by the court on the evidence presented, or by issues to the jury or a trial at law, or by following prior adjudications.1 d. DETERMINING INFRINGEMENT. The question of infringement may be determined by the court on the evidence, by a comparison of the patent and the article alleged to infringe it, or by issues to the jury, or by following prior adjudications.

e. ISSUES TO THE JURY. According to the chancery practice of directing an issue to the jury where from the nature of the case, the existence of doubt, or the conflict of testimony the facts can best be decided by a jury, an issue will often be directed in a

suit to restrain an infringement of a patent to determine questions of infringement, the validity of the patent, and other questions of fact.1

It Is Entirely a Matter of Discretion with the Court whether it will order issues to the jury or a trial at law, and if the questions are free from doubt or it appears they can be more properly determined by the court a jury trial of the issues will be refused.2

The Verdict of the jury is entitled to great weight, but is not con clusive.3

f. JUDICIAL NOTICE. The court may take judicial notice of matters of common knowledge and things in general use tending to show that the complainant's patent lacked invention or novelty, and was therefore void, or to show that the defendant was not guilty of any infringement.4 To enable the court thus to take judicial notice, it must be able to show positively that such matters are matters of common and general knowledge; it must have no doubt on this point, and must not confound any special knowledge it may possess with knowledge of common and general import.

1. Brooks v. Bicknell, 4 McLean (U. S.) 70, 4 Fed. Cas. No. 1,946, 3 McLean (U.S.) 250, 4 Fed. Cas. No. 1,944; Ely v. Monson, etc., Mfg. Co., 4 Fisher Pat. Cas. 64, 8 Fed. Cas. No. 4.431; Sloat v. Spring, 22 Fed. Cas. No. 12.948a; Van Hook v. Pendleton, I Blatchf. (U. S.) 187, 28 Fed. Cas. No. 16,851; Brooks v. Norcross, 2 Fisher Pat: Cas. 661, 4 Fed. Cas. No. 1,957; Allen v. Sprague, I Blatchf. (U. S.) 567, I Fed. Cas. No. 238; Sicles v. Pacific Mail Steamship Co., 22 Fed. Cas. No. 12,842; Bryan v. Stevens, 4 Fed. Cas. No. 2,066a; Orr v. Merrill, 1 Woodb. & M. (U. S.) 376, 18 Fed. Cas. No. 10,591. See also article ISSUES TO THE JURY, vol. 11, p. 599.

Instructions to the Jury. Where issues at law are granted out of chancery on a motion to restrain infringement of a patent, it is the duty of the court to construe the plaintiff's patent as a matter of law and to instruct the jury in what his invention consists. Cahoon v. Ring, 1 Cliff. (U. S.) 592, 4 Fed. Cas. No. 2,292.

2. Keyes v. Pueblo Smelting, etc., Co., 31 Fed. Rep. 560; Goodyear v. Day, 10 Fed. Cas. No. 5,566; Brooks v. Norcross, 2 Fisher Pat. Cas. 661, 4 Fed. Cas. No. 1,957; Van Hook v. Pendleton, I Blatchf. (U. S.) 187, 28 Fed. Cas. No. 16,851.

3. Sickels v. Youngs, 3 Blatchf. (U. S.) 293, 22 Fed. Cas. No. 12,838; Brooks v. Bicknell, 4 McLean (U. S.)

70, 4 Fed. Cas. No. 1,946; Ely v. Monson, etc., Mfg. Co., 4 Fisher Pat. Cas. 64, 8 Fed. Cas. No. 4,431.

4. Brown v. Piper, 91 U. S. 37: Terhune v. Phillips, 99 U. S. 592; King v. Gallun, 109 U. S. 99; Phillips v. Detroit, 111 U. S. 604; Buckingham v. Springfield Iron Co., 51 Fed. Rep. 236; Aron v. Manhattan R. Co., 132 U. S. 84, 26 Fed. Rep. 314; Knapp v. Benedict, 26 Fed. Rep. 627.

5. See supra, XIII. 5. b. (2) Judicial Notice on Demurrer.

Judicial Notice as to Novelty of Design. In New York Belting, etc., Co. v. New Jersey Car Spring, etc., Co., 137 U. S. 445, the court considered that it was a question of fact whether or not a design was new, and whatever its impressions might be, did not think it proper to determine the question by taking judicial notice of the various designs which had come under its observation.

