STRAIT,

v.

NATIONAL HARROW

pO.

819

the construction of the revenue law by the revenue department of the gov.. ernment is not to be taken as a construction ofthis statute. It does not look to this statute when it issues license, and its construction of it has no binding force upon this court, even as being advisory, because it is not a f:ltatute that that depllrtment of the government is called upon to administer. I ask you t/) take these facts into consideration, and, if you find that the defendant in anyone of these ways I have named was connected with this beer, I charge you that it is spirituous liquor, and that it comes within the menning of this statute, and y/)ur duty would be to fiI,ld the defendant guilty, because such a state of case makes a case that is conclusive in the law; certainly it makes a case that carries it beyond a reasonable doubt. Deff'ndllnt excepted to charge of conrt, and also excepted to the court fusing to charge as rtlqutstt:d to by defendant.

STRAIT

et al.

11. NATIONAL HARROW

Co.

CCircuU CO'lIIrt, N. D. New York.

August 10, 1892.)

PATENTSPOR INVENTIONS-EiiJOINING SUITS FOR INFRINGEMRNT-MoNOPOUE8.

The {act that a corporation owning letters pl1tent upon a particular kind of ma..chlnerv has entered into a comblnat,ion with other manufacturers thereof to secUre amonopoly in its manufactu"re and IIale. and to that end has acquired all the rights of o. bel' manufacturers for the exclusive sale and manufa..ture of su,"h machines UDder pattlnts, will not entitle a stranger to the combination to enjoin the corporation from bringing any suits for infringement against him or his customers.

In Equity. Suit by William Strait and others against the National Harrow CODll1any for an injunction to restrain actions and suits tor infringement of patents. On demurrer to the lJiIl. Sustained. Frederick Collin, for plaintiffs. Edward 11. Risley, Jar deJenrJant.
WAU,ACE, Circuit Judge. This is a suit wherein the relief demanded is a permnlleut injunction to restrain the defendant from instituting or prosecllting any action in any court of law or equity the plaintifis fur the infringement of l1ny letters patent oWlJed by the defendant covering improvements in sprin!!-tooth harrows, or from instituting or prosecuting any such suits against any person using the spring-tooth harrows manulactured by the plaintiffs. The defendant has demurred to the complaint. In substance, the complaint shows that the defendant has entered into a combination with \'arious other manufacturers of spring-tooth harrows for the purpose of a monopoly in this country in the manufacture and sale of the E:ame, nnd, as an incident thereto, acquired all the rights of the otber manufacturers Jor the manufacture of such harrows under patents, interestsin patents, owned bytbem respectively. Such a com Linatioll way ',',I':' _ ,. ,

820

FEDERAL REPORTER,

vol. '51.

