30 F. 387 | U.S. Circuit Court for the District of Southern New York | 1887
Tho motion for a preliminary injunction must be denied, because, upon the auihority of Hartell v. Tilghman, 99 U. S. 547, tliia court has no jurisdiction of the controversy disclosed by the bill and answer. The bill asserts that the plaintiff has the exclusive right to uso and sell, throughout the United States, certain patented mirrors by virtue of a license granted to Hall, NicoU & Granby, by the owners of the patent, and by Hall, Nicoll & Granby assigned to plaintiff, with the consent of the owners of the patent; that the owners of the patent claim without just cause (and the hill sets forth all the facts) that the license has become forfeited; and that the defendant, as tho agent of the owners of the patent, is now soiling the patented mirrors in disregard of plaintiff’s rights. The answer admits the validity of the patent; admits that tho mirrors the defendant is selling are the mirrors of the patent; admits that he is selling ¡hem as the agents of the owners of the patent; and denies that the plaintiff has any cause of action, and asserts that his rights under the license had terminated by reason of non-performance of one of the conditions of the license before the alleged acts of infringement.
The parties are citizens and residents of this state; and according to Hartell v. Tilghman, supra, although the suit is brought for infringement, inasmuch as defendant admits the validity and use of the patent, and the rights of the parties depend wholly upon common-law and equity
The precise question has been decided the other way by the court of appeals of this state, in Continental Store Service Co. v. Clark, 100 N. Y. 365, 3 N. E. Rep. 335; Hat Sweat Manuf’g Co. v. Reinoehl, 102 N. Y. 167, 6 N. E. Rep. 264, where it was held that in such a'case the plaintiff can and must resort to the circuit court of the United States. It will probably afford the plaintiff poor comfort to know that, while in this conflict of authority he is apparently left without a remedy for the violation of his rights, the question has received careful consideration at the hands of both the tribunals of last resort, federal and state, and was decided in each by a divided court.
