National Folding-Box & Paper Co. v. Elsas

65 F. 1001, 1894 U.S. App. LEXIS 3153

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 6, 1894
• Status: Published

Opinion

COXE, District Judge.

The validity of the complainant’s patent is no longer open to controversy in this court It has been the freqilent. subject of litigation and has, invariably, been sustained. Box Co. v. Nugent, 41 Fed. 139; National Folding-Box & Paper Co. v. American Paper Pail & Box Co. (on preliminary injunction) 48 Fed. 913, affirmed 51 Fed. 229, 2 C. C. A. 165; same, on final hearing, 55 Fed. 488; National Folding-Box & Paper Co. v. Phoenix Paper Co., 57 Fed. 223.

Upon the question of infringement also the defendants are confronted by four circuit court decisions and one decision of the circuit, court of appeals, holding that devices very similar in construction infringe the second claim of the Bitter patent. There is also the decision of this court directly upon the point involved. It is true that this decisión was not made at final hearing, but upon a motion for a preliminary injunction; but it is also true that it was made by the judge who decided the original case, after “a careful examination of the exhibits introduced by the defendants as samples of the locking device in the boxes sold by them.” He was clearly of the opinion that the defendants’ flap did not hook into the angle of the slot and engage at a single point, but that there was a straight-edge engagement. In such circumstances the decorous and orderly administration of justice requires that the prior decision should be followed, and especially so in a case where no injunction can issue and a speedy review can be had.

• ■ The court has examined the complainant’s title, in the light of the defendants’ accusations, and is of the opinion that it is sufficiently established.

The patent having expired pendente lite the complainant is entitled to a decree for an accounting, with costs.