The original patent having been surrendered and canceled, all rights under it have ceased, except as they are secured by the reissued patent. Moffit v. Gaar [Case No. 9,690], Our attention must therefore be confined to the reissued patent.
In order to ascertain what it is that is patented, we look to the claim. Looking at the claims accompanying both divisions of the reissued patent, we find that it covers (as did the original) combinations only, no one or more elements of which are claimed or patented as new. It is a well-settled rule of law, which does not need citations of authorities to prove, that the use of any number of the elements of a patented combination less than the whole, or their equivalents, or what is substantially the same thing, is no infringement. The use of two driving-wheels of unequal size in the eom-bination covered by division A of the reissued patent is a material element, and those being omitted in the combination used by defendants, and nothing being substituted for them which can produce the same result, there is clearly no infringement of said division A made out by the bill. On the contrary, any such presumption is rebutted by the express allegations of the bill.
The bill does, however, show, prima facie at least, an infringement of the combination covered by division B of the reissued patent. But here we meet insurmountable obstacles to granting the relief by injunction in the present posture of affairs. The combination covered by division B was not covered by the original patent; therefore, the complainant’s rights and remedies as to it date only from the date of the reissue. As to it, complainant is in no better position than if the reissue was an original patent instead. Poppenhusen v. Falke [Case No. 11,279].
To entitle the patentee to the extraordinary writ of injunction, it is not sufficient for him merely to show his patent and an infringement of it His right must be further substantiated in one of two ways: First, by a possession accompanied by an actual use and enjoyment of it for a sufficient length of time to afford a reasonable presumption of the acquiescence of the public .in its validity; or, second, by a judgment in his favor in a trial at law. The latter, however, is never necessary where the former exists: but I understand it to be essential in all cases that there should be a trial at law in the absence of such use and enjoyment. This has been the rule in England for more than a century, and it has always been the rule in the United States. The decisions by which the rule is established, and the reasons upon which it is based, are too numerous to be cited here. The cases of Ogle v Ege [Case No. 10,462], by Associate Justice Washington, in 1826, and Motte v. Bennett [Id. 9,884], by Associate Justice Wayne, in 1849, are cited as leading cases on this point. In the latter case, Mr. Justice Wayne, after a thorough review of the authorities, English and American, deduces the rule substantially as above laid down. At page -L. he says: “In equity, where the case is clear and without reasonable doubt, where the bill states a clear right to the thing patented, which, together with the alleged infringement, is verified by affidavit, and where the plaintiff has been in possession of it, by having sold or used it in part or in the whole, the court will grant an injunction and continue it till the hearing or further order, without sending the plaintiff to law to try his right.” In that case it had been contended that a previous trial at law was essential in all cases, and the learned justice was showing that such was not the ease and that it *394was never necessary where the other conditions named existed, but clearly conceding the necessity where those conditions or any of their essential elements were wanting.
In this case the patent has not been issued quite two months, and confessedly complainant has put his rights under it to no use whatever, even during that short time, and there has been no trial at law. I do not think a well-considered case can be found in the books where a preliminary injunction has been granted under such circumstances.
There are other objections which might be enumerated, such as the entire want of any verification whatever, by affidavit of complainant’s right, under division B of the reissue, the want of the requisite degree of the right kind of knowledge of the persons swearing to the affidavits as to the alleged infringement, and the unsatisfactory nature of the contents of the affidavits; but after the views above expressed, a full consideration of those objections is unnecessary. I shall therefore let this brief notice of them suffice.
The motion for a preliminary injunction is denied, with costs of the motion to the defendants.