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CASES

ARGUED AND DETERMINED

IN THE

CIRCUIT AND DISTRICT COURTS

OF THE

UNITED STATES.

SEVENTH JUDICIAL CIRCUIT.

GOODYEAR, Adm’r., &c. vs. HONSINGER.

CIRCUIT COURT.-NORTHERN DISTRICT OF ILLINOIS.MARCH

TERM, 1867.

IN EQUITY.

1. PRIOR ADJUDICATION. When there has been a prior adjudication in another court, in which the validity of a patent has been fully contested and sustained, the court will, upon a motion for a preliminary injunction, consider the validity of the patent as prima facie established.

2. DIVIDING PATENT. ' Whether a patent for a process can be re-issued and divided into two patents, one for the process, and the other for the product produced by the process, quære.

3. It is always unfair to those who are licensed to use the particular article or method, under letters patent, to allow, by laches, others to use what the licensees alone have a right to use under thcir licenses.

Goodyear vs. Honsinger.

4. INJUNCTION NOT ALWAYS GRANTED ON VALID PATENT. A court of equity, while it may be satisfied the patent is valid, does not feel inclined, where those claiming under the patent have been negligent in enforcing their rights, to interfere in all cases, by an absolute peremptory injunction.

5. EFFECT OF ACTS OF ORIGINAL PATENTEE. Those who hold under an extension, are to be visited with the consequences of the acts of the owners of the original patent. They take the extension as it falls to them on the expiration of the patent, and are not to be reinstated in all the rights of the original patentee.

6. SHOULD ASSERT HIS RIGHTS. Where a patentee has stood by for a series of years, and permitted, or not formally objected to the use of the article claimed under the letters patent, such conduct ought to be visited to some extent upon him. Courts of equity ought to demand of patentees reasonable diligence in asserting their rights.

This was a motion for a provisional injunction, to restrain defendant from infringing letters patent for an “improvement in the manufacture of India rubber,” granted to Nelson Goodyear May 6, 1851, re-issued to Henry B. Goodyear, administrator of Nelson Goodyear, deceased, May 18, 1858, in two divisions, and extended to Henry B. Goodyear, for seven years from May 6, 1865.

On July 17, 1866, so much of the invention as applied to dental purposes, was assigned to Samuel A. Duncan.

The claims of the original patent were as follows : “What I do claim, etc., is the combining of India rubber and sulphur, either with or without shellac, for making a hard and inflexible substance hitherto unknown, substantially as herein set forth.

“I also claim the combining of India rubber, sulphur, and magnesia or lime, or a carbonate or a sulphate of magnesia or of lime, either with or without shellac, for making a hard and inflexible substance hitherto unknown, substantially as herein set forth.”

The disclaimer and claim of Re-issue 556 was as follows: “It is well known that it has been proposed to produce a hard substance from caoutchouc, by passing it through highly heated liquid sulphur, but this has not been attended with practical success. .

“I do not wish to be understood, however, as making claim broadly to the union of caoutchouc and sulphur in the proportions named, however these substances may be united and treated.

“But what I do claim as the invention of the said Nelson Goodyear, and desire to secure by letters patent, is the combining of sulphur and India

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