Sprague v. Bramhall-Deane Co.

133 F. 738, 1904 U.S. App. LEXIS 5121

Opinion

HAZEL, District Judge.

This is an action at law to recover damages for the infringement of a patented sterilizer. A demurrer has been interposed by the defendant on the ground that the complaint does not state facts sufficient to constitute a cause of action.

It does not appear from the face of the complaint that the plaintiff has complied with the provisions of section 4900 of the United States Revised Statutes [U. S. Comp. St. 1901, p. 3388], which imposes the duty on every patentee to publish the fact that an article is patented by labeling the same, or the package in which it is inclosed, in some suitable manner with the word “Patented”; nor does it appear that the defendant had any notice whatever of the asserted infringement. The authorities hold that a plaintiff seeking to recover damages for infringement of a patented article must affirmatively establish that the statute in question has been complied with. A strict compliance is a prerequisite to a patentee’s right to recover damages. Dunlap v. Schofield, 152 U. S. 244, 14 Sup. Ct. 576, 38 L. Ed. 426.

The demurrer is sustained with costs, the plaintiff having leave to amend within 20 days.