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fifteenth day of October, 1876, caused new letters patent for the same invention to be issued to the said Rufns Russell, for the unexpired part of the term of said original letters patent; and your orator makes profert of said reissue letters patent.
And your orator further shows, on information and belief, that throngh inistake, and without any fraudulent or deceptive intention, the said Samuel Sinclair, in his application for said original letters patent, claimed to be the true original and first inventor of a certain part of the said apparatus of which he was not the first inventor, and which claim was repeated in said reissue letters patent and numbered “2” therein ; and that the said Rufus Russell, without unreasonable delay, entered in the Patent Office, before the commencement of this suit, a disclaimer in writing of the said part covered by the said second claim of said reissue letters patent.
And your orator further shows, that the said Rufus Russell, on the sixteenth day of September, 1878, by a certain instrument in writing, duly executed and delivered by him, and bearing date on said last mentioned day, did grant to your orator the entire right, title, and interest, in and to the then unexpired portion of the term of said reissue letters patent, in and throughout the States of Connecticut and Rhode Island ; and that said instrument in writing was recorded in the Patent Office on the thirty-first day of October, 1878.
And your orator further shows, on information and belief, that the said defendant, on and after the first day of January 1879, and up to the time of the commencement of this action, and during and within the term of seventeen years mentioned in said letters patent, and after the granting of said reissue letters patent, and within those parts of the United States covered by the said grant to your orator, unlawfully, wrong. fully, and injuriously, and with intent to derive profits from making and using said apparatus, and to deprive your orator of the royalties which he might and otherwise would have derived from the sale of rights to make and use specimens thereof, and without the license of your orator, or of the said Rufus Russell, and against the will of you orator, did make and did use, and did cause to be made, and did cause to be used, sundry specimens of said apparatus, and of machines
which contained and employed substantially the invention covered by said reissne letters patent after said disclaimer, in infringement of the said exclusive rights secured to the said Rufus Russell by the letters patent aforesaid, and granted by him to your orator as herein before set forth; but how many such specimens the defendant so made and used, or caused to be made and used, your orator is ignorant, and cannot set forth ; but your orator avers, on information and belief, that the defendant so made and used, and caused to be made and used, a large number thereof, and that it derived large profits therefrom, but to what amount your orator is ignorant and cannot set forth, and that your orator has been deprived of large royalties by reason of the aforesaid infringement of the defendant, and has thus incurred large damnages thereby.
And your orator further shows, that he fears and has reason to fear, that unless the defendant is restrained by a writ of injunction issuing out of this Court, it will continue to make and to use numbers of specimens of said apparatus, and thereby will cause irreparable injury to your orator's aforesaid exclusive rights.
And your orator further shows, that the validity of the said reissue letters patent, has heretofore been uniformly affirmed, after strenuous litigation, by verdicts and judgments at law, and by final decrees in equity, in several of the Circuit Courts of the United States; and that the railroad companies of the United States have long generally acquiesced in that validity.
And your orator prays your Honors to grant unto your orator a preliminary, and also a permanent writ of injunction, issuing out of and under the seal of this honorable Court, directed to the said Eastern and Western Railroad Company, and strictly enjoining it and its officers, agents, and employés, not to make, or use, or sell, nor cause to be made, or used, or sold, any railroad car or other machine or apparatus containing or employing the invention covered and secured by said reissue letters patent.
And your orator further prays, that the defendant, by a decree of this Court, may be compelled to account for, and pay over to your orator, all the profits which the defendant has derived or shall have derived from any making and using, or from any using of any specimen of the apparatus covered and secured by said reissue letters patent; and also that the defendant be decreed to pay all the damages which your orator has incurred, or shall have incurred, on account of the defendant's infringement of said reissue letters patent; and also that the defendant be decreed to pay the costs of this suit ; and that your orator may have such further and other relief, as the equity of the case, or the statutes of the United States, may require, and to this Court may seemn just.
To the end, therefore, that the defendant may, if it can, show why your orator should not have the relief hereby prayed, and may, under the oath of its proper officers, and according to the best and utmost of their knowledge, remembrance, information or belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written, it is required to answer; that is to say :
1. Whether, after the first day of January, eighteen hundred and seventy-nine, it made or used, or caused to be made or used, anywhere in Rhode Island or Connecticut, any specimen of any apparatus substantially like the invention covered and secured by the said reissue letters patent ; and if so, how inany such specimens it so made, and how many it so used, and how long it used the same :
May it please your Honors to grant unto your orator a writ of subpæna ad respondendum, issuing out of and under the seal of this Honorable Court, and directed to the said The Eastern and Western Railroad Company, and commanding it to appear and make answer to this bill of complaint, and to perform and abide by such order and decree herein as to this Court shall seem just. And your orator will ever pray.
Solicitor for the Complainant. LUTHER LEARNED,
The defendant, The Eastern and Western Railroad Company, is required to answer the interrogatory numbered 1.
STATE OF CONNECTICUT, COUNTY OF HARTFORD, 88.
On this twenty-sixth day of June, 1883, before me personally appeared Thomas Tracy, and made oath that he has read the foregoing bill, subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to matters which are therein stated to be based on information and belief, and that as to those matters he believes it to be true.
The plea of The Eastern and Western Railroad Company, defendant, to the bill of complaint of Thomas Tracy, complainant.
This defendant, by protestation, not confessing or acknowledging the matters and things in and by said bill set forth and alleged to be true, in such manner and form as the same are thereby and therein set forth and alleged; for plea to the whole of said bill, says that, prior to January 1, 1879, the Eastern Railroad Company and the Western Railroad Company were separate corporations, created and existing in due form of law in the States of Rhode Island and Connecticut, respectively ; and that each had theretofore purchased, and then possessed, a license executed by said Rufus Russell, authorizing the licensee to make any convenient number of specimens of said apparatus, and to use the same upon the railroad of the licensee, and the railroad of any other like licensee, throughout the term of said reissue letters patent; and that on or about the said January 1, 1879, the said Eastern Railroad Company, and the said Western Railroad Company, were lawfully consolidated into one corporation, to wit: this defendant ; and that this defendant thereafter operated the said railroads of its said constituent corporations, and operated no railroad car-brakes, nor any specimen of the said apparatus, elsewhere.
All which statements this defendant doth aver to be true, and it pleads the said licenses to the said complainant's bill, and prays the judgment of this Honorable Court, whether it should be compelleů to make any other or further answer to the said bill, and prays to be hence dismissed with its costs in this behalf sustained.
In witness whereof, the said defendant, The Eastern and Western Railroad Company, has hereunto affixed its corporate seal, and caused the same to be attested by Charles Clark, its secretary.
I hereby certify that in my opinion the foregoing plea is well founded in point of law.