Overman Wheel Co. v. Elliott Hickory Cycle Co.

49 F. 859, 1892 U.S. App. LEXIS 1673

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: March 24, 1892
• Status: Published

Opinion

Colt, Circuit Judge.

Upon inspection of the patent granted to A. H. Overman, April 14, 1885, numbered 315,537, for improvements in rubber tires for wheels, I am not prepared to say that it is invalid for want of patentable novelty. Taking this view', it seems to me it would serve no good purpose to enter into a discussion of the patent at this stage of the proceedings. The first three grounds of demurrer are therefore overruled.

The fourth special ground for demurrer is that tho bill does not aver that the alleged invention shown and described in said letters patent had not been patented nor described in any printed publication in this or any foreign country before tho date of said alleged invention. An allegation of this character appears to be necessary, under the provisions of the statute, and the courts have so held. Rev. St. § 4886; Consolidated, Brake Shoe Co. v. Detroit Steel & Spring Co., 47 Fed. Rep. 894; Coop v. Institute, Id. 899. Upon this ground I shall sustain the demurrer, with costs, with leave to the complainant to amend its bill within 10 days. Demurrer sustained.