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where the right is clear an injunction is never reused; as when the right claimed appears on record, or is founded on an act of parliament, it is matter of course to grant an injunction, without first obliging the party to establish his case at law. 16 In the case of Blanchard v. Hill," Lord Hardwicke said, “that in cases of monopolies, the rule that the court had governed itself by, was, whether there was any act of parliament, under which the restriction was founded. But the court will never establish a right of this kind, claimed under a charter only from the crown, unless there has been an action to try the right at law. This will be found, on examination, to be a governing distinction, running through the numerous cases cited in the argument. And whenever an injunction has been refused, the right was claimed under a patent from the crown, and that right considered doubtful."'18

Lord Eldon puts the case not merely upon the circumstances existing between the two parties to the bill, but partly upon that of protecting the patentee against other infringements, whereby he might be ruined by lawsuits in establishing his right. He says: "The ground upon which, where doubt is excited in the mind of the court, an injunction is

16 Coop. Eq. Pl. 157; Mitf. Pl. in Eq. 129; 1 Vesey, 476.

17 2 Atk. 485.

18 Livingston v. Van Ingen, 9 Johns. R. 570.

granted until the legal question can be tried, a ground that was acted upon in the case of Boulton v. Bull, 2 H. Bl. 453, Hornblower v. Boulton,19 in some cases preceding that, and some that have occurred since, is this; where the crown, in behalf of the public, grants letters-patent, the grantee entering into a contract with the crown, the benefit of which contract the public are to have, and the public have permitted a reasonably long and undisputed possession, under color of the patent, the court has thought upon the fact of that possession, proved against the public, that there is less inconvenience in granting the injunction, until the legal question can be tried, than in dissolving it at the hazard, that the grant of the crown may, in the result, prove to have been valid. The question is not really between the parties upon the record; for unless the injunction is granted, any person might violate the patent, and the consequence would be that the patentee must be ruined by litigation. In the case of Boulton and Watt, therefore, though a case of great doubt, upon which some of the ablest judges in Westminster Hall disagreed, yet upon the ground of the possession by the patentees against all mankind, the injunction was granted, until the question could be tried; and the result of the trial being in favor of

19 8 T. R. 95.

the patent, proved, that the conduct of the court, in that instance, was, at least, fortunate."'20

Mr. Justice Thompson of the Supreme Court of New York, puts the subject of injunction upon the same ground.

21

But when the subject appeared, on the face of the patent, not to be patentable, Lord Eldon refused an injunction. In case of an application for an injunction on Forsyth's patent for a percussion lock, that judge said, "the application of these combustibles to the discharge of fire-arms by percussion, is not new; and I think it would be difficult to say that the particular method of applying percussion, to ignite such chemical combustibles, for the purpose of discharging fire-arms, is a subject for a patent." He accordingly refused an injunction until the patent should be established by a trial at law.22

But the same Lord Chancellor granted an injunction, where the patentee had been in possession under a patent for improvements, upon a machine which was the subject of an expired patent, until the right could be tried, although the patent for the improvements was subject to considerable doubt, as the specification described the original machine with the

20 Harmer v. Plane, 14 Vesey, 130.

21

Livingston v. Van Ingen, 9 Johns. R. 569.

22 Forsyth v. Manton, July 1815, Rep. of Com. of H. of Com. 1829. App. 198, Mr. Farey's papers.

improvements as one entire machine, and not the improvements distinguished from the original machine. 23

In another case Lord Eldon said that in the case of patent rights, if the party gets his patent, and puts his invention in execution, and has proceeded to a sale, that may be called a possession under it, however doubtful it may be whether the patent can be sustained. The Court of Chancery have said, possession under a color of title, is ground enough to enjoin, and to continue the injunction, till it is proved at law, that it is only color and not real title.24

The weight of the consideration of exclusive possession will depend on its duration in some degree, and, therefore, another distinction, in regard to the exercise of the discretion of the court in granting an injunction, relates to the time during which the patentee has been in possession. Where there has been an exclusive possession of some duration under a patent, the court will, in case of an infringement, interpose its injunction, without putting the party previously to establish the validity of his patent by an action of law. But where the patent is recent, and, upon an application being made for an injunc

28 Harmer v. Plane, 14 Vesey, 130.

24 Universities of Oxford and Cambridge v. Richardson, 6 Vesey,

707.

tion, it is endeavored to be shown in opposition to it, that there is no good specification, or otherwise that the patent ought not to have been granted, the court will not, from its own notions respecting the matter in dispute, act upon the presumed validity or invalidity of the patent, without the right having been ascertained by a previous trial; but will send the patentee to law and oblige him to establish the validity of his patent in a court of law, before it will give him the benefit of an injunction.25

Mr. Chief Justice Kent thus states the law on the subject of injunctions in the United States: He says, "The law has been settled in England, in regard to the granting of injunctions, that statute privileges, no less than common law rights, when in actual possession and exercise, will not be permitted to be disturbed, until the opponent has fairly tried them at law and overthrown their pretension. The federal courts, under the patent laws of Congress, have equally protected the right by injunction. The case of Morse v. Reid, decided by C. J. Ellsworth, in the Circuit Court of the United States, was a bill for an injunction filed in 1796, to restrain the defendant from reprinting Winterbotham's History, which the complainant alleged was an invasion of the copyright of his American Geography. The propriety

25 Hill v. Thompson, 3 Meriv. 622.

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