59 F. 613 | U.S. Circuit Court for the District of Western Pennsylvania | 1894
This is a bill in equity for an accounting for alleged infringement of letters patent Ho. 167,400, for improvement in packers for shutting off water from oil and gas wells, granted April 21, 1875, to James P. Gordon, and assigned to complainant, Beniamin Masseth. The answer admits the use at the time of filing, and for two years previous thereto, by the respondents. of what is known as the “I'aim Device,” but denies infringement thereby, and further denies the patentability of Gordon’s device. Since answer filed, this court has sustained the Gordon patent, (Masseth v. Palm, [No. 16, May term, 1891,] 51 Fed. 824,) and has held the Palm device, which the answer, by specific reference to the said suit, describes as the one respondents use, to infringe the Gordon patent; so that these defenses, however available when the answer was filed, cannot now avail.
The respondents further allege that they had complainant put in for them one of his packers, constructed under the Gordon patent; that it failed to shut off the water, and was useless, and they afterwards procured the Palm packer. We cannot see how this affords any defense to the present bill. The failure of the Gordon packer did not justify the respondents in replacing it with an infringing one, nor can the alleged failure of Gordon, for some years, to manufacture his device, avail to defeat Ms or Ms assignee’s rights vested in them by the grant of the patent. Campbell Printing-Press & Manuf’g Co. v. Manhattan Ry. Co., 49 Fed. 930. But it is alleged the only evidence of infringement is that of Palm, the vendor of the infringing device, which was taken under protest, and subject to the opinion of the court as to competency. It is contended that
We are of opinion the complainant is entitled to a decree.