Kaolatype Engraving Co. v. Hoke, 30 F. 444

Kaolatype Engraving Co. v. Hoke

30 F. 444 | U.S. Circuit Court for the District of Eastern Missouri | 1887

Thayee, J.

1. In the above case the court is of tbe opinion that it sufficiently appears from tho bill that the defendants are jointly engaged in the alleged acts of infringement, and that the first point of the demurrer, to the effect that the bill is multifarious, should bo overruled. We are also of the opinion that it does not affirmatively appear that tho plaintiff has been guilty of such laches as to preclude it from obtaining relief. The allegation is that since ihe date of tho lottters patent, on June 14, 1874, on divers fimos and occasions, tho defendants have used and sold the invention. Tins language does not imply a continuous use of the invention for such period as to bar all relief. The second point of the demurrer is accordingly overruled. The description of tho assignment under which complainants derived title to the letters patent on February 11, 1880, is in such language that it would not entitle the complainants to damages for any infringement prior to that date. The assignment as described in the bill merely carried tho title to the letters patent as of that day; it did not transfer any right to sue for damages previously incurred. The third point of the demurrer is accordingly well laten. Complainants are not entitled on the averments of the bill to a discovery, or to relief for acts committed prior to February 11,1880.

2. The other points of the demurrer are more vital. Wo are, in effect, asted to declare, on an inspection of the patentee’s claims as set forth in the bill, that the claims disclose no invention. If facts exist of which the court is bound to take judicial notice, and those facts clearly estab*446lished want of invention in the matter claimed by the complainants, undoubtedly we can declare the present patent void on demurrer, inasmuch as the patentee’s description and claims form a part of the bill. Brown v. Piper, 91 U. S. 41; Slawson v. Railroad Co., 107 U. S. 649, 2 Sup. Ct. Rep. 668. As the case has been presented, the question really before us is whether we will take judicial notice of certain processes described in various mechanical dictionaries, encyclopedias, and other publications produced on the hearing of the demurrer, and, by reason of our taking judicial cognizance of such processes, determine that the patent in question does not describe an advance in the art to which it appertains, rising to the dignity of an invention. Besides those facts of which courts are bound by law to take judicial notice, they will ordinarily only take notice of facts of universal notoriety, — of facts that are so generally understood that they may be regarded as forming part of the common knowledge of every person. Brown v. Piper, supra. The matters of which we are asked to take judicial cognizance in this instance, and thereupon declare the invalidity of this patent, do not strike us as falling within the last category. They are a class of facts which might inore properly be called to our attention on the hearing (with opportunity to the other side to rebut or explain) as tending to show the state of the art to which this patent appertains, and for the purpose of enabling us to determine whether this patent really describes a newly-discovered process which called for an exercise of the inventive faculty. The remaining points of the demurrer we accordingly overrule.

Answer having been filed, this case was dismissed by the complainants, April 26, 1887. . •