Duncan research files of
1830 Sullivan Co. NH Census Ackworth Pg.231 John Duncan 0010,2000,01 - 0011,1001 Grantham Pg.301 Samuel B. Duncan 0100,11 - 0000,1001 1840 Sullivan Co. NH Census (from Roy Hall 12/1986) Ackworth Pg. 3 Theron Duncan 0011,1001 - 0000,1000,1
1850 Sullivan Co. NH Census
Pg.22, #192, Samuel B. DUNCAN 55 NH farmer $9900
Ruth H. 50 NH
John 18, Henry 16, Samuel 14 NH
Bridget HUSE 18 IRE
Maria E. HYELL/HYEN? 13 MA
Hannah DUNCAN 86 NH
(MAD: Samuel A. Duncan 24 NH in 1860 Norfolk Co. MA census)
Pg.191, #40-47, Oliver HASTINGS 42 NH farmer $3500
Caroline DUNCAN 56 NH $3500
Oliver HASTINGS 18
Caroline 15 NH
William DUNSMON 61 MA
Pg.218, #23, Theron DUNCAN 34 NH farmer $3000
Ann 33 NH
Sarah 5, John 4, Geo. 2 NH
Mary? BERRY 18 IRE & others
1860 Sullivan Co. NH Census
Pg.941, #1194-1183, John DUNCAN 30 VT merchant $5000-$3000
Joanna 20 MA
(no children, not mar/in/year)
(MAD: 1870 Cumberland Co. NJ census)
Pg.943, #1208-1196, Saml. DUNCAN 64 NH farmer $5000-$4560
Ruth 62 NH
John 28 NH (blank occupation)
Henry 26 NH, Saml. 24 NH teachers
Marcia HYDE (f) 23 MA teacher
Pg.970, #9-13, Daniel J. WARNER 48 NH merchant $1500-$4000
Maryette 42 NH housewife
Harriet F. 15 NH music teacher
James M. 14, Edward A. 11 NH
Martha 77 NH
Stanford (m) 61 NH labourer
Frances DUNCAN (f) 14 VT
Pg.974, #43-54, Dustin G. OSGOOD 35 NH farmer $2800-$700
Harriet A. 24 VT housewife
Carlos DUNCAN (m) 16 VT
Pg.976, #60-76, Therone DUNCAN 44 NH farmer $3600-$2300
Arma (f) 42 NH housewife
Betsey 85 MA
Sarah M.A. 16 NH
John B. 14, George A. 12 NH
Clara E. (f) 10, Walter S. 6 NH
Albert H. 4, Arthur N. 4 NH
Charles W. FOSTER 21 NH farmer
Aaron PORTER 22 NH
Pg.1072, #849-900, Caroline H. DUNCAN 68 NH housewife $4000-$0
Carrie D. HASTINGS (f) 24 NH
Mary BOYLE 21 IRE domestic
1870 Sullivan Co. NH Census
Pg.400, #159-167, WOOD, Benjamin P. 62 NH farmer $2000-$800
Matilda E. 58 NH keeping house
Ella E. 18 NH at home
DUNCAN, Betsey 95 MA without occupation $0-$450
Town of Plainfield
Pg.570, #80-86, DUNCAN, John T. 38 NH farmer $10,000-$5,300
Ruth T. 72 NH keeping house
Samuel A. 34 NH clerk in patent? office $0-$3700
Julia J. 28 NH (blank) $0-$700
Fredrick S. 1 NH
STRAW, Sillis (f) 20 NH domestic servant
PHELPS, Findley (m) 19 VT farm laborer
"Marriage notices, 1785-1794 for the whole United States : copied from the Massachusetts Centinel and the Columbian Centinel" by Charles Knowles Bolton, 1900, pub. by E. Putnam (Placerville Public Library book 929.373M; and from Denzil Mauldin 4/1984; FHL book 973 V2bc and film 908,017 item 4 and fiche 6,100,356)
Dates are dates of the newspaper; "in this town" is Boston, MA.
Duncan, Robert Esq., to the amiable widow of his late brother Samuel Duncan Esq., at Newgrantham [Sullivan Co.], NH, on Saturday; Oct. 25, 1794.
"The Federal Cases, comprising cases argued and determined in the circuit and district courts of the United States from the earliest times to the beginning of the Federal Reporter, arranged alphabetically by the titles of the cases and numbered consecutively" Cases 5,240 to 5,805, Garey - Greve; Vol.10, pg.692 to 696 (California State Law Library 12/2003) (MAD: see Samuel A. Duncan in 1870 Sullivan Co. NH census; Charles Goodyear indexed in 1840 in Woburn, Middlesex Co. MA; Nelson Goodyear indexed in hotel in New Haven Co. CT)
GOODYEAR et al. v. HONSINGER; Case No. 5,572; Circuit Court, N.D. Illinois; 10 F. Cas. 692; 2 Biss. 1; 3 Fish. Pat. Cas. 147; March, 1867, Term.
