233 F. 322 | E.D. Pa. | 1916
Sur Motion to Produce.
Sur Motion to Strike Out Affirmative Defenses of Answer.
This motion is based upon the exception in rule 33 abolishing exceptions to answers for insufficiency. The main purpose of the bill is to invoke protection against infringement by the defendant of its averred proprietary rights under certain patents. As part of the recital of title it avers in paragraph 6 an assignment to the Carnegie Steel Company of certain limited rights to manufacture under the claimed patents, but reserving all its rights against all infringers up to’ June 23, 1914. It avers in paragraph 8 infringement by the defendant before and up to the date mentioned and infringement of those of its rights not so assigned since that date. The defendant by paragraph 15 of its answer sets up a denial of any right in the plaintiff because of the averred fact that it had by the assignment referred to parted with all its rights in the patents. By paragraph 16 of the answer it is averred that the plaintiff had granted the full right to the Carnegie Steel Company and its vendees under said agreement to vend the material covered by the product claims of said patents and that what the defendant has sold was what it had bought under the right thus given to the Carnegie Steel Company to sell.
(1) Is plaintiff within rule 33 (198 Fed. xxvii, 115 C. C. A. xxvii)? Exceptions to an answer for insufficiency are by that rule forbidden. Rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi) permits motions to dismiss bills “for insufficiency,” and rule 30 (198 Fed. xxvi, 115 C. C. A. xxvi) permits defendants by answer to make any counter complaints against plaintiffs which might be made the subject of a bill and relieves them of the necessity of resorting to a cross-bill. It might, in consequence, be that a defendant would ask in his answer for the allowance of affirmative relief against a plaintiff. As a further consequence the defendant should, so far as his answer was affirmative of any cause of complaint he had against the defendant by way of
(3) There is also involved the practice question of the propriety of piecemeal rulings in causes, and perhaps a like piecemeal appellate relief. The courts have always and properly frowned upon this. If a defense attempted to be set up by answer were struck out, this might be deemed so far a final decree as to give a right of appeal. Nothing could be ruled on such an appeal, which could not at least as well, and perhaps with more, satisfaction be ruled as a trial question entering into the entry of the decree disposing so far as the trial court is concerned of the whole case on final decree.
The disposition made of the present motion is to hold it to be ruled as a trial question, and until then the motion is denied.
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