88 F. 515 | U.S. Circuit Court for the District of Southern New York | 1898
The ground of demurrer assigned is “that it appears upon the face of the said bill that the complainant is not entitled to any relief against this defendant in a court of equity.” The various propositions upon which it is sought to maintain this demurrer may be separately considered:
“Your orator fears, and has reason to fear and believe, that, unless the said defendant, is restrained by a writ of injunction, * * * it will continue to make and to use and to sell large numbers of the aforesaid typewriting machines [i. e. Underwood typewriters, already averred in the bill to be infringing machines], and thereby will cause great and irreparable loss, damage, and injury to your orator’s aforesaid exclusive rights.”
This averment is in the usual form, and no authorities are cited holding it to he insufficient. The cases upon the brief are not patent causes, and go only to the extent of supporting the elementary proposition that a mere allegation that “complainant will suffer irreparable injury” is insufficient, without facts to sup
“Said defendant * * * did, as your orator is informed and believes, without the license,” etc., “* * * in infringement of the aforesaid letters patent, * * * make * * * and vend the said invention and patented improvements.”
It is suggested that there is lacking here any-positive charge that defendant does infringe. The bill is open to this criticism. The correct form of averment is that set forth in Story, Eq. Pl. (8th Ed.) p. 249, viz. "that plaintiff has been informed and believes, and therefore avers.” The objection is rather hypercritical, but appears to be sound. The demurrer is therefore sustained, with leave to complainant to amend, but without costs.