Stevens v. Kansas Pac. Ry. Co.

MILLER, Circuit Justice

(orally). This is a bill by a patentee against an infringer brought after the expiration of the original patent, and also after the expiration of the extended term, but within six years after the expiration of the extension; when suit was brought, six years from the expiration of the extended term had not expired by three days.

Whether the state statute applies to such suits as this I am in doubt; and, as I think it better to plead the statute than to rely upon it by way of demurrer, I shall overrule the demurrer, so far as it rests on this ground, and allow the same defence to be set up by plea or answer.

In regard to the other question: I have no doubt that a bill in equity, when otherwise maintainable, will lie in behalf of a patentee, although the patent has expired and the case is such that no injunction has issued or can issue. The infringer is converted into a trustee for the patentee as to profits made by the former from the use of the patented invention; and this is a sufficient ground of equity jurisdiction of a bill to ascertain the amount of such profits and to compel the in-fringer to account for the same. No other question is presented or decided.

The demurrer is overruled, and leave is given to plead or answer. Ordered accordingly.