defendant from infringing upon a right secured by letters patent, does not depend upon the magnitude of the injury which the plaintiff has suffered. Colgate v. Telegraph Co., 17 Blatchf. 308. In the exercise of the power, the equities of the respective parties, and the amount of the injury to be remedied or inflicted, are weighed by the court. The demurrer is overruled, with costs, and the defendants will answer over in 30 days.
STONEMETZ PRINTERS' MACHINERY (Circuit Cou'rt, W, D.
BROWN For,DING MACH.
May 4, 1891.)
EQUITY· PI.EADIKG-INFRINGEMENT OF PATENTS-MuLTIFARIOCSNESS.
A bill which claims relief because of an lllleged interference between the patents of the complainant and the defendant, and also because of defcndant's alleged infringement of complainant's patent, is not multifarious.
SAME-INTERFERENCE OF PATENTS.
Allegations that complainant obtained a certain patent; that defendant obtained certain patents of a later date, which interfere with complainant's rights under his patent; that defendant is making and selling machines under his patents, and has in other ways disturbed complainant in the use and enjoyment of the rights granted by his patent,-sufliciently charge interference. Objection to an immaterial allegation in a bill should be taken by exception, and not by demurrer.
John K. Hallock, for demurrer. John a. Sturgeon, contra.
REED, J. The bill avers the plaintiff's assignor, John H. Stonemetz, to have been the inventor of an improvement in carrier attachments to folding machines. That he filed his application March 14, 1883, and letters patent No. 343,677 were granted to him on June 15,1886. That while the Stonemetz application was pending, R. T. Brown, on ;)lay 28, 1883, filed an application for letters patent for an invention in carrier attachments for folding machines substantially the same in construction and operation as the said invention of Stonemetz. That an interference was declared between said applications under the rules of the patent-office, and Stonemetz finally declared to be the prior inventor. Afterwards Brown disclaimed the invention claimed by Stonemetz, and thereupon letters patent were issued to said Brown's assignee upon December 8, 1885, numbered 331,762. That on August 4, 1884, the said Brown filed a second application for letters patent for a sheet carrier or conveyor for folding machines, and a patent was issued to the Brown Folding Machine Company, as assignee of the said Brown, on July 14,1885, numbered 322,344. That the said patents No. 322,344 and 331,762 interfere with the tights of the plaintiff under patent No. 343,677, nndin the working of the invention:described in the latter patent. That
STONEMETZ PRINTERS'MACHINERY CO. V. BROWN FOLDING MACH CO.
the defendants are manufacturing and selling carrier attachments for paper-folding machines, claiming the right to do so under the patents owned by them, and have in other ways disturbed the plaintiff in the use and enjoyment of the privileges conferred by patent No. 843,677. The bill prays that defendants' patents may be decreed void, for an injunction to restrain infringement of plaintiff's patent, and for an account. To this bill a demurrer has been filed, showing as causes of demurrer misjoinder of causes of action and misjoinder of parties defendant. The demurrer alBo refers to an allegation in the bill relative to certain interference proceedings between plaintiff's assignor and one Meek, in which the priority of plaintiff's invention was sustained, which, it is argued, in no way relates to the other matters set forth in the bill, and does not concern the defendants, excepting W. Downing, who is alleged to have procured Meek to file his application for a patent. If this allegation is not material and pertinent, the opjection should be made by exception, and not by demurrer. Stirrat v. Manufacturing Co., 53 O. G. 1094, 44 Fed. Rep. 142. The objection as to misjoinder of parties has been nured by amendment, and hence was not pressed on argument. The remaining question is whether there is a misjoinder of causes of action. Two causes of action have been joined in the bill,-one, the alleged infringement by defendants; the other, the interference between plaintiff's and defendants'patents. The latter arises under the provisions of section 4918, Rev. St., which provides that, wherever there are intarfering patents, any person interested in anyone of them may have relief against the interfering patent by suit in equity against the owners of the interfering patent, and that the, court, upon due proceedings had, according to the course of equity, may adjudge and declare either of the patents void in whole or in part. Jurisdiction in the matter of infringement is derived from section 4921 of the Revised Statutes, and defend. ants' counsel has argned that, as the proceedings were statutory, the relief authorized by the two sections was different, requiring different testimony, with the right to set up defenses in the one case which could not be set up in the other, and the decree in the one case would be entirely different from the decree in the other; that the two causes of action could not be joined, in the one bill. There is great force in the defendants' position, and it may perhaps be found that the final result may be detrimental to the plaintiff, since the testimony in re/?:U!'d to the infringement may prevent its obtaining relief under section 4918, while the defendants will be comp,elled to defend against distinct issues, and the case will be complicated thereby. Were the question entirely new", I should hesitate to sustain the plaintiff's. bill, but the same question has been passed' upon, and decided in favoY,0'f,the joinder of the two Causes of action. In Leach v. Chandler, 18 Fed. Rep. 262, Judge WOODS held that a bill which, under section 4918 of the Revised Statutes, upon proper averment, prays an adjudication concerning conflicting patents, and also alleges an infringement of the plaintiff's patent by the defendant, by reason of the manufacture and sale by the latter of articles constructed under his letters, and prays an accounting and damages, is not
: '.' 1.
