65 F.2d 540 (6th Cir. 1933), 6229, International Visible Systems Corp. v. Remington-Rand, Inc.

Docket Nº:6229.
Citation:65 F.2d 540
Case Date:June 06, 1933
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 540

65 F.2d 540 (6th Cir. 1933)




No. 6229.

United States Court of Appeals, Sixth Circuit.

June 6, 1933

Page 541

Appeal from the District Court of the United States for the Southern District of Ohio; Robert R. Nevin, Judge.

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...

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