Enterprise Manuf'g Co. of Pennsylvania v. Snow

67 F. 235, 1895 U.S. App. LEXIS 3390

Opinion

TOWNSEND, District Judge.

The demurrer to this bill alleges as follows: “That the bill does not contain any description, delineation, or definition of any patented claim that is alleged to have been infringed by the defendants.” The bill merely makes profert of the patent. The demurrer raises the question whether such profert is equivalent to a sufficient description of the patented invention. This question has been presented and considered in prior cases in this circuit. The practice referred to does not seem to be supported by principle, except, possibly, upon the theory that the patent itself is the foundation of the statutory right of the complainant. Upon this ground, and in view of the manifest convenience of such a course, and its general adoption, I followed the prior decision in La Republique Francaise v. Schultz, 57 Fed. 37. The exhaustive brief of counsel for defendants forcibly suggests the reasons why the substitution of such profert for an adequate description of the patent is contrary to the rules of equity. It is not necessary to express any opinion upon the merits of the question, inasmuch as I feel bound by the settled practice, and by the prior decisions in the various circuits to the effect that profert of the patent Is sufficient. The demurrer is therefore overruled.