11 Blatchf. 524 | U.S. Circuit Court for the District of Northern New York | 1874
The defendants. at the adjourned term in January, 1874, moved the court for an order opening the decree made herein at the June term, 1872 [Case No. 12.117], and allowing the defendants to amend their answer, by striking out such portion of the same as admits the infringement of the complainant’s patent, and by inserting instead thereof, a denial of such infringement, and thereupon permitting the defendants either to contest the complainant’s case on the merits, as to such infringement, or to open the proceedings before the master under such decree, and direct the accounting thereby ordered to proceed anew upon such amended answer, instead of upon the fact admitted in the answer as it now stands.
The litigation between these parties has been severe and protracted. On the 4th of January, 1845, the original letters patent for the invention in controversy were granted to one Henry Stanley. In 1853, the patentee sold
I think the indulgence here sought is not only without precedent, but beyond the power of the court, if that power is to be deemed governed by any rules whatever, in the exercise of its judicial discretion; and, especially, as a precedent, it would be most unjust to adverse parties, and would be so to this complainant, to subject him to a renewal of the litigation. He has taken the defendants at their word. When warned that they were infringing his rights, they set him at defiance. They knew what he claimed, and they not only admitted that they were infringing those rights, if he had title, but, in point of fact, they diu purpose and intend to make stoves in accordance with the patent, and under the protection of the monopoly. Again and again they avowed this; and the utmost they can now say is, that, if they and their counsel had been more diligent, they would have been induced to aver, that, by reason of a change in one particular, in the construction of the stove, they had avoided the patent — an averment which the complainant now denies, and as to which the defendants now invite him to a new litigation. I express no opinion upon the effect of that change. But, I cannot resist the impression, that, taking it to be true, as the defendants now allege, that most of the stoves which they have made are like the model produced on this motion, containing the alleged alteration, the change, if it were conceded to withdraw the stove from the operation of the patent, upon a rigid and technical construction of its terms, was, nevertheless, so far an appropriation of the important features of the invention, as to make the defence of such change rather technical than meritorious, especially when the intentional, persistent, and determined defiance of the complainant is viewed in connection with the defendants’ equally manifest intention to claim the patent as a protection to their own alleged monopoly of the right to make just such stoves. For, even though it be said that they believed that these stoves were protected, rather by the reissues which they had obtained, than by the original patent, such suggestion does, nevertheless, assume that it is the same invention, and so the effort now made is to obtain an advantage, not because the defendants have not used the invention which is the complainant’s property, but because his patent does not perfectly secure to him the whole of the actual invention. It must be conceded that this is, if true, a sufficient defence, both at law and in equity, but, on an application for so great indulgence, after so many opportunities to set it up have gone by, it does not strongly commend itself to our sense of justice.
But, apart from this latter suggestion, I am constrained to hold the defendants concluded. Their case, as made by themselves, rests either upon their own want of due diligence, or the want of due intelligence on the part of their counsel. By this the complainant ought not to be so far prejudiced as, after decree, reference, and report of the master, to be compelled to go again through the litigation, on a point distinctly presented, and proper to be met at the outset. Their case, as presented by the counsel whom they have employed for the purposes of this motion, and who regards it as clear that, as to most of the stoves which they have made, they had avoided the operation of the patent, seems, at first view, one of hardship; but, if that is so, the defendants have brought it upon themselves, by their own negligence, or by relying on a degree of vigilance, study, and accuracy on the part of their several counsel, which they now think was inadequate to their protection. No case has been referred to which, in any degree, tends to sanction the latitude of indulgence which the defendants here seek. Cases are numerous tending in the other direction, of which India R. Co. v. Phelps [Case No. 7,025]; Hitchcock v. Tremaine [Id. 6,540]; Prevost v. Gratz [Id. 11,406]; and Livingston v. Hubbs, 3 Johns. Ch. 124, — are examples. The motion must be denied.