be an odi()us and one, buttbe proposition tbattbe, plaintiffs, while infrInging, therigpts vested in the defendant ttnder letters' patent .of the United is entitled to stop the defendant 'from bringing or prose!quting any su'it'therefor because the defendant is obnoxIous corporation!, and . seekirlg to perpetuate the monopoly which is conferred uporl'it by itstitle to the letters patent, is a novel one,'and entirely un· warranted. The party having such a patent has a right to bring suit on it, not only against a manufacturer who infringes, but against dealers and of, the patented article, if he believes the patent is be'ing infringed; and the moth'e which prompts him to sue is not open to judicial inquiry, because, having a legal right to sue, it is immaterial whetheI his motives are good or bad, and he is not required to give his reasons for the attempt to assert his legal rights. "The exercise of the legal right cannot be affected by the motive which controlsiV.' KijJ'v. Youmans, 86 N. Y. 32\:l. The complaint alleges that the plaintiffs, and the other persons threatened with suit, do not infringe any of the patents of the defendant; but, as was said by Mr. Justice HUNT, in Celluloid .Manuf'g Co.v. Goodyear Dental Vulcanite Co. ,,,13 Blatchf. 384: "To allow the action is to reverse the proper position of the parties. Whoever receives letters patent from the United States received thereby a prima facie right to maintain an action against every infringer of the right given by such letters. '.. While it is true that such prima/aate only, and that be prepared to maintainit in the courtil when attacked. it is stUra .right On I:).is PliJ.'tt9 sue such alleged violators. The present action would convert the righ.tto sue into a liability to be sued, which is quite a dif· ferent thing.. * *: · The defendant has a right ofaction against each one of these individuals. It has the right to sue the whole of them; It has the right anyone of them, and to allow the others to go undisturbed. While it would not be a theory, I know of· no principle that, a malLarof law, would prevent its Ileekmg the feeblest of them. all,-the one least able to' defend himseJf,-and to make a victim of him. If that individual shall appear to have infringed upon this defendant's patents, he is liable tc. the damages, although he may be poor,-unable to defend himself,-althongiJ others may have offended in a greater degre'e, and although we may condemn the spirit which selected him as the partiCUlar defendant. On principle this cannot be: doubted." See, also, Asbestos Felti'(lg Co. v. United States· & F. Salamander Felting Co" 13'Bla:tchf. 453; Tuttln·. Matthews, 28 Fed. Rep. 98; Kelley v. .Marwfactu1"ing Co.:44 Fed. Rep. 19; Chemical Works v.l1ecker, 11 Blatchf. 552. If the defendant had suit against the plaintiffs for some breach of contr.actor "iolatiim of its alleged rights, founded upon the combination agreement, then it might become pertinent to inquire into the character of the cornbination, and ascertl:!ln whether the court would 'enforce any rights growing out of it. But in a suit brought for the infringement of a patentl;>y the owner, any such inquiry, at the behest of the infringer, would Ql'l.llS Jmpertinent as one in respect to the. moral character or antecedentS of plaintiff in an ordinary suit for trespass upon his property. Even a gambler, or the keeper of a brothel, cannot be deprived of his property because he is im obnoxious person or a criminal; and it is no

an

ROUTH· ·fl. BOYD.

82.1

defense to the trespass upon it, unless it was removed or destroyed in, the suppression of a nuisance, that it was used in carrying on the unlawful occupation. Ely v. Supervi8ors, 36 N. Y. 297. The demurrer is sustained.

ROUTH

v.

BOYD

et al.

(Oircuit Court, D. Indiana. July 11, 1892.)
No. 8.623.

1.

Letters patent were granted for a new improvement in school desks. The patentees formed a copartnership for its manufacture and sale, which, becoming involved in debt, was dissolved. 'The plant and manufactory were transferred to one of the firm, who agreed to carry on business and payoff the indebt,ectnea,s, and relieve the other member from all. liability for the firm's debts. A deed for the plant was executed by the retiring- member and placed in escrow, to be delivered on the performance of the condition. There was no mention of, the letters patent in the deed or agreement. Held, that the right to manufacture and sell the patented improvement continued so long as the condition wascomplled with, and the custodian of the deed had a right to deliver it upon full performance of ,the condition. "
FEDRRAL JURISDICTJON-BREACk OJ!' CONTRACT AS TO PATENTS.

J!'OR lliIVENTIONS-ASBJGN"MENT AND LICENSE.

'S.

Where the right to manufacture and sell a CE>rtain patented improvement was dependent on the performance of a condition contained in the agreement of tranllfer, the question of the breach of the condition must be first settled in favor of plaintiff before the federal courts can have jurisdiction of an action to recover ages for the unauthorized manufacture and sale of the articles.

At Law. Action by James R. Routh against Rader J. Boyd and ,others. Heard on demurrer to the complaint. Demurrer sustained. Julian & Julian, for complainant. Montgomery Marsh and T. S. Rollins, for defendants.
BAKER, District Judge. The question in this case arises on a demurrer to each paragraph of the complf1int alleging that the court has no jurisdiction of the subject-matter. The complaint is in two paragraphs, which differ in no important particular. The parties to this action reside in this state, and the jurisdiction of the court depends on the question whp,ther the cause of action is one which arises under the constitution and laws of the United States, or the treaties thereof. If the action is one to recover damages for the unauthorized manufacture and sale of articles whose manufacture and sale have been secured to the plaintiff by letters patent, then this court has jurisdiction; otherwise it has not. The agreement, which is madfl a part of each paragraph of the complaint, shows that Teal and Puterbaugh were granted letters patent for anew and useful improvement in school desks; that they formed a copartnership, erected a manufactory, and began to manufac:tu,reand sell the improvement in school desks at Greenfield, Hancock