Knox Rock-Blasting Co. v. Rairdon Stone Co.

87 F. 969, 1898 U.S. App. LEXIS 2764

• Court: U.S. Circuit Court for the District of Southern Ohio
• Decided: June 21, 1898
• Status: Published

Opinion

SEVEREKS, District Judge.

The motion to strike the defendant’s plea from the files must be sustained. To a bill in the usual form, charging infringement of a patent, the defendant pleads that during a certain period the patented device was experimented with by the defendant by consent of the complainant, and that with respect to other occasions it did not infringe. A plea should, state some single objection to the plaintiff’s case which would be a complete defense either to the whole bill or to some distinct part of it. This plea does neither, but consists of matter which would be a defense for some of the period covered by the allegations of the bill and answers for the rest of the period. It has been several times .decided that a defense by plea is inappropriate to this class of cases unless in very special circumstances, and I think the objections to it; are re-enforced in this case by the general rule of equity pleading to which I have referred. Sharp v. Reissner, 9 Fed. 445; Hubbell v. De Land, 14 Fed. 471-474; Korn v. Wiebusch, 33 Fed. 50; Union Switch & Signal Co. v. Philadelphia & R. R. Co., 69 Fed. 833-835; Chisholm v. Johnson, 84 Fed. 381. Such cases as Leatherbee v. Brown, 69 Fed. 590, are distinguishable. There the whole matter of defense in the case consisted of a single point, and the cases fall within the exception to the general rule above stated. The motion is sustained. Leave is given to answer within 20 days.