Page:Federal Reporter, 1st Series, Volume 8.djvu/335

BTEAM OAUGE <tc LANTEBN 00. V. MILLES. 321 �two claims of re-issue 8,598 must be the tubes, F and F, placed within the globe, where they can and do receive a supply of heated air, 80 that the ascensive current of heated air forma a part of the supply for the tubes, and also that the device or plate, I, which sur- mounts the globe, must both inject and ejeot air. In the defendant's lantern the injecting devices are directly over the tubes, and no air is injected from the opening over the globe. �There has been no adjudication by a court upon this question of construction. If it should be held that the fresh-air conduits must necessarily be within the globe so as also to receive heated air, or if the injecting devices must necessarily surmount the globe, then there is no infringement. It seems to me that the litigation in this case, taken in connection with the opinion in Irwin v. McRoberts, goes very far to answer the requirement of a delibefate examination and a decision by a court. Irwin and his co-owners engaged in an earnest and thoroughly-oontested litigation with the Buffalo company upon the subject of these patents. The latter had the advantage of the skill and knowledge of the senior expert of the present defendant. It came to the conclusion to parchase peaoe and the right to manufac- ture under the Irwin patents. With a great sum it obtained its free- dom. The settlement of the litigation and the acknowledgment of infringement by the defendant, was deliberately made under the advice of counsel, and after earnest attem pts at compromise. The payment of $210,000 was a confession of inability to make a success- fui contest. This litigation, coupled with the opinion of Judge Blodgett in the case of Irwin v. McRoberts, where he was "very much impressed with the conviction that the defendant's lantern infringes the claim of the complainant's patents as they are re-issued," and in the opinion in Irwin v. Dane upon the broad charaoter of the inven- tion, brings the question of infringement as near to an adjudication as it is practicable without having an opinion by a court upon the pre- cise question in dispute. I am satisfied that, by virtue of all the recited decisions and the circumstances of this case, the question has been so far settled that I ought not to refuse an injunction upon the ground of non-adjudication. �The defendant's experts, starting apparently upon the premise that the Irwin patents are only improvements upon the old English and Freneh patents, properly come to the conclusion that they should be narrowly construed, and should be confined to the specifie forms of deviees which are respectfully shown. Without going back to the v.8,no.5— 21 ��� �