
    VICTOR TALKING MACH. CO. v. VITAPHONE CO.
    (Circuit Court, S. D. New York.
    November 13, 1911.)
    1. Patents (§ 328*) — Infringement—Ghamopitoke.
    The Berliner patent. No. 534,513, for a gramophone, claims 5 and 35, hehl infringed on motion for a preliminary injunction.
    2. Patents (§ 283*) — Infringement—Makufaotubk of Infringing Device.
    The manufacture of an infringing article is none the less an infringement because the patent has but a short time to run, and such article may not be sold or used until after its expiration.
    [Ed. Note. — For other eases, see Patents, Dee. Dig. § 283.-*]
    *For other eases see same topic & § number m Dec. & Am. Digs. 1907 to date, & itep’r Indexes
    In Equity. Suit by the Victor Talking Machine Company against the Vitaplione Company, for infringement of letters patent No. 534,-543, for .a gramophone, granted to F,mil Berliner February 19, 1895. On motion for preliminary injunction.
    Motion sustained.
    Horace Pettit, for complainant.
    Otto Munk, for defendant.
   LACOMBE, Circuit Judge.

Defendant’s device has some modifications and some additions, but it certainly seems to contain the combination of claims 5 and 35 and, therefore, to infringe. It is true that complainant has, as defendant expresses it, had a monopoly of a valuable trade for several years. That is what patents are issued for, but it does not follow that the last three months should he lopped off from the grant of exclusive right to make, sell, and use the patented device.

There is nothing in the defendant’s papers to show that it does not intend to sell the infringing device before February 19, 1912, the date of expiration. On the contrary, it is quite clearly indicated that machines containing the combination of claims 5 and 35 are now being manufactured. This should cease, although of course defendant may advertise, if it chooses so to do, that after that date it will manufacture and supply the trade.

Motion granted.  