The Barre daily times. (Barre, Vt.) 1897-1959, 1909-03-24
Big Victory Won by Barre
Granite Manufacturers
IN PATENT INFRINGEMENT
Patent Is Declared by United States
Court Of Appeals to Be Valid, but
John W. crier Is Not Entitled
Relief.

The patent infringement case OF John
W. Crier VS.. Alexander Innes and Will
liam Marr, administrator for the Cruick-
shank estate, which is Of great interest
to Barre granite manufacturers, as well
as TO manufacturers OF monuments else
where, has been decided in the United
States circuit court of appeals for the
defendants. Although the court cstab-
lished the validity Of The patent and that
IL had been infringed, it refused damages
TO the plaintiff on the ground that the
monuments of that design were not all
marked as patented. The court also
refuses an injunction against the defend.
ants, and dismisses the bill, thus affirm
ing the circuit court of Vermont with
the exception that the plaintiff Is gieen
one-half the costs in the higher court
and that neither can recover costs in
the lower court.
This case has been before the courts
since 1905, when Crier, assignee for vii.
liam II. Young, sued Innes and Marr for
infringement on patent on ssrcopha-
gus monument, the case being heard in
the United States circuit court of the
Vermont district, at Brattleboro, the at
torneys for the appallent being Curtis
& Mosher Of Troy, N. Y, while oohn W.
Gordon, Richard A. Hoar and Streeter
& Hollis of Concord, N. H., represented
the plaintiffs. Decision was given In
this court to the defendants, and the
case was taken to the United States
court Of appeals, being argued in New
York City a few weeks ago by John w.
Gordon for the defendants and r. G. Cur
tis for the appellant. The decision was
received to-day.
Judges Lacombe, Ward and Noyes,
who heard the case, denied the eonten-
tion Of the defendants that the patent
was invalid on the ground that the de-
sign did not contain "patentable nov
eltyv and also that IL relates to monu-
ment which is not o manufacture"
within the meaning of the design patent
statute. Hence, the court held that the
patent was valid and that it had been
infringed.
No Damages Awarded.
Coming then to the question of relief
to the appellant, the court of appeals
says:
"The complainant claims to recover by
way of damages the statutory penalty
of $3.50 for each infringing monument.
iAct February A, 1887, "a Stat. 3S7,
Supp. Rev. Stat. 533) In order to SO
recover, however, it is incumbent upon
the complainant to show---there being
no proof of infringement after actual
notice that the patentee duly marked
the patented articles--the monuments
which be sold. REV. Stat. Sec. 4900.)
This obligation the complainant, in our
opinion, has failed to fulfill. The testi-
mony is unpersuasive that all the monu-
ments sold by Young, the patentee, were
marked. Indeed the evidence with re-
spect to several--the Coon monument
for examples convincing that they
were not marked The complainant has
failed to establish a case in which dam
ages can be recovered.
s'The final question is whether an IN
junction should be granted. The fact
that defendant has ceased ia infringe
md promised not to infringe in the fi-
ture, does not necessarily prevent ar
injunction issuing against him. Indeed,
under such conditions an Injunction
would ordinarily issue. But still an IN
junction is only to prevent threatened
injury. If it is clear that no injury ii
threatened, it should not issue.
The infringing monuments were made
ly the firm of Innes & Cruickshank.
dies before the commence
nent of the suit and the defendant Marr
s his administrator. An injunction can
lot rln against the former, nor against
.he latter as administrator on account
if his intestate's infringing act. The
threatens no wrong. Innes.
he other partner, gave up the business
II manufacturing monuments upon the
leath of Cruieksahnk; has not engaged
n it since; was not engaged in it at
he time of the commencement of the
uit, and manufactured no infringing
after he was informed that
he design was patented. There is moth
ng to indicate any intention upon his
,art to re-engage in business and it is
Iltogether improbable that if he did he
would use this particular patented de-
ign.
Under all the circumstances it seems
o us clear that Innes is neither threat
ming nor contemplating infringement.
We cannot see that an injunction against
i'm would accomplish anything; is neces-
ary for the protection of the complain.
nt's rights, or would serve any useful
purpose. And if the complainant is
either entitled to damages nor to an
Injunction, the bill should be dismissed
nd the decree of the circuit court to
hat extent affirmed.
''The only question remaining relates
o costs. The complainant has estab-
shed that he has a valid patent which
as been infringed. On account Of the
nusual circumstances Of the case, be is
OF entitled to any Of the relief prayed
OF. We think It equitable that he
hould have one-half costs in this court
nd that neither party should recover
h the circuit court
The decree Of the eircnit court is
lodiiied BY striking out the provisions
nth respect to costs and as 80 modified
! affirmed with one-half the costs of this