Judicial Notice of Letters Patent. — In Bottle Seal Co. v. De La Vergne Bottle, etc., Co., 47 Fed. Rep. 59, it was said: "It has never been supposed that letters patent could be taken judicial notice of by courts. There is nothing in their character nor their contents to so dignify them. They are simply contracts reduced to writing, capable of being recorded and of being proved in a particular way. A court is no more bound to take notice of their contents or their existence than it

10. Interlocutory Decree -a. IN GENERAL. The interlocutory decree in a suit for infringement is the one which settles the merits of the case and the rights of the parties, adjudging the patent valid or invalid, declaring infringement or noninfringement, awarding or disallowing a permanent injunction, and an account of profits and damages, referring the case to a master, etc. A final decree, generally speaking, deals only with the correctness or incorrectness of the master's report, and the consequent action of the court thereon.1

b. VALIDITY AND INFRINGEMENT PROVED OR ADMITTED. Where the infringement charged is proved or admitted, and the patent is held to be valid, the usual and correct practice is to enter an interlocutory decree for the complainant, and send the cause to a master to ascertain the amount which the complainant is entitled to recover.3

c. ON ONE OR MORE CLAIMS OR PATENTS. Where there

are several claims in the patent sued on, or several patents are included in the suit, there may be a decree in favor of the plaintiff, usually awarding an injunction and accounting, as to one or more of the claims or patents, though not as to the others.

d. GRANTING, WITHHOLDING, OR SUSPENDING INJUNCTION. The ordinary practice is for an injunction to follow a decree in favor of the complainants, on the merits."

Power to Withhold or Suspend Injunction. There is no doubt as to the power of the court in a proper case to withhold an injunction or to interpose and modify a decree by suspending the operation of the injunction until the coming in of the master's report.3

Grounds for Modifying Decree or Suspending Injunction. — If a reasonable doubt exists in the mind of the court as to its decision upon the merits, or if there is any reason to suppose that the injunction had been indiscreetly granted, it would be quite proper to modify the decree by suspending the injunction.*

Hardship upon Public or Defendant. So, too, an injunction may be withheld or suspended and the decree be only for an accounting where the injunction would operate injuriously upon the public, or entail great hardship upon the defendant, without proportionately benefiting the complainant.5

1. Pennsylvania Diamond-Drill Co. v. Simpson, 29 Fed. Rep. 288; Matthews 7. Lalance, etc., Mfg. Co., 2 Fed. Rep. 232; New York Coffee Polishing Co. v. Wilson, 2 Fed. Rep. 904; Bragg v. Stockton, 27 Fed. Rep. 509; La Rue v. Western Electric Co., 31 Fed. Rep. 80.

2. Rumford Chemical Works ข. Hecker, 11 Pat. Off. Gaz. 330, 20 Fed. Cas. No. 12,134; Potter v. Mack, 3 Fisher Pat. Cas. 428.

Injunction Independent of Other Relief. - Under Rev. Stat., § 4921, the authority of a circuit court, in a case arising under the patent laws, of which it has jurisdiction, to grant an injunction, according to the course and principle of courts of equity, to prevent the violation of any right secured by a patent, is entirely independent of the award of any other relief in the same suit. American Cotton-Tie Supply Co. v. McCready, 17 Blatchf. (U. S.) 291, I Fed. Cas. No. 295.

Injunction for Infringement Committed since Former Decree. Where a decree for a perpetual injunction and for damages and profits has been rendered, and a suit afterwards brought in the same court for injunction and damages and profits for infringements committed by the defendant since the rendition of the former decree, although another injunction is unnecessary, the court can

and will order a decree for an injunction, and an accounting of damages and profits arising from infringements since the former decree. Horton v. New York Cent., etc., R. Co., 63 Fed. Rep. 897.

3. Whitney v. Mowry, 3 Fisher Pat. Cas. 157; Yale, etc., Mfg. Co. v. North, 5 Blatchf. (U. S.) 455, 30 Fed. Cas. No. 18,123; Barnard v. Gibson, 7 How. (U. S.) 650.

4. Whitney v. Mowry, 3 Fisher Pat. Cas. 157; Barnard v. Gibson, 7 How. (U. S). 650.

5. Ballard v. Pittsburgh, 12 Fed. Rep. 783; McCrary v. Pennsylvania Canal Co., 5 Fed. Rep. 367; Barnard v. Gibson, 7 How. (U. S.) 650; Bliss v. Brooklyn, 4 Fisher Pat. Cas. 596.

