181 F.2d 269 (8th Cir. 1950), 14055, Hurd v. Sheffield Steel Corp.

Docket Nº:14055.
Citation:181 F.2d 269, 85 U.S.P.Q. 147
Case Date:April 25, 1950
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 269

181 F.2d 269 (8th Cir. 1950)

85 U.S.P.Q. 147




No. 14055.

United States Court of Appeals, Eighth Circuit.

April 25, 1950

Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles, Kansas City, Mo. on brief for appellant.

Richard S. Righter and Horace F. Blackwell, Jr., Kansas City, Mo., on brief for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and RIDDICK, Circuit Judges.

Page 270

GARDNER, Chief Judge.

This appeal is from a summary judgment entered on motion of appellee. The parties will be referred to as they were designated in the trial court. Plaintiff brought this suit charging the infringement of a patent which he alleged had been issued to him for a 'composition for coating metal being formed.' A copy of the patent was attached to the complaint and by proper reference made a part of it. He alleged that the patent was being infringed by the defendant and that defendant had been infringing his patent for a long period of time. He then asked for an accounting, for an injunction and for general damages.

Defendant answered, denying infringement, and pleaded invalidity of the patent issued to plaintiff. It then alleged 'that on July 25, 1939, plaintiff executed and delivered to Theodore B. Dull a transfer and assignment of an undivided fifteen (15%) per cent of the full and exclusive right, for the United States and elsewhere, in and to the invention secured by said patent, ' and then said assignment was duly acknowledged and recorded in the United States Patent Office on April 3, 1941. A verified copy of the assignment was attached to and made a part of the answer. It was also alleged that the assignment was in full force and effect and that Theodore B. Dull was and ever since July 25, 1939 had been co-owner with plaintiff of the patent and hence, he was an indispensable party plaintiff to the suit. A motion for summary judgment was made by defendant on the ground that plaintiff's assignee was an indispensable party plaintiff. The motion was submitted on the pleadings, the exhibits and the affidavit of Theodore B. Dull.

The written assignment executed by the plaintiff contains the following provision:

'Now, therefore, in consideration of $1.00, the receipt of which is hereby acknowledged, I, Harold R. Hurd, by these presents do sell, assign and transfer unto Theodore B. Dull the undivided...

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