DRUMMOND, District Judge. In 1844 Charles Goodyear obtained a patent from the United States for a new discovery, which he claimed he had made by combining caoutchouc with sulphur in certain proportions, which letters patent were surrendered in 1849, and a re-issue was made by the government upon the original letters patent. The product thus described by Charles Goodyear in his letters patent and re-issue, was, as is well known, somewhat pliable in its character, not hard or stiff. In 1851 Nelson Goodyear claimed that he had made an improvement upon the invention of Charles Goodyear, and letters patent were issued to him on the 6th of May.
The discovery which he claimed he had made was, that by combining in certain proportions sulphur and caoutchouc, a hard substance was produced, somewhat in the nature of horn or ivory, susceptible of a polish. This was called hard rubber, or, in consequence of the heat that was applied to it, "a high degree of artificial heat," as he terms it in his specifications, vulcanite. Nelson Goodyear died July 10, 1852; and it being claimed by his representatives that there was an error or mistake in the letters patent and the specifications as they were issued in May, 1851, application was made for a re-issue, and accordingly, on May 18, 1858, a re-issue was made to the administrator of Nelson Goodyear, consisting of two patents, numbered 556 and 557. These patents were issued, the one for the "method," as it is called, of producing the result claimed by Nelson Goodyear in his letters patent and specifications of May, 1851; the other was for the product. The patent would run, (the re-issue, as a matter of course, claiming nothing more than was claimed in the original patent,) from 1851 to 1865.
The patent then expiring, application was made under the law in force to the commissioner of patents for the extension of the patent, and accordingly, May 6, 1865, an extension was granted to the administrator of Nelson Goodyear, who thus becomes a party to this suit; and on July 17, 1866, an assignment was made to Samuel A. Duncan of the right under the patent and re-issue, so far as the invention was to be applied to dental uses. The two complainants now file their bill against Dr. Honsinger, a dentist of this city, claiming that he has violated the invention secured by the original letters patent, re-issue and extension.
I stated, during the progress of the argument, that on this motion I should consider it as prima facie established that the patent was valid. In 1862 a decree was rendered by Mr. Justice Nelson, Judge Smalley, of the district court, sitting with him, upon this extension and re-issue granted in 1858. That suit was very closely contested, and the patents thoroughly considered by the court; and a decree was rendered, establishing the validity of the patents, and of the rights under the re-issue.
The only criticism I feel inclined to make upon the re-issue in 1858 is as to the manner in which it was made -- consisting of two letters patent, and two distinct specifications and claims -- one for the "method" by which the product is obtained, and the other for the product itself. It has occurred to me as a question, whether the two things claimed are not essentially the same in their nature. The invention was a certain product, obtained in a particular way; and the claim, as set forth in one of the specifications, is "the combining of sulphur and India rubber, or other vulcanizable gum, in proportions substantially as specified, when the same is subjected to a high degree of heat, substantially as specified, according to the vulcanizing process of Charles Goodyear, for the purpose of producing a substance or manufacture possessing the properties and qualities substantially as described, and this, whether the compound of sulphur or gum be or be not mixed with other ingredients, as set forth;" in the other -- where the mere product is claimed -- the claim is set forth in this language: "The new manufacture or substance herein above described, and possessing the substantial properties described, and composed of India rubber or other vulcanizable gum and sulphur in the proportions substantially such as described, and, when incorporated, subjected to a high degree of heat, as set forth, and this whether other ingredients be or be not used in the preparation of the said manufacture herein described."
Now I am inclined to think that the patent is only valid for the particular method described, by which the result is produced. The product, obtained in the manner described, is the invention, and for that letters patent might issue -- whether or not this product by possibility could be produced by the compounding of other materials, is a question that it is not necessary to discuss at this time. I shall consider the letters patent as valid, Judge Nelson and Judge Smalley having adjudicated upon their validity.
Then, as to the infringement by the defendant; -- it is true that some affidavits have been filed by him, one particularly, in which he claimed that he did not admit to a witness, whose affidavit is on file, that he had violated the patents of the plaintiffs. But I do not understand him to deny that he has used for dental purposes, the product which the complainants claim, in the manner set forth under the letters patent.
I understand that it is stated in the specifications that there may be certain coloring matter introduced into the material from which hard rubber or vulcanite is to be created, and so whatever either experience or skill might suggest in relation to that coloring matter, could be added; and as the idea is distinctly set forth in the specifications, it could be easily varied by any one according to his fancy. The leading idea is there, and if some other coloring matter is used, which is not specifically set forth in the letters patent, I think that would not affect the validity of the patents themselves. Therefore I also take it for granted under the affidavits, that the defendant has used what is claimed under the letters patent, and so has infringed.
