(C'rcuit,Oourt, E. D. Mi88ouri, E. D. ,October 2, 1890.)
PATENTS FOR !NVENTIONs-,BrLL TO RESTRAIN INFRINGEIImNT-PLEADING.
Abili to. resti'l'in the infringement of a patent must either set out the .patent, or attach 'it, as an:e:dllbit; :01' give a $uDstantiai description of the invention, else it is ORen to demurrer. " .
'. ,A clause' in the bill averi'ing that,' when complainants' application was on file,
TO BILL. . , .
another for a patentoD the.sarne device was also filed, and that lipon interference' declared the patent was awarded to complainants, but that a subsidiary and in:frin/png patent was al$o awarded. on the other application, under which patent de'; ,fenaant pretends to be manufacturing, is mere surplusage. that cannot be reached . :.by but exoo1?tions to tne bilL .
Fawler & F9w1.er, for complainants.
MILLER, Justice,CQrlllly.) In this .caee.ademurrer to the bill was subIP,itteqto us The first delln:il\rer is that while this is a patent case brought to restrain an infringement of complainant!!' patent, yet the patent itself is not set out in the bill, or attached thereto,. as an exhibit, not does the bill contain any substantial descripcompluinants' in\lention. Of course, it is open to demurrer, tion of QIl th,ntaccount, hassevernl times been decided. The com plainants' counsel :admitted as much on the argument,. and .' that point of the demw:rer. must be 8u$tained. . Anothel,', point of the demurrer is addressed to what appears to be a' kinq of:second clause in the; bill. In this clause .complainants aver that, i when application was on, file in the patent-office,O'Keefe and Filley filed anapplic!\tion fora patent on the. same device; that an interferepce ,wllSdeclared. betwe.enthe two applications, and that such proceedingr;l.' were pad in. the. patent-office, thatcomplairiants' claims were. sustained'and .0. patene awarded to thepl; and that, subsequently, a subsidhtry, patent iwas awarded to O'Keefe: and Filley mere de(>f C(metru.ction. The clause of the. hill in question further alleges tbl,l.Uhe .defendant company: now pretends to be il1anuJacturing the 0.1lege4 the O'Keefe and Filley patent. We do not see what that clause of'thebill has to do with the case. It certainly goe.s not show any independent right to equitable reHef, 110r do we see thlljt H'Iil.trllngtbens .the right .to. relief under.' the other averments of the bill.' For the purpose of determining what construction or breadth should be given to the claims of the respective patents, it may be proper 01), ,necessary,;, 'final in the, paterlt-office whefi'the pro6eedirigs were ·pending. Bilt we see no occasion to make any mention of those proceedings in the bill. The trouble with this branch of the demurrer is, however, that the clause in question is mere surplusage, and the point attempted to be raised
In Equity·. On
cariilot'\vellbe. raised by demurrer.' It can orily 'be raised by' of exceptions to the bill. Although the clause in view we take of it, has no place in the bill,for the reasons above stated; yet we do ,.liot see how we can well sustain this point of the demurtl:lr. If I were the pleader in the case I would file a newbiU omitting theobjectionable matter. As it is, the complainants will 'have to file a new bill, inasmuch as' the firs1 point of the demurrer is sustained, and we will make lio 'order on the other point oHne demurrer: Let 'thEl' entry be thaUhe first 'point of the ,demurrer is sustained, with leave toeoinphtinants toille an amended bill on or before October 20th.
MAGGIOW, tl. ·TIlE . MINEOLA.
By admitted negl!!JenlJl'l, sound man, earning from '12 to S20 per week; 'sustamed a fractUre of tlie anRle, and a rupture, which confined him to the hospital for 85 days, and permanently injured him, and incapacitated him t,,:r'l!,-eI\VYlworko .Held, tl:lall MshOulil J;OCl)ver 16.-600·
. Ullo«R.ueb8amen, tOf,libelant·.,
recover damliMs:'for personal . . 1 ,"I 'Claimant.',', ' r "
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,Th.is ,t9rec.Qv.eJ,: fOf :per,$onal. injUries done to the libelant by the Jailing upon him, in the hold ofa ship where he of bags of.sugar weighipg, about The 'result was the breaking of' hIs ankle, and '" By reason of these injuries, hewas confined in ine hospital for 85J da:ys,:'and for 5 months after he came but Of the hospital it· 'was difficult for him to. by aig stick. He is 32 years of age; was a sea-faring (man in Tta'1'YI arrivea'ih this country five or six months before the ac'cident, and Mterhisarrival he worked as a lon'gshoreman, earning from :$12 W$20 per week. In 'Italy, he about$16'per month and his bOIl:Nf. ; 'BefQl'& the accident,he was a sound man. Since the 'R'ccidpnt,. he suffers pain, and seems to be permanently incapacitated' fot heavy work. He has trieg to 40 some buJ, ,89 far" failed, not being able to go utyanddown"stafrs 'withouthilriging on tb; Reputable physicians testify that the injured leg is smaller than the left, with a certain amount of stiffness and rigidity in the ankle-joint, which is permanent; that he is not able to do hard work; that he is able to use his hands, but is incapacitated from heavy work by the rupture. No
by Edward G. Benedict, Esq., of the New York bar.