141 F. Supp. 631 | D. Mass. | 1956
In this action for infringement of a container patent, Waters, No. 2,278,502, issued April 7,1942, defendants move for summary judgment. They previously moved to dismiss on the ground of lack of infringement, but I found there was on that question a possible issue of fact. D.C., 136 F.Supp. 912. The present motion, accompanied by copies of a number of prior and other roughly contemporaneous patents, is based on the contention that plaintiffs’ patent is void for lack of invention.
While defendants furnish what I have come to expect as the customary seller’s talk on the scope and effect of the prior art, it seems apparent even when their position is reduced to size th^fc plaintiffs are in considerable trouble. They have filed nothing tangible in reply. In their
It appears to be common ground that this case would take a week or more to try in its various components. Where defendants disclosed some half dozen patents which seem to me on examination to cover, at least collectively,, substantially every element of plaintiffs’’ claims, and plaintiffs file no affidavits as. to testimony, expert or otherwise, and make only a pro forma argument, I will not presume that an issue of fact exists, where none is apparent. See Brisk Waterproofing Co. v. A. Belanger & Sons, 1 Cir., 209 F.2d 169, 173.
Defendants’ motion allowed, and complaint dismissed.