International Visible Systems Corp. v. Remington Rand, 6229.

Citation65 F.2d 540
Decision Date06 June 1933
Docket NumberNo. 6229.,6229.
PartiesINTERNATIONAL VISIBLE SYSTEMS CORPORATION v. REMINGTON-RAND, Inc.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Leonard H. Freiberg, of Cincinnati, Ohio, for appellant.

Charles P. Franchot, of Buffalo, N. Y. (Taft, Stettinius & Hollister, of Cincinnati, Ohio, and William G. Shoemaker, Jr., of Buffalo, N. Y., on the brief), for appellee.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

HICKS, Circuit Judge.

Appeal by International Visible Systems Corporation (plaintiff below) from an order sustaining the demurrer of Remington-Rand, Inc., appellee, to the petition of appellant.

The action was based upon sections 2 and 15 of title 15, U. S. C. (15 USCA §§ 2, 15), portions of the Act commonly called the Sherman Anti-Trust Act. The petition alleged that appellant carried on the business of manufacturing card index systems with containers therefor, bookkeeping systems, and related products; that appellee was a competitor; and that both parties were engaged in interstate commerce. It also contained the averment of diversity of citizenship and requisite jurisdictional amount.

The burden of the petition rested in the averment that certain acts of appellee "were done and made with the purpose of attempting to unreasonably monopolize the trade or commerce among the several states in the commodities which the plaintiff" (appellant) "manufactured and in which it dealt." Recovery was sought for the three-fold damages provided in section 15 of the Act (15 USCA § 15). Two particular acts set forth as sufficient to constitute the alleged attempt at monopoly are:

(1) That "on or about March 25, 1931, the defendant learning of the endeavor of the plaintiff to attract additional capital needed in plaintiff's business, maliciously and without probable cause, and with intent to destroy the business of the plaintiff, and to smother competition with the defendant, filed an action No. 725 on the Equity Docket of this Court pretending an infringement by the plaintiff on two certain patents of the defendant. Said suit was given wide publicity, as the defendant anticipated, and hindered and prevented this plaintiff not alone from obtaining additional capital at that time, but from freely selling its products in the different states of the Union."

And (2) that "on or about the 5th day of October, 1931, the plaintiff was about to have the shares of stock of International Visible Systems Corporation, a corporation of Delaware, and the holding company for the plaintiff, listed on the Produce Exchange of the City of New York. The defendant learning of the anticipated plan of the plaintiff to have this stock so listed, caused an article to be published and sent abroad over the Dow-Jones Ticker Service in the City of New York and elsewhere, stating that the defendant had `been awarded decision against five competitors in Germany in a series of law suits in which the validity of Remington-Rand's patents on cardex visible card systems was upheld. Competing makers are compelled to discontinue their infringements.

"`Remington-Rand has filed a suit against International Visible Systems Corp., alleging infringement of the corresponding patents in the United States.'

"Said publicity was copied, as the defendant knew and anticipated, by the Wall Street Journal in the evening edition of the same day, and in many other financial publications. Said information contained in the last quoted paragraph of said publication was false and untrue, and said last quoted paragraph in connection with the first quoted paragraph, were calculated to and did prevent the Produce Exchange from listing the securities of said holding company on the Produce Exchange of New York. The plaintiff, as the defendant well knew, was to receive the benefit of the subscriptions to the stock of said holding company, and get the actual money therefrom less expenses in obtaining said subscription, and less the commissions of the brokers who had been employed to obtain them."

The suit brought by appellee for the infringement of its patents cannot of itself be characterized as an attempt to monopolize trade or commerce. It was nothing more than a lawful method of protecting appellee's claimed monopoly under the patent laws. Virtue v. Creamery Pkg. Mfg. Co., 227 U. S. 8, 38, 33 S. Ct. 202, 57 L. Ed. 393; see, also, Bement & Sons v. National Harrow Co., 186 U. S. 70, 92, 22 S. Ct. 747, 46 L. Ed. 1058; Henry v. A. B. Dick Co., 224 U. S. 1, 27, 32 S. Ct. 364, 56 L. Ed. 645, Ann. Cas. 1913D, 880; Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co., 154 F. 358, 362 (C. C. A. 7); United States v. Motion Picture Patents Co., 225 F. 800, 805 (D. C.). Moreover, the declaration in the petition that the suits for infringement were brought against appellant maliciously and without probable cause adds nothing to the weight of the claim that the infringement suit was an attempt to monopolize trade or commerce. Section 2 of the Anti-Trust Act (15 USCA § 2) does not require that such attempt be made maliciously and without probable cause. See Virtue v. Creamery Pkg. Mfg. Co., supra.

Nor can we regard the second paragraph of the Dow-Jones Ticker Service publication as an attempt to monopolize trade or commerce. The petition avers that this paragraph was false, but it does not aver that appellee knew it was false at the time it was published, nor that it was willfully or deliberately caused to be published. It cannot be regarded as false as a whole because the petition itself avers that appellee had filed an infringement suit against appellant. We must assume that, if there is any falsity, it is to be found in that portion stating that the patents sued on corresponded to...

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    • United States
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    ...relies strongly on the cases of Virtue v. Creamery Package Co., 227 U.S. 8, 33 S.Ct. 202, 57 L.Ed. 393; International Visible Systems Corp. v. Remington-Rand Inc., 6 Cir., 65 F.2d 540; and Straus v. Victor Talking Machine Co., 2 Cir., 297 F. 791. The Creamery Package Co. and the Remington-R......
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    ...Tool Co., 10 Cir., 215 F.2d 924; United States v. United Shoe Machinery Corp., D.C., 110 F.Supp. 295; International Visible Systems Corp. v. Remington-Rand, Inc., 6 Cir., 65 F.2d 540. Sperry's Foreign There can be no doubt that Sperry's primary purpose in entering into foreign license agree......
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    ...F.Supp. 709. 41 263 F.Supp. at 711-712. (Citations omitted.) 42 10 Cir., 1952, 198 F.2d 416. 43 E.g., International Visible Systems Corp. v. Remington-Rand, Inc., 6 Cir., 1933, 65 F.2d 540; Straus v. Victor Talking Machine Co., 2 Cir., 1924, 297 F. 791. 44 Note, 52 Colum.L.Rev. 936, 937 (19......
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    ...of suit against a competitor does not bring one within the prohibitions of the antitrust laws. International Visible Systems Corp. v. Remington-Rand Inc., 6 Cir., 65 F.2d 540; Glenn Coal Co. v. Dickinson Fuel Co., 4 Cir., 72 F.2d 885. If defendant here was of belief that his trade secrets w......
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