The only difficulty I have had in the examination of the case, and which I may say I had during the progress of the argument, was and is in consequence of what has taken place since the re-issue in 1858. What are the facts in relation to that? The American Hard Rubber Company became possessed of the rights, the original patent and re-issue, so long as they might exist under the original patents, that is to say, until 1865. Under these rights they manufactured the hard rubber or vulcanite. They also prepared what is called "a plastic compound" which could be vulcanized at the will of the dentist, or of any one else who understood the mode of creating vulcanite. It was colored, and prepared in every respect for the dentists, and all they had to do was simply to apply the artificial heat to make it vulcanite, or hard rubber -- such a material as to enable them to use it for their special purpose -- a plate for artificial teeth or otherwise.
There is no doubt that the claim to this product, vulcanite, was always set up by the representatives of Nelson Goodyear, and that they denied the right of the dentists to use it for their special purpose, without the consent of the patentee, or his representatives. This claim was set forth by publication, by application to the dentists to obtain licenses, and in other forms. It, however, was not acquiesced in by the dental profession. The affidavits filed in this case show that in 1855, possibly in 1854, this material first began to be applied to dental purposes, and in three or four years it came into general use, both by those who had licenses and those who had not. The American Hard Rubber Company about this time, began to manufacture this plastic compound, colored, for the special use of the dentists, and it was sold by their agents from that time until the expiration of the patent.
It is set forth in the bill (and such is the statement of Ropes in his affidavit) that in all instances this preparation thus made by the American Hard Rubber Company, was labelled in a way to indicate to the public that it could be used and manufactured into vulcanite by those dentists only who had licenses under the patent; and if the case had stood here, alone, unaffected by anything that occurred afterward, I should have reached a different conclusion on the application, from that at which I have arrived from other facts in the case, to which I will now advert.
Notwithstanding the issuing of the licenses under the patent to the number of two thousand, as is said in the bill, and the manufacture of this plastic compound by the American Hard Rubber Company, with the labels on the parcels thus manufactured, it is undoubtedly true that a large number of the dentists of the United States declined to accept such licenses, or pay for them under the patent. It is also true, that, notwithstanding the prohibition contained upon the label of the article as manufactured, the agents of the American Hard Rubber Company did knowingly sell it to dentists who had no licenses. The reason why this was permitted, and the way in which the effect of those sales is sought to be avoided, is thus set forth in the bill: "The great expense of prosecuting infringements in the different parts of the United States, in some of which the recovery would not equal the unavoidable expenses of the suits not taxable as costs, and the near approach of the expiration of the term for which said letters patent were originally granted, at which time the operations of the said American Hard Rubber Company in the West would cease by limitation, deterred the American Hard Rubber Company, who were to bear the whole expense of the litigation, from prosecuting any more suits."
It was unfair, and is always unfair, to those who are licensed to use the particular article or method, under letters patent, to allow others to use what the licensees have thus purchased. It is true that this conduct may be explained. There may be circumstances such as would not warrant any inference against the patentee, from such conduct; as, for instance, if the patentee were unable to prosecute the parties thus infringing the patents; or, if circumstances were such as to indicate that there was no acquiescence, expressed or implied, in the violation; or, as appears in this case, that there was a suit pending in one of the circuit courts of the United States, where the right under the patent was to be tested. That would constitute a reason why the patentee, or those claiming under him, should not involve themselves in great expense while there might be a question as to the validity of the patent. So far as it goes, that is a sufficient justification for the parties claiming under this patent. But it does not go the full extent to which I think the patentee ought to go when he comes into court and asks for the summary remedy of injunction, without qualification, and without condition. I am constrained to believe that in this case the representatives of the patentee had the ability to prosecute those who infringed their rights under the patent, and that it was, to some extent, a voluntary acquiescence in a fact which was notorious, and which the affidavits show must have been known to the patentees or their representatives -- that this article was sold in the market -- was being purchased by dentists from time to time for a series of years, and was being used by them for their own special purposes. Under such circumstances, a court of equity, while it may be satisfied that the patent is valid, does not feel inclined, to interfere, in all cases, by an absolute peremptory injunction, without condition or qualification.
I take it that these complainants, although they claim under the extension, are to be visited with the consequences of the acts of their predecessors, the American Hard Rubber Company. They take the extension just as it fell to them on the expiration of the patent from the successors of those claiming under the original patent and the re-issue, and, of course, are not to be reinstated in all the original rights of the patentees, in every respect, as they stood when the original letters patent were issued, or the re-issues were given.
But, as I said during the argument, I desire to protect the rights of all the parties; I shall, therefore, in this case make a special order. I am satisfied of the validity of the letters patent and the re-issues, and have no doubt that the defendant has infringed. I shall accordingly issue an injunction against the defendant, with leave to him, at a future time, to come in and have the injunction dissolved, upon giving adequate security to the complainants.
