CROWN CORK & SEAL CO. OF BALTIMORE CITY v. BROOKLYN BOTTLE STOPPER CO. et al.

CROWN CORK & SEAL CO. OF BALTIMORE CITY v. BROOKLYN BOTTLE STOPPER CO. et al. (Circuit Court of Appeals, Second Circuit. February 8, 1910.) No. 183. Appeal from the Circuit Court of the United States for the Eastern District of New York. Bill by the Crown Cork & Seal Company of Baltimore City against the Brooklyn Bottle Stopper Company and others. Decree for complainant. Defendants appeal. Continued. For opinion below, see 172 Fed. 225. S. L. Moody, for appellants. J. Q. Rice and R. H. Parkinson, for appellee. Before LACOMBE, WARD, and NOYES, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The fundamental and controlling question presented on this appeal came before this court in A. B. Dick Co. v. Henry (no opinion filed), and was certified to the Supreme Court March 16, 1909. Until that court shall have passed upon it we feel unwilling to take up the same subject in another case, even though it may present some points of difference. Such a postponement of the decision would leave the injunction undisturbed, but upon the facta as they were conceded in open coj'urt on the argument this will not be a hardship to the defendants. ' The injunction does not affect sales to users whose machines were covered only by the older patents, including the one which expired after hearing in the Circuit Court and before decree. Such machines are about .97 per cent, of all in use. Moreover the machines covered by the unexpired patents are only the expensive automatic ones, selling at $1,800, and of Which but few are out. All required of the defendants is that before selling they should malee reasonably sufficient inquiries to ascertain if the person buying intends them for use on such a machine. AVe do not think this is so serious a matter as to require any modification of the injunction while awaiting the decision of the Supreme Court.