Shellmar Products Co. v. Allen-Qualley Co. , 36 F.2d 623 ( 1929 )

ALSCHULER, Circuit Judge.

I concur in all save as to the disposition of the Olsen patent, which the decree directs appellant to assign to appellee on payment to appellant of $1,000 which it had paid for the patent. The effect of this (if the patent is valid and dominates appellee’s wrap) would be to give appellee a patent monopoly which it never had. I believe that as to the patent the utmost appellant should have is assurance against disturbance or interference because of it, in its making and marketing tbe wrap, which was the subject-matter of the negotiations out of whieh this controversy arose. To this end I suggest the decree should provide that appellant, its agents, assigns, and licensees of or under the Olsen patent, be perpetually restrained from asserting the patent against appellee, its agents, assigns, manufacturers, jobbers and customers, in the making, marketing and selling and resale of its wrap, or in causing it to be made and sold. Such disposition, with tiieother provisions of the decree, would prevent appellant from making appellee’s wrap, and at the same time protect appellee against interference by the patent, but otherwise leave appellant in the possession and control of the patent it had purchased.