The New York herald., 1872-11-20
BROOKLYN COURTS,
UNITED STATES CIRCUIT COURT.

The Validity or Patent Questioncd-
The Board or city Works Fighting .
Contractor-An Important Decision hv
Judge Benedict.
Charles Gudet vs. The Board OF City works.-A
motion was made by plaintiff for an Injunction to
restrain the Board from executing, on behalf Of the
city, contract for repaving Henry street, In &C
cordance with certain specifications file in their
office, which contract the Board advertised as open
for proposals. Yesterday Judge Benedict rendered
his decision in the case. The Judge said "A pave
ment laid in accordance with such speci-
hcati0ns, will, as the plaintiff insists, be-
an infringement upon patent issued to
him and known as Russln 4,l06 granted
August %, 1870. The rules by which the Courts Of
the United States are governed in application Of
this class well settled and need not be restated
mere. The frSt question arising upon such mo-
ti0n where, as In this case, the patent in question
has never been adjudged valid in any action. is
escence in his claim as raises a presumption in
lavor OF the validity Of his patent The bill avers
the exclusive pyewes descrped @ % in tSe patent
and the allldavits show that the plaintiff has
been employed to lay some fourteen miles
and Brooklyn during the past four years. No
other instances of a recognition OF his claim arc
stated, nor nave any Licenses to use the plaintia's
pavement been granted by him, 1t being his plan to
derive advantage from his patent by laying the
termining whether these facts are suiicient to
show such public recognition OF the plantir's
that mere lapse of time is not sufficient. The ac-
quescence in the patent, must be attended with
circumstances indicating that such acquiescence
had existed as to the validity Of the patent
Inc Inc nature OF this Plaintin's Invention, and
employed to lay it down, become, therefore.
important, and it Is to be noticed that the patent
tse Ior Tr neayy stone pavement, required only on
vate persons can be supposed to have had occasion
to consider Ss. plantllf's claim. or the cities
before me shGg, none have dealt with the piaintin
except New YORK and Brooklyn, and In those cities
the PLAINTIFFS employment has occurred within tho
past four years. Under how many contracts with
those cities the pavement has been laid is not
stated, nor whether In the instances referred to
award or as the sole or a competing bidder for
contracts publicly advertised. The price paid by
the price at which other parties nave offered TO lay
down the pavement called for by the specifications
Wnetne1 H9e in thr d to
the cities Of New York and Brooklyn during the
past four years have in these instances employed
rants the conclusion that the validity OF his patent
is free from reasonable doubt. To my mind such
action OF the authorities Of these two cities within
cluson and Is wholly insufficient to raise presump-
tion In favor OF the validity OF the patent For
ought that appears the plaintiff was the only bidder
in the cases where he was employed, or he may then
have been the lowest bidder or the necessities OF
make hrs employment necessity without any refer
ence to his patent; and even II his claim had In
those instances been distinctly recognized by the
authorities, that would not work as an estoppel ON
the city, nor require me to presume that the va
ldty OF the patent is free from doubt The absence
OF facts sufficient to raise that presumption this
case must be held fatal to the present application.
Furthermore, it appears that Henry street can 10
paved under bids received for the proposed con-
tract at a price less by some $4,000 tnan the
price charged by the plaintiff for his pave
ment, ana the SpeclncatlonS laid before me
by the plaintiff ON this motion contain
provision whereby the contractors for
Henry street will be liable to save the city harmless
from any claim of the paintr arising out of the
laying OF the pavement proposed. 1t is manifest.
therefore, that II the injunction now asked for be
granted the city will be compelled to pay for the
Henry street pavement some $4,000 more than 1t
could be procured for under the contract proposed,
while ii the injunction be denied no loss will come
either to the plaintiff or the CITY, because the city
OF Brooklyn is always to be found and will always
be able to respond to the plaintiG In any damages
which he may become able to claim by reason Of
any infringement OF his patent, while the cOntrac-
tors must In turn respond to the city for any so
recovered. Such q result Of an injunction Is sufl-
cient to require its refusal In case like this, where
the public interest Is concerned. The motion 10
fnarpfnra