Welsbach Light Co. v. Rex Incandescent Light Co.

87 F. 477, 1898 U.S. App. LEXIS 2598

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: March 19, 1898
• Status: Published

Opinion

WHEELER, District Judge.

The bills allege that one Carl Auer von Welsbach was the first inventor of certain new and useful improvements in the “manufacture of gas incandescents,” for which letters patent of the United States, numbered 409,531, were on the 20 rh day of August, 1889, issued to him, assignor to the plaintiff, with profert of the assignment. No profert of the patent is made, nor other description of the invention set out. The bill is demurred to f >r this cause, among others not so well founded; and the demurrer has been argued. That the invention should be set out iñ the bill by allegation, profert of the patent or copy of it annexed, so as to inform the defendant what is claimed to have been infringed, is so fundamental that it need hardly be stated. In Dickerson v. Greene, 53 Fed. 247, and American Bell Tel. Co. v. Southern Tel. Co., 34 Fed. 803, relied upon- by the plaintiff to show the sufficiency of a general description of the invention, the bills each made profert of the patents. The profert of the assignment is argued to be sufficient to supply this defect, but it adds nothing in this behalf. For this defect the demurrer must be sustained. The complainant should, however, have leave to amend. Demurrer sustained, .with leave to amend by next rule day.