Smith-Warren Co. v. David Lupton's Sons Co.

139 F. 1008, 1905 U.S. App. LEXIS 4749

Opinion

J. B. McPHERSON, District Judge.

The seventh and eighth grounds of demurrer seem to me to be well founded, but it does not follow that the bill must be dismissed. On the contrary, I think that the proper order is to strike out paragraphs 20, 21, 22, and 23, as containing what at present appears to be irrelevant matter, and require the defendants to answer the rest of the bill. If the answer sets up the Watkins patent as a justification for the defendants’ acts, it will be time enough then to consider what place in the art that patent is entitled to hold, and how far it may be affected by what was done in the office while the application was pending. The clerk is directed to enter the appropriate order.