It has been said that, to some extent, the granting such an order as this, on such a condition, is to deprive the complainants of their rights under the letters patent; that there is nothing so potent as a peremptory writ of injunction, without qualification or condition. There can be no doubt of that. It suspends at once, so far as the mandate of the court can do it, all acts of use under the letters patent, by any one, except with the consent of the patentee or his representatives. But when the patentee has stood by for a series of years, and permitted, or not objected in the way in which the law authorizes him to object, to the use of the article claimed under the letters patent, I think that such conduct ought to be visited, to some extent, upon the patentee.
The unconditional injunction of the court places the dentists in the power of the patentees. A conditional injunction of the court, allowing it to be dissolved on giving security, it may be said, places the patentee in the power of the dentists; and yet, to some extent, the same consequences follow -- for example, and absolute, unconditional injunction can only operate in terrorem over other parties using the article without the consent of the patentee, by compelling them to take out licenses. After injunction is granted unconditionally, the patentee can go to all who use the vulcanite, and say to them: "You must take out a license, or I will file a bill and have an injunction issued against you, as I have already against your brother dentist." But so it is in the other case.The patentee can go to the dentists who use this article without permission, and say to them: "I will file a bill against you, and will compel you to give security, as I have already compelled your brother dentist."
I admit that the one aspect of the case is more potential for the rights of the patentee, than the other. But from what I have already said, it will be seen that I visit, to some extent, upon the patentee the consequences of his own laches. This was the view I took, a short time since, on full consideration of a case growing out of a patent to parts of a sewing machine. I think that courts of equity ought to demand of patentees reasonable diligence in asserting their rights. Of course, the rule is flexible, subject to be changed by the peculiar circumstances of each case. A court of equity should always act fairly and justly, so as to protect the rights of patentees, although they may not, owing to various circumstances, prosecute their rights so soon or so early as, under other circumstances, they ought to do.
Now I take this course, for this reason. The view that I take of the rights of the complainants and the defendant will be understood on both sides. There is a litigation now pending, in which the rights of the patentee will be fully ascertained. The only change, as asserted by the present litigation, from what was claimed in the former -- the one terminated in 1862, by Judge Nelson and Judge Smalley -- is, I suppose, in the application of this particular material to dental purposes. As I understand, that question was not distinctly in issue in that case.
I shall give the complainants a peremptory writ of injunction now, allowing the defendant to move to dissolve it at a future time to induce the other dentists, who are not parties to this suit to make some satisfactory arrangements with the patentees. I should feel very much inclined, if the dentists should prove recusant, refractory, or unreasonable, to grant hereafter, on application, a peremptory writ of injunction, without condition or qualification. What I want to do is to protect the rights of the complainants and the rights of the defendant and of the public.
The order of the court will be, that the injunction issue against the defendant, with leave to him, within ten days, to come in, and, on notice, move to dissolve the injunction upon giving adequate security to the complainants. I do not want to compel these dentists actually to pay anything now to these patentees for licenses, but to give adequate security to do so. If the patentees are not willing to take the personal obligation of the dentists, I want them to be compelled to give security satisfactory to the parties to pay them in case these patents are sustained by the appellate court, or whenever the litigation may be terminated. I have dictated the order in this form, because I did not wish to compel the complainants to file other bills, and prosecute other litigation.
"The Federal Cases, comprising cases argued and determined in the circuit and district courts of the United States from the earliest times to the beginning of the Federal Reporter, arranged alphabetically by the titles of the cases and numbered consecutively" Cases 5,240 to 5,805, Garey - Greve; Vol.10, pg.696 to 699 (California State Law Library 12/2003)
GOODYEAR et al. v. HULLIHEN; SAME v. WINGERTER; SAME v. LUNSFORD; Case No. 5,573; District Court, D. West Virginia; 10 F. Cas. 696; 2 Hughes 492; 3 Fish. Pat. Cas. 251; August, 1867.
JACKSON, District Judge. These cases came before me, at chambers, on a motion by complainants for a preliminary injunction to restrain the defendants, who are dentists in the city of Wheeling, from the use of hard rubber, or vulcanite, for the purposes of dentistry. The complainants base their claim for injunction on certain reissued letters patent, Nos. 556 and 557, granted to Henry B. Goodyear, administrator of Nelson Goodyear, deceased, on the 18th May, 1858, being re-issues of original letters patent [No. 8,075], granted 6th May, 1851, to Nelson Goodyear, for improvement in the manufacture of India-rubber. They set forth in their bill of complaint that Samuel A. Duncan, one of the complainants, is the exclusive owner of the right to use hard rubber for dental purposes, and to practice such invention as applied to dentistry under said reissued patents; that suits have been brought in other circuits, on said letters patent, and that the validity thereof has been fully vindicated and sustained, and that each of the defendants in the three several bills filed has infringed said said letters patent, and refuses to make compensation therefor to the owners of the right thus invaded. It appears from the statements of these bills, and it is otherwise known to the court, that several suits have been brought for infringement of these reissued patents, Nos. 556 and 557, and that said patents have been thereby sustained and their validity and sufficiency fully established. This question I may then consider as settled, and regard the validity of these patents as beyond all question.
