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declare, that as the authority of Arcambel v. Wiseman, 3 Dall. 306, is shaken, so far as it can be considered as containing any general doctrine governing cases of this nature, I return to what I originally considered the true doctrine."13

CHAPTER XXIII.

Effect of a Judgment.

The success of the defendant, in an action for an infringement, on the ground of the invalidity of the patent, does not prevent the plaintiff from instituting another suit against any other person for an infringement of his patent. A judgment is conclusive only between the parties to it, and upon the subject matter of the suit, that is, the infringement complained of. It is not conclusive between the same parties, as to the continuation of the same supposed infringement subsequently to the time covered by the first declaration ; for the subsequent infringement, if it differs in nothing else, differs at least in time.' In Arkwright's case, where the patentee, having failed

13 Boston Manuf. Co. v. Fiske, 2 Mason, 119.

in one suit for an infringement, after lying by four years, brought an action against another person, Lord Loughborough said, “ It is said, it is highly expedient for the public that this patent, having been so long in public use after Mr. Arkwright had failed in that trial, should continue to be open ; but nothing could be more essentially mischievous than that questions of property between A and B should ever be permitted to be decided upon considerations of public convenience or expediency. The only question that can be agitated in Westminster Hall is, which of the two parties in law or justice ought to recover." If one defendant has failed by making a bad defence, this is no reason why another should be concluded from making a good one if the case admits it.

So the success of the patentee, in an action for a subsequent infringement, is not necessarily inconsistent with his failure in a former one for a previous infringement, since the evidence in the two cases may be materially different. But a party coming into court to obtain a different result from that in a former suit, to which he was a party, evidently comes under some disadvantage.

By the act of Parliament of 5 and 6 W. 4, c. 83, s. 3, it is provided that in case of a verdict, or final

· Arkwright v. Nightingale, Dav. Pat. Cas. 55.

decree or decretal order, on the merits in favor of the patentee or his assignees, in any action at law or suit in equity in respect to an infringement, or a scire facias to repeal the letters-patent, the judge may certify that the validity of the patent came in question, which certificate being given in evidence in any future suit touching the patent, if the verdict or decree shall be in favor of the patentee, he shall be entitled to treble costs, unless the judge shall, in such subsequent suit, certify that the patentee ought not to have treble costs.

In patent causes, as in others, a new trial will not be granted, except in very strong cases; not merely for newly discovered cumulative evidence.?

If either party is surprised by evidence produced by the other, which he wishes for an opportunity to obtain other evidence to rebut, he must move for a continuance of the action to give him an opportunity to produce other evidence, he cannot go on and take the chance of a trial upon the evidence he has; and, on the verdict being against him, make the subject of the surprise a ground of motion for a new trial. By going on he makes an election to waive the objection.

Where the court gives an instruction to the jury

2 Ames y. Howard, 1 Sumner's R. 482. See also Haworth v. Hardcastle, 1 Bing. N. R. 182.

• Ames v. Howard, 1 Sumner's R. 482.

on the weight of the testimony, or so instructs them as to convey an opinion as to the weight of the testimony, and a party objects, and thereupon the court withdraws the instruction, this is no ground for a motion for a new trial, for the comment is not presumed to have had any influence upon the verdict.“

CHAPTER XXIV.

Injunction

A PROCEEDING whereby an infringement of a patent right may be stopped, is essential to the security of patentees, since the remedy at law for damages will not, in all cases, afford an adequate indemnity.

This preventive remedy is by a bill for an injunction, in which the patentee, or his representative, after setting forth the patent and his right under it, and the infringement, prays the court to enjoin the party complained of to stop the infringement. This proceeding is merely prospective, it does not give the patentee compensation for the damage previously occasioned, nor does it conclusively try the validity of the patent right. The proceeding is ancillary, merely, to the action at law for damages; which may be commenced before, or at the same time with, or after the bill for an injunction. And it is frequently made a condition of the continuance of the injunction, that the patentee shall, within a certain time, or as soon as may be, bring his action at law for the infringement.

* Ames v. Howard, 1 Sumner's R. 582.

All persons interested in the infringement, whether as patentees, assignees, or by license, should be joined as plaintiffs in such a bill."

A bill for an injunction lies against a corporation, but where different persons have infringed the same patent, independently of each other, they cannot be joined in the same bill.?

The granting of an injunction is, in some degree, a matter of discretion with the court in the particular case ; but this discretion is, as in other cases, governed by certain general rules. The material considerations by which the court is governed in these cases are the clearness of the plaintiff's right to the exclusive privilege, and his possession and use of it. All the cases on injunctions turn upon these considerations.

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