Opinion of the Court.

certain classes of cases; and, in section 6, for appeals from final decisions of those courts to the Circuit Court of Appeals in all other cases, including cases arising under the patent laws; further provides, in section 7, that "where, upon a hearing in equity in a District Court, or in an existing Circuit Court, an injunction shall be granted or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the Circuit Court of Appeals: Provided, that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed, unless otherwise ordered by that court, during the pendency of such appeal." 26 Stat. 828.

The questions presented by each of these cases are whether, in a suit in equity for the infringement of a patent, an appeal to the Circuit Court of Appeals from an interlocutory order or decree of the Circuit Court, granting an injunction, and referring the case to a master to take an account of damages and profits, may be from the whole order or decree, or must be restricted to that part of it which grants the injunction; and whether the Circuit Court of Appeals, upon such an appeal, may consider and decide the merits of the case, and, if it decides them in the defendant's favor, may order the bill to be dismissed.

Upon these questions there has been some diversity of opinion among the Circuit Courts of Appeals of the different circuits. But those courts have now generally concurred in taking the broader view of the appeal itself, and of the power of the appellate court.

In the earliest of such appeals, the cases were examined on the merits, and, upon a reversal of the order or decree appealed from, the authority to direct the bill to be dismissed was assumed, without question, in the Circuit Courts of Appeals for the Fifth Circuit: Dudley E. Jones Co. v. Munger Co.

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(December, 1891), 2 U. S. App. 55; for the First Circuit: Richmond v. Atwood (February, 1892), 5 U. S. App. 1; and for the Second Circuit: American Pail Co. v. National Box Co. (July, 1892), 1 U. S. App. 283. The cases in the Fifth and First Circuits were afterwards reconsidered upon petitions for rehearing. In the Fifth Circuit, the decree was modified so as only to direct the injunction to be dissolved. Dudley E. Jones Co. v. Munger Co. (May, 1892), 2 U. S. App. 188. in the First Circuit, the power of the Circuit Court of Appeals, upon such an appeal, to consider the merits of the case, and to order the bill to be dismissed, was maintained, after thorough discussion of the subject on principle and authority, in an opinion delivered by Judge Aldrich. Richmond v. Atwood (September, 1892), 5 U. S. App. 151.

But

This view has since prevailed, not only in the First Circuit : Marden v. Campbell Press Co. (May, 1895), 33 U. S. App. 123; Wright & Colton Co. v. Clinton Co. (May, 1895), 33 U. S. App. 188, 206, 236; but also in the Second Circuit: Florida Construction Co. v. Young (December, 1892), 11 U. S. App. 683, 685; Bidwell Cycle Co. v. Featherstone (August, 1893), 14 U. S. App. 632, 655; Curtis v. Overman Wheel Co. (December, 1893), 20 U. S. App. 146; Westinghouse Brake Co. v. New York Brake Co. (October, 1894), 26 U. S. App. 248, 358; Kilmer Manuf. Co. v. Griswold (April, 1895), 35 U. S. App. 246; in the Third Circuit: Union Switch Co. v. Johnson Signal Co. (May, 1894), 17 U. S. App. 609, 611, 620; Erie Rubber Co. v. American Dunlop Tire Co. (July, 1895), 28 U. S. App. 470, 513, 522; in the Seventh Circuit: Temple Pump Co. v. Goss Pump Co. (October, 1893), 18 U. S. App. 229; Northwestern Store Co. v. Beckwith (October, 1893), 18 U. S. App. 245; Electric Manuf. Co. v. Edison Electric Co. (May, 1894), 18 U. S. App. 637, 643; Card v. Colby (November, 1894), 24 U. S. App. 460, 480, 486; Standard Elevator Co. v. Crane Elevator Co. (October, 1896), 46 U. S. App.-; in the Eighth Circuit: Lockwood v. Wickes (June, 1896), 40 U. S. App. 136, overruling S. C. (December, 1895), 36 U. S. App. 321; and in the Ninth Circuit: Consolidated Cable Co. v. Pacific Cable Co. (July, 1893), 15 U. S. App. 216;

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Butte City Railway v. Pacific Cable Railway (February, 1894), 15 U. S. App. 341; Vulcan Iron Works v. Smith (May, 1894), 15 U. S. App. 577; Wheaton v. Norton (January, 1895), 29 U. S. App. 409, and (October, 1895), 44 U. S. App. 118, 170.

In the Fourth Circuit, the question does not appear to have arisen in a patent case. But where, upon a bill in equity to restrain a supervisor of registration from interfering with the right to vote at the election of delegates to a convention to revise the constitution of the State of South Carolina, the Circuit Court of the United States for the District of South Carolina had, by successive orders, granted and continued a temporary injunction, the Circuit Court of Appeals, upon appeal from these orders, entered a decree, not only reversing the orders, but directing the bill to be dismissed; the Chief Justice saying, "Although the appeal is from interlocutory orders, yet, as we entertain no doubt that such a bill cannot be maintained, we are constrained, in reversing these orders, to remand the cause with a direction to dismiss the bill." Green v. Mills (1895), 25 U. S. App. 383, 398. An appeal from that decree was dismissed by this court, without touching this question. 159 U. S. 651.