At the hearing of the motion just argued several objections were made by the defendants' counsel, as well for the purpose of showing that the complainants are not entitled to a preliminary injunction as also for obtaining further time in which to answer the bills filed. The first of these objections is, that the complainants could obtain all the redress they are entitled to by action at law for infringement of their patents, and are not therefore entitled to the interposition of a court of equity. The fact to which I have adverted, that these patents passed under the judicial scrutiny of more than one of the justices of the supreme court sitting in circuit, and of other circuit courts of the United States, and have been sustained, takes away all possible reason which might exist for requiring that the complainants should first establish their right at law; besides, the 17th section of the act of congress of 4th July, 1836 [5 Stat. 124], settles this question, by enacting that "all actions, suits, controversies, and cases arising under any law of the United States granting or confirming to inventors the exclusive right to their inventions or discoveries, shall be originally cognizable, as well in equity as at law, by the circuit courts of the United States, or any district court having the power and jurisdiction of a circuit court; which courts shall have power, upon a bill in equity filed by any party aggrieved, in any such case, to grant injunctions according to the course and principles of courts of equity, to prevent the violations of the rights of any inventor as secured to him by any law of the United States, on such terms and conditions as said courts may deem reasonable." There is nothing, therefore, in this objection.
The next point made by the defendants' counsel is that Henry B. Goodyear has offered no proof that he is the administrator of Nelson Goodyear, deceased, and that, even if that fact is to be taken as sufficiently proven, for the purposes of the pending motion, by the allegations of the bill, it is necessary that the administrator should take out letters of administration in this state in order to entitle him to sustain a suit here as such administrator.
It does not appear to me that this point is well taken; the reasons which exist for requiring an administrator, in ordinary cases, to qualify in the state in which he sues, do not apply to suits brought by an administrator to whom a patent has been granted for the invention of his intestate, for infringement of the rights thus granted. Under the act of congress patents are granted, in case of the decease of the inventor, to the executor or administrator of such person, in trust for the heirs-at-law of the deceased, in case he shall have died intestate, but if otherwise, then in trust for his devisees (Act July 4, 1836, Sec. 10), and reissues are also granted to the executor or administrator (Act July 4, 1836, Sec. 13). In such cases the administrator is a trustee holding the legal title, the patent is not assets in his hands belonging to the personal estate of the intestate, but is a franchise granted to the administrator for the benefit of the heirs-at-law or devisees of the deceased inventor. There is therefore no reason for requiring him to qualify in this state; besides which, the question may be considered as set at rest by the authority of the following cases, cited in argument by complainants' counsel: "It is not necessary in an action by an administrator that he should produce his letters of administration. The patent being renewed to him as administrator is proof that he had satisfied the officer authorized to grant a renewal, of his being administrator, and it is not competent for the court to go behind this decision." Woodworth v. Hall [Case No. 18,016]. "An administrator of a patentee residing in one state may commence an action in the United States circuit court of another state for the recovery of damages for an infringement of a patent, without taking out letters of administration in the latter state." Smith v. Mercer [Id. 13,078].
It is further objected, that the bills filed by complainants are not sworn to, or rather that the affidavits annexed to the bills are not properly certified by the notary public by whom the oath in each case was administered. The affidavits have the following caption: "United States of America, District of Massachusetts, County of Suffolk -- ss." The certificate of the notary and the seal attached are as follows: "Sworn to before me this 21st day of November, A.D., 1866. N. Austin Parks, Notary Public. Suffolk Co., Mass. N. Austin Parks, Notary Public."
It is claimed that the officer should state in his certificate that he is a notary public, and that such certificate is given under his notarial seal. Under the Code of Virginia, which is also the law of this state, this objection might probably be well taken, but with this question we have here no concern, as the sufficiency of the certificate rests on the provisions of the act of congress and not on the law of the state.
