A. B. Dick Co. v. Milwaukee Office Specialty Co.

168 F. 930, 1908 U.S. App. LEXIS 5485

• Court: U.S. Circuit Court for the District of Eastern Wisconsin
• Decided: October 5, 1908
• Status: Published

Opinion

SEAMAN, Circuit Judge.

The fact of sale to licensees of the complainant of ink made by the Chamberlain Ink Company for use with the complainant’s stencil printing machines, known as “Rotary Mimeograph,” with knowledge of the inhibition of such use contained in the license under the patents averred in the bill, intending the Chamberlain ink to be so used, and fact of use thereof by the licensees accordingly, are well established by the affidavits on behalf of the complainant; and no substantial dispute appears in the answering affidavits, as I believe. So the only issue is, whether the defendants Andreas Bothe and Robert E. Watson, doing business under the name of the Milwaukee Specialty Company, thus appear guilty of infringement, under the rule of constructive infringement which must govern the determination.

The authorities upon the question are fairly stated and reviewed in the brief submitted on behalf of the defendants, and neither citations nor review is needful for the purposes of this decision. The cases referred to in this circuit have settled the controlling doctrine of unlimited right in the patentee to thus restrict the use of his device, and thereunder no escape appears from its application to the state of facts presented on this motion as constructive- infringement. Whatever my impressions may have been in reference to the rule so extended and upheld, the duty of this court is plain to observe and enforce it, standing unreversed by the Circuit Court of Appeals and modified by decision of the Supreme Court. Remarks which are cited from recent opinions of the Supreme Court merely amount to reservation of the question to be determined when it may arise, and do not authorize departure from the rule referred to. The opinion of Judge Ray, in the cognate case of A. B. Dick Co. v. Henry (C. C.) 149 Fed. 424, satisfactorily states the grounds for in junctional relief to be applied tinder the present motion, within the above-mentioned doctrine.

An injunction pendente lite will be granted accordingly, to restrain the defendants Bothe and Watson from sale of the ink in question, directly or indirectly, to licensees of the complainant, intending its use with the complainant’s device described in the bill.

The Chamberlain Ink Company, named defendant in the bill, is not served with process, and cannot be included in the in junctional order nor can the question of its privity be passed upon herein.

Let an order be prepared and' submitted as above indicated.