150 F. 331 | 7th Cir. | 1907
after stating the facts, delivered the opinion of the court.
No matter what evidence was accessible to the court, the only proposition /Submitted by defendant’s motion was that the plea covered the declaration and that the replication failed to meet the plea.
The plea shows that plaintiff’s former suit was dismissed for want of equity. But the setting forth of such a decree was not all that a sufficient plea required. For the want of equity may have come from a finding that the patent was void, or from a finding that the patent was valid, but not infringed, or from findings of both invalidity and noninfringement. An adjudication that the patent was void would protect defendant against a new attack by plaintiff on the same patent. But an adjudication that defendant was doing something that did not infringe a valid patent would not justify defendant in doing something else that does infringe.
The declaration avers the proper granting of the patent. That fact carries with it the presumption of ‘the patent’s validity. The plea neither tenders a present issue respecting validity, nor alleges that such an issue between these parties had theretofore been adjudicated against plaintiff. As between the declaration and the plea, therefore, the validity of the patent stands confessed.
The plea, however, does meet the declaration, for it alleges that the acts for which defendant is now sought to be held are merely a continuation of the very same acts which were involved in the former litigation and were adjudged not to constitute a cause of action. But this allegation was expressly denied in the replication. So an issue of fact was framed, for the determination of which plaintiff was entitled to a jury, trial.
• Defendant, nevertheless, contends that the cause should not be remanded for the error in rendering judgment on the pleadings, because an examination of the records of the Circuit Court and of this court in the prior suit will show that the validity of the patent was litigated and was decided adversely to plaintiff. If defendant had set forth such, a record, plaintiff would have been entitled to his day in the Circuit Court to meet that plea. Even if it were permissible to look to such records as sources of'information from which, first, to amend the plea; and, second, to find the amended plea true — it cannot be known what matters in avoidance might be sét forth in a replication.
The legal effect of any former decrees that may be brought into the record of this case, it should be needless to say, will depend upon the pleadings, proceedings, and terms of the decrees themselves, not upon what courts rendered them, nor upon what inferences the parties may have drawn from expressions of judges who entered such decrees.
The judgment is reversed, with the direction to grant the parties leave to amend, if they so desire.