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is urged by defendant rests upon statements one on the breaker arm of the removed in plaintiff's patent, and upon illustrated breaker plate assembly. statements in plaintiff's catalogues, of a [4] Defendant's interpretation would involve

] method of removing and replacing of the & voluntary admission against interest by complete breaker plate assembly. After de- plaintiff, a voluntary forfeiture to the public

. scribing the method illustrated, plaintiff of a part of plaintiff's patented invention. stated: “And the whole breaker mechanism Forfeitures are not looked upon with favor can be removed from the housing. A new in equity, and are enforced only in clear breaker plate can be substituted for it, sim- cases, and where the sustaining of the rights ply by reversing the above operation, with- of another can only be accomplished through out in any way affecting the timing of the such forfeiture. I cannot agree with the deignition.” Again, plaintiff stated: “As the fendant that by the use of the language contact points on this system are the only quoted the plaintiff intended to and did inparts which will need renewal, we have de- vite the public to make its invention, or to vised a plan of replacement which is so license the public without any consideration simple that any one can make it by follow- to make this breaker assembly unit. ing these instructions.

The renewal [5] Where a patentee has made an admitted of contact points can be easily and quickly advance and contribution to the art, language made at a very slight expense by installing such as is here relied upon by the defenda new breaker plate.”

ant should be so construed as to vitalize, This language is construed by defend- and not paralyze, the invention. The ant to be not only an inducement to buy a strained construction urged by the defendConnecticut ignition system from the plain- ant does not seem to justify the application tiff, because of the ease with which a breaker of the harsh rule of estoppel against plainplate assembly containing the worn-out con- tiff. tact points may be removed, and the ease [6] It is further urged by defendant that, with which a new breaker plate assembly while the plaintiff admits that the public containing new contact points may be in- has the undeniable right to make a repair serted in the housing, but also as an invita- and to replace a minor worn-out element like tion and inducement to the public to pur- the contact points, by first taking the breaker chase a new assembly from any one. This assembly unit out of the housing and then reinterpretation is urged, also, upon the fact turning it with a new contact point thereon, , that nothing is said by the plaintiff about the user cannot exercise this legal right, bebuying the new assembly plate only from cause the plaintiff has so manufactured its the plaintiff; that is to say, by plaintiff's si- removable assembly, by riveting and otherlence as to any reservation of right to sub- wise, as to make the mere substitution of stitute a complete new assembly plate for new for worn-out contacts difficult, inconthe removed one which, out of its various venient, and too expensive. This may be elements, has only the contact points worn true, but plaintiff's method of manufacture out or damaged, as well as by the fact that does not prevent the user from making the plaintiff so makes its assembly that it is repairs that he has a right to make. It easier to insert a new one in the housing does not compel the user to make or to purthan to replace the worn points with new chase an entirely new assembly plate. It points, the plaintiff has estopped itself. does not compel him to purchase a new as

This interpretation by the defendant of sembly unit from the plaintiff. It does not plaintiff's acts and assertions, while ingen- take any right away from a user to make ious, is technical, and does not ring true. repairs to maintain the use of the igniter he The defendant's interpretation is, moreover, has purchased. not the only interpretation possible. It is to In addition to this, the defendant is not be noted that this language purports to be a user. He is a competitor. Clearly it can"a plan of replacement,” but not the only not be assumed that, by the bargain of sale plan. It is recommended as better than the between the plaintiff and a user, the plainexisting and usual method of merely remov- tiff intended to cut himself off and to benefit ing from an ignition device so much there- a competitor by merely informing the pubof as may be worn out and requires renewal. lic of one of the advantages of his device. Moreover, it is in evidence that the latter Moreover, it would seem that by the appliplan may be used also on plaintiff's igniter, cation of the maxim, “He that seeks equity and that it requires but a few minutes to must do equity," the defendant is not in as remove the contact points and insert a new strong a position as he might be in urging

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10 F.(20) 827 the application of the harsh doctrine of element with a new element, and in effecting estoppel against the plaintiff. The evidence such a repair the user may do it in any way shows that defendant not only supplies con- he chooses, with this restriction: He must tact points—long-established repair parts- not replace other elements of the patented but goes beyond and sells a complete breaker device that are not worn out.

