Copyright
Walter Malins Rose.

A code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a online

. (page 83 of 114)
Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 83 of 114)
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Armour & Company in the State of California under the defendant
Graham, as manager for Armour & Company, acting as cashiers, clerks
and assistants to said Graham.

That the said (Jraham and the other defendants, save and except the
railway companies, are employed by the said Armour & Company at
stipulated salaries, but they have actual control and management of
the said cars in the State of California to the extent above indicated, and
no one in Califronia can use said cars without their consent, or that of
some of them.

That the said cars have attached to them and connected therewith
ventilators constructed according to letters patent of the United States
No. 537,293, granted to T. B. Kirby on April 9th. A. D. 1895. That one
of said Kirby ventilators is placed at each of the four corners of the
cars on the roof thereof, and are in oppositely inclined positions when in
use; that the said cars and ventilators are the identical cars and ventila-
tors which were involved in the action at law referred to in the bill of
complaint as being used by the therein named defendant, Robert Graham,
and which were found by the jury to be an infringement upon the reis-
sued letters patent of affiant sued on in that action.

That since the verdict of the jury in said action at law the defendant
Graham and his co-defendants have continued to use said cars with
said ventilators thereon in the same manner in which they were using the
same prior to the said verdict, and intend to continue, and will so con-
tinue as affiant is informed and believes, unless restrained by this court.

Affiant further avers that the use of said Kirby ventilator device, as
aforesaid by the defendants, has caused and is now causing very great in-
jury and damage to affiant by depriving him of business which he other-
wise would receive and enjoy, and from which he would derive large
gains and profits: that the said Kirby ventilator has been placed upon a
large number of cars, to wit, about 900. which are engaged in carry
fruits and vegetables from points in California to points outside of Cali-
fornia. That the result of the use of the said Kirby device upon said
ears by the defendants has been to take away a portion of the business
in which affiant is engaged, to wit: the carrying of fruit and vegetables
to the eastern market, and if the use of said Kirby ventilator device is
continued as heretofore, affiant will be further greatly damagpd and im

2869



P 723. FORMS IN PATENT CASES. [Code Fed.

jured, and will be deprived of further business which he otherwise would

enjoy.

That it is impossible to calculate the damage which affiant will suffer
and has been suffering from the use of said Kirby device by the defend-
ants, or to measure the same with sufficient definiteness to form the
basis of a judgment, and the only beneficial remedy which affiant can
have or which will protect him is an injunction to restrain the further use
of said Kirby device.

That the manner which affiant has selected in which to use his patented
invention and derive profits therefrom is as follows; that is to say, he has
caused to be organized a corporation called the California Fruit Express
Company, and has given to said corporation a license to use the invention
on one thousand cars; and has also caused to be organized another .;or-
poration called the Continental Fruit Express, of which affiant is the prin-
cipal stockholder, and has given to said last-named corporation a verbal
license to use the patented invention on cars.

That the said two corporations have used the said invention under said
licenses, and thereby affiant has derived large profit and revenue; that
affiant has never given any license to any other person or corporation;
that for such reason he has never establisherl a license fee for the use of
his invention by others, and does not intend to do so, as he desires to pre-
vent all other persons from using his inventions, save and except to said
corporations; that all other right under said patent, and the full and com-
plete title thereto, have been reserved to and are owned by affiant.

That the profits derived from the transijortation of fruits and vegetables
to the eastern market aie dependent on numerous and various conditions
of circumstances, and numerous and various elements enter into the same.

That one of the said elements consists in a suitable and proper ventilator
to be used upon the cars transporting the fruits and vegetables aforesaid
and the value of affiant's ventilator device consists in its increased efficien-
cy and benefit over and above any other ventilator device used for a simi-
lar purpose.

