243 F. 621 | D.R.I. | 1917
The case is before the court upon the following motion:
“1. And now comes the defendant herein and respectfully represents to this honorable court that, as appears of record in the pleadings heroin, the plaintiffs are Fredrieli.and Eugene Speidel, citizens of the German Empire, and subjects of the German Emperor, and residents of Pforzheim in the Grand Duchy of Baden, and Wilhelm' Forstner and Walter Forstner, subjects of the German Emperor and residents of .Providence, Rhode Island.
“2. That, as this honorable court has judicial notice, a state of war now exists between Germany and the United States.
“3. That the plaintiffs herein are, therefore, alien enemies, and are without right to ask for or obtain the relief sought by said bill while said state of war continues.
"Wherefore the defendant moves that this action be abated, and that the bill of complaint herein be dismissed without prejudice.”
It is unnecessary, however, to review the authorities, in view of our conclusion as to the proper order in this case.
It seems entirely impractical also to proceed to an accounting of damages and profits and to make a decree therefor, and possibly a decree for threefold damages, and to provide that it should not give to the nonresidents profits or damages to which, during war, they would have no right.
The defendant is entitled to contest the validity of the patent in a single suit, and, if liable for profits and damages, there is but a single liability. The defendant could not be called upon to pay two judgments for profits and damages, one upon a suit by the resident plaintiffs, and one upon a suit by the nonresident plaintiffs after the termination of war and of their disability. “The monopoly granted by letters patent is one entire' thing and cannot be divided into parts,” except as authorized by the patent laws. Waterman v. Mackenzie, 138 U. S. 252, 255, 11 Sup. Ct. 334, 34 L. Ed. 923; Pope Mfg. Co. v. Gormully (No. 3) 144 U. S. 248, 12 Sup. Ct. 641, 36 L. Ed. 423. The plaintiffs, therefore, are asserting and the defendant denying an indivisible right; and the defendant can be liable only to a single money judgment for violation of that right.
These seem insuperable objections to a dismissal without prejudice to the plaintiffs, leaving two plaintiffs to prosecute the suit. But, even were equity rule 39 (198 Fed. xxix, 115 C. C. A. xxix) applicable, and if it could be read to confer upon this court a discretion thus to pro
The proper course in. my opinion is that followed by Judge Speer in Plettenberg, Holthaus & Co. v. I. J. Kalmon & Co. (D. C.) 241 Fed. 605, a case where all the plaintiffs were alien enemies resident in Germany, and which seems specially appropriate in a case where there is personal disability of some hut not all the plaintiffs—to suspend the suit and all proceedings therein during the state of war, or until further order.
The defendant may present a draft order accordingly.