That patassembly unit, not necessary to the exercise entee's form of manufacture makes it diffiof its right to make and sell repairs. cult, or costly, or inconvenient for the user

Moreover, the defendant makes and sells to make the repair, does not give the user the devices charged to be infringements, as any license to make the replacement, so repairs, not for the trade in general, but long as he is not prevented from making the specially as "replacement parts to fit Con- repair. The evidence here shows that the renecticut igniters.” Defendant advertises “re- pair of worn-out points can be made. placement," not "repair,” parts. In addi- [9-12] In conclusion, then, in view of what tion to the breaker assembly unit, defend- has just been stated, and upon the finding ant makes a special form of movable breaker here made that the patents are valid, and that arm, which is patented to plaintiff, and a the defendant's parts, Nos. 2245, 2700, 2701, special form of slip terminal plug, and a 2725, and 2726 are, as insisted by plaintiff, two-leaf spring, which was also covered by infringements of the patent claims in suit, plaintiff's patents. That the furnishing of the equities are with the plaintiff. defendant's assembly unit is not a repair, as A decree may be prepared accordingly. & unit, but, notwithstanding the fact that it includes a repair contact point or points, is a replacement of uninjured parts of plaintiff's device, seems to admit of no doubt. Such a rebuilding of plaintiff's patented UNITED STATES V. INTERNATIONAL structure under the guise of repairing a

HARVESTER CO. et al. worn-out part is not authorized under the

(District Court, D. Minnesota, Third Division.) authoritative and numerous decisions not

No. 624. necessary here to review.

To make an exception in favor of the Monopolies Om 12(1)-Purpose of preventing defendant may only be done by giving ef

undue restraint in trade stated. fect to the unnatural interpretation of plain- trade is to prevent unreasonably high prices to

Purpose of preventing undue restraint in tiff's language and acts urged by the de- purchasers and users of articles traded in. fendant. It would be the establishment of

Stone, Circuit Judge, dissenting. a dangerous precedent in this and no doubt many other cases to permit a defendant by

In Equity. Suit by the United States replacing parts and elements which do not

against the International Harvester Comwear out, thus to appropriate the substance of plaintiff's invention under the assertion for the purpose of restoring and maintaining

pany, wherein a consent decree was rendered of a right to replace a minor part or ele- competitive condition in interstate commerce. ment thereof. [7] I cannot agree to the proposition ad- ment for a further decree requiring a division

On a supplemental petition of the governvanced by the defendant which in effect is of the assets and business of the defendant that the plaintiff, by stating in his patent and his trade literature, as a novel feature company., Supplemental petition dismissed. and advantage of his invention, provision of

Abram F. Myers and James A. Fowler, a removable assembly unit to effect a recon- Sp. Asst. Attys. Gen. (H. M: Daugherty, ditioning of his igniter and manufactures his Atty. Gen., A. T. Seymour, Asst. Atty. Gen., device accordingly, thereby fixed the legal Lafayette French, Jr., U. S. Atty., of St. status of that unit as a repair part, and in- Paul, Minn, and Guy D. Goff and W. F. vited and authorized others to make and Martin, Sp. Asst. Attys. Gen., on the supplesupply it as a repair, when in fact it is a mental petition), for the United States. replacement. The plaintiff should not be

Cordenio A. Severance, of St. Paul, Minn., penalized for making a construction wherein Richard V. Lindabury, of Newark, N. J., and a major substitution is desirable, though a

William S. Elliott and Victor A. Remy, both lesser substitution is sufficient.

of Chicago, Ill. (Arthur F. Mullen, of Oma[8] A patentee undoubtedly has the right to ha, Neb., on the brief), for defendants. make his device as he sees fit. A user has Before SANBORN, STONE, LEWIS, the undoubted right to replace a worn-out and KENYON, Circuit Judges.