That said increased value is very difficult of measurement and almost
impossible to be determined in dollars and cents, for the reason that the
various conditions and circumstances which enter into the transportation
of fruit and vegetables, and the use of the ventilator device in connection
therewith, are very numerous, and change and vary from time to time,
and are dependent on the state of the weather, changes of temperature
and climate, varying seasons, and different routes over which the cars
may pass, and while he can testify and does testify that his ventilator
*device is a most efficient one, and far superior to any and all other ventila-
tor devices used or that can be used for similar purposes, it is utterly im-
possible for him or any other person to specify that value in dollars and
cents, or to say how much more valuable in dollars and cents it is over
other ventilator devices.

Affiant further says that the use of the Kirby ventilator device has had
the effect of depriving him of business which he otherwise would have done,

2870



Procedure] FORMS IN PATENT CASES. F. 724.

and has thereby caused him to lo.se the profits which he would have de-
rived from such business, and the use of the Kirby device in the future will
continue to have such effect, and thereby affiant will suffer very great loss
and damage in his general business of transporting fruits and vegetables,
which cannot be measured with accuracy or precision, and it was on that
account that in the action at law hereinabove referred to, in which a ver-
dict was rendered against said Robert Graham, affiant waived all damages
save and except a nominal amount, and requested that such damages be
assessed at the sxim of one dollar, it being impossible for him to properly
fix any definite measure of damages.

That on account of the reasons aforesaid, the only adequate and com-
plete remedy which afliant can have is a writ of injunction issued out of
this court to restrain the defendants from further infringing upon his said
reissued letters patent.

That affiant is still the owner and holder of the said reissued letters pat-
ent.

EDWIN T. EARL.

Subscribed and sworn to, etc.

F. 724.
^Supplemental Bill where Patent has been Extended since Filing of Original-
[Title of Court and Cause.]

AB, of , in the State of , brings tnis,

Ms supplemental bill, against XY of .

And thereupon your orator complains and says:

That he filed his original bill against the defendant in this court on the

day of , 18 , wherein he prayed for a discovery, account,

-payment of profits and an injunction to restrain the said defendant from
infringing on your orator's patent, granted to him by the United States

of America, for improvement in , dated the day of ,

18 , and for other relief as stated in his said original bill.

And your orator further shows that since the filing of his said original

bill, namely, on the day of , 18 , upon the application of

your orator and after due proceedings had in all respects as required by
law, the commissioner of patents granted the extension of said patent for
the term of seven years from and after the expiration of the first term

thereof, viz., the day of , 18 , and made a certificate of such

extension thereon and entered the same on record in the patent office of the
United States in due form of law; and thereupon the said patent was re-
newed and extended, and now has the same effect in law as though it had
been originally granted, for the term of twenty-four years as in and l)y
said certificate, or certified copy thereof, here in court to be produced, will
more fully appear. Yet the said defendant, well knowing the premises, but
contriving how to injure your orator and without his consent or allowance,
and without right and in violation of said letters patent and your orator's

exclusive rights, secured to him as aforesaid from , 18 , has

made, used or vended, and still does make, use or vend, to others, to be

2871



FORMS IN PATENT CASES.



[Code Fed



useil in said district ana in otlier parts of the United States, a large number
of (describe the articles), but how many your orator cannot state, but prays
that the defendant may discover and set forth each, embracing substantial-
ly the improvement in , or a material part thereof, patented by

your orator as aforesaid; and thereby the said defendant has infringed
and still does infringe and cause your orator to fear that in future he will
infringe upon the exclusive rights and privileges intended to be secured to
your orator in and by his said letters patent.

To the end, therefore, that the said defendant may, if he can, show why
your orator should not have the relief herein and in his said original bill
prayed, and may under oath and according to his best and utmost knowl-
edge, remembrance, information or belief, full, true, direct and perfect an-
swer make to all and singular the premises, and, more especialy, may answer,
discover and set forth whether during any and what period of time since

, 18 , and where he has made, used or vended to others to be

used, for any and what consideration, any and how many (articles), and

whether or not the same embraced the said improvement in ,

or any substnatial part thereof, patented to your orator as aforesaid, or
how the same differed from your orator's said patent, if it all.

