FEDERAu REPORTER.
un accounting with an authorized agent of the plaintiff for the (lamages claimed in this3<ltion. To these, plaintiffs file eight replica1;ions. In two of them they set out and aver that on the thirteenth of March, 1860, nearly,a year befoie theyacqnired their,joint title to the invention alleged to have been invaded, the defendants purchased the seven .sewing-machines, detailed in tQ.cir declaration, from parties unknown to and with whom plaintiff had no. connection, and that they thereafter used them asset forth and alleged in their declaration. Pqssibly there may besoflle pertinency in these two replications; but if SO this court is unable to see it. No recovery can be had in this suit ror any infringement of the plaintiffs' patent before they ac_ quiredtheir title thereto. The defendants raise no question as to the :validity nor do they deny their title, or the al· leged 'use thereof. Their defense is that they have accorded with 'and paid, or secured to be paid to ltnauthorized agent, the damages claimed therein. This is the issue teudered by the defendants' special pleas. The replication is an effort to go behind the case made by the declaTatiou,and add another and differeutcause of action. 1'0 these replications defendauts cemur, and we think the demurrer is well taken. But the case will proceed to trial on the other issues made by the pleading. This court,however, thinks that uow, after the lapse of '2\1.yeal's,4 months, and 26 days since its iustitution, the case might be amicably adjusted, without offending the court or doing violence to the rights of the parties·
.POAGE V. McGOWA.N ;((Mcuie [JQurt, 8. D. OMQ, 1. INVALID BY INVA.LID ,j CONSTRUED.
and others.March li,J883.)
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OF DElI'Jl:CTIVE AFFIDA. VIT-"!NOPERATIVE AND
W'herethe affldavit,.u.pon an application for the reissue of a patent, alleged that the patent songht to be reissued was not "fully valid and available," held, that that.language is not the equivalent of the statutory requirement that the original must be U inoperative or invalid by reason of a defect· .iva or insrimcient specification," a'ndthat a' reissue predicated on such al) affidavit is invalid. 2! ,Reissue No.. 5,544, for in .water tanka fQr raUways, Mltl mva,lid.
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C.:lInrper, Esq:. of the diDCIDDnti bllr
3'99: In Equity.. Suit on :reissued patent No. 5,544" granted to the McGowan"PumpCorllpany. The 'original 63,418, issued to John -M"ortoq. {or a,n ilIlprovement in railways. L. M. H08ea, complainant.' , , tStem.·'£t Peck',''for;l { BA.XTER,
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fendants of a patent which he claiIUSJo His prayads ,for :an injunction and an account. The Qrigin'al, of which complainant's patent is a ,second reissue, wa.s issued 011 the second of April; It was reiBsued September 5, 1871, and again 1, 1873. The defendants, among other defenses; deny the validity of thereissue sued on. A reissue ma.y be had when the. original '''is inoperative or invalid by reason of a defective or insufficient specification, w.hen the same arises ,from inadvertence, a'cc,ident, with· oht 'any fraudulent or deceptive intention." They are originals, upon petition and affidavit of theappllcaht,s·· These 'set forth the grounds upon which ,tlfeapplicant demands either the original or reissued patent. ' ''', ",' ',.' . ,A petition and were'file'd upon which the sued on herein was p'iedlciJ.ted."13ut the affidavit does not affirm that' original or the first Was either inoperative, pr )ttt iii1iell of this statutory requirement the affi:davit alleges that was not "fully 'va'lidimd available." The language thus employea' is not the equivalent of that prescribed by the statute; it sion, declared by this court in' ·Whitely:v. Swayne,4i insufficient to ,support a reissued patent: For a full discussioilof: the question reference may be had to Judge LEA.VITT'S opin:iori in case. See, also, the following: Giant powder Co. Cal. Vigofet Powder Co. 18 O. G. 1339; Twainv. Ladd; 19 O. G.; Miller.v. Bridge': port Bra88 Co. 21,0. G. James v·. 21<r G. 341·. The complainant's reissued, Pll-tevt, tested ·by was issued without of' law; and. Invalid:t[lsbill will, , ' therefore, be dismissed, with costs. '
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(C7ircui' Gour', 8. D. Ohio, W. D. March 1i,1883.) 1. REISSUES INVALID BECAUSE OF UNREASONABLE DELAY IN APPLYING FOR'TBEII.
On demurrer to bill of complaint, upon reissued patents, one of which wal reissued 13 and the other 11 years after the originals were issued, held, that tlul right to have the patents reissued had been abandoned and lost by unreasonable delay, and that the reissueS are, therefore, invalid. J. BUITS ON PATENTS-MuLTIFARIOUSNESS OF BILL. ·
When the bill of complaint seeks relief upon two patents and fails to show that they are capable of conjoint use or have been in fact so used by defendants, qUflJre, Whether the bill is multifarious. 3. Reissues Nos. 7,97'1. and 8,252, for improvements in velQeipedes, held invalid.
In Nos·.7,972 and 8,252, for improvements in velocipedes. The' original patents were Nos. 59,915 and 46,705, respectively. Coburn. <t Thacher, for complainant. Stem II Peck and Wood II Boyd, for respondents. BAXTER, J. This is a bill to restrain further infringement and recoveifor past infringement of two reissued patents. The original of one of them was issued on the seventh of March, 1865, and was reiss6ed May 28, 1878. The original of the other was issued twentieth December, 1866, and was reissued November 27, 1877. The bill is demurred to. Complainant fails to show by his bill that the two inventions alleged to have been infringed are capable of conjoint use, or that they have in fact been so used by defendant. For the want of this averment it is insisted that the bill is multifarious, etc. 3 Fisher, 63; 6 Fisher, 286; and Gamewell, etc., Co. v. City of Chillicothe, 7 FED. REP. 354-5. I am inclined to think the demurrer is well taken. But-in view of another question raised by the. demurrer. which is clearly fatal, I have not fully considered, nor have I deemed it necessary to decide, whether the bill is or is not multifarious. One of the patents was reissued 13 and the other 11 years after the original. The right to this reissue bad been abandoned and lost by unreasonable delay. Bantz v. Frantz, 105 U. S. 160, and Miller v. Bridgeport Bra88 Co. 104 U. B. 350, decided at the last term of the United States supreme court. The reissued letters sued on are therefore invalid. Complainant's bill will be dismissed, with costs. -Reported by J. C. Harper, Esq., of the Cincinnati bar.