provision, has enacted a law (§ 5278, Rev. Stat.), directing that the charge shall be made either by "an indictment found" or "an affidavit made before a magistrate;" and, as we have seen, this court has held that such an affidavit is sufficient, saying (197 U. S. 331), "doubtless the word 'charged' was used in its broad signification to cover any proceeding which a State might see fit to adopt, by which a formal accusation was made against an alleged criminal." But it is obvious that an objection which, if well founded, would destroy the sufficiency of the indictment, as a criminal pleading, might conceivably go far enough to destroy also its sufficiency as a charge of crime. Are then the objections made to the indictment of that nature? Let it be assumed that these are all well taken. Let it be assumed, without decision, that the false statements contained in the affidavit were statements of opinion; that the assignments of falsity were bad, because no facts necessarily inconsistent with them were alleged; that the certainty required in criminal pleading was not observed; and that the time alleged antedates the indictment by more than the period of the statute of limitations. Nevertheless, the indictment alleges that on a day named the petitioner deliberately and willfully made, under the sanction of an oath, legally administered, a voluntary false statement and declaration in writing, to wit, the affidavit, and that the affidavit was not required by law or made in the course of a judicial proceeding. The indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing, as it is defined in the Texas Penal Code, in art. 209, which follows.

"If any person shall deliberately and willfully, under oath or affirmation legally administered, make a false statement by a voluntary declaration or affidavit, which is not required by law or made in the course of a judicial proceeding, he is guilty of false swearing, and shall be punished by imprisonment in the penitentiary not less than two nor more than five years."

This court, in the cases already cited, has said, somewhat vaguely but with as much precision as the subject admits, that

the indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. This indictment meets and surpasses that standard, and is enough. If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States and fruitful of miscarriages of justice. The duty ought not to be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance. Judgment affirmed.

CONTINENTAL PAPER BAG COMPANY v. EASTERN PAPER BAG COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.

No. 202. Argued April 15, 1908.-Decided June 1, 1908.

The previous decisions of this court are not to be construed as holding that only pioneer patents are entitled to invoke the doctrine of equivalents, but that the range of equivalents depends upon the degree of invention; and infringement of a patent not primary is therefore not averted merely because defendant's machine may be differentiated.

Under § 4888, Rev. Stat., the claims measure the invention, and while the inventor must describe the best mode of applying the principle of his invention the description does not necessarily measure the invention. Where both of the lower courts find that complainant did with his machine what had never been done before and that defendant's machine infringed, this court will not disturb those findings unless they appear to be clearly wrong.

Patents are property and entitled to the same rights and sanctions as other property.

An inventor receives from a patent the right to exclude others from its use for the time prescribed in the statute, and this right is not dependent on his using the device or affected by his non-use thereof, and, except in a case where the public interest is involved, the remedy of injunction to prevent infringement of his patent will not be denied merely on the ground of non-user of the invention.

150 Fed. Rep. 741, affirmed.

THIS is a bill in equity to restrain the infringement of letters patent No. 558,969, issued to William Liddell for an improvement in paper bag machines for making what are designated in the trade as self-opening square bags. The claims in suit do not include mechanism for making a complete bag, but only mechanism for distending one end of a tucked or bellows folded paper tube made by other mechanism, and folding it down into a form known in the art as the "diamond fold." This fold is flattened and pasted by other mechanism and forms a square bottom to the bag.

The bill is in the usual form and alleges infringement of the claims by the Continental Paper Bag Company, hereafter called the Continental Company, and prays for an accounting and an injunction.

The answer interposed the defense of non-jurisdiction of a court of equity, non-infringement of the Liddell patent by defendant (Continental Company) and want of invention.

