has been before this court in various forms with regard to the can· troversy. I do not know whether this party plaintiff grants licenses, deals in royalties, or what he does. If he does, the amount of his royalties or licenses would cover everything equitable. I have not gone into that inquiry at all. Now, in regard to these Meyrose mat· tel's, 2,551 was on the first claim, patent 104,318, and first and second claims of 151,703: True, under 151,703, in his publications, he intimated he was going to do what he never did; that is, in the light of the testimony submitted to the court. I shall require him to give bond for $5,000. He did not acknowledge, as Mr. Chandler did for the Railway Supplies and Manufacturing Company, that an enormous sum of money was involved. Nothing of that kind appears here, and 80 I shall fix the bond at $5,000, and a like order 'will be issued in 2,552. Now, it is not advisable to express the'opinion of the court in regard to 2,552 on its merits·. It is alleged herein, in a long plea, averring that I, between these very parties, passed on this question some years ago; and on that matter a legal argument is presented. Perhaps what I may order hereafter will be otherwise. A like bond is ordered in this case. Mr.Ohandler. That bond payable to the plaintiff? The Oourt. Yes; make it payable to the plaintiff to answer to any damages that may be awarded against him for an alleged infringe. ment; said bond to be approved by the clerk. In regard to the other matter connected with these last cases I have not had time to look at it, but I will do so at an early day.
COTTLE v. KREMENTZ and
(Oircuit Oourt, S. D. New York. November 13, 1885.)
PATENTS FOR INVENTIONS-PARTIES TO BUIT FOR INFRINGEMENT-LICENSEE.
Where it appears that complainant in a suit for infringement of a patent has a license to use the patent for It specified purpose only, and that the legal title is in another who is not joined as a party, the suit cannot be maintained. Where a complainant in equity, instead of setting down the defendant's plea for argument to test its sufficiency, elects to reply thereto, denying the facts alleged, he admits its sufficiency, both in form and substance, as a defense to all the matter of the bill to which it is pleaded; and if the facts upon the proofs taken are established, the bill will be dismissed.
EQUITY PLEADING-REPLYING TO PLEA.
In Equity. W. H. L. Lee, for complainant. G. G. Frelinghuysen and Frederic H. Betts, for defendants. COXE, J. The bill alleges that on the fourth of January, 1876, one Robert Stokes, being the inventor of an "improvement in busk fastenings," duly made application for a patent; that, prior to the grant. ing of letters patent, Stokes duly assigned to 'l'homson, Langdon & Co. the full and exclusive right to the said invention; that letters
patent were in due form of law issued and delivered to Thomson, Langdon & Co., as assignees, whereby there was granted to them for the term of 17 years the exclusive right to make, use, and vend the invention throughout the United States and territories; that by an assigl1ment in writing, duly recorded, the said letters patent became vested in the complainant so far as the same in any way affected making, using, and selling gold and silver jewelry, and gold and silver plated jewelry, together with the right, limited as before, to sue for and collect damages, profits, and royalties for past infringements. The bill prays for an injunction and an accounting. The defendants interpose a plea to certain portions of the bill, alleging that the assignment to complainant from Thomson, Langdon & Co. merely made him a licensee, and did not vest in him the title to said letters patent to such an extent as to enable him to maintain an action in equity as sole complainant, and that the owners of the patent are necessary parties. The complainant filed a replication, and testimony was taken upon the issue thus framed. The counsel for the complainant offered in evidence the letters patent and the assignment from Thomson, Langdon & Co. It therefore appears, and the court must deal with facts thus legally presented, that the complainant has a license to use the patent for a specific purpose; that the legal title is in Thomson, Langdon & Co., and that the complainant cannot maintain this action alone. This view is, it is thought, supported by a number of controlling authorities. Gamewell Fire-alarm Tel. Co. v. City of Brooklyn, 14 Fed. Rep. 255; Wilson v. Chickering, ld. 917; Ingalls v. Tice, Id. 297; Gayler v. Wilder, 10 How. 477; Nellis v. Pennock Co., 13 Fed. Rep. 4:'i1; Nelson v. McMann, 16 Blatch£. 