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SANBORN, Circuit Judge. This case claimed to have complied with the requirewas argued and submitted to the four Circuit ments of clause (e); but on July 17, 1923, Judges named above, but after an examina- the United States filed in this court its suption of the record Judge KENYON consider- plemental petition, not on the ground that the ed himself disqualified, and took no part in International Harvester Company had failed the conferences concerning or the decision of or refused to comply with any of the specific the issues the case presents.

requirements of clauses (a), (b), (c), and In the year 1912 the United States (d) of the consent decree, but on the ground brought this suit against the defendants un- that it was nevertheless unduly and unlawder section 4 of the Anti-Trust Act (section fully monopolizing and restraining interstate 8823, Compiled Statutes), to enjoin them commerce in harvesting machinery and its from the undue and unreasonable monopol- appurtenances, and it prayed for a further ization or restraint of interstate commerce in decree "that the business and assets of the the United States in harvesting machines defendant, the International Harvester Comand other agricultural implements. The de- pany, be separated and divided among at fendants answered the complaint, much evi- least three separate, distinct, and independent dence was introduced, a decree was rendered corporations, and for other relief of a kinon August 15, 1914, an order modifying this dred nature. The International Harvester decree was made on October 3, 1914, and on Company by its answer denied that it was, November 2, 1918, a consent decree was ren- or had been since the decree of November 2, dered for the purpose of restoring and main- 1918, unreasonably monopolizing or restraintaining competitive conditions in the United ing interstate commerce in the harvesting or States in interstate commerce in harvesting other machinery it was manufacturing and machines and other agricultural implements, selling, and alleged that such commerce was to the effect that (a) the International Har- and long had been free and unrestrained, that vester Company, its officers, directors, and the competition in it was keen and free, and agents, were prohibited after December 31, that the prices of its products to consumers 1919, from having more than one represen- were low. Upon the issues thus presented tative in any city or town in the United many volumes of evidence have been introStates for the sale of their harvesting ma- duced, learned and instructive arguments chines and other agricultural implements; have been heard, elaborate briefs have been (b) that it should sell at reasonable prices submitted, and all these have received the the harvesting machine lines and their ap- consideration of the court. The questions purtenances then made and sold by it under for decision, however, are questions of fact; the trade-names “Osborne,” “Milwaukee,” no good purpose would be served by reciting and "Champion” to independent responsible the evidence which has convinced us, and it manufacturers of agricultural implements is impracticable to do so within the reasonin the United States; (c) that it should also able limits of an opinion. We content ouroffer and endeavor to sell at reasonable prices selves with a statement of our conclusions. in connection with such· harvester lines the The evidence in this case has convinced, "Champion” harvester plant and works at not only that it fails to prove by a fair, or, Springfield, Ohio, and the “Osborne” har- any, preponderance thereof that the Intervester No. 1 plant and works at Auburn, N. national Harvester Company, since the sale Y.; (d) that, in case any of the said three of the “Osborne,” “Milwaukee,” and “Chamlines, plants, etc., should not be sold within pion” lines and their appurtenances, has been one year after the close of the war, it should or is unduly or unreasonably monopolizing at the request of the United States be sold or restraining interstate commerce in harvestat auction; and (e) that, in the event that ing machines or their appurtenances in the such competitive conditions should not have United States; but in our opinion it conbeen restored at the expiration of two years clusively proves that it has not done and is from the entry of the decree, or by Novem- not doing so, that competition in the manuber 2, 1920, the United States should have facture and sale of harvesting machines and the right to such further relief here as should their appurtenances in interstate commerce be necessary to restore said competitive con- in the United States has been and is free and ditions and to bring about a situation in untrammeled, that the percentage of all such harmony with law.

