Marden v. Campbell Printing-Press & Manuf'g Co.

79 F. 653, 25 C.C.A. 142, 1896 U.S. App. LEXIS 2355

• Court: Court of Appeals for the First Circuit
• Decided: November 10, 1896
• Docket: Nos. 169, 170
• Status: Published

Opinions

COLT, Circuit Judge.

These are cross appeals from the decision of the circuit court. The defendants below move to dismiss the complainant’s appeal upon the ground that the cause of action therein has been extinguished by settlement thereof. In the court below the defendants were adjudged to have infringed the first, second, and seventh claims of the Kidder patent, No. 291,521, issued January 8, 1884, and the twelfth claim of the Stonemetz patent, No. 376|053, issued January 3,1888. These patents were for improvements in printing machines. The bill alleges that the defendants, without license or right, use, and threaten to continue to use, a single printing and folding machine which contains each and all of the patented improvements. The bill was filed July 11, 1892. On November 22, 1895, the complainant granted a license to the defendants. This license contains (he following provisions:

“Aiul whereas, the said Harden & Howell are desirous of taking a license from the said Campbell Printing-Press and ¡Manufacturing Company under both of said patents, and are desirous of being discharged from all costs of the suit brought by the Campbell Printing-Press and Manufacturing Company in the circuit court of the United States for the district of Massachusetts against them, and are desirous of being discharged from ail claims for damages, profits, or recoveries whatsoever which the said Campbell Piiuting-Press and Manufacturing Company have under said patents against the said Marden & Rowell: Xow, therefore, to all whom it may concern, bo it known that for and in consideration of the sum of twenty-five hundred dollars ($2,300) well and truly paid by said ¡Harden & Rowell to said Campbell Printing-Press and Manufacturing Company, it (loos hereby license and empower the said Harden & Howell, or their assigns, to use and sell said printing machine, and no other, to the full end of the terms for which said letters patent are or may he granted, the said sum of twenty-five hundred dollars being accepted by the said Campbell Printing-Press and ¡Manufacturing Company to cover all claims whatsoever for the past use of the machine by any party or parties whatsoever, and for all future use thereof. And tlie said Campbell Printing-Press and Manufacturing Company hereby releases all claims for costs of said suit that they have against said ¡Harden & Howell in the case cf the Campbell Printing-Press and ¡Manufacturing Company against Harden & Howell, and all claims for liabilities that said Campbell Printing-Press and Manufacturing Company may have against said Harden & Rowell, or their assigns, for the use and sale of said machine. This discharge, however, is not to ¡be understood as extending to relieve the Duplex Printing-Press Company, in any maimer, from any liability for its manufacture and sale of the said machine.”

As this suit was brought against the user of a single machine which embodied (he patented improvements, and as the complainant, for a considera (ion of |2,500, has licensed the defendants to use this machine, and has waived damages for past use, and as there is no proof that the defendants have any intent to purchase any other of the alleged infringing machines, we think that the controversy bet.weeu the parties to this suit has been substantially settled, and that, so far as this particular controversy is concerned, there is nothing left for the court to determine.

Appeals dismissed, without costs to either party in this court.