60 F. 622 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1894
The demurrer to this'bill could not be sustained upon the ground first assigned for its support. The fact that the bill alleged infringement of- trade-mark rights, and also of certain rights secured by letters patent, does not render it multifarious. Courts of equity are averse to the multiplication of suits; and no definite rule, of general applicability, has been, or can be, laid down as a test of multifariousness. The question, in each instance where it is presented, is largely addressed to the regulated discretion of the judge, and is to be determined with reference to the peculiarities of the particular case, upon considerations which are practical, rather than theoretical, in their nature. In the present suit, both the allegations, the union of which is objected to, relate to the same subject-matter; and, although two distinct rights are averred to have been violated, I perceive no reason for supposing that they may not be litigated in a single proceeding,
“Ilis [ilie plaintiffs] theory is that the defendant, by the sale of its valve under this name, has by one act infringed two rights of the complainant,— his patent right, and his right to the undisturbed use, during the life of the patent, of the trade-mark which he has adopted. If this theory was true, his bill, perhaps, would not be open to the charge of misjoinder upon the ground that, if two good causes of complaint grow out of one transaction for which the same character of relief is sought, and in regard to which all the defendants have the same claim of right, such causes may he included in one bill.”
The second objection to the bill which is set up in the demurrer is well takeu. It appears from the bill that the letters patent which the defendants are alleged to have infringed were granted to Samuel Jaros. The allegations with respect to the plaintiffs title are contained in tw'O paragraphs of the bill, as follows:
“(18) That’said loiters patent, so far as the same relates to, and is based upon, tlie underwear and similar articles, was, by mesne assignments in writing, duly assigned to your orator, as by said original assignments, or duly certified copies thereof, here in court to be produced, will fully appear.
“(14) That, by reason of the premises, your orator became, and now is, the solo owner of the hereinbefore recited trade-mark, pictures, system of numbering, method of making seams, and other peculiar, distinguishing features of its said underwear, and that the same are of great value to your orator.”
The learned counsel for the complainant suggested during the argument that this language might be taken to mean that the entire • patent had been assigned to the complainant, but, upon its being then proposed to him to amend so as to make that meaning perfectly clear, he declined to do so. To me these paragraphs seem to be capable of but one construction, or rather to require no construction at all, for their effect is perfectly plain. It was, of course, incumbent upon the plaintiff to set out its title. It cannot be assumed to have any other or better one than that which it has asserted, and all it has alleged is that the patent, “so far as the same relates to, and is used upon, underwear and similar articles,” was assigned to it. It is impossible to suppose that these limiting words would have been inserted if, in fact, the plaintiff had become the owner of the whole patent. Xor is the effect of this limitation modified by the general averment of the following (the fourteenth) paragraph, that, “by reason of the premises,” the complainant is the sole owner of the before-recited method of making seams, etc. This ⅛ too evident to call for elaboration or argument. The law of this subject is uot doubtful, and it constrains me to hold that the title set up