Turrell v. Cammerrer

24 F. Cas. 378

• Court: U.S. Circuit Court for the District of Ohio
• Decided: November 15, 1868
• Status: Published

Opinion

LEAVITT, District Judge.

The question before the court arises upon a demurrer to a bill filed by the complainant for the infringement of letters patent [No. 32,845]. It is objected that the bill does not state facts enough to enable the court to base a deeree-upon it,- and it is insisted that, before the defendant can be called upon to answer, the complainant shall be required to set forth the precise infringement complained of by some adequate description of the patented invention, and of the infringing machine or process. This he has never been required b3' the practice of this court to do. The general allegation of the bill that the defendant has infringed the letters patent has been sufficient to put him upon his answer. It would obviously be a very inconvenient practice to require the complainant to set out at length in his bill the details of his invention and of the defendant’s manufacture. The bill would be very voluminous, and not necessarily more clear or explicit. The defendant is, by the general averment, put in possession of the allegation that he has infringed the complainant’s patent. This he may deny by answer. The burden of proof is then upon the complainant to prove infringement, and to show wherein it consists. If be fails to do this he is not entitled to relief.

The demurrer concedes the facts, and the only question is, whether there are facts enough averred to require an answer from the defendant. The practice is so well settled, both here and elsewhere, that I should feel a great reluctance to disturb it, at this late day, in any event; but I am clearly of opinion that the general charge of infringement is all that is necessary to require the defendant to answer the bill, and that particulars of infringement need not be specified. Demurrer overruled.