Brickill v. City of Buffalo

49 F. 371, 1892 U.S. App. LEXIS 1623

Opinion

Coxe, District Judge.

The only question argued is whether the state statute of limitations applies to actions lor the infringement of patents. This question has been examined now, as well as on former occasions, with the result that, in my judgment, the weight of precedent and reason is in favor of the proposition that the state statutes do not apply. I shall so rule if I preside at the trial of this action. The question, however, has never been decided by the supreme court or by any of the circuit courts of appeals, so far as I am aware, and there is great contrariety of opinion in the circuit courts. May v. County of Logan, 80 Fed. Rep. 250, and cases cited on page 257. The defendants should, therefore, be permitted to save the point. It is thought that the rights of both parties can best bo protected if the formal ruling is postponed until the trial. Adams v. Stamping Co., 25 Fed. Rep. 270. A decision of the circuit court of appeals will, so far, at least, as the second circuit is concerned, settle the question, which should be presented to that tribunal unembarrassed by any technicalities of pleading. To sustain the demurrer now might tend to complicate the situation should a review become necessary.