International Visible Systems Corp. v. Remington Rand, 6229.
Citation | 65 F.2d 540 |
Decision Date | 06 June 1933 |
Docket Number | No. 6229.,6229. |
Parties | INTERNATIONAL VISIBLE SYSTEMS CORPORATION v. REMINGTON-RAND, Inc. |
Court | United 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.
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
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.
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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