The act of congress of 16th of September, 1850, Sec. 1 [supra], provides that "in all cases in which, under the laws of the United States, oaths or affirmations or acknowledgments may now be taken or made before any justice or justices of the peace of any state or territory, such oaths, affirmations, or acknowledgments may be hereafter also taken or made by or before any notary public duly appointed in any state or territory, and when certified under the hand and official seal of such notary, shall have the same force and effect as if taken or made by or before such justice or justices of the peace." The certificate in this case is signed by N. Austin Parks, who appends to his name the words "notary public;" there is therefore no doubt as to the capacity in which he acted. There is a seal affixed, and this seal bearing the name of the officer who signs the certificate, it is clearly his seal. It also has on it the words "notary public," and therefore sufficiently sets forth his official character. Whether an ordinary notarial seal, not bearing the officer's name, would have sufficed, it is not necessary here to decide, as the seal affixed to these bills relieves the question of any doubt as to the person whose seal it is, and his official character. I am, therefore, clearly of opinion that the certificate is sufficient. It is somewhat remarkable that this objection, if well taken, has not been raised in any of the cases of litigation under these patents, in which the bills and certificates to the affidavits have been precisely like these now under consideration. The suit recently brought before Justice Nelson in New York was managed for the defence by some of the ablest counsel in the United States, and it can hardly be supposed that this objection, if there were anything in it, would not have been made, especially as the chief object of the defendant in that case, as in all the others, seems to have been to interpose every objection that would delay the hearing. This general acquiescence of the bar furnishes a strong presumption that the form of affidavit and the certificate have been deemed sufficient.
The last objection to the sufficiency of the bills is, that they set forth that a Mr. Poppenhusen has acquired by assignment or otherwise an interest in these patents, giving him a joint interest in the subject-matter of the suit, and that it is therefore necessary to make him a party thereto. The bills recite the grant of letters patent to Nelson Goodyear on 6th of May, 1851, the surrender of the original patent and reissue thereof on 18th of May, 1858, in two patents, and that Poppenhusen became interested in such reissued patents. But the original term of the patent and reissue thereof expired on 6th of May, 1865, and with the expiration of the first term the interest of all parties holding under the patentee by license or assignment terminated, so that Poppenhusen ceased to be interested in these patents on 6th of May, 1865, before the filing of these bills, and it is not alleged in the bill, and cannot be presumed without such allegation or other proof, that he has any interest in the extended term under which the present complainants claim. The bills being filed by Henry B. Goodyear, administrator, to whom these patents were extended, and Samuel A. Duncan, claiming as sole grantee of the right to use the invention for the purposes of dentistry, the proper parties are made complainants, and this objection falls to the ground.
This disposes of all the formal objections made to the bills filed by complainants, and it remains to consider the reasons set forth by all these defendants in their affidavits filed, for urging a postponement of the hearing and obtaining further time to answer the bills. The defendants allege that they are not prepared, because they cannot procure counsel to prepare their answers, that the practice in patent cases is a specialty in the profession, and that no attorneys in this part of the district have given the requisite attention to that branch of the law to qualify them for preparing a suitable defence or answer. Notice of the motion for preliminary injunction was served on these defendants early in July last. They appeared by counsel in the United States district court held at Wheeling on the day fixed for hearing, and successfully resisted the application for that term, and the hearing was postponed until this time, of which postponement they were fully advised, and to which they assented. They have again appeared by counsel, who have ably argued the pending motions, so that I am not able to perceive any want of capacity on their part to apprehend the questions involved. Under all these circumstances the absence of other counsel, whose attendance they desired but were unable to procure, can furnish no ground for further delay. These defendants have had a full month in which to prepare their defence and procure counsel, and no further time can reasonably be asked. For these reasons, the motion made on the part of the defendants for further time in which to file their answers is overruled.
This brings me to the consideration of the main question before me, whether, upon the bills of complaint and accompanying affidavits, the complainants are entitled to the preliminary injunctions as prayed for. The bills set forth that Nelson Goodyear was the original and first inventor or discoverer of a new and useful improvement in India-rubber, known as hard rubber or vulcanite, for which letters patent of the United States were issued to him on 6th May, 1851, for the term of fourteen years; that Nelson Goodyear died on 10th July, 1852, and his brother, Henry B. Goodyear, was appointed his administrator on 20th September, 1852. It appears that his original patent was inoperative and insufficient to afford full security to the invention, by reason of covering two separate and distinct inventions, and because it did not protect against the importation of articles of hard rubber from foreign countries, unless it could be proved by what process they were manufactured, which could not be done. To overcome this difficulty, the commissioner of patents, on surrender of the original patent, and a careful re-examination, as required in such cases, granted a reissue by two patents (reissue Nos. 556 and 557), dated 18th May, 1858, for the residue of the original term of fourteen years, from 6th May, 1851, which were issued to Henry B. Goodyear, administrator of Nelson Goodyear, deceased, one covering the process of making the hard rubber, and the other the product of the hard rubber, as an article of manufacture previously unknown. It is alleged, and is in evidence, that these two reissued patents, Nos. 556 and 557, were on the 5th May, 1865, renewed and extended by the commissioner of patents for the term of seven years from the 6th May, 1865. It is further alleged in these bills, that the complainant, Duncan, obtained on 17th July, 1866, the sole and exclusive right and license under said extended patents to manufacture, use, and sell, and to grant to others the right to manufacture, use, and sell, hard rubber for dental purposes, and is entitled to all damages recovered by suits against parties infringing said patents by the use of hard rubber in dentistry; that the owners of said patents have been diligent in prosecuting their rights thereunder, have brought several suits against parties infringing the patents, and have obtained final decrees sustaining the validity thereof, and that they have granted a large number of licenses to dentists for the use of said invention. It further appears by the allegations of the bills, and by the affidavits filed by complainants, that the defendants are infringing these patents by the use of hard rubber for dental purposes, and the affidavits of the defendants themselves state that they are using hard rubber, which they suppose to be the same as covered by the patents in question.
