56 F. 152 | U.S. Circuit Court for the District of Southern Ohio | 1893
The complainant filed its hill for infringement on the 27th of March, 1893. Respondents were served
1. Upon the authority of Goodyear v. Dunbar, 1 Fish. Pat. Cas. 474. In that case the defendant claimed under a patent subsequent to the complainant’s. Justice Grier, in passing upon a motion for a .preliminary injunction, said that the defendant, in virtue of Ms patent, had a prima facie legal right to manufacture a compound by his process, and that whether that process was a mere colorable change from the older patent, (which is precisely the claim made in this cast;,) or was the same combination or compound as that described in the complainant’s patent, was the great question in dis-.. pute between the parlies, and that, so far as the judgment of the patent office affected the-case, it might be considered as having been decided in favor of the defendant. He declined to grant the motion, and declared that whenever a defendant presented a case showing a bona fide issue in fact or of law, or, as in that case, a-prima facie right to continue his manufacture, founded on a decree of the patent office, and a consequent public grant, he would not grant a preliminary injunction, and thus issue execution before judgment. He further said that he would not'decide the merits of a bona fide issue in fact on ex parte affidavits, nor anticipate the
2. A second reason for overruling this motion is that the complainant waited nearly two months after filing its bill, and until it must have known that the defendant would be stocked up with a full supply for the year’s business, which is practically over at the close of the haymaldng season, and then presented its motion for an injunction. The courts of the United States are vested with power to grant injunctions in patent causes according to the course and principles of equity. It is not according to equity for a complainant to delay the assertion of his right to an injunction until the time when it will most embarrass and injure the respondent. Such a proceeding savors of a disposition to use the right , of a pat-entee to oppress an alleged infringer, or to force him into a position ■where he may be compelled to incur heavy losses or to yield to hard demands. The granting or withholding of a preliminary injunction is within the proper discretion of the court. It will be withheld when apparently sought for the purpose of obtaining an undue advantage. It has been withheld when, in the opinion of the court, it would be used for the purpose of creating mischief, (Neilson v. Thompson, 1 Webst. Pat. Cas. 275;) dr when it would give the complainant the means of coercing a compromise, (Parker v. Sears, 1 Fish. Pat. Cas. 93;) and so I think it should be here, where the result of granting it now would do more harm to the respondents than good to the complainant, whereas, if the application had been made promptly, special harm to the respondents would have been avoided.
The costs of the motion wdll be taxed against the complainant.