(after stating the facts as above). Neither the original nor the amended bill warranted a preliminary injunction. They contained no showing that the patents charged to have been infringed had ever been admitted to be valid by the defendant, or held valid by any court of competent jurisdiction, or that their validity had been generally acquiesced in by the public. Without a showing of one or the other of these facts, no preliminary injunction ought to be granted in a patent case. Recognizing this rule, no attempt was made to secure an injunction on the strength of the showing made in the bill or amended bill. It must therefore be justified, if at all, on the showing made by the supplemental bill; and if the fact that defendants threatened to use or sell the machines in question in violation of the condition of the license did not justify the injunctive order it was improvidently made.
By sections 629 and 711 of the Revised Statutes (U. S. Comp. St. 1901, pp. 503, 577) the courts of the United States are given exclusive jurisdiction of all cases at law or in equity arising under the patent or copyright laws of the United States, irrespective of the citizenship of the parties to the action. To constitute such a suit a complaint or bill must disclose that some right, title, or interest under the patent laws of the United States is asserted, or that some right or privilege will be defeated by one construction or sustained by the opposite construction of those laws. Pratt v. Paris Gaslight & Coke Co., 168 U. S. 255, 259, 18 Sup. Ct. 62, 42 L. Ed. 458. A suit not involving such a right, title, or interest may be litigated in the federal courts .if the requisite diversity of citizenship exists, but otherwise not. Such diversity of citizenship not appearing in this case, the ground. *727for relief must rest on the statute exclusively, and unless, and only so far as, a right thereunder is asserted can any relief be granted in this case. As is well known, a suit for injunctive relief against the infringement of a patent, and incidentally for the recovery of damages arising therefrom, is one arising under the patent laws of the United States, and may be maintained in the courts of the United Stales; but it is firmly settled that, in the absence of diversity of citizenship of the parties, a suit on a private contract between the parties fixing and governing their rights to use a patented device, or a suit for the specific performance or rescission of a contract for the use or sale of a patent, is not maintainable in those courts.
In Wilson v. Sanford, 10 How. 99, 13 L. Ed. 314, and Brown v. Shannon, 20 How. 55, 15 L. Ed. 826, it was held that the owners o'f letters patent of the United States could not maintain a bill in the federal courts to enforce a contract for the use of a patent, or to set aside such a contract on the ground that defendant had not complied with its terms. In Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46, 8 Sup. Ct. 756, 31 L. Ed. 683, it was held that an action upon an agreement in writing fixing the terms on which a licensee might sell the device of a patent, wherein the licensee acknowledged the validity of the patent and promised to pay certain royalties, was not a case arising under the patent laws of the United States. In Albright v. Teas, 106 U. S. 613, 1 Sup. Ct. 550, 27 L. Ed. 295, in a suit instituted to recover moneys alleged to be due the plaintiff under a contract whereby letters patent granted to him were transferred to defendant, it was held that the suit was not one arising under the laws of the United States. In Pratt v. Paris Gaslight & Coke Co., supra, Mr. Justice Brown, speaking for the Supreme Court, said:
“We have repeatedly held that the federal courts have no right, irrespective of citizenship, to entertain suits for the amount of an agreed license, or royalty, or for the specific execution of a contract for the use of a patent, or other suits where a subsisting contract is shown governing the rights of the party in the use of an invention, and that such suits not only may, but must, be brought in the state courts.”
In the absence of the assertion of a right arising under the patent laws, or of the requisite diversity of citizenship, the Circuit Court was without jurisdiction to grant the relief sought by the supplemental bill in either of its aspects, either to award specific performance of the agreement to assign patent No. 777,053 or to restrain the violation of the license contract. The facts disclosed by that bill may, if true, show an infringement of complainant’s patents within the rule laid down in Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 25 C. C. A. 267, 77 Fed. 288, 35 L. R. A. 728, relied on by complainant’s counsel; but they constitute only cumulative averments of such infringement. The bill and amended bill both alleged infringements in the past and a purpose to continue the same in the future. The extent of the infringement, or the time when practiced, as particularized in the supplemental bill, does not aid the complainant, for the reason, already stated, that there had been no prerequisite adjudication or admission of the validity of its patents or other equivalent demonstration thereof.
*728The contention that defendants are estopped from questioning their validity because of Ratican’s relation to them is untenable. Whatever effect his original partial interest in them or his personal conduct with respect to them might have upon his present interests, as to which we express no opinion, the rights of others are now involved in this case, and their relation to Ratican is not so clearly shown as to warrant making any orders affecting their rights on the assumption of their identity with him.
For another reason, also, the preliminary injunction ought not to have been granted. It is a fundamental principle that injunctions ought not to issue unless the right alleged to be invaded or threatened is clear. As said in Truly v. Wanzer, 5 How. 141, 12 L. Ed. 88:
“There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of equity, that never ought to be extended, unless to cases of great injury, where courts of law cannot afford an adequate and commensurate remedy in damages. The right must be clear, the injury impending and threatened, so as to be averted only by the protecting preventive process of injunction.”
The affidavits in support of and against the motion for injunction leave the existence of the verbal license relied on by complainant in grave doubt and uncertainty, too doubtful and uncertain, at least, to warrant interference with the status quo until the right can be deliberately ascertained and declared at final hearing.
The order awarding the preliminaiy injunction was improvidently made. It must therefore be reversed, and the cause remanded, with directions to deny the motion. It is so ordered.