The allegation of the answer as to the jurisdiction of the court is as follows:

"The defendant says, on information, advice and belief, that a court of equity has no jurisdiction to grant any prayer of the bill of complaint, even if the said Liddell patent, No. 558,969, were valid, and even if the defendant's paper bag machines were to be held to infringe that patent, because the said patent, No. 558,969, is a mere paper proposition which the complainant has never put into effect or use, and because it is contrary to equity to suppress a useful and established business, like that which the defendant is prosecuting with its paper bag machines, at the request of a complainant which simply owns one paper bag machine patent that has never been employed by

210 U. S.

Argument for Petitioner.

that complainant in any way in any paper bag machinery, and because the complainant in this case has a plain, adequate and complete remedy at law for any infringement which may have been done upon Liddell letters patent, No. 558,969."

The Circuit Court adjudged the patent valid as to the first, second and seventh claims thereof; that the Eastern Paper Bag Company was the owner of the letters patent; that Liddell was the original and first inventor of the improvements described in the claims, and that the Continental Company had infringed the same. It was also adjudged that the Eastern Company recover of the Continental Company the profit the latter had made or received by the infringement. An account was ordered and a perpetual injunction decreed. 142 Fed. Rep. 479. The decree was affirmed by the Circuit Court of Appeals. 150 Fed. Rep. 741. This certiorari was then granted.

Mr. Albert H. Walker for petitioner:

The owner of any patent who, beginning with the granting of that patent, long and always and unreasonably holds in non-use the invention covered thereby, is not equitably entitled to a writ of injunction to enable him to prevent others from introducing that invention into use in the art to which it belongs, and thus causing it to promote the progress of that art.

To permit the owner of a patent held in non-use to invoke the aid of courts of equity to enjoin the use by others of an invention which he refuses to use himself, would defeat the very object of the patent laws and of the constitutional provision to which they owe their existence, and such a course, had it been pursued in the past, would have blocked the road along which the great historic inventions of the nineteenth century have proceeded to their present state of perfection.

Injunctions should not be issued in behalf of patents held in non-use for the additional reason that the alleged infringers are often acting under independently made inventions of their own, which were so nearly contemporaneous in time of origin

Argument for Petitioner.

210 U.S.

with the inventions of the patents in suit that it is difficult and sometimes impossible to ascertain which of them is entitled to priority in the art to which they belong, and such was the fact in the case at bar.

Under the circumstances of this case, it was incumbent upon the owner of the Liddell patent either to put the Liddell invention into regular manufacturing use, or to license others to do so for a reasonable royalty, and having always omitted so to do either from April, 1896, until this action was brought more than five years later, and indeed until now, nearly seven years later yet, the owner of that patent is ethically limited to actions at law for its alleged infringement, and is not entitled, "according to the course and principles of courts of equity," to an injunction with which to stop the numerous and costly machines of the defendant from operating.

An injunction should not be issued in favor of a non-used patent, because the patent laws of nearly every foreign country forbid such assistance in favor of any patent held in non-use, and to grant such injunctions here would be to give to foreign inventors advantages in our own country which are denied to our citizens abroad.

The cases cited in the Circuit Court of Appeals, opinion on the question of law above discussed, do not really support the conclusion reached. Bement v. National Harrow Co., 186 U. S. 70; Fuller v. Berger, 120 Fed. Rep. 274; Heaton Peninsular Button Fastener Co. v. Eureka Specialty Co., 77 Fed. Rep. 288; Crown Cork & Seal Co. v. Aluminum Stopper Co., 108 Fed. Rep. 845; Broadnax v. Central Stockyard Co., 4 Fed. Rep. 214; Consolidated Roller Mill Co. v. Coombs, 39 Fed. Rep. 803; Campbell Printing Press Co. v. Manhattan Ry. Co., 49 Fed. Rep. 930, discussed and distinguished.

The following cases sustain the contention of petitioner herein that the aid of equity should not be granted in cases of this character. Isaacs v. Cooper, 4 Wash. C. C. 259; Ogle v. Ege, 4 Wash. C. C. 584; Mott v. Bennett, 2 Fisher, 642; Sullivan v. Redfield, 1 Paine, 441; Magic Ruffle Co. v. Douglas, 2