Celluloid Manuf'g Co. v. Arlington Manuf'g Co.

34 F. 324, 1888 U.S. App. LEXIS 2291

Opinion

Wales, J.

The patent has been held to be valid.¹ The defendant admits, or at least does not deny, infringement, but claims that it had ceased to infringe before the bill was filed, and does not intend to renew the uso of the infringing machine. It still continues in possession of all tlio contrivances and appliances to enable it to violate the patent, but promises not to use them for that purpose. This is a naked and unsupported promise. The practice of the courts in such cases is well settled. In Woodworth v. Stone, 3 Story, 752, it was decided that “a bill for an injunction will lie, if the patent-right is admitted or has been established, without any established breach, upon well-grounded proof of an apprehended intention on the part of the defendant to viólale the plaintiffs right.” A fortiori should an injunction issue where, as in the present case, the defendant has already infringed, and nothing but a more promise stands in the way of its doing so again. The general rule is stated in Walk. Pat. § 676, and concludes as follows: “Indeed, no injunction can bo averted by affirmative evidence that the defendant has ceased to infringe, even though coupled with a promise that he will infringe no more.” See, also, Curt. Pat. § 422, which gives the same rule, only in different language. Further authority on the same point may be found in Chemical Works v. Vice, 14 Blatchf. 179, and in Losh v. Hague, 1 Webst. Pat. Cas. 200. If the defendant intends in good faith to keep its promise, the injunction will not harm it; otherwise, it will be a security for the plaintiff that its rights will not again be invaded. The plaintiff is entitled to a decree.

1

31 Fed. Rep. 904.