And that said defendant may answer the premises and may be decreed
to account for and pay over to your orator all gains and profits realized

from his unlawful making, using or vending of , embracing

said improvement, patented to and vested in your orator as aforesaid, and
may be restrained by an injunction to be issued out of this honorable

court, according to law, from making, using or vending any ,

embracing said improvements or any substantial part thereof, patented
to your orator as aforesaid: and that the infringing (machines) now in
the possession or under the control of the defendant may be delivered up
to your orators to be destroyed, and for such further and other relief
in the premises as the nature of the case may require and to your Honors
shall and may seem meet.

Ma\' it please your Honor, etc.



F. 725.
Various Allegations in Equity — Patent Assigned before Suit Brought.

And your orator further shows that, on or about the day of ,

the said , by an assignment in writing, sold, assigned and

transferred unto the said AB the entire right, title and interest in and to
said letters patent and invention, together with all rights of recovery for
past infringements arising under said letters patent, which said assign-
ment was duly recorded in the patent office of the United States.

Note. — If more than one assignment, make a separate allegation as to
each.

F. 726.
— Reissue of Patent.
And your orator further shows that the said (patentee) has for good
and lawful cause surrendered said letters patent to the commissioner of

2872



iTocedure] F0KM8 IN I'ATENT CASES. F. 72S.

patents, and having made due application therefor, and having in all things
complied with the acts of Congi'ess in such case mixde and provided, they
were canceled, and new letters patent, which were marked Reissue No.

. , were, on the day of , 18 , in due form of law, issued

to said (patentee), which said reissued letters patent are of record in the
patent office of the United States and a certified copy thereof is here
ready in court to be produced.

F. 727.
— Suit by Administrator of Patentee.
And your orator further shows that the said ( patentee ) died intestate
on or about the day of , 18 , and that on or about the

day of , 18 , the said was duly appointed

and qualified as administrator of the estate of the said , de-
ceased, and thus became, as such administrator, possessed of the rights
granted to the said under and by virtue of said letters patent.

F. 728.
— Prior Adjudication.

And your orator further shows that in the month of , IS ,

V'W, of the city of , state of , was manufacturing and

selling (describe the articles), embodying the invention set forth in ,

and in infringement and violation of the rights of your orator under the

said letters patent No. ; that on the day of , 18 , the

said (patentee) brought his bill in equity in the circuit court of the

United States for the ■ district of against the said

VW, and in said suit complained that the defendant had infringed and
threatened the further infringement of the said letters patent. (If a pre-
liminary injunction has been granted add:) [And that he thereupon moved
the court for a preliminary injunction therein, that the said motion came

up to be heard in said court before the Hon. , Judge of said

circuit court, on the day of , 18 , on affidavits and

proofs filed by the respective parties, and was argued by counsel; and that

upon consideration of said proofs and arguments the court on the

day of , 18 — , ordered an injunction as prayed for restraining

the defendant from infringing the said letters patent No. , and

the said injunction was accordingly granted and issued] ; that the said de-
fendant filed his answer to the said bill of complaint and the said cause
came on to be heard on the pleadings and proofs and was argued on the

day of . 18 — , before the Hon. -. .Judge of said cir-
cuit court, by counsel for the respective parties; and on the day of

18, the court ordered a decree for the plaintiflf affirming the va-
lidity of said letters patent No. . and a perpefual injunction as

prayed for restraining said defendant from infringing said letters patent;
and said perpetual injunction was accordinglj- granted and issued.



287.3



F. 720 FORMS IN PATENT CASES. [Code Fed

i^'. 729.
Restraining Order and Order to Show Cause.
[Title of Court and Cause.]

