256 F. 656 | 2d Cir. | 1919
At the hearing, the appellants appeared and sought an adjournment, which was refused. The appellants thus defaulted, and the trial proceeded. Appellee put in its proof, and a decree was entered, from which this appeal is taken. At the outset, the appellants challenge the jurisdiction of the District Court for the Southern District of New York as to the appellants Perrin Manufacturing Company, Nelson J. Quinn, and E. L. Allen. Quinn and Allen traded as a copartnership under the name of Perrin Manufacturing Company. The former resides in Ohio and the latter in Michigan. Section 48 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1100 [Comp. St. § 1030]), re-enacting the act of March 3, 1897, c. 395, 29 Stat. 695, provides:
“In suits brought for the infringement of letters patent” in the District Courts of the United States, “the District Courts of the United States shall have jurisdiction, in law or in equity, in -the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought.”
We do not think that this circumstance of the manufacturer protecting the jobber or a prospective customer can by any stretch create a presumption that the manufacturer and jobber are one and the same person or firm. While the record contains only the appellee’s proof, and we must examine this question in light of the record, we believe that the proofs indicate that Asch & Co., Incorporated, was not the agent of the Perrin Manufacturing Company. Asch & Co., Incorporated’s, letter heads indicate no relation of agency for the Perrin Manufacturing Company, nor was there any indication by sign on the office door or otherwise, at the place where Mr. Boyd made his purchase. Therefore the testimony as to agency depends upon the information furnished by the clerk in charge of Asch & Co., Incorporated, at the time of the purchase. The language of the clerk is not inconsistent with a relationship of that of manufacturer and jobber handling the product of the Perrin Manufacturing Company. The guaranty to protect against charges of infringement contained in the correspondence is consistent with the relationship of principal and agent. The burden of proof was upon the appellee before it was entitled to a decree as against these appellants to establish the necessary jurisdictional facts. We are not satisfied it has proven that the act of tire single sale of Asch & Co., Incorporated, of the Perrin “No-Glare” shade is sufficient to confer jurisdiction of the District Court as against Quinn and Allen. Indeed, if Asch & Co., Incorporated, were the representatives of the Perrin Manufacturing Company in New York, it may only have meant that they solicited orders and forwarded them to its principal at its home office in another statej and that the goods were shipped direct by the principal. Thus the sale would have been consummated in another jurisdiction, and it would not constitute an infringement of patent within the district so as to confer jurisdiction. Tyler Co. v. Ludlow-Saylor Co., 236 U. S. 723, 35 Sup. Ct. 458, 59 L. Ed. 808.
The invention relates to a deflector which, is designed most particularly on incandescent, electric- lights- -of automobile headlights. Its
Claims 1 and 2 of the patent in suit, which are relied upon principally by appellee, are as follows;
“1. A deflector for incandescent electric lamp bulbs comprising a rear shield section adapted to cover parts of the rear and underside of the bulb and an independent front section adapted to cover the central part of the front side of the bulb and connected with said rear section.
“2. A deflector for incandescent electric lamp bulbs comprising a rear shield section adapted to cover parts of the rear and underside of the bulb and a front section adapted to cover the central part of the front side of the bulb, and a flexible connection between said front and rear shield sections.”
. In the effort to defeat the appellee, we are referred to the prior art, Lennon’s patent No. 1,137,221 and the MfcLean patent, No. 1,146,269. These patents were not part of the prior art when Stryker filed his
In the McLean shield deflector, the shading is done by applying light-intercepting elements permanently to the bulb, and in the patent in suit the shading is done by two interconnecting shades which are removable from the bulb.
We are of the opinion that the prior art does not invalidate the patent in suit; also that claims 1 and 2 are infringed. The active infringement being proven by the sale of Asch & Co., Incorporated, we shall affirm as to "it. - The decree will therefore be modified by reversing as to Perrin Manufacturing Company, Quinn and Allen, and the complaint dismissed and affirmed as to Asch & Co., Incorporated.