Celluloid Manuf'g Co. v. American Zylonite Co.

34 F. 744, 1888 U.S. App. LEXIS 2355

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: April 9, 1888
• Status: Published

Opinion

Lacombe, J.

This is a motion to strike out pleas filed by the defendant, or to treat them as an answer. The action is for the recovery, of damages for the infringement of a patent. The summons and complaint are in the forms approved in state practico. The defendant contends that because section 4919 of the Revised Statutes prescribes that such damages “may be recovered by action on the case,” the only method of securing such relief is by the archaic form and procedure of the couinion-law action of case, modified only by the rules of this circuit in force before the passage of the act of 1872, now preserved in section 914 of the same Revision. Ho is unquestionably correct in the proposition that sections 914 and 4919 are to be construed together, but to such construction it is by no means necessary to exclude actions brought under section 4919 from the operation of section 914. An action on the case is undoubtedly the mode in which such damages can be recovered, hut the forms of pleading and procedure in such action in the federal courts should be the same as those employed in the same action in the state courts. The substance of an action on the case was not abolished by the reformed procedure, though its pleadings and practice were reconstructed in conformity with the new system. .By the operation of section 914 an action on the case in the federal courts is assimilated to the state model, except so far as it is modified by express enactment of congress, as by section 4920. Motion granted.