machines that were made and sold by the InThe International Harvester Company ternational Harvester Company has decreascomplied with the requirements of clauses ed from about 85 per cent. in 1902, to about (a), (b), (c), and (a) of the decree, and 64 per cent. at the time of the decree of No 10 F.(20) 827 vember 2, 1918, and ever since that powerful Milwaukee and Champion lines of harvestand successful independent competitors of ing machines (then being made and sold by the Harvester Company contest the field with defendant, International Harvester Compait, and that in their presence it cannot and ny), as well as the plants where such lines does not control or dictate the prices of the had formerly been made, should, within a harvesting machines and their appurtenances stated time, each be sold to separate responwhich it and its competitors make and sell, sible manufacturers of agricultural machinthat the prices of its machines and appurte- ery which were free from control of defendnances to the dealers, and to the farmers who ants; (b) that unless competitive conditions use them, in proportion to their costs, have were restored in harvesting machinery withdecreased and are low. The purpose of pre- in a stated time, the plaintiff might apply venting undue restraint of trade is to pre- for such further relief as necessary to such rent unreasonably high prices to the pur- restoration; (c) jurisdiction was retained "to chasers and users of the articles traded in. carry into effect the provisions of the decrees The evidence in this case satisfies us that herein entered.” these objects have been successfully attained 3. The test period for the above plan under the decree of November 2, 1918, the having expired, the plaintiff presents its apdefendant's compliance with its requirements, plication and case for further relief and asks and their conduct of their interstate com: dissolution of defendants' business and asmerce in harvesting machines and their ap- sets into three separately owned companies purtenances since the rendition of that de or groups, one of which shall include the cree.

Deering lines, one the McCormick lines and The supplemental petition of the United one the material companies. States, filed in this case on July 17, 1923, Defendants present no counterplan but therefore must be and it is hereby dismissed. stand upon their contention that the plan

now in operation has proven such a dissolu

tion of the business as to restore competitive STONE, Circuit Judge (dissenting). 1.

conditions. The decree in this case provided (a) that

4. I think the evidence upon the applicadefendant, International Harvester Compa- tion shows that the plan has entirely failed ny, was an unlawful combination; (b) that it to restore genuine competitive conditions. should be dissolved "into such number of True competition does not exist where one parts of separate and distinct ownership as of the "competitors” so entirely dominates may be necessary to restore competitive con

the particular industry or trade that it can ditions and bring about a new situation in and does dictate the "competitive” prices. harmony with law”; (c) that the defendants Competition which depends upon the sufferbe given an opportunity to present a plan ance of one of the competitors is a complete "for such separation and division”; (d) sham. This evidence convinces me that the that if defendants did not present such plan, International has such advantages in rethe court would entertain an application for sources, organization, selling mediums, proa receiver; (e) that jurisdiction was retain- duction costs, ownership and manufacture of ed “to make such additional decrees as may raw material (steel) and in volume and be deemed necessary to secure the final wind- spread of business as to be able completely to ing up and dissolution of the combination dominate this business. Also, that it does so and monopoly complained of." That decree control, and dominate by regulating prices. was made final by dismissal of defendants' The International fixes prices for its own appeal therefrom to the Supreme Court and harvesting machinery and the other manuby express statement in the consent decree facturers prudently govern their prices or order entered November 2, 1918.

thereby. 2. An agreed plan “for carrying into ef- 5. I think the court should consider means fect the order contained in said decree that to restore real competitive conditions, either the combination and monopoly therein ad- by carrying out some division of assets and judged to be dissolved" was set forth and property in accordance with the decree or by approved in the decree or order of November orders which will prevent the harmful exer2, 1918.

cise, by defendants, of the existing power to That plan provided (a) that the Osborne, control this vital industry.

have filed their petition to modify the decree EAST ST. LOUIS & S. RY, CO. v. BRUND. entered in this cause on September 12, 1919,

AGE et al. (District Court, E. D. Illinois. February 6, i Now, on this 12th day of September, A. D. 1926.)

1919, it being one of the regular judicial days of

this court, held in the city of Danville, VerNo. 1416.

milion county, Ill., Hon. George W. English, 1. Carriers en 12(1)-Illinois Commerce Com. Judge, presiding, and it appearing to the court mission has no power to fix rates for carriage

that all the defendants have been duly served on railroads in contravention of two-cent fare

with process and filed answer to said bill of law, but may fix rates for street railways or

complaint, and that complainant has filed repliother public utilities.

cation to said answers:

And now this cause came on to be heard upon The Illinois Commerce Commission has no

said bill of complaint, the answers of said depower to fix rates in contravention of two-cent fendants, the replication of complainant to said fare law for carriage on railroads, but has

answers, and the court having heard evidence, power to fix any reasonable rate for street rail.

both oral and documentary, in open court, and ways, or other public utilities, in view of Public Utilities Act and two-cent fare law of fully advised in the premises, finds:

having heard arguments of counsel, and being Illinois.

