American Bell Tel. Co. v. United States
Citation | 68 F. 542 |
Decision Date | 18 May 1895 |
Docket Number | 121. |
Parties | AMERICAN BELL TEL. CO. et al. v. UNITED STATES. |
Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
William G. Russell, James J. Storrow, and Frederick P. Fish (William W. Swan and William K. Richardson, on the brief), for appellants.
Causten Browne and Robert S. Taylor, for the United States.
Before COLT and PUTNAM, Circuit Judges, and NELSON, District Judge.
This is a bill in equity, filed February 9, 1893, signed in behalf of the United States by its attorney general, against the American Bell Telephone Company and Emile Berliner containing a prayer in the alternative touching patent issued November 17, 1891, numbered 463,569, to the American Bell Telephone Company, as assignee of Berliner. The prayer is that the patent be in all things recalled, repealed, and decreed absolutely null, but that, if the patent is not deserving to be wholly repealed, but is repealable in part, a decree be made repealing only such parts as the court shall deem to be repealable. As to the latter part of this alternative prayer for relief the court has heard nothing and there is no occasion to consider it.
The bill contains enough on its face and in its frame, and in its signature by the attorney general, to bring it within U.S. v. American Bell Tel. Co., 128 U.S. 315, 9 Sup.Ct. 90. But in the development of the proofs all allegations of affirmative or positive fraud dropped out; so U.S. v. American Bell Tel. Co. fails to reach the merits of this cause.
Berliner's original application was filed June 4, 1877, and patent 463,569 was issued more than 14 years thereafter. This patent is sufficiently described for the purposes of this case by saying in a general way that it covers the microphone. In addition to this, the American Bell Telephone Company, as assignee of Berliner, holds, or held, a patent issued to Berliner, November 2, 1880, numbered 233,969. It is represented that the patent of November 2, 1880, was a divisional one, growing out of the same original application which supports patent 463,569. It is also represented that this patent covers the invention described and claimed in patent 463,569, under such circumstances that the latter comes within Miller v. Manufacture Co., 151 U.S 186, 14 Sup.Ct. 310.
The pith of the case, as stated briefly by the counsel for the United States, is (1) that patent 463,569 is void for illegal delay in its issue, and (2) that it is also void on the ground that the prior patent, 233,969, 'was granted upon the same application to the same applicant for the same invention. ' Each proposition will be stated hereafter more fully, and in the precise form in which it came to the court. Berliner, having no interest, need not be further noticed by us.
As to the first ground of proceeding, the case is found in the following extracts from the bill:
Then follow various allegations stating in detail the delay in the progress of the application before June 9, 1882. These we omit, because the counsel for the United States now admit that no point is made for that period.
Then come the following:
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