Johnson & Johnson v. Picard
| Decision Date | 26 August 1960 |
| Docket Number | No. 14233.,14233. |
| Citation | 282 F.2d 386 |
| Parties | JOHNSON & JOHNSON, a corporation, Petitioner, v. Honorable Frank A. PICARD, United States District Judge, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Chris M. Youngjohn, Detroit, Mich., Albert H. Pendleton, Olson, Mecklenburger, von Holst, Pendleton & Neuman, Chicago, Ill., Benton A. Bull and Harold Haidt, Legal Department of Johnson & Johnson, New Brunswick, N. J., on brief for petitioner.
E. J. Balluff, Balluff & McKinley, Detroit, Mich., on brief for respondent.
Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.
This is an original action in Mandamus to require the District Judge to vacate an order entered by him on April 18, 1960 transferring a patent infringement action pending in the United States District Court for the Eastern District of Michigan entitled Johnson & Johnson v. Shuford Mills, Inc. and Frank W. Winne & Son, Inc., Civil Action No. 19,079 to the United States District Court for the Western District of North Carolina.
The statute under which the District Judge made the order provides:
The question in this case is whether the action might have been brought in the North Carolina Court to which the case was transferred.
Venue in patent infringement actions is governed solely by Title 28, U.S.C. § 1400(b), which is as follows:
There is no question of jurisdiction or venue with respect to Shuford which is a North Carolina corporation owning and operating a manufacturing plant at Hickory, North Carolina, in said District where it manufactures and ships articles alleged to infringe Johnson & Johnson patents. It also resided and had a regular and established place of business in North Carolina within the meaning of Title 28, U.S.C. § 1400(b).
The question in dispute between the parties is whether the action might have been brought against Winne in North Carolina.
Winne is a Pennsylvania corporation with its principal place of business in Philadelphia. It was a distributor of Shuford's products in the United States (except eleven Pacific Coast states) and also represented other manufacturers. It had a regular and established place of business in Detroit, Michigan, where it is claimed to infringe the patents by using and selling articles embodying the inventions described in said patents and by inducing others to infringe. It maintained a number of other branch offices in different states, but not in North Carolina. Winne has an agent who resides in Charlotte, North Carolina, and solicits orders for said articles in that state, South Carolina and part of Virginia. He forwards all orders so solicited to Winne at Philadelphia for acceptance. Upon acceptance, Winne would place orders for the articles...
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