234 F. 876 | 7th Cir. | 1916
(after stating the facts as above).
“an order or decree in a patent cause, whether upon preliminary application or upon final hearing, granting an injunction and referring the cause to a master for an account of profits and damages, was interlocutory only, and not final, and therefore not reviewable on appeal before the final decree in the cause.” Smith v. Vulcan Iron Works, 165 U. S. 518, 524, 17 Sup. Ct. 407, 410 (41 L. Ed. 810), and cases there cited.
“According to tlie modern practice, at the final hearing all interlocutory orders made at any previous stages of the proceedings are before the court and may be modified, altered or vacated as justice may require.”
The cases there cited fully sustain the text.
Prior to the decision in Smith v. Vulcan Iron Works there was a contrariety of opinion among the Courts of Appeals as to whether, upon an appeal from a decree granting a preliminary injunction, the merits of the controversy upon which the right to the injunction is predicated could be finally settled. In that case this was determined in the affirmative, and has since been the general rule; and so if and after hearing the patent is sustained, infringement found and injunction awarded, upon appeal this court may finally determine the validity of the patent, and its determination is binding on the District Court. But as to so much of the decree as affects the accounting only, and bears no necessary relation to the merits of the injunction, the statute providing for appeal in case of injunction has no application, and the decree in this respect remains purely interlocutory, subject to modification by the District Court until entry of final decree. Affirmance generally of the interlocutory decree would not as to the accounting, make final that which, but for the appeal, would be interlocutory only. Over the accounting and all' its incidents the District Court retains jurisdiction until final decree thereon is entered. We find no error in the order permitting the interlocutory decree to be amended by fixing an earlier date for the afccounting to begin.
It is stated in appellee’s brief, and authorities are cited in support, “that the present defendant was a merger or consolidation of two other corporations,” including the predecessor corporation, and therefore becomes liable for the debts of such merging, or consolidating corporations. But the record does not show any merger or consolidation. It appears from Mr. Peil’s uncontradicted testimony that appellant purchased the good will of the predecessor, which had no other
A corporation purchasing all the property of another corporation does not thereby become liable for the obligations of the latter. 5 Thompson, Corp. c. 148; 2 Cook, Corp. § 673. It follows that, notwithstanding the amendment, the accounting as to appellant should not begin prior to the date of its organization, April 15, 1905.
"Without the elements of the Clacher invention claims 1, 2, 3, 4, and 5 in the defendant’s No. 3 Starch Buck, which it is admitted is the infringing machine, it would not he a marketable article, or salable structure. The employment of the infringing elements in this No. 3 Starch Buck is the life of the machine.”
This conclusion is, we believe, warranted from the record. Attempt was made to show some sales of certain parts of the machine without the Clacher device; but the evidence thereon is unsatisfactory, and does not in our judgment afford sufficient basis for an apportionment of the profits. We feel justified in following here the course indicated by this court in Orr & Lockett Hardware Co. v. Murray, 163 Fed. 54, 89 C. C. A. 492, where under quite similar circumstances a decree for the entire profit shown to have been realized on the infringing article was affirmed. This is also in consonance with the rules laid down in the leading case of Westinghouse Electric & Mfg. Co. v. Wagner Elec
“Where a patent, though using old elements, gives the entire value to the combination, the plaintiff is entitled to recover all the profits.”
The decree of the District Court is reversed, with direction to enter a decree against appellant and in favor of appellee for $3,330.52, with interest at’6 per cent, per'annum from date of filing the report of the master to date of entry of the decree, such decree to be in other respects like the decree from which this appeal is prosecuted; each party to pay one-half of the costs of printing transcript of record on this appeal.