That the court bas jurisdiction of all the par2. Carriers om 12(4)-Electric railroad incor. ties to this cause and of the subject-matter

porated under Railroad Act 'bound by two. thereof; that the amount involved, exclusive of cent fare law.

interest and costs, is in excess of $3,000. Railroad corporation, operating electric

That the court finds that the complainant is railroad and organized under the Railroad Act,

a railroad corporation duly organized under the is subject to all the burdens of such a corpora

laws of the state of Illinois, owning and operattion, and is estopped to deny that it is bound ing in passenger service 68 miles of electric by two-cent fare law, and Illinois commerce

railway in the counties of St. Clair and Madicommission can grant to it no relief in excess

son, in the state of Illinois. of that allowed by two-cent fare law.

The court further finds that the defendant

Thomas E. Demcy is chairman, and Frank H. 3. Carriers om 12(4)-Electric railroad incor. Funk, Walter A. Shaw, James H. Wilkerson,

porated under Railroad Act retains such and P. J. Lucey are present members, of the character.

Public Utilities Commission of the state of IlliElectric railroad, incorporated under Rail- nois, that R. Allan Stephens is secretary of road Act, has character of railroad, notwith- said commission, that Edward J. Brundage is standing character of traffic handled, location, Attorney General of the state of Illinois, that and mode of operation.

Hubert E. Schaumleifel is state's attorney of

St. Clair county, Ill., and that Joseph P. Strue4. Carriers 18(6)-Petition to modify de- ber is state's attorney of Madison county, state cree enjoining enforcement of two-cent fare

of Illinois. law, presenting no question of changed condi. The court further finds that complainant's tions, will be denied.

lines of electric railroad are in direct competiWhere enforcement of two-cent far

law as tion with certain steam railroads, to wit, Illinois to electric railroad was by District Court en- Central Railroad, Louisville & Nashville Railjoined as being confiscatory, in violation of road, Southern Railroad, Baltimore & Ohio Const. U. S. Amend. 14, on condition that no Railroad, and Pittsburgh, Cincinnati, Chicago higher rate than three cents a mile be charged, & St. Louis Railroad, and that other steam railthe court expressly retaining power to modify roads operate in the same territory that is being decree, petition which presents no question that served by complainant, and that all of the said changed conditions make it no longer violative steam railroads are under federal control, and of railroad's rights to enforce two-cent law, that complainant is subject to greatly increased or that the maximum limit of rate of fares operating expenses of the same character as permitted by the decree was more than suffi- those experienced by the said steam lines of cient, will be denied.

railroad, and that by General Order No. 28 of the Director General of the United States Rail

road Administration, dated May 25, 1918, as In Equity. Application by the East St. modified by supplemental order, dated June 12, Louis & Suburban Railway Company for 1918, certain charges, schedules, rates, and an injunction against Edward J. Brundage rules, governing passenger fares and baggage and others. On petition by Hilmer C. Lind- charges on all passenger traffic carried by said

railroads under federal control, now obtain and auer, State's Attorney, to modify the decree

are in full force and effect on all said lines of heretofore entered. Petition denied.

railroad under federal control, and are higher L. N. Nick Perrin, Jr., of Belleville, Ill.,

than the rates complainant is permitted to

charge under the law of the state of Illinois, for petitioner.

and that, if the complainant herein charges, J. L. Flannigen, of East St. Louis, Ill., collects, and receives the same rates and chargfor respondents.

es as are now in force on railroads under federal control, the same will not be unreasonable.

nor will the same yield a revenue more than LINDLEY, District Judge. Hilmer C. sufficient to pay the cost and expenses of operLindauer, as state's attorney, and others, ating complainant's said railroad and the rea

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