254 F. 696 | 2d Cir. | 1918
The appellant seeks to recover for willful infringement of design patent No. 49,593, for a lighting fixture, issued to the appellant’s assignor, and for which the appellant now holds an assignment. The issues were framed by the service of an amended bill, an answer, and supplemental answer. A motion was then made to dismiss the bill on the merits, for the reason that the
In the fifth paragraph it is alleged that when the fixture was placed upon the market, embodying the design patent thus issued, it sprang into instant popularity, resulting in large sales, creating a large and profitable business in the sale of said fixtures to this plaintiff.
In paragraph 6 it is alleged that in defiance of the plaintiff’s rights thus secured by his patent, and the benefits obtained by its popularity in the trade, the defendants manufactured, sold, ancf exposed for sale electric lighting fixtures, which were substantial duplicates of the plaintiff’s patent and fixtures and they have derived unusual gains and profits from such infringement, damaging the plaintiff thereby.
In paragraph 7 it is alleged that the defendants’ electric light fixtures, which they placed on the market, were such a close copy of the plaintiff’s as to make it difficult to determine defendants’ article from the genuine, and that, contrary to the plaintiff’s wishes and demands, the defendants persist in a continued infringement. It is further alleged that all this was done without license or consent of the plaintiff. This, standing alone, is sufficient to charge that appellant has a valid patent, and the infringement of the patent.
In paragraph 10 it is alleged that in an action upon the same patent tried in the District Court for the Southern District of New York, (246 Fed. 314), in which the appellant here was there the plaintiff, and Braunstein Bros. Company the defendant, a decree was granted and entered, holding the patent valid and infringed.
By his supplemental answer the defendants alleged that upon appeal this decision of the District Court was reversed, and it was held that the patent was invalid and void. See Bayley & Sons v. Standard Art Glass Co., 249 Fed. 478, - C. C. A. -. The allegation set forth in the tenth paragraph of the complaint is not essential to the plaintiff’s success here. It may have been omitted. If the appellee
In Ralston Steel Car Co. v. National Dump Car Co. (D. C.) 222 Fed. 590, it is said:
“Under our practice, the federal courts are inclined to allow a case in equity involving important matters to go to issue and proofs, where a doubtful question is raised by the pleadings. It has been the practice to overrule a demurrer, unless it is founded upon an absolutely clear proposition that, taking the allegations to be true, the bill must be dismissed at the hearing.”
The practice which prevails in the courts of equity, in disposing of motions to dismiss bills because the bill does not set forth facts sufficient to constitute a cause of action, is-to overrule the motion and let the case go to hearing, unless it is made absolutely clear that, taking all the allegations to be true, the bill must be dismissed at the hearing. The appellant contends that, upon the trial, it intends to go back of two of the patents, and produce such additional evidence as would result in sustaining the patent in this action.
In view of this prospect, and, further, that the bill on its face set forth facts sufficient to constitute a cause of action, we are of the opinion that the District Judge erroneously granted the motion, and the order is therefore reversed.