" FEDERAL REPORTER,
nerimJ.lrable for misjoinder of causes of, ,action. ,In Holliday v. P'ickal'dt, 29 Fed) Rep. 803, Judge ,WAuAcJ<J,sustained a bill filed for infrin:;enUlntjand also praying the repeal 'of an interfering patellt ,under section 4918 i" ,ahd a ilecreewfls entered in, favor oftlle plaintiff'on both causes ohction, In the case!(i)LPaper Co. v. Knapp, 44 Fed. Rep. 609, Judge THAYER said: "It bas been held that a count for, infringement and a count under ,section 491Smay be joined in the same bill, and I can see no '<hbjection to. that oouTse of procedure." In the ,case of Swift v. Jenks, 29 'Fed. Rep. 642, Judge COXE entertained a bill filed for both causes of It has been held that, where the; bill is filed solely for relief under section 4918, the only questions at issue are those of interference and priority as between two patentees; and that the defendant cannot set up as a defense the invalidity of the plaintiff's patent for other reasans.The decisions ate referred to in ·the late case of Electrical Accum1llaJor Co. v. Brush EiRctr"ic Co., 44 Fed. Rep. 602, where Judge BROWN, citing the several cases)on the subject, says that the statute has for its sole object the determination of the question of interference and priority; but he intimates that, had the bill been also a bill for an infringement as well as for an interference, every question which might properly be put ill issue in an ordinary suit for infringement might be raised. That these are the only questiol1sthat are material and relevant when the bill is filed solely for relief under section 4918, and that the defendant cannot attack the validity of the plaintiff's patent upon other grounds, is l'uled in Lockwood v.Cleveland, 20 Fed. Rep. 165; American Clay-Bird .Co. v. Ligowski Clay-Pigean Gb., 31 Fed. Rep. 460; Pentlarge v. Pentlarge, 19 Fed. Rep. 817; and Sawyer v. Ma88ey, 25 Fed. Rep. 144; and may be il"egarded as settled. The distinction between the two classes of cases would seem to be, however, that in the latter the plaintiff has elected to proceed under seotion 4918 for the single relief afforded by that section, fmd the defendant cannot compel him to litigate any other issue. In the Jormer dass of cases the plaintiff elects to raise the que8tion of infringementaswell as interference, and, having raised those issues, both of ,which are within the jurisdiction and cognizance of a court of equity, 'such a court will entertain a bill, which includes the entire controversy. As such has been the ruling and practice in the other courts where the question has arisen, :r think it better that their: rulings and practice should be followed upon this question, and the demurrer overruled; particularly as I have been able to find no ,case to the contrary. In reference to the suggestion indefendants!.brief that "the matter in the bill relating to the grounds for. ,an interference is incompetent and insufficient," the bill,' in my sufficiently states the plaintiff's case in that respect. The demurrel" must therefore be overruled·
THOMAS HUSTON ELECTRIC CO.
SPERRY ELECTRIC CO.
'THOMAS HUSTON ELECTRIC CO. V. SPERRY ELECTRIC CO.
(Circuit Court, N. D.IUino18. November 10, 1800.)
PATENTS FOR INVENTION FENDANT. INFRINGEMENT PETITIO)! TO BE ADMITTED AS PARTY
a suit for the infringement of letters patent, th" petition of a third party to be permitted to defend, whicll alleges that petitioner makes and sells certain machines which he is informed and believes complainant claims to be an infringement of the patent siled on, and that if successful in that case complainant intends to sue the petitioner for infringement, and that petitioner is advised and believes that there is no infringement, but which fails to aver that petitioner's machines are identical with those made by defendant, or to show any privity with the latter, wculd, if granted, have the effect of rendering the proceeding multifarious by.including in one a,ction different infringements of one patent by different persons and dilIerent machines, and must be denied.
In Equity. George P. Barton and Banning, Banning &- Payson, for petitioner. Offield, Towle & Linthicum, for complainant. BLODGETT, J. The Western Electric Company files l\ petition in this case setting lorth that petitioner is an Illinois corporation engaged in the business of manufacturing electric lamps and general electric apparatus in the city of Chicago, and has a large business and a large amount of money invested in the same; that, in due course of its business, petitioner makes and sellE' electric machines with" current regulators," which, 'as he is informed and believes, complainant claims are an infringement of its patent, No. 238,315, on which thiB suit is brought, and that petitioner is informed that, ,if successful in this case, complainant intends to sue petitioner on the' use of machines made by petitioner, on the ground that such machines are also an infringement of said patent; that petitioner has been advised and believes that the machines which it makes and sells are not an infringement of complainant's said patent. Wherefore petitioner prays that it be made a party defendant to this cause, and let in to defend the same, to which prayer complainant objects. It will be noticed that petitioner does not state or claim that the machines which it makes !\ire identical in structure or mode of operation with the machines made by defendant, nor is any fact stated showing that petitioner is in privity in anyway with the defendant., 'The most that can be inferred from the matters stated in the petition is that petitioner has a common interest with defendant in defeating this suit, because if successful in this suit complainant may sue the petitioner. It may be accepted as one ,of the obvious rules of the law that a party who is wronged by'an invasion' of his rights is not bound to bring suit for redress of such wrong unless he elects to do so, and, if he brings such suit, he is not obliged to sue all the wrong-doer3. Where the invasion of his rights has been perpetrated by more than one person, he may elect which of them he will sue. Smith v. Rines, 2 Sum. 338; 2 Hill. Torts, 242. But to the direct point involved in'this petition. Certainly a person whom the complainant has not elected to sue cannot intrude himself into