Lane v. Levi

Citations

• 21 App. D.C. 168
• 1903 U.S. App. LEXIS 5468

Syllabus

<p>Appellate Practice; Assignments oe Error; Patents foe Compositions; Infringement.</p> <p>1. On an appeal by tbe defendant from an order granting a preliminary injunction on a bill to enjoin an infringement of a patent for a composition, an answer by tbe defendant and affidavits, an assignmeent of error that tbe bill insufficiently describes complainant’s patent, will not be entertained although the bill is defective in that respect, where the defendant not only failed to demur or make the objection on the preliminary hearing, but admitted in his answer the existence of the patent and denied infringing it, and where the lower court was called upon to consider a certified copy of the patent and proceedings in the Patent Office preliminary to issue, offered on behalf of the defendant, and such papers are included in the record on appeal.</p> <p>2. Nor, on such an appeal, will the question be entertained of whether the allegations of the bill in respect of the validity of the patent are sufficient to give jurisdiction in equity, where the point was not made on the hearing below; and could not have consistently been made in view of the answer admitting the validity of the patent as covering a composition of the complainant and seeking to avoid its effect by alleging substantial differences between the composition of the defendant charged to be an infringement, and that of the complainant, which relieved that of the defendant from the charge.</p> <p>3. A patentee of a composition is not at liberty to prove that a part. of the compound described in his claim for a patent, is not essential or material to its operation; and, therefore, a temporary restraining order granted on a bill to enjoin an infringement of a patent for a composition for use as a furniture polish, is improperly granted where it is shown in the bill that the defendant’s alleged infringing composition contains no coal oil, while that substance is one of the ingredients of complainant’s composition as de