Pentlarge v. Beeston

19 F. Cas. 209, 15 Blatchf. 347, 4 Ban. & A. 23, 1878 U.S. Dist. LEXIS 251

Opinion

BENEDICT. District Judge.

This action is based upon a patent for an improvement in bungs, dated June 30th, 1S74, reissue No. 5.937. The cause is at issue, and a preliminary injunction has been directed. The defendants now apply- for leave to file a certain proposed amendment to their answer. The application is addressed to the favor of the court, and it should be denied, among other reasons, for this, that, in a former action between these same parties [see Case No. 10,903] upon this same patent, in this court, by the consent of these defendants, a final decree was rendered, wherein the plaintiff’s patent was adjudged to be valid, and tbe defendants adjudged liable to the plaintiff in the sum of $2,000, for infringing the same. No fraud, surprise or mistake is pretended in regard to that decree, and, in view of the long and heated controversy that has been had over this patent, between these same parties, it is not too much to say, that the idea of denying the novelty and utility of • the invention described in the plaintiff’s patent is an afterthought. Under the circumstances of this ease, there would be no equity-in granting to the defendants, at this stage, permission to alter their pleadings, so as to render it possible for them to force the plaintiff to take testimony upon an issue as to the novelty or utility of his invention. Moreover, by an agreement in writing, made between these same parties, on the 3d of January, 1S7S, in regard to this same patent, it was declared as follows: “The aforesaid parties of the second part, William R. Beeston and Frederick Pentlarge, admit and acknowledge the validity of the aforesaid original and reissued patents of tbe party- of the first part, in every respect and feature thereof, and the validity of the title in and to the said patents, and in the invention described therein, in law and equity, of the said party- of the first part, in every particular, as to originality and priority of invention, novelty and utility.” This agreement is not disputed or its legality denied. Indeed, it is set up in the answer, and, further, the defendants, in their answer, aver, “that they do not now, by this answer, nor do they intend to, question, dispute, oppose or obstruct the validity of the reissued letters patent granted to the complainant, as aforesaid, or the title of the aforesaid complainant in and to the reissued letters patent, or in and to the invention described therein.” Under such circumstances, the plaintiff is certainly entitled to ask that the defendants be denied the favor of amending their answer, for the purpose of inserting averments in direct conflict with the terms of their solemn agreement, and inconsistent with the answer as it now stands. The motion to amend is denied.