The law is designed for the encouragement and protection of inventors, to secure to them the exclusive right in their inventions for a limited term, and to furnish to them adequate remedies for the invasion of their rights. An inventor may bring an action at law against parties infringing his patent, and the court has power to treble the damages awarded by the jury, or, if he prefer to do so, he may in the first instance seek redress in equity, without having established his right at law, and the court is authorized to inhibit and restrain the further infringement of the patent, by writ of injunction, and to grant a decree for the payment of such damages as the patentee may be found to have sustained. In the present instance the complainants have elected to pursue their remedy in equity, and have prayed for an injunction and account. The invention which forms the subject-matter of these patents is one of very great public utility, which has conferred incalculable benefits on the arts and sciences, and entered very extensively into the business operations of a very large portion of the community; it therefore commends itself very strongly to the consideration and protection of courts of law and equity. The complainants, having expended large sums of money in the introduction of this invention into public use, and in necessary litigation to maintain their rights against those who seek to avail themselves of this valuable discovery without paying for its use, have a right to look to the courts for redress, and it is my duty, in administering the law, to see that that protection and redress, which I am placed here to afford and administer, are not withheld. I regard it as my plain and imperative duty to grant, in these cases, the relief which the law affords to the owners of patents for meritorious inventions, when their rights appear to have been disregarded and infringed. It is therefore ordered and decreed that a preliminary injunction be granted against the defendant, M. F. Hullihen, and against Charles Wingerter, and against Thomas Lunsford, in these cases, as prayed for in the bills of complaint, such injunctions to continue until the further order of the court.
JOHN DUNCAN, widow Betsy, H-1841, NH, MA (FHL film 970,864; National Archives Roll 864)
Applied 13 May 1833, age 81, at Acworth, Sullivan Co. NH; lived in Londonderry [Rockingham Co.], NH when enlisted 19 April 1775; b. 29 March 1752 at Londonderry according to bible record; moved to Acworth, Cheshire now Sullivan Co. NH; enlisted with David McCrory, Robert Boyde? and David Brurtes?, was Sergeant; witnesses Robert McClure age 78 of Ackworth who lived in Londonderry in 1775, and Lassell Filsby age 78 who served with John Duncan, and Jeremiah Willard age 85 who served with John 1777.
Declaration by Betsey Duncan, age 74, on 28 Oct. 1848, res. of Acworth, Sullivan Co. NH; she m. John Duncan as his second wife on 15 May 1794 in adj. town of Lempster by Rev. Mr. Fisher; John d. at Acworth on 14 June 1834; witness Thomas Hickey, age 47 of Acworth, one of executors of John's will proved in Sullivan Co. NH Probate Court 19 June 1834.
Acworth NH town clerk: John Duncan's wife was Betsey Prouty of Spencer, MA; children of John and first wife Margaret: William b. 14 Oct. 1778, John b. 1 March 1780, Adam b. 21 Jan. 1782, George b. 26 Dec. 1783, Jane b. 17 Oct. 1785, Rachel b. 23 Nov. 1787, Isaac b. 12 July 1789, James b. 1 July 1791. Children of John and Betsey: Daniel b. 13 Dec. 1794, Hiram b. 30 June 1796, Horace b. 10 Jan. 1799, Fanny b. 4 March 1801, Cyrus b. 6 May 1803, Harvey b. 3 Oct. 1805, Milton b. 18 April 1808, Solon b. 5 Sept. 1810, Betsey b. 26 April 1813, Therone b. 1 Dec. 1815, Mary b. 5 March 1820.
Statement by Betsey Duncan 1 Nov. 1851 in Charlestown, Middlesex Co. MA where she moved; statement on 28 March 1855, age 80, in Acworth, Sullivan Co. NH to obtain bounty land, where she lived with her son; statement on 19 Aug. 1868, age 93, in Acworth, Sullivan Co. NH.
