68 F. 914 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1895
When the demurrer to the bill in this case was originally argued, the impression was made upon my mind that it was conceded by complainants that the respective subjeets-matter of the fire patents sued on were not used in one mechanism, but upon different, though contiguous, parts of the same railroad. Upon this understanding, I held the bill to be multifarious, and upon that ground sustained the demurrer. The complainants now move to vacate that order, and for leave to amend their bill by adding thereto the following:
“And your oralors in this behalf further aver the fact to be that the conjoint use made by the defendants herein as herein averred includes a use of a materia] and substantial part of the subject-matter of each of the said recited patents in one and the same connected machine, mechanism, or apparatus.’’
This proposed amendment is accompanied by an affidavit that, to the best of the affiant’s knowledge and belief, the facts therein stated are true; and upon the argument of the present motions, complainants’ counsel has strenuously insisted that the statement it embodies is supported by the several patents themselves. Counsel for defendants has quite as earnestly contended, on the other hand, that a proper understanding of lie patents requires the negation of the averment sought to he introduced by amendment. Waiving any doubt as to whether it would be permissible to now enter upon a discussion of the question thus raised, I decline to do so, because I deem it inexpedient to express any opinion respecting the patents sued upon at this stage of the cause. For the present purpose, I assume the truth of the matter which the complainants ask leave to insert in Uieir bill. The amendment is allowed. The order heretofore made Is vacated, and the demurrer overruled. Any question regarding costs, which may call for further consideration of this matter, is reserved. The defendants are assigned to answer or plead sec. reg.
