63 F. 120 | U.S. Circuit Court for the District of Eastern Wisconsin | 1894
This hearing is on an order to show cause why preliminary injunction should not issue to restrain defendants from infringing letters patent granted to Elihu Thomson, and owned by complainant, as follows: No. 347,140, issued August 10, 1886, relating to the art of electric welding, alleged to have been invented by the patentee, and apparatus used therein; No. 347,141, dated August 10,1886; and No. 385,022, dated June 26, 1888,—each for apparatus employed in carrying out this alleged new art. It is conceded by defendants that they have had ample time to present, and that they have probably shown here, all the defense they can make by affidavits and proof of the prior art The complainant objects to the reception of two affidavits,—one by George A. Johnson, and one by Leo Daft,—because they were brought in shortly before the hearing, and long after the time stipulated for closing their proofs; but the delay seems to have been excusable, and left opportunity (which was well improved by complainant) for rebutting affidavits. There being no request for further time to meet them, I deem it proper to let in these affidavits under the circumstances, and they are therefore taken into consideration for the purposes rf the motion.
The remaining question is whether the defense have given a clear and convincing showing (1) that the invention was merely the double use or analogous use in the art of a process previously known; or (2) that it was fully disclosed in previous publications or patents, and actually practiced, as a welding operation, prior to these patents, which should be held to overcome these presumptions, and the re-enforcing affidavits produced by complainants. Great research and ingenuity appear in this defense, but I am constrained to the opinion that neither proposition is maintained, to the degree required for- preventing an injunction, and that their determination must be postponed to final hearing. They present the story frequently interposed against valuable patents, of laboratory experiments, of announcements, and of patents which may have come to the verge of this discovery; but the demonstrations are not clear, and the important fact stands in their way that they do not appear to have accomplished the electric weld which is shown by Thomson. The employment of heat and pressure for the operation of welding metals is old, and it was long known that heat could be obtained by the application of an electric current. These were not Thomson’s discoveries; but he found a method for employing the electric current, localizing the heat at the joint to be welded, and applying simultaneously the requisite pressure, so that the separate pieces of metal could be properly united. I am not satisfied, for the purposes of this motion, that he was anticipated in this by Despritz, Joule, Plante, Cruto, or any of the patents shown, or by any experiments of Daft or Johnson. In this view the complainant is entitled to an injunction pendente lite against infringement of letters patent Nos. 347,140 and 347,141, and injunction will issue thereupon. With reference to letters patent No. 385,022, all determination will be postponed to final hearing.