13 F.2d 705 | 6th Cir. | 1926
After the mandate went down upon the second former appeal in this ease (Monroe Co. v. Herzog [C. C. A.] 2 F.[2d] 837), plaintiff began a proceeding in contempt against defendant. It was entitled in the equity case, alleged that the defendant had deliberately and willfully violated the injunction by making more infringing machines than the interlocutory order permitted, and had further violated the injunction by making and selling machines not reported, and by making others of modified forms which still continued to be within the injunction. The petition asked that he be attached and punished for contempt, and enjoined from these infringements. Upon the hearing the court found that there was deliberate and willful contempt, and imposed a fine to be paid to the United States as and for a criminal contempt, held that the new forms were also infringements, and imposed a penalty to be paid to plaintiff on account of this continued infringement.
Defendant’s first contention on this appeal is that there was no criminal proceeding and could be no punishment as for criminal contempt. The applicable principles are sufficiently discussed in the opinion of this court in Proudfit Co. v. Kalamazoo Co., 230 F. 121, 131, 134, 144 C. C. A. 418, and in the opinion of the Supreme Court in Gompers v. Buck Co., 221 U. S. 418, 441, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. There was no fatal error in not having a distinct and separate petition devoted to the criminal contempt. The petition as filed contained sufficient allegations for that purpose, and the order as made clearly disclosed the intent of the court to find and to punish the quasi criminal offense. It would doubtless be better practice, when a proceeding of this kind reaches the stage where the court thinks a criminal offense has been committed and should be punished, to direct a reformation of the pleadings, so as to present and dispose of somewhat separately the issue on that subject; but the lack of such formal separation does not require a reversal of the judgment.
Although the review proceeding is by appeal, and upon this part of the ease should have been by writ of error, there is no difficulty in this ease in completely disregarding the mistake in practice, upon the authority of section 10 of the Act of February 13, 1925 (Comp. St. Supp. 1925, § 1649b), and, the finding being sufficient to support the judgment, it must be affirmed.
The specific objection against the imposition of the private penalty is that it was made additional to the damages and profits that might be recovered in the pending accounting, and was not to have any effect upon such accounting. We see no objection to this. A private penalty of this kind is imposed, not to compensate for assessable damages and profits, but with reference to those items of damages which are not thus assessable.
The court below by this order also disposed of the issue as to actual infringement by two further modified forms. Whether to pass upon such issues in this summary way is usually for the discretion of the court, and we see no abuse of discretion in this ease in this respect. The order thereon was in effect a further and more specific interlocutory injunction and was appealable.
Upon the merits of the question of infringement we agree with the court below. Defendant has persistently endeavored to retain the benefit' of the patented invention, while denying its scope. This court, in the first and second appeals, took the view that the invention was entitled to a substantial breadth of construction, and ought not to be escaped^ by variations in the method of applying its principle. It may or may not be that the court should have given greater effect to some parts of the earlier art, and therefore have found the invention to be of a very narrow scope; but the opinion of the court was otherwise, and that is the law of the ease, from which we are not persuaded that we should depart.
With this view, the two variations now in question are still within the proper scope of the claims. It is not of substantial importance that defendant has procured patents covering his later specific forms, as we have frequently held that such patents raise
The order appealed from is in all respects affirmed.