Security from Defendant for Profits and Damages. Where, upon the whole case, the complainant is entitled to a decree, but he will be adequately protected by the payment of just compensation for the use of his invention, and a sudden stoppage of the defendant's business would be disastrous to him and would not benefit the complainant, a decree may be entered for an injunction and an account with the proviso that no injunction shall issue until the further order of the court, if the defendant within thirty days from the date of the decree shall file a bond, in

!

The Injunction Should Not Be Suspended until the final decree unless there is shown some special ground of peculiar hardship to the defendant, or unless he is able to show the court such facts and circumstances existing in the case as make it manifest that the equities between the parties demand the withholding of the injunction until after an accounting has been had.1

Supersedeas Pending Appeal. Under the Act of 1891, allowing an appeal from an interlocutory order or decree granting an injunction, the court may in its discretion award a supersedeas, for the purpose of suspending an injunction pending an appeal from its decree.2

e. DECREE FOR ACCOUNTING. Generally when a decree is rendered for the complainant in a suit for infringement an accounting will be ordered as an incident thereof.3

such form and amount and with such security as the court or judge thereof may approve, to secure the complainant the profits and damages which he may ultimately be decreed to pay. Dorsey Harvester Revolving-Rake Co. v. Marsh, 6 Fisher Pat. Cas. 387.

Plaintiff Not Using Patent-Bond to Secure Damages. Where the owner of the patent has not, after a reasonable time, put it into use, an injunction in the interlocutory decree may be refused upon the defendant's giving bond to secure any damages which might be awarded on the final hearing. Hoe v. Knap, 27 Fed. Rep. 204, criticised and disapproved in Consolidated Roller-Mill Co. v. Coombs, 39 Fed. Rep. 803.

1. Potter v. Mack, 3 Fisher Pat. Cas. 428; Rumford Chemical Works v. Hecker, 11 Pat. Off. Gaz. 330, 20 Fed. Cas. No. 12, 134.

Facts and Circumstances Must Be Considered. Before granting a motion to suspend the interlocutory decree awarding an injunction, the court should look carefully to all the facts and circumstances involved, regarding the differences between royalties, licenses, and patent monopolies. Brown v. Deere, 6 Fed. Rep. 487.

If There Is No Doubt in the Mind of the Court as to its decision on the merits, and if it is clear that the defendant does infringe the patent, and that the patent is valid, the injunction should not be suspended. Whitney v. Mowry, 3 Fisher Pat. Cas. 157.

No Public Interest or Serious Injury to Defendant Involved. — After an adjudication upon the merits in a patent case, an injunction will not be suspended unless public interests are involved, or

the issuing of the writ will involve the stoppage of a manufactory in the operation of which a large number of persons are interested. Hence, where the defendant used but one machine, and the evidence tended to show that the patented device might be taken out of such machine without great expense or long-continued stoppage, it was held that the injunction ought not to be stayed. Consolidated Roller-Mill Co. v. Coombs, 39 Fed. Rep. 803.

2. Act March 3, 1891, c. 517, § 7; In re Haberman Mfg. Co., 147 U. S. 525; Bissell Carpet Sweeper Co. v. Goshen Sweeper Co., 72 Fed. Rep. 545.

Following Prior Adjudications. Where the court follows prior adjudications in other circuits on a motion for a preliminary injunction, it will ordinarily follow them on a motion for a supersedeas pending an appeal taken. ThomsonHouston Electric Co. v. Ohio Brass Co., 78 Fed. Rep. 142.

Where an ap

Vacating Supersedeas. peal with supersedeas is dismissed by the respondent, and his motion to open the decree is granted, and the patent is near its expiration, the court, in view of the time which will elapse before the cause can again be heard, may vacate the supersedeas and issue an injunction. Campbell Printing-Press, etc., Co. v. Marden, 70 Fed. Rep. 339.

8. North American Iron-Works v. Fiske, 30 Fed. Rep. 622.

Avoiding Accounting by Offer of Certain Royalty. Where it is plain the defendants have infringed, but they have denied infringement until after the bringing of the suit, and then in their answer deny the validity of the patent and still deny infringement, they can.