Hogan v. Westmoreland Specialty Co.

154 F. 66, 83 C.C.A. 178, 1907 U.S. App. LEXIS 4507

Opinion

BUFFINGTON, Circuit Judge.

The court below sustained a demurrer to the bill on the ground the patent was on its face void for lack of patentable novelty. While such decree may be entered where a case is clear from doubt, we are of opinion the present was not one of that character. It resembles the cases of Caldwell v. Powell, 73 Fed. 488, 19 C. C. A. 593, and Chinnock v. Paterson, 113 Fed. 531, 50 C. C. A. 384. Following our decisions in those cases, we here hold the demurrer should be overruled, and the questions involved decided on final hearing.

The decree of the lower court is therefore reversed, and the case remanded to the Circuit Court, with instruction to allow the appellees time within which to answer.