On reading and filing the verified complaint in the above entitled suit
and the affidavit of Edwin T. Earl, complainant therein, and upon a con-
sideration of the judgment-roll, records and testimony, and other evidence
taken in the action at law in this court, entitled Edwin T. Earl vs. Robert
Graham, No. 12,114, and on other good cause shown, it is ordered that the
defendants in this case, and each of them, be and appear in this court, at
the courtroom thereof in the city and county of San Francisco, State of
California, on the 13th day of April, A. D. 1896, at the hour of eleven
o'clock, A. M., then and there to show cause, if any they can, why a writ of
injunction should not issue in this case enjoining and restraining said de-
fendants and each of them, until the further order of the court, from in-
fringing upon claims 3 and 4 of reissued letters patent sued on in this
case No. 11,324, granted to Edwin T. Earl, an Apirl 18, A. D. 1893, which
said claims read as follows:

"3. In combination with a car having separate and independant open-
ings, a lid or cover for each opening adapted to close the latter, and fold-
able devices substantially as shown and described, for holding the lids open
in oppositely inclined directions.

"4. In combination with a car having separate and independent openings,
movable covers or lids adapted to close such openings, and side wings
hinged to such lids or covers, and adapted to sustain them in oppositely in-
clined positions, and to form in connection with the lids, a funnel."

And in the meanwhile, and until the hearing of such order to show cause
and the decision thereon, we do strictly enjoin and prohibit you, the said
Southern Pacific Company, Southern California Railway Company, Robert
Graham, John A. Gill, A. W. Logan, and J. W. McClymonds and each of you,
your agents, servants, attorneys, workmen, and employees, and each of
them, from hauling and transporting, or moving from place to place, or
from leasing or from hiring out to others, or from using either directly or
indirectly, in any manner whatever, in combination with a car having
separate and independent openings, a lid or cover for each opening adapted
to close the latter, and foldable devices such as are shown and described
in the said Earl patent for holding the lids open in oppositely inclined di-
rections, and also in combination with a car having separate and independ-
ent openings, movable covers or lids adapted to close such openings, and
side wings hinged to such lids or covers and adapted to sustain them in
oppositely inclined positions and to form in connection with the lids a fun-
nel, or any colorable imitation thereof, and also from using certain ventila-
tor devices known as the Kirby Ventilator, and described in letters patent
of United States No. 537, 293. granted to Thomas B. Kirby on the 9th day
of April, 1895, and being the same ventilator shown in the said action at
law of Edwin T. Earl against Robert Graham, No. 12,114, to have been
nsed by the said Craham as the general manager of the business of Armour
& Company in the State of California, and also from infringing upon claims

2874



nocediire] FORMS IN PATENT CASES. V. T-IO.

3 and 4, or either of them, of said reissued letters patent No. 11,324,
grantod to Edwin T. Earl on April 18, 1893.

And on the hearing of this order to show ca/use plaintiff may use, read,
•and refer to the bill of complaint in this case, the affidavit of Edwin T.
Earl and the judgment-roll, various proceedings, testimony, and evidence
taken in the said case of Edwin T. Earl vs. Robert Graham, No. 12,114 in
this court.

That a copy of the said bill of complaint and of the said afTidavit of
Edwin T. Earl be served upon the defendants in this case five days before
the return day.

WM. W. MORROW,
Judge.
F. 730.
Reply to Order to Show Cause.
[Title of Court and Cause.]

The appearance of M. A. Wheaton, Esq., for and on behalf of the South-
ern Pacific Railroad Company, Southern California Railway Company,
Robert Graham and in reply to a rule of said court in this cause to show
cause why a preliminary injunction should not issue, and for no other
purpose, it is alleged on behalf of said defendants:

1.

That the said reissued patent declared on in said bill was not made in
accordance with law, and is therefore void.

2.

That the disclaimers set forth and alleged in said bill of complaint were
not made in accordance with law in that they amended and changed the
patent.

3.

That the title of said patent shown by the complaintant's affidavit filed
with said bill is not in the complainant, it appearing from the aflfidavit
that he has conveyed an exclusive license to said patent.

4.
The novelty and validity of said patent is also denied.

5.

The allegation contained in the bill that the above-named defendants or
any of them have infringed said patent is also denied.

6.

The allegation in said bill that there has been a judgment entered at
law, which judgment still stands in force and effect and uncontroverted and
therefore should be considered necessary as controlling this court, is also
denied.

2875



F. -:jl. FORMS IN PATENT CASES [Code Fed.

7.

