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695. Reinstatement of dissolved in.
junctions. 696. Consequences of obedience or
disobedience to injunctions
which are subsequently dissolv 697. Permanent injunctions. [ed. 698. Refusal of permanent injunc
tion, because the patent has ex
pired. 699. Because the complainant has
assigned the patent. 700. Because the defendant is dead,
or, if a corporation, is dissolved. 701. Cessation of infringement no
ground for refusal to enjoin. 702. Postponement of permanent in
junctions. 703. Suspension of permanent in.
704 Dissolution of permanent in
junctions. 705. Injunctions granted independ
ent of other relief; but no injunctions issued in trivial cases, nor to restrain complainants from suing third
parties. 706. The duration of injunctions
generally limited by the term
of the patent. 707. The duration of injunctions
granted by district judges in
vacation. 708. Attachments for contempt. 709. Improper defences to motions
for attachments. 710. Penalties for violations of in
$ 658. JURISDICTION to grant injunctions to prevent the violation of patent rights, is conferred by statute upon the same courts that are vested with common-law jurisdiction in patent cases. The statute provides that the jurisdiction shall be exercised according to the course and principles of courts of equity, and upon such terms as the court may deem reasonable. This twofold provision indicates the sources from which the existing rules applicable to such cases were drawn. They were drawn from the ordinary course and principles of courts of equity, and from a reasonable contemplation of the peculiar circumstances which attend patent rights and patent litigation. Some of those rules relate only to preliminary injunctions, and others relate to permanent injunctions alone; and the residue are equally applicable to both. It is the plan of this chapter to explain those three classes of rules, and to show how all of them combined make up a system which may guide the judicial discretion in nearly every variety of circumstances.
$ 659. A preliminary injunction is one which is granted after the filing of the bill, and before the case is ready for
Revised Statutes, Section 4921.
an interlocutory hearing. When granted, it is commonly granted before the filing of the answer; but it is sometimes issued after that stage of the case, and sometimes even after the complainant has introduced all his prima facie evidence.' Such an injunction may be dissolved at any time, and a motion to dissolve it may be made whenever an apparent cause for its dissolution becomes known to the party enjoined. If not sooner terminated by dissolution, or by a certain statutory limitation hereafter explained, such an injunction continues till the interlocutory decree; and then it is dissolved or is made permanent according to the equities of the case as they appear on the interlocutory hearing.
$ 660. A bill of complaint, in order to lay a foundation for a preliminary injunction, must state the particular prior adjudication or acquiescence upon which the presumption of validity of the patent is based,' and must contain a specific prayer for that relief, and for the proper writ by means of which that relief may be enforced,' and must conform to those requisites of bills in equity which are set forth in the twentieth chapter of this book.
$ 661. Due notice of a motion for a preliminary injunction must be served on the party sought to be enjoined from infringing a patent, before that motion will be heard by the court. This rule formerly had a sufficient foundation in a statute of 1793, which provided that no writ of injunction should be granted in any case without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same. Portions of the section which contained that provision are embraced in the Revised Statutes,' but that provision was omitted from those statutes and was thereby repealed.But there is still a foundation for the rule which is stated at the head of this section : a foundation not so direct, but quite as certain, as the other was while it existed. The Revised Sta tutes provide that the Supreme Court shall have power to prescribe from time to time, and in any manner not inconsistent with any law of the United States, the modes of proceeding to obtain relief in suits in equity in the circuit and district courts. In pursuance of this authority, the Supreme Court has prescribed an elaborate code of rules of practice for the courts of equity of the United States. Rule 55 of that series provides that special injunctions shall be grantable only upon due notice to the other party. And it is certain that all injunctions to restrain infringements of patents are special as distinguished from common injunctions. A different line of argument on this subject, and one followed by a contrary conclusion, is to be found in one reported case, but the reasoning in that case does not appear to be convincing
1 Union Paper Bag Machine Co. 0. Newell, 11 Blatch. 550, 1874.
Parker v. Brant, 1 Fisher, 59, 1850.
% Lewiston Falls Mfg. Co. v. Franklin Co. 54 Maine, 402, 1867; Union Bank r. Kerr, 2 Maryland Chancery,
+1 Statutes at Large, Ch. 22, Section 5, p. 334.
