12 F. Supp. 229 | S.D.N.Y. | 1928
It has been quite generally held that a counterclaim based on unfair competition arising out of the sending of notices of infringement of the patent sued on to defendant’s customers and threatening them with suit does not arise out of the transaction which is the subject-matter of a suit brought for the infringement of a patent [see Williams Patent Crusher & Pulverizer Co. v. Kinsey Co. (D. C.) 205 F. 375; Cooling Tower Co., Inc. v. C. F. Braun & Co. (C. C. A.) 1 F. (2d) 178; Electric Boat Co. v. Lake Torpedo Boat Co. (D. C.) 215 F. 377; Ohio Brass Co. v. Hartman Electrical Mfg. Co. (D. C.) 243 F. 629] and unfair competition cannot be the subject of an independent suit in the federal courts in a case in which the plaintiff and defendant are residents of the same state [see Cleveland Engineering Co. v. Gabon Dynamic Motor Truck Co. (D. C.) 243 F. 405; United States Expansion Bolt Co. v. Kroncke FTardware Co. (C. C. A.) 234 F. 868].
The motion, therefore, is granted.