Barney v. Peck

16 F. 413, 1883 U.S. App. LEXIS 2152

Opinion

Wallace, J.

When the bill alleges infringement of several patents for different inventions, to escape the objection of multifariousness it must aver that the inventions hre capable of conjoint use, and are in fact so used by the defendant. Nellis v. McLanahan, 6 Fisher, Pat. Cas. 286; Gamewell Fire Alarm Tel. Co. v. Chillicothe, 7 Fed, Rep. 351; Hayes v. Dayton, 8 Fed. Rep. 702. The bill here is founded on distinct patents, and alleges that “the defendants have unlawfully used the said patented inventions, and have made and sold skates containing and embodying in their construction said inventions or substantial parts of the same, and still continue soto do.” It does not appear that the several inventions can be embodied in one skate. The averment of the bill would be satisfied by proof that some of the skates made by the defendants infringe one of the patents, and others infringe another patent. It may he that some or all of the skates are infringements of all the patents, but the defendants are not required to take the chances' of being compelled to litigate several distinct and unconnected controversies in one suit. ,

The demurrer is sustained.