AMERICAN DIAMOND ROCK BORING COMPANY v. THE RUTLAND MARBLE COMPANY.

Circuit Court, D. Vermont.

March 8, 1880.

PATENT—BILL TO ENJOIN AFTER EXPIRATION OF PATENT—WHAT MUST BE ALLEGED.—A bill to enjoin the use of a patented device, after the expiration of the patent, must allege that the defendant is using machines manufactured during the existence of the patent, or that the orator fears such use.

In Equity.

Charles F. Blake, for orator.

Prout & Walker, for defendant.

WHEELER, D. J. This cause has been heard upon a motion for a preliminary injunction against infringement of a patent, the term of which has expired. The bill alleges that the defendants have, since the date of the patent, and since the title to it became vested in the orator, infringed by using machines embodying the patented invention, and that the orator fears the defendant will continue to use such machines; 356 but does not allege that the defendant is using machines made during the term of the patent in infringement upon it, nor that the orator fears such use. Without these allegations the case is not within the decision in Crossley v. Derby Gas-Light Co. 4 Law Jour. N. S. Pt. 1 Chan. 25, and shows no ground for relief by injunction. The other cases in favor of the orator, in which similar motions have been made, stand in the same way, and are to follow this.

Motion denied.

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