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LEWIS INVISIBLE STITCH MACH. CO. v. POPPER

June 28, 1940

LEWIS INVISIBLE STITCH MACH. CO.
v.
POPPER et al.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a motion brought on by Order to Show Cause why the defendant Max Popper should not be held for civil contempt for violation of the injunction issued in this cause dated April 3, 1934, restraining the defendant from infringing the Gruman Patents Nos. 1,891,308 and 1,909,346 and to further show cause, if any there be, why an attachment should not issue against the defendant.

After trial and hearing upon the merits of the issue raised by the Bill of Complaint, charging infringement of Gruman Patents Nos. 1,891,308 and 1,909,346 and upon the Answer an opinion dated February 5, 1934 was filed, finding Claims 1, 2, 3, 6, 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 27 of Patent 1,891,308 and Claim 12 of Patent 1,909,346 to be valid and infringed by the defendants.

 Thereafter, on or about March 24, 1934 an Interlocutory Decree was entered.

 On or about the 3d day of April, 1934, a writ of injunction was issued against the defendant enjoining and commanding the defendant Max Popper from directly or indirectly making or causing to be made, using or causing to be used, selling or causing to be sold, combined seaming and pinking machines and pinking attachments embodying or containing the invention covered by Claims 1, 2, 3, 6, 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 27 of Gruman Patent 1,891,308 and Claim 12 of the Gruman Patent No. 1,909,346; or any substantial or material part thereof, or any substantially equivalent or colorable imitation thereof unless licensed so to do by the plaintiff.

 Service of such injunction was made upon the defendant personally, and also on his behalf, on his solicitors.

 A reference was made to a Master in order to ascertain the profits and damages to which the plaintiff was entitled.

 Thereafter, plaintiff and defendant came to an agreement in which the plaintiff gave the defendant a license restricting the defendant to the sale of machines in New York, Boston and Chicago directly to the users of the machines in those areas.

 Thereafter, a final decree was entered herein on or about the 26th day of March 1935, in which the Interlocutory Decree was made final in all respects.

 Plaintiff charges defendant with violations of the injunction subsequent to the service of the injunction.

 The licensed agreement entered into between the parties contained, among others, the following provisions: "8. A violation of the terms of this license by Popper either by selling in unauthorized territory or by selling machines embodying the invention of either or both of the Gruman patents without the license plates thereon, or by selling any such machines for less than the stipulated price, or by countenancing violations of the conditions of his agents or either of them, or by default in any of his other undertakings herein shall entitle Lewis Company to revoke the license hereby granted under the Gruman patents, which Lewis Company may do by serving written notice upon Popper or his representative of its intention to revoke, and the revocation shall become effective twenty (20) days after such notice."

 This agreement was drawn by the plaintiff, and must be construed most strongly against it.

 In my opinion this clause of the license agreement limits the plaintiff in the event of a violation of any of its terms, to ...


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