172 F. 223 | 7th Cir. | 1909
(after stating the facts-as above), delivered the opinion.
The court below, with the acquiescence of counsel for both parties, treated the demurrer as raising the question whether, no special equities having been pleaded, the complainant was entitled to an injunction upon a patent that had expired. Upon the authority of Root v. Railway Company, 105 U. S. 189, 26 L. Ed. 975, and other decisions, notably Consolidated Safety Valve Company v. Ashton Valve Co. (C. C.) 26 Fed. 319, we are of the opinion that in answering this question in favor of the appellee, the court committed no error. True, as intimated by Judge Seaman, in McDonald v. Miller (C. C.) 84 Fed. 344, a patent being about to expire, there may be special circumstances entitling the patentee to an injunction against the manufacture of infringing devices pending the expiration of the patent; as for instance, the manufacture of a supply of articles covered by the patent preparatory to their being put upon the market the moment the patent expires; for such manufacture' within the time of the patent, in contemplation of providing the market, the moment the patent expires, would be a distinct damage to the monopoly of the patentee, who is entitled, against the manufacturer as well as against the user, to the injunction of “hands off” until the patent has actually expired.
But no such special equities are shown in this case. The appellee is a user, not a manufacturer. It made no preparation, prior to the expiration of the patent, to flood the market — the whole act complained of being its preparation to use the patent in its business as a binder of books, after the patent had expired. And if as the result of such preparation the appellant has suffered any injury, a full remedy is furnished at law.
The decree of the Circuit Court is affirmed.