Page:Federal Reporter, 1st Series, Volume 1.djvu/612

 G04 FEDERAL REPORTER �adopted by the courts of this country to declare the patent void on account of this discrepancy or omission. �In regard to infringement, differences in the construction of the two machines exist, but they are not material with respect to the mode of operation of the combination which is the sub- ject of the third claim. �Let there be a decree for an injunctton, and an accounting in respect to the third claim. ���KiEBT BuNG MANTJFACTUEiNa Co. V. White and othera. �{dreuit Court, E. D. Missmm. March 17, 1880.) �Pateht — Restrainino Okdbr. — ^l'he function of a restraining order îs to protect the plaintifE without unneoessanly oppressmg or annoying the defenilant, and will, thercfore, be framed according to the circumstances of each case. �Same — Decree of Court— Groithd for Restrainting Orrer. — In th« case of an infringement the final decree of a court of competent juris- diction, restraining the validity of a patent, in the absence of collusion, furnishes a sufficient basis for an injunction or some form of a restrain- ing or accounting order. �Samk — Proof in Absence of Decree. — "If there has been no decision as to the patent by a United States court, on the merits, the party is driven to show that his patent went into use undisputed for a sutficient time to Tsàseuprimafacie case in hisfavor." �Treat, J., (orally.) The case of Kirby against several de- fendants is before the court on a motion for a proviaional injunction. It is a patent case. It may not be known lo counsel, who appear here from another circuit, what the uni- form rule is in this circuit as to applications for provisional injunctions. An injunction is the strong arm of equity. It should never be allowed to operate oppressively upon any one, but be used for the purpose of securing the rights of the complainant in the case pending the litigation, without unnec- essarily injuring the other party. Were it otherwise, the injury resulting might be very serions. For instance, in the milling cases before us, Mr. Justice Miller allowed the de- fendants' mills to continue in operation on giving bonds of ��� �