(after stating the facts). Upon the decision' of the demurrer the court plainly intimated that there could be no- recovery should it appear that the defendant was the owner of patents relating to spring-tooth harrows and that the circulars complained of asserted simply the validity of these patents, that they were infringed by the complainant’s harrows and that infringers would be prosecuted. The circulars in evidence show nothing more. There is not a false statement of fact to be found in the circular quoted above or in any of the other circulars or letters in evidence. Necessarily the claim of infringement is based upon opinion, but it is an opinion which a perfectly sincere and honest man might entertain. Certainly it cannot be said that the opinion was without justification, malicious and false. Where the owner of a patent honestly believes that his patent is being infringed not only has he a right to say so, but unless he does say so he is in danger of having his rights forfeited through laches.
Section 4900 of the Revised Statutes, after providing that the word “patented” must be marked on all patented articles, continues:
‘‘And in any suit for infringement, by the party failing so to mark, no damages shall be recovered by the plaintiff, except on proof that, the defendant was duly notified of the infringement, and continued, after such notice, to. make, use, or vend the article so patented.”
But the theory of the bill, carried to its logicaj conclusion, enjoins the owner of a patent from doing what the statute commands him to do. Which way is the perplexed patentee to turn? If he notifies supposed infringers that he intends to enforce his rights he is punished for contempt in violating the injunction arid if he fails to notify them he is turned out of court with the. information *639that lie has “slept upon his rights.” Cases are constantly occurring where equity refuses all redress to a patentee because he has permitted his patent to be plundered without a word of protest. Lane & Bodley Co. v. Locke, 150 U. S. 193, 14 Sup. Ct. 78, 37 L. Ed. 1049; Fosdick v. Machine Shop (C. C.) 58 Fed. 817; Richardson v. D. M. Osborne & Co. (C. C.) 82 Fed. 95. It would seem that there is a perfectly safe rule for the guidance of the court in these causes. So long as the patentee keeps within the domain of truth there can be no libel and there should be no interference by injunction. If equity is to take cognizance of this subject at all it should only "do so to prevent fraud and falsehood. Here it is on safe ground, but when it assumes the role of censor and undertakes to edit the circulars of trade it becomes a meddlesome interloper creating infinitely more evil than it can ever hope to cure.
The motions to strike out testimony are denied. As often pointed out, these motions are inconsequential and result.in nothing whether granted or denied. Every record contains a percentage, and oftentimes a large percentage, of irrelevant and incompetent testimony. The only effectual remedy is to compel the party responsible for its presence on the record to pay the expenses incurred in. placing it there.
The bill is dismissed.