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"Revised register of the soldiers and sailors of New Hampshire in the War of the Rebellion, 1861-1866" by Stephen G. Abbott; pub. Concord: I.C. Evans, public printer, 1895, 1355 pgs. (LH13757, HeritageQuest images 5/2007; FHL book 974.2 M23nh pt.1&2 and film 1,697,872 items 1-2)
Pg.116: Third Regiment New Hampshire Volunteer Infantry: Duncan, John B. Co.B; b. Acworth; age 18; cred. Acworth; enl. Aug. 29, '62; must. in Sept. 19, '62, as Priv.; wd. May 13, '64, Drewry's Bluff, Va.; Jan. 15, '65, Ft. Fisher, N.C. Died, wds. Jan. 28, '65, Ft. Monroe, Va. (MAD: Acworth, Sullivan Co. NH)
Duncan, Theron. Co.B; b. Acworth; age 44; cred. Acworth; enl. Aug. 29, '62; must. in Sept. 22, '62, as Priv.; killed May 13, '64, Drewry's Bluff, Va.
Pg.230: Fifth Regiment New Hampshire Volunteer Infantry: Duncan, Eugene. Unas'd; substitute; b. New York; age 21; cred. Sunapee; enl. Sept. 5, '64; must. in Sept. 5, '64, as Priv.; received Sept. 5, '64, at draft rendezvous, Concord; sent Sept. 12, '64, to regt. N.f.r. A.G.O. (MAD: Sunapee, Sullivan Co. NH)
Pg.474: Ninth Regiment New Hampshire Volunteer Infantry: Duncan, Charles H. Co.E; b. Au Sable Forks, N.Y.; age 21; cred. Plainfield; enl. Aug. 20, '62; must. in Sept. 2, '62, as Priv. Died, dis. Feb. 6, '64, Camp Burnside, Ky. (MAD: Plainfield, Sullivan Co. NH)
Pg.705: Fourteenth Regiment New Hampshire Volunteer Infantry: Duncan, Samuel A. F. and S.; b. Plainfield; age 26; res. Plainfield, cred. Plainfield; app. May. Sept. 22, '62; must. in Sept. 23, '62; disch. to date Sept. 15, '63, to accept promotion. P.O. ad., Englewood, N.J. See U.S.C.T. (MAD: Plainfield, Sullivan Co. NH)
Pg.1019: United States Colored Troops: Duncan, Samuel A. F. and S., 4 Inf.; b. Plainfield; age 27; res. Plainfield; app. Col.; must. in Sept. 16, '63; must. out May 4, '66. Bvt. Brig. Gen., U.S.V., to date Oct. 28, '64, for gallant and meritorious services in the attack upon the enemy's works at Spring Hill, Va.; Bvt. Maj. Gen., U.S.V., to date Mar. 13, '65, for gallant and meritorious services during the war. P.O. ad., Englewood, N.J. See 14 N.H.V. (MAD: Plainfield, Sullivan Co. NH)
Duncon, James. Co.K, 127 Inf.; substitute; b. Mississippi; age 22; cred. Newport; enl. Aug. 9, '64; must. in Aug. 9, '64, as Priv.; killed in action Oct. 31, '64, Ft. Brady, Va. (MAD: Newport, Sullivan Co. NH)
Pension Index Card File, alphabetical; of the Veterans Administrative Contact and Administration Services, Admin. Operations Services, 1861-1934; Duff to A-J Duncan (negative FHL film 540,888, some cards very faint); Joseph Duncan to Dunn (positive FHL film 540,889, some cards very dark)
Cataloged under Civil War, 1861-1865, pensions, indexes; does not say if Confederate or Federal, but probably Federal. Negative film, some cards much too faint or dark to read, some cards blurred or faded, particularly the service unit and the dates of application. Most of the very faint or dark cards were in a slightly different format, with space for years enlisted and discharged which were sometimes filled in. Many of these were for service in later years, although one or two were for service ca 1866.
Name of soldier, alias, name of dependent widow or minor, service (military unit or units), date of filing, class (invalid or widow or minor or other), Application #, Certificate #, state from which filed (sometimes blank), attorney (sometimes blank, MAD: did not usually copy), remarks. Sometimes the "Invalid" or "Widow" class had an "s" added to it before the application #; occasionally the area for the service information included a circled "S". The minor's name was frequently that of the guardian rather than the minor.
The military unit was frequently the Company Letter, the Regiment Number, sometimes US Vet Vol Inf. (US Veteran Volunteer Infantry), L.A. (Light Artillery), H.A. (Heavy Artillery), US C Inf (US Colored? Infantry), Cav. (Cavalry), Mil. Guards, V.R.C. (?Volunteer Reserve Corps?), etc. Sometimes there were several service units given.
Cards appear to be arranged by the last name, first name, middle initial if any, and state (including "US") of service.
Duncan, Theron, widow Duncan, Annie; B 3 NH Inf.; 1864 Aug. 17, Widow Appl. #61261, Cert. #32835. (MAD: 1850 Sullivan Co. NH census)
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