34 F. 803 | U.S. Cir. Ct. | 1888
In reference to the matters that were argued yesterday, I have but these few words to say: One of those matters is the exceptions to the bill, for impertinence. The defendants say that the matters contained in said bill, beginning with the words, “The most important in said suits,” in section 7, and ending with the words, “are owned by the said respective defendants,” at th'e close of section 24 in said bill, are irrelevant and impertinent. Their challenge is to the substance of those statements, rather than the manner in which they are made. They are averments of the fact of prior adjudications on the validity of the patents. This is a bill for injunction; and the old equity rule — a rule which is not enforced, perhaps, with the same strictness, or in as many cases now, as formerly- — is that a party must establish his title at law
So far as respects the other matter, — the special demurrer to the bill.— the bill alleges that the complainant has a patent, giving number and date, and, in a general way, that it is one for the process of telephonic transmission of words, and makes profert of the patent. The weight of authority is that the profert of any recorded instrument is equivalent to annexing a copy, (Bogart v. Hinds, 25 Fed. Rep. 484, and cases cited; Post v. Hardware Co., 26 Fed. Rep. 618;) and if a party avers that he holds title to anything by a certain instrument, which he annexes, and that i instrument both grants the title and describes the full extent of the rights conferred, — and the patent does that; it is a grant from the government, and it describes exactly and specifically what is granted, — it is equivalent to an averment that he has title to all the rights specifically described ' in such instrument. It would not be assisted or strengthened by separate averments that he held a right to this claim and that claim, enumerating them specifically. He avers that he has title to all when he says that he has a patent which contains all. I should think, therefore, both -upon principle as well'as upon authority, that that objection ought to be overruled. On authority, the other objection' must also be overruled; that is, the objection that there is simply a general averment that the defendant infringes. It is not so easy to sustain that upon principle, because, as was well stated by counsel here, the exactness and certainty of equity pleadings would seem very properly to require that, instead of a simple averment that the defendant has infringed, particu-