Mesker v. Thuener

42 F. 329, 1889 U.S. App. LEXIS 2661

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: October 30, 1889
• Status: Published

Opinion

Thayer, J.,

(orally.) This case was argued for a day and a half. The questions and patents discussed are so numerous that it is impossible, in the time at my disposal, to go over all of the points in detail. Hence in this case I content myself with a statement of the conclusions I have formed. In view of the state of the art, and the numerous kinds of metallic ceiling heretofore patented, it is no doubt questionable whether the’ metallic ceiling patented by Mesker possesses patentable novelty. But inasmuch as the patent creates the presumption that the combination claimed is patentable, and is a useful combination, and inasmuch as the evidence does not satisfactorily overcome that presumption, and furthermore, as it is evident from an examination of the ceiling made by the defendants that it was copied from the ceiling manufactured by complainants, with merely a colorable difference in one particular, (that is, in the form of the fold,) I have determined to order a decree-in favor of complainant. In view of the amount of testimony that has been taken, it appears to me that it is unnecessary to order a reference in this case for the purpose of ascertaining the damages resulting from the infringement". From the testimony already taken, it is probable that counsel can easily agree as to the amount of damages to be assessed. Hence a reference to a master will not be ordered, unless complainants’ counsel insists upon a reference. If he does so insist, a reference will, of course, be ordered; but the court will reserve the right to put the costs of such reference where they shall belong, if, at the conclusion of tho reference, as now, it appears that the reference was unnecessary.