Victor Talking Mach. Co. v. American Graphophone Co.

191 F. 1007, 111 C.C.A. 675, 1912 U.S. App. LEXIS 2078

• Court: Court of Appeals for the Second Circuit
• Decided: January 23, 1912
• Docket: No. 145
• Status: Published

Opinion

PER CURIAM.

In this ease an exhaustive brief was submitted by complainant appellant, with full argument by counsel at the hearing. On behalf of defendants appellees there was no brief, no arguriient, and no statement even why there were none, although two of the three counsel who represented defendants in the court below were present in court during the appellant's argument. It is possible that this may be because the parties to the litigation have settled the controversy between them. In that event this appeal would became a moot case, and' the time of this court should not be taken up with its consideration. We shall therefore not take It up, until advised whether or not the controversy has been settled between the parties. If it lias not, it would seem that defendants appellees should at least file a brief in support of the decree. •

Supplemental Opinion.

It now appears that the complainant, since the entry of the decree appealed from, has made an agreement with the defendants, waiving all past damages and profits, and granting a license for the future. Everything is settled, except the demand for injunctive relief, and that is modified-by the provision that, although the complainant may, if it elect, prosecute this appeal, “each paying its own costs,” still, if it be successful, it must grant a license without further consideration. In view of the provisions of this agreement, and notwithstanding the contentions of the complainant respecting the limitations to be attached to the license, we are not satisfied that any such case of continuing or threatened infringement is presented as to call for the intervention of a court of eguity by writ of injunction. The decree is affirmed, without costs, and without passing upon the validity of the patent.