206 F. 904 | D. Mass. | 1913
The bill charges the defendants with joint contributory infringement of United States patents 853,202 and 853,-203, issued to the plaintiff May 7, 1907. The first patent is for an ■arch structure; the second, for an arch. The infringement by the defendant town consisted, according to the bill, in knowingly and willfully causing plans and specifications embodying the patented inventions to be prepared for two concrete arch structures to be erected in said town. The infringement by the other defendant, Frank R. Harding, consisted, according to the bill, in knowingly and willfully contracting to erect the two concrete arch structures on plans and specifications furnished by the defendant town and embodying the patented ■inventions. The bill seeks an injunction and an accounting.
The defendants have not questioned the validity of the patents sued on, but each denies any infringement of them by him.
Even if it be conceded that Heaphy’s embodiment of the patented inventions in his plans would have been contributory infringement, and chargeable to the town, if the bridges had been built as planned, I am unable, upon the case as it stands, to regard it as an infringement of any kind. The patented inventions were never used. Embodying them in the plans was, at most, evidence of an intent to use them, and in this aspect is further referred to below. I hold that no actual infringement on the part of the town is shown.
As to the defendant Harding, he is not shown to have done anything more than submit the lowest of the three bids for the construction planned by Heaphy. I regard the evidence as insufficient to show that any contract was ever entered into between him and the town for that construction; but, if such a contract was ever made, it was abandoned by mutual consent before anything was done under it by either party, and I should be unable to hold that by reason of it either party, or both together, could be held guilty of infringement, contributory or otherwise.
While paragraph 7a, added to the bill by amendment after it was filed, but before it was answered, alleges that the defendants have become infringers, paragraph 6 alleges that the plaintiff fears that, when the structures planned are erected, they will contain his patented inventions, but does not know to what extent these have been used by the town at the time of filing his bill; and in paragraph 7 he alleges the same fear, but says he does not know to what extent his inventions have been used by Harding, at the time of filing the bill. He prays discovery as to both these matters.
It appears from the evidence in the case that the bids above mentioned were advertised for in July, 1910, that the bids were received about August 1, 1910, and that on August 13th there was an interview at Ree between the plaintiff and the selectmen, at which he threatened them with a suit for infringement if they used Heaphy’s plans without paying him royalty, and finally with a suit in any event. The
There may be a decree dismissing the bill, with costs.