ancillary bill of complaint in this case, asking the court to enjoin the defendant from representing to the public, either in writing, or in public prints, or orally, that it has a monopoly on the Neon tube business, that the patent covers practically all Neon signs, and that the defendant be required to send out retraction letters to persons to whom letters have heretofore been sent by them; asking for a preliminary injunction pending the final relief; and asking, further, that the preliminary injunction granted in case at Equity No. 2260, at the suit of Claude Neon Lights, Inc., v. Gardner Sign Company, be dissolved.
On filing the ancillary bill of complaint, a temporary restraining order was issued, and the ease then came on to be heard on the motion of the Gardner Sign Company for a preliminary injunction. The Claude Neon Lights, Inc., et al., the plaintiffs in the original suit at No. 2260 in Equity, obtained a preliminary injunction covering claim 1 of the patent for a luminescent tube, provided with an eleetrode having an area of 1.5 decimeters per ampere.
After receiving this preliminary injunction order, the defendants, through their attorneys, in Pittsburgh, or in New York, sent put circular letters to customers of the Gardner Sign Company, and caused to be published in the public press of Pittsburgh the fuE-page advertisement, aE as set out in the aneülary biE of complaint. In addition to that, Fred D. Pryde, a salesman employed by the Alpha Neon Lights, Inc., eaEed upon one W. Levinson, a customer of the Gardner Sign Company, caEing attention to the injunction in this court against the Gardner Sign Company, asking him to cancel his contract with the Gardner Sign Company, and offering to him credit for the amount paid to the Gardner Sign Company on the purchase of a new sign from the Alpha-Claude Neon Corporation.
Under these ■ circumstances, we conclude that the plaintiff in this aneiEary suit is entitled to preliminary injunction as prayed for. In granting a preliminary injunction in the original suit, we only intended to restrain, until final hearing on the original suit, what was apparently an infringement of the plaintiff’s patent, as decided by the courts of other districts and circuits. However, we ■undertook to give no final or conclusive judgment on the subject of infringement. In fact, it appeared from the affidavits of the Gardner Sign Company that it had discontinued use of the aEeged infringing structures several months prior to the hearing on the preliminary injunction. But we nevertheless issued the preliminary injunction on the theory that no harm would come to the defendant,.unless it should actuaEy continue the use of the aEeged infringing structures. This preliminary injunction decree gave the plaintiff no right to harass the customers of the Gardner Sign Company, nor to claim a decisive result in its original patent suit.
As we view it, the proper place to try a patent suit is in the courts, not in the newspapers nor in circular letters. We undertook only to protect the rights of the plaintiff in its patent pending a determination on the issues involved in the original patent suit. We wiE not dissolve this preliminary injunction, for we shaE endeavor to preserve the status quo pending the termination of the controversy on the merits between the two parties in the original suit. With that in view we wiE issue the preliminary injunction prayed for in this aneiEary biE, restraining the defendants from sending out any further letters or circulars as set out in the aneElary biE, and place upon them the burden of sending a copy of this preliminary injunction order to aE persons to whom they sent the original circulars, and publishing a copy of this decree in the newspapers that contained their previous advertisements.
An order for a preliminary injunction' in accordance with this opinion may be submitted.