139. The complainant's opposition to the contention of the defendants is based principally npon the theory that they have mistaken their remedy. No authorities are cited to uphold the proposition that the action can be maintained in its present form, but it is insisted that the question should have been raised by demurrer, and not by plea. The weight of authority seems, however, to point to the conclusion that if the complainant intended to rely upon the objection that the plea was not the proper remedy, he should have set the plea down for argument, and not filed a replication. In Myers v. Dorr, 13 Blatch£. 22, Judge WOODRUFF, at page 26, clearly states the rule as follows:
"The complainant has thought propflr. by replying to the plea, to put its averments in issue. The rule is elementary. and is well settled, that when a complainant in eljuity, instead of setting down the defendant's plea forargument to test its sufficiency, elects to reply thereto. denying the facts alleged, he admits its sufficiency, both in form and substance, as a defense to all the matter of the bill to which it is pleadl'd, and that, if the facts shall, upon the proofs taken, be found established, the bill must be dismissed."
See, also, Hughes v. Blnke, 1 Mason, 515; affirmed, 6 Wheat. 4:53; Walk. Pat. 590; Equity Rule No. 33.
As the parties in interest are not all before the court, it is thought to be for the advantage of the complainant, as well as for the advan,tags of the defendants, to have the defect seasonably remedIed. The plea is allowed, complainant to have 20 days in which to amend.
NATIONAL HAT-POUNCING MACHINE Co.
THOM and others.
(Oi1'Cuit Court, D. Massachusetts. November 6, 1885.)
PATENTS FOR INVENTIONS-BAT-POUNCING MACHINE-ANTICIPATION-WANT OF UTILITY-INFRINGEMENT.
Patent No. 97,178, granted on November 23, 1869, to Rudolph Eickemeyer for an improvement in hat-pouncing machines, held not void for want of utility, or because anticipated by the Chamberlain machine for polishing the heels of boots and shoes. for which a patent was granted July 23, 1861, and infringed as to the second claim by defendants in the use of a machine built under the patent granted to E. B. Taylor, October 21, 1879, and numbered 220,889.
In Equity. Chauncey Smith and W. W, Swan, for complninant. B. F. Thurston and Julien T. Davies, for defendants. Before COLT and CARPENTER, JJ. COLT, J. This bill is founded npon the alleged infringement of three several letters patent relating to hat-pouncing machines. The patent granted to Rudolph Eickemeyer, dated November 23, 1869, and numbered 97,178, is the only one pressed at the hearing. Pouncing that part of the process of finishing hats which consists in grinding off the rough surface of the wool or fur. Previous to the introduction of machinery, hat· pouncing was done by hand. A round hole was cut in the workman's bench, and the crown of the hat in· serted therein, the brim resting upon the bench. The workman, taking in his hand a block covered with sand or emery paper, rubbed the exposed side of the brim. The hat was then turned inside out, and the other side of the brim was pounced in the same manner. In pouncing the crown, side crown, and tip of the hat, a block was taken which fitted the crown of the hat, and the hat was stretched over it. Gradually lathes with horizontal spindles, carrying a block over which the hat was drawn, were introduced for the purpose of pouncing wool hats. The block was revolved rapidly, and sand-paper or pumice. stone was held in the hand and applied to the surface of the hat. The brim of the hat was pounced by putting sand-paper on either side, the brim revolving rapidly between the papers. Hat.pouncing machines were introduced not earlier than 1866. Among the early patents prior to that of Eickemeyer, are those of Wheeler and Manly, No. 57,232; Nougaret, No. 58,126; Labiaux, No. 63,261; RichardBon, No. 73,044. The Wheeler and Manly machine contained two