Pope Manuf'g Co. v. Marqua

15 F. 400, 1883 U.S. App. LEXIS 2031

• Court: District Court, S.D. Ohio
• Decided: March 5, 1883
• Status: Published

Opinion

Baxter, J.

This is a bill to restrain further infringement and recover for past infringement of two reissued patents. The original of one of them was issued on the seventh of March, 1865, and was reissued May 28, 1878. The original of the other was issued twentieth December, 1866, and: was reissued November 27, 1877. The bill is demurred to.

.Complainant fails to show by his bill that the two inventions alleged to have been infringed are capable of conjoint use, or that they have in fact been, so used by defendant. For the want of this averment it is insisted that the bill is multifarious, etc. 3 Fisher, 63; 6 Fisher, 286; and Gamewell, etc., Co. v. City of Chillicothe, 7 Fed. Rep. 354-5.

I am inclined to think the demurrer is well taken. But in view of another question raised by the demurrer, which is clearly fatal, I have not fully considered, nor have I deemed it necessary to decide, whether the bill is or is not multifarious.

One of the patents was reissued 13 and the other 11 years after the original. The right to this reissue had been abandoned and lost by unreasonable delay. Bantz v. Frantz, 105 U. S. 160, and Miller v. Bridgeport Brass Co. 104 U. S. 350, decided at the last term of the United States supreme court. The reissued letters sued on are therefore invalid. Complainant’s bill will be dismissed, with costs..