All charges of combination and confederation set forth in the bill of
complaint in this cause between the several defendants is denied; and it
is alleged that the defendant ra,ilway companies each operates its own roads
separately and distinctly and is a common carrier, and therefore is obliged
by law to haul the cars tendered it for transportation, and that it has no
control over any attachments that may be applied to cars which it does
not own but simply transports for others, and that the individual defend-
ants above-named are simply in the employ of other parties having noth-
ing to do ^vith the alleged infringement set forth in said bill.

8.

The allegations of the bill as to infringement (even if the device com-
plained of is an infringement of the patented device) are not sufficient to
entitle the complainant to a preliminary injunction in that it is not al-
leged that the defendants or either of them used the patented device, the
allegation being that they operated cars to wliich the patented device is
attached, there being no allegation that they actually used the patented
device.

9.

This court has no jurisdiction of the defendants not residing in the
northern district of California, who were served out of the northern dis-
trict of California.

10.

There is no allegation in the bill that the infringement was committed
in the northern district of California, therefore this court has no jurisdic-
tion to enjoin the infringement complained of, it not appearing but that
the infringement was committed without and beyond the jurisdiction of
the court.

11.

That the complainant has not made out such a case as would justify the
court in granting a preliminary injunction herein.

12.

That such case as the complainant has made out is met by the showing
that is made by the defendants herein.

13.
That the court ought not to grant an injunction that will run against
such of the defendants herein as do not reside and have not been found in
this judicial district, and over whom the court has no jurisdiction.

WHEATON, KALLOCH & KIERCE,

L. L. COBURN- Of Counsel.
Special Solicitors of the Defendants for resisting the application for an
injunction.

F. 731.
Order for Injunction.
[Title of Court and Cause.]

The court having heretofore made an order in this case requiring the de-
fendants to show cause why a preliminary injunction should not issue in

2876



Froredure] FORMS IN TATENT CASES. h\ 7.J1.

this case out of and under the seal of the court, enjoining and restraining
the defendants untill the further order of the court in the terms herein-
after stated; and the defendants Southern Pacific Company and Robert
Graham, having appeared in answer to this said order to sliow cause, but
failing to show any suHicient cause to prevent the issuance of such in-
junction; and it having been made to appear to the court that the com-
plainant is entitled to such injunction.

It is therefore ordered that a writ of injunction issue out of and under
the seal of this court in the usual form, enjoining and restraining the
defendants. Southern Pacific Company and Robert Graham, and each of
them, their agents, attorneys, servants, workmen and employees, until the
further order of the court, from infringing upon claims 3 and 4 of reissued
letters patent No. 11,32-1, granted to Edwin T. Earl on April 18, A. D.
1893, which read as follows:

"Third. In combination with a car having separate and independent open-
ings, a lid or cover for each opening adapted to close the latter, and fold-
able devices substantially such as shown and described, for holding the
lids open in oppositely inclined directions.

"Fourth. In combinations with a car having separate and independent
openings, movable covers or lids adapted to close such oper.ings, and side
wings hinged to such lids or covers, and adapted to sustain them in oppo-
sitely inclined positions, and to form in connection with the lids a funn'.l."

And it is further ordered that said writ of injunction shall enjoin and
restrain the said Southern Pacific Company and Robert Graham, and each
of them, their agents, servants, attorneys, workmen, and emploj'ees, and
each of them, from hauling, transporting, moving from place to place,
leasing, or hiring to others, and using, either directly or indirectly, in com-
bination with a ear having separate and independent openings, a lid or
cover for each opening adapted to close the latter, and foldable devices sub-
stantially such as are shown and described in the said Earl patent for hold-
ing the lids open in oppositely inclined directions, and also in combination
with a car having separate and independent openings, movable covers or
lids adapted to close such openings, and side wings hinged to such lids
or covers, and adapted to sustain them in oppositely inclined positions and
to form in connection with the lids a funnel.

And also from using either directly or indirectly that certain ventilator



Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 83 of 114)