In the Sixth Circuit, on the other hand, in a case in which the Circuit Court had entered an interlocutory decree sustaining the validity of the patent, adjudging that there was an infringement, ordering an account of damages and profits, and granting an injunction, and had allowed an appeal from so much only of that decree as granted the injunction, and denied an appeal from the rest of the decree, the Circuit Court of Appeals, in an opinion delivered by Mr. Justice Jackson (then Circuit Judge) with the concurrence of Judge Taft and Judge Hammond, held that the appeal had been properly restricted by the Circuit Court, and that the Circuit Court of Appeals had no authority, upon this appeal, to hear and fully determine the merits of the case, but that those remained, notwithstanding the appeal, within the jurisdiction and control of the Circuit Court. That decision was made before the second decision in Richmond v. Atwood, 5 U. S. App. 151, above cited,

Opinion of the Court.

had been reported, and without reference to the practice of courts of chancery elsewhere. And it was said in the opinion: "It would doubtless have been well if, in the creation of this court, the seventh section of the act had permitted or authorized an appeal from interlocutory decrees sustaining the validity of patents and adjudging their infringement, so as to obviate in many cases the taking of expensive accounts, and the delays incident thereto." Columbus Watch Co. v. Robbins (October, 1892), 6 U. S. App. 275, 281. A certificate thereupon made by the Circuit Court of Appeals, for the purpose of obtaining the instructions of this court, was dismissed by this court, with Mr. Justice Jackson's concurrence, because no question of law was distinctly certified, and because the Circuit Court of Appeals had decided the case before granting the certificate. 148 U. S. 266.

That decision was long treated as settling the practice in that circuit on appeals from such interlocutory decrees, and as permitting the questions of validity and infringement to be considered only so far as they affected the granting or refusal of an injunction. Blount v. Société Anonyme (November, 1892), 6 U. S. App. 335; Columbus Watch Co. v. Robbins (October, 1894), 22 U. S. App. 601, 634; Duplex Press Co. v. Campbell Press Co. (July, 1895), 37 U. S. App. 250; Thompson v. Nelson (November, 1895), 37 U. S. App. 478; Goshen Co. v. Bissell Co. (December, 1895, and February, 1896), 37 U.S. App. 555, 689.

But, at last, the Circuit Court of Appeals of the Sixth Circuit, in an able and elaborate opinion delivered by Judge Lurton, with the concurrence of Judge Taft and Judge Hammond, being a majority of the court which had made the decision in Columbus Watch Co. v. Robbins, 6 U. S. App. 275, above cited, expressly overruled that decision, and brought the practice in that circuit into harmony with the practice prevailing in other circuits. Bissell Co. v. Goshen Co. (March, 1896), 43 U. S. App. 47; Dueber Co. v. Robbins (May, 1896), 43 U. S. App. 391.

By the practice in equity, as administered in the Court of Chancery and the House of Lords in England, and in the

Opinion of the Court.

Courts of Chancery and Courts of Errors in the States of New York and New Jersey, appeals lay from interlocutory, as well as from final, orders or decrees; and upon an appeal from an interlocutory order or decree the appellate court had the power of examining the merits of the case, and, upon deciding them in favor of the defendant, of dismissing the bill, and thus saving to both parties the needless expense of a further prosecution of the suit. Palmer H. L. Pract. 1; 2 Dan. Ch. Pract. (1st ed.) 1491, 1492; Forgay v. Conrad, 6 How. 201, 205; Le Guen v. Gouverneur, 1 Johns. Cas. 436, 498, 499, 507-509; Bush v. Livingston, 2 Caines Cas. 66, 86; Newark & New York Railroad v. Newark, 8 C. E. Green (23 N. J. Eq.), 515.

But under the judicial system of the United States, from the beginning until the passage of the act of 1891 establishing Circuit Courts of Appeals, appeals from the Circuit Courts of the United States in equity or in admiralty, like writs of error at common law, would lie only after final judgment or decree; and an order or decree in a patent cause, whether upon preliminary application or upon final hearing, granting an injunction and referring the cause to a master for an account of profits and damages, was interlocutory only, and not final, and therefore not reviewable on appeal before the final decree in the cause. Acts of September 24, 1789, c. 20, §§ 13, 22, 1 Stat. 81, 84; March 3, 1803, c. 40, 2 Stat. 244; Rev. Stat. § 691, 692, 699, 701; Forgay v. Conrad, above cited; Barnard v. Gibson, 7 How. 650; Humiston v. Stainthorp, 2 Wall. 106; Keystone Iron Co. v. Martin, 132 U. S. 91; McGourkey v. Toledo & Ohio Railway, 146 U. S. 536, 545; American Construction Co. v. Jacksonville &c. Railway, 148 U. S. 372, 378, 379.

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The provision of section 7 of the act of 1891, that where upon a hearing in equity" in a Circuit Court "an injunction shall be granted or continued by an interlocutory order or decree," in a cause in which an appeal from a final decree might be taken to the Circuit Court of Appeals, "an appeal may be taken from such interlocutory order or decree granting or continuing such injunction" to that court, authorizes,