11 F. Cas. 845 | U.S. Circuit Court for the District of Southern Ohio | 1873
The bill in this case is founded upon a patent originally granted to one John Lemmon, and by him assigned to the complainants, who subsequently procured a reissue, upon which the suit is brought. The bill fails to describe the nature of the improvements, either in the language of the specification or in any other way. It merely declares that the patent is for an improvement in bedstead fastenings, and in the same general terms it alleges the infringement of the reissued patent by the defendants.
To this bill the defendants demur, and for cause show that the complainants have not, in their said bill of complaint, alleged how many claims are contained in the said reissued letters patent referred to therein, and have not alleged which of these claims, if any, these respondents are accused of infringing, and by reason of thus not alleging the said matters, these respondents may be compelled to undergo great and unnecessary expense and labor in preparing to defend against said bill of complaint
The cause set out in the demurrer is perfectly true in point of fact, and the question therefore is, is the bill sufficient to put the defendants to their answer. There is no doubt that, upon the general principles of equity pleading, the bill, in failing to specify the nature of the patented improvement, or of the infringement, is bad, and we should, in the absence of authority, have held it bad upon general demurrer.
But, upon looking into the forms bearing upon this subject, we find in Greenleaf on Evidence (volume 2) a declaration at law which has the same general character as the bill before us, giving no summary of the specification or claim, or pointing out the particulars of infringement. In Curtis’ American Precedents, published in 1839, the first edition having been published some thirty years ago, the form given for a bill in equity is of the same general character. In Curtis on Patents (4th Ed. § 406) an elaborate statement is given as to how a bill in equity should be drawn, and the bill in this case conforms to all the requirements there laid down.
The form here used obtains, we believe, throughout the United States, and it is an old remark, founded in good sense, that there is no better evidence of what is a sufficient pleading than a form that has long been used. The form of the bill in the present case rests upon a foundation too deep to be