5 Revised Statutes, Sections 716 and 720.
6 Revised Statutes, Section 5596.
$ 662. A motion for a preliminary injunction is heard in a summary way on ex-parte affidavits. The complainant's affidavits in chief must show all the facts which are necessary to prima facie entitle him to such an injunction. The defendant's affidavits must state all the facts upon which he bases his defence to the motion, and if those statements are by way of traverse, no further affidavits are admitted on the hearing; but if they are by way of confession and avoidance, the complainant is permitted to read affidavits in reply, but to that reply, no rejoinder from the defendant is ever allowed. All the affidavits may be made by the parties, or by any other persons; but in either case they must state the facts positively, and not on information and belief,
1 Revised Statutes, Section 917; Orr v. Littlefield, 1 Woodbury & Minot, 19, 1845.
High on Injunctions, Section 6; Purnell 0. Daniel, 8 Iredell's Equity Reports (N. C.), 11, 1851.
3 Yuengling o. Johnson, 1 Hughes, 607, 1877.
except upon the point that the complainant believes the person upon whose application the patent was granted, to have been the first inventor of the invention for which it was issued.'
The complainant's bill may be used as an affidavit,' and so also may the defendant's answer, if it is on file when the motion for a preliminary injunction is heard.'
But answers are commonly and properly drawn in such general terms that they are often of minor importance as defences to such motions, even where they are well concerted as pleadings. For example, where the answer says, on the question of infringement, that the defendant never made, used, or sold any specimen of the patented thing; and where the affidavits of the complainant contain a description of what the defendant has done, and contain proper expert testimony showing that those doings constitute infringement of the patent; the general denial of the answer will
go for nought on the hearing of a preliminary injunction. The statements of the complainant's affidavits in chief are taken on the hearing to be true, so far as they are uncontradicted by the affidavits of the defendant;' and the affidavits of the defendant are taken to be true so far as they are consistent with the complainant's affidavits in chief, and are not contradicted by his affidavits in reply.
All affidavits to be used to support or to oppose a motion for a preliminary injunction, ought to be served on the opposite counsel a reasonable time before the motion is argued. Where that is not done, the court may reject the affidavits, or, at its discretion, may allow them to be read, giving the opposite party the option to proceed with the hearing, or to take time to examine the affidavits, and where
1 Young v. Lippman, 9 Blatch. 277, 1872.
* Ely o. Mfg. Co. 4 Fisher, 64, 1860.
· Young 0. Lippman, 9 Blatch. 277, 1872.
3 Parker v. Brant, 1 Fisher, 58,
5 Wells o. Gill, 6 Fisher, 89, 1872.
* Cooper o. Mattheys, 3 Penn. Law Journal Reports, 40, 1842.
they admit of reply, to take other affidavits for that purpose.'
$ 663. Where, on the hearing of a motion for a preliminary injunction, the complainant's moving papers are found to lack a necessary point which is presumably capable of being supplied, the court may suspend the motion, to enable the complainant to supply it." Such a lack and consequent suspension are not injurious to a defendant, because they merely operate to postpone that which he desires to be postponed as long as possible. No similar rule can, however, be invoked in favor of a defendant who has had reasonable notice of the motion, for if he could invoke such a rule, he could delay justice by his own neglect.
If a demurrer is on file in the case, when a motion for a preliminary injunction comes on to be heard, the demurrer will be first heard and disposed of, even though that proceeding necessitates a postponement of the hearing of the motion. But if the demurrer is overruled, the defendant, in order to secure leave to contest the motion further, must file an affidavit that the demurrer was not filed for the purpose of delay, and must give security to pay the complainant the amount of any money decree to which the delay consequent upon the demurrer may afterward be found to entitle him."
$ 664. A temporary restraining order may be made by the court, where there appears to be danger of irreparable injury from delay, whenever notice is given of a motion for a preliminary injunction; and such an order may be granted with or without security, in the discretion of the , court, or judge, and will continue in force till the motion is decided. The object of this provision appears to be to give the judge time to consider whether to grant a preliminary injunction, instead of deciding the question immedi
Sterrick v. Pugsley, 1 Central Law Journal, 106, 1874.
3 Woodworth Edwards, 3 Woodbury & Minot, 131, 1847.
? Hodge v. Railroad Co. 6 Blatch, 85, 1868.
* Revised Statutes, Section 718.