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know any instance of granting an injunction here to restrain one trader from using the same mark with another; and I think it would be of mischievous consequence to do it. There is a clause in the charter, that in order that every card-maker may know his cards from another card-maker, each trader shall lodge his mark or stamp with the receiver, to prevent any fraud upon our loving subjects. This is a colorable end; but if any weight was to be laid upon these colorable recitals, it would be establishing every other monopoly. An objection has been made, that the defendant, in using this mark, prejudices the plaintiff, by taking away his customers. But there is no more weight in this, than there would be in an objection to one innkeeper setting up the same sign with another.” The injunction was accordingly refused till the hearing of the cause.30
If on a trial at law the plaintiff establishes his right, the injunction on the defendant is, on his motion, made perpetual; if he fails, the injunction will, on motion of the defendant, be dissolved. But where a verdict having been given for the plaintiff, the court of law were equally divided, a writ of error lying to another court, the chancellor refused to dissolve the injunction, until a decision could be had in the court of errors, or in another action, the plaintiff having been in possession of his privilege seven years.31 And so if a new trial is proposed to be moved for, this is a ground, on the part of the defendant, for opposing a motion by the plaintiff to make the injunction perpetual, and on the part of the plaintiff, for opposing a motion of the defendant to dissolve it. 32
30 Blanchard v. Hill, 2 Atkyns, 484.
If the injunction be granted improvidently, it will be dissolved on motion. But until it is dissolved, a violation of it will be a contempt of court.”
Proceedings for the Repeal of Patents.
The act of Congress of 1793, s. 10, provided a process for the repeal of a patent in the nature of scire facias. The same act, s. 6, provided that in case of notice of certain grounds of defence, in an action for an infringement, and of any of these grounds being made good, the court might declare the patent void. That act has been repealed by the act of 1836, in which no provision has been made for the repeal of patents.
31 Boulton v. Bull, 3 Ves. 140. 32 Gods. on Pat. 631. Gibbs v. Cole, 3 P. W. 256. 33 Walker v. Congreve, Rep. of Arts, Second Series, v. 24, p. 311.
The proceeding for the repeal of patents in England is by scire facias.'
The provisions of the act of 1793, for proceedings in the nature of scire facias, have been subjects of various decisions, which need not be particularly stated, since that act has been repealed.?
Hunt v. Coffin, Dyer, 197, b; 4 Inst. 88; The King v. Butler, 2 Vent. 344; S. C. 3 Vent. 223; S. C. 3 Lev. 220; The King v. Arkwright, Godson on Pat. 192 ; Com. Dig. Patent, F. 2, 3.7; 2 Saund. 72, n; Rex v. Dawes, 4 Burr. 2022, 2120; Rex v. Peacock, 4 T. R. 634 ; Lilly's Ent. 411.
? See Stearns v. Barrett, 1 Mass. R. 167; Ex parte Wood v. Brundage, 9 Wheat. 702.
PATENT ACTS OF THE UNITED STATES.
Act of Congress of April 10, 1790, c. 34, Story's Laws of
U. S. vol. 1, p. 80. Repealed by act of 21st February, 1793, c. 55.
An Act to promote the progress of useful arts. Sec. 1. Petition. Attestation. Cer- | Sec. 5. Repeal of patents. tificate of attorney gen
6. Patent is prima facie evieral. Seal. Recording.
dence. Plea. Notice. 2. Specification. Models.
Verdict in case of false 3. Copies.
specification. 4. Penalty for an infringement. 7. Fees. § 1. Be it enacted, &c. That upon the petition of any person or persóns, to the secretary of state, the secretary for the department of war, and the attorney general of the United States, setting forth, that he, she, or they, hath, or have invented or discovered, any useful art, manufacture, engine, machine, or device, or any improvement therein, not before known or used, and praying that a patent may be granted therefor, it shall and may be lawful to and for the said secretary of state, the secretary for the department of war, and the attorney general, or any two of them, if they shall deem the invention or discovery sufficiently useful and important, to cause letters patent to be made out in the name of the United States, to bear teste by the president of the United States, reciting the allegations and suggestions of the said petition, and describing the said invention or discovery, clearly, truly, and fully, and thereupon granting to such petitioner or petitioners,
his, her, or their heirs, administrators or assigns, for any term not exceeding fourteen years, the sole and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention or discovery; which letters patent shall be delivered to the attorney general of the United States, to be examined, who shall, within fifteen days next after the delivery to him, if he shall find the same conformable to this act, certify it to be so at the foot thereof, and present the letters patent so certified to the president, who shall cause the seal of the United States to be thereto affixed, and the same shall be good and available to the grantee or grantees, by force of this act, to all and every intent and purpose berein contained, and shall be recorded in a book to be kept for that purpose, in the office of the secretary of state, and delivered to the patentee or his agent; and the delivery thereof shall be entered on the record, and endorsed on the patent by the said secretary, at the time of granting the same.
§ 2. That the grantee or grantees of each patent shall, at the time of granting the same, deliver to the secretary of state a specification in writing, containing a description, accompanied with drafts or models, and explanations of models (if the nature of the invention or discovery will admit of a model) of the thing or things, by him or them invented, or discovered, and described as aforesaid, in the said patents; which specification shall be so particular, and said models so exact, as not only to distinguish the invention or discovery from other things before known and used, but also to enable a workman or other person skilled in the art or manufacture, whereof it is a branch, or wherewith it may be nearest connected, to make, construct, or use, the same, to the end that the public may have the full benefit thereof, after the expiration of the patent term; which specification shall be bled in the office of the said secretary, and certified copies thereof shall be competent evidence in all courts, and before all jurisdictions, where any matter, or thing, touching or concerning such patent right or privilege, shall come in question.
$ 3. That upon the application of any person to the secre