Sanitary Metal Tile Co. v. New York Metal Ceiling Co.

188 F. 441, 1910 U.S. App. LEXIS 5732

Opinion

GONE, Circuit Judge.

I have delayed action in this cause to await the decision of the Circuit Court of Appeals in Stillwell v. McPherson, 183 Fed. 586, 106 C. C. A. 354, which has just been handed down and which, in my judgment, requires a decision here overruling the demurrer. The rule in this circuit is to the effect that it is only in the plainest cases that a demurrer to a bill founded on letters patent will be sustained and that if there be any doubt, it must be resolved in favor of the patent.

It is enough to say that, tested by this rule, I am unable, at this stage,of the litigation, to say that the patent is invalid.

Demurrer overruled, the defendant to answer within thirty days.