Page:Federal Reporter, 1st Series, Volume 8.djvu/329

 STBAM GAUGE & LANTERN CO. V. MILLEE. 315 �3. Motion for Preliminaby Injunction — Infringement Must be Establishbd �— VaLIDITY — PRBVIO08 JuDIOIAL CONSTRUCTION— PUBUC ACQUIBSCENCB. �Upon a motion for prelirainary injunction the complainant must establish tb^ point of infringement beyond a reaaonable doubt, and as thia question often depends upon the proper construction of the patent, its claims should ordi- narily have been construed by a court of competent jurisdiction, or i*h4uM have been practically construed by the consent and acquiescence of that part of the public which is cognizant of the extent of the monopoly. �Edmn S. Jenney, Coburn & Thacher, and Benj. F. Thurston, for plaintiffs. �Betts, Atterhury dlhBetts and Charles E. Mitchdl, for defendant. �SfflPMAN, D, J. This is a motion for an injunction to restrain the defendant, pendente lite, from the infringement of the following- described letters patent to John H. Irwin, viz. : �Re-issue No. 8,611, dated Marche, 1879, the original being No. 73,012, dated Jamaary 7, 1868; re-issue No. 8,593, dated Pebruary 25, 1879, the original being No. 89,770, dated May 4, 1869 ; letters patent No. 104,318, dated June 14, 1870; and No 151,703, dated June 9, 1874. �■' These patents, except the first and last, were for improvements in lanterns. The first was for an improvement in lanterns and street lamps, and the last for an improvement in lamps and lanterns. AU these lamps aijd lanterns were designed for burning kerosene. �It was not claimed that No. 104,318 or No. 151,703, or the lampa. made thereunder, had ever been the suhject of adjudication at final hearing. I shall not, therefore, examine either of those patents, and shall only refer to No. 104,318, in its historical relation to the art. The patents prior to No. 104,318, together with No. 65,230, dated May 28, 1867, show the course of Mr. Irwin's improvements in lan- terns for buming minerai oils, and the progressive steps by which he reached success. The "tubular" lantern, which he manufactured under No. 89,770 and re-issue 8,598, has been a staple article throughout this country for many years, has superseded its predecek- sors, and has gone into universal use. �Patents 65,230, 73,012, and 89,770 were the subject of litigation at final hearing in the case of Irwin v. Dane, 9 0. G. 642, before Judges Drummond and Blodgett. The opinion of the court sustaining all the patents was rendered in 1876, and contains a statement of the art and of the invention to that date. It is impossible for me, without an expenditure of mueh more time than I now have at com- mand, to state the character of Irwin's inventions so that they can be understood by a person who has had no previous acquaintance ��� �