234 F. 191 | D. Del. | 1915
The bill was filed by the Union Sulphur Company againsU’the Freeport Texas Company, a corporation of Delaware, and the Freeport Sulphur Company, a corporation of Texas; but the last named company is not before the
“That the said Freeport Texas Company at the time of the commission, of the acts hereinafter complained of was controlling and is now controlling all of the acts and all of the property of the Freeport Sulphur Company and was and is now operating and conducting or directing and controlling the operation and conduct of its plant and business.”
The ninth paragraph states that the Freeport Texas Company and the Freeport Sulphur Company conspired and contrived together to commit the acts of infringement complained of. The tenth paragraph states that the Freeport Texas Company and the Freeport Sul-phur Company “conspiring together, and acting in concert” have been guilty of infringement. The twelfth paragraph states :
“That the Freeport Texas Company has itself committed such acts of infringement in that it has authorized, directed and controlled, and is now authorizing, directing and controlling the acts of the Freeport Sulphur Company, herein alleged to he infringements of said letters patent.”
The eighth paragraph of the answer alleges:
“That said defendant, Freeport Texas Company, never owned, controlled, operated, directed or conducted, and does not now own, control, operate, direct or conduct the property, plant or business of the Freeport Sulphur Company.”
The ninth paragraph denies:
“That at any time the defendant Freeport Texas Company was controlling or is now controlling the acts, or all of the acts, or the property, or all of the property, of the said Freeport Sulphur Company, or was at any time or is now operating, conducting, directing or controlling the operation or conduct of the plant or business of said Freeport Sulphur Company, * * * or that the defendant Freeport Texas Company has itself committed any acts of infringement or has authorized, directed or controlled, or is now authorizing, directing or controlling * * * any acts of said Freeport Sulphur Company alleged in said bill to be infringements of any of the several letters patent in suit.”
The tenth paragraph alleges:
“That it [the defendant] is not in any way liable or responsible for any of the alleged acts of said Freeport Sulphur Company alleged in said bill to be infringements of said several letters patent.”
The twelfth paragraph denies that the defendant and the Free-port Sulphur' Company conspired or contrived together to infringe. The thirteenth paragraph denies that the defendant and the Free-port Sulphur Company have conspired together or acted in concert to infringe.
'Equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi), prescribed by the Supreme Court, provides:
“Demurrers and pleas are abolished. * * * Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court.”
The parties on both sides have applied through their counsel “for a separate hearing, under equity rule 29, of the special defense and issue raised in paragraphs, 8, 9, 10, 12 and 13 of the answer of the defendant Freeport Texas Company, that it is not liable for the in-
“These particulars are given without waiving the plaintiff’s right to rely, in this or other suits, upon any infringing acts of these defendants or either of them, or upon any other patents or claims which it may subsequently learn have been infringed by these defendants or either of them.”
The counsel in their brief in support of the plaintiff’s interrogatories say:
“The defendant tried to make it appear that the plaintiff, claimed recovery only for infringement during the year 1914. However, in the bill of particulars, it is definitely stated that the particulars are given without waiving the right of the plaintiff to recovery for any other infringonfent which it might discover.”
The granting of the present motion would not, I think, be an exercise of sound discretion. No case tending to show its propriety has been brought to my attention. Reference was made to Alexander v. Fidelity Trust Co. (D. C.) 214 Fed. 495, and 215 Fed. 791, and to St. Louis Union Trust Co. v. Studebaker Corporation (unreported),
But wholly aside from the question whether an issue of infringement under conspiracy together with an issue of infringement pur
Since reported in 226 Fed. 797, under the title of Sanitary Street Flushing Mach. Co. v. Studebaker Corporation. 234 F — 13