194 F. 426 | 2d Cir. | 1912
Whatever may have been the purpose of the parties, no provision of the interlocutory decree in this cause has been vacated, so that at the time the order appealed from was granted there was outstanding an injunction order, which was as effective as the present one, to restrain the defendants from manufacturing any and all devices infringing the patent. And while the parties may have prepared the vacating order in the existing form through a failure to
The order in question is, strictly speaking, appealable, and the appeal cannot be dismissed. But the granting or withholding of an order, for an injunction rests in the sound discretion of the court, and it is our duty to determine whether this order was providently entered.
The master is bound to pass upon the question of infringement as to all devices brought before him on the accounting, and when his report is filed the court can review his finding, and all the devices presented to him which are claimed to infringe can then be passed upon by the court. And after the final decree an appeal can be taken to this court, and a review of the findings of the court and master obtained. So the question of the infringing character of new structures can be presented to the court below upon contempt proceedings.
The present appeal seems to be an attempt to bring the questions before this court piecemeal, and to have each device passed upon separately. We cannot approve this practice, and think the second injunction order an improvident exercise of the court’s power. Consequently we reverse it, without costs, and without passing upon the merits, with leave to the parties to test the question of infringement in the court below by proper proceedings, anti in this court on appeal from final decree, and with leave to the complainant to apply to the court below to reissue the vacated writ of injunction.