Page:Federal Reporter, 1st Series, Volume 10.djvu/849

 NEW YORK GRAPE SUGAR CO. V. AMERICAN GRAPE SCaAB CO. 837 �cnt is not assailcrl, and the proof of infringement is clear, North v. Kershaw, i Blatchf. 70; The Burleigh Rock Drill Co, v. Loddell, 1 Ban. & A. 625 ; Steam Gauge e Lantern Co. v. Miller, 8 Fed. Eep. 314. It would seem that the presumption arising from the grant, espeeially when not of recent date, ought to suffice as against a de- fendant who has appropriated an invention secured to another by letters patent which are not attacked. It is not necessary, however, to pass definitely upon the point in the present case, because the injunction must be denied upon another ground. �The complainant has recently purchased the patents and proposes to use them, not by manufacturingunder them, but by selling licenses to others. It is expressly alleged in the moving affidavits that the complainant does not desire to enjoin the defendants, provided they will accept a license and pay damages at the same rate as other licensees. It does not appear that complainant has as yet estab- lished any license fee for the use of the apparatus patents inde^)end- ently of the process patent. The sum which defendants should pay cannot, therefore, well be determined except by an accounting for profits; and, as they are entirely responsible, when this is had the complainant can be adequately compensated. Irreparable damage is an indispensable element upon an application for a provisional injunction. Sanders v. Logan, 2 Fish. 167; Morris Manufg Co. v. Lowell, 3 Fish. 67; Pullman v. B. & 0. R. Co. 6 Fed. Eep. 72. �On the other hand, the defendants have gradually created and de- veloped an extensive market for glucose and grape sugar ; so large that if their works were stopped the demand could not be well sup- plied, and serions inconvenience would resuit. They have not only invested a large capital in their manufacturing business, but they employ a great number of workmen, many of whom would be tempo- rarily eut adrift if an injunction were granted. It is difficult to see how the defendants could remove the patented apparatus without substantially dismantling and reorganizing their works. Under such circumstances the equitable considerations which appeal to the dis- cretion of the court, and within well-recognized rules should lead to the refusai of a preliminary injunction, cannot be ignored. �If the complainant has any reason to doubt the pecuniary ability of the defendants now, or at any future time, to pay any decree that may be obtained in suit, it may apply for a further order requiring the defendants to enter into a bond with sureties. ��� �