American Laundry Mach Co. v. Prosperity Co., Inc.

• Decision Date: 23 July 1923
• Docket Number: 417.
• Citation: 294 F. 144
• Parties: AMERICAN LAUNDRY MACHINERY CO. et al. v. PROSPERITY CO., Inc.
• Court: U.S. District Court — Northern District of New York

294 F. 144

AMERICAN LAUNDRY MACHINERY CO. et al. v. PROSPERITY CO., Inc.

No. 417.

United States District Court, N.D. New York.

July 23, 1923

Charles Neave and Maxwell Barus, both of New York City, and B. W Brockett, of Cleveland, Ohio, for plaintiffs.

Arthur E. Parsons, of Syracuse, N.Y., for defendant.

COOPERDistrict Judge.

Motion is made to dismiss the bill of complaint on the ground that:

'It does not appear from any allegations in the (amended)bill of complaint that, more than two years prior to the date of filing of the alleged divisional application No. 334,785 of the Andree patent in suit, No. 1,379,601, the alleged inventions of said patent (a) were not in public use or on sale in this country; (b) were not patented or described in any printed publication in this or any foreign country.'

The complaint makes the proper and usual averments in these respects, so far as the prior or parent patent is concerned and the sole question here involved is as to the necessity of repeating these allegations as to the divisional application.

By a recent decision the Supreme Court has held the two-year limitation for the filing of applications (Revised Statutes Sec. 4886(Comp. St. Sec. 9430)) applies to a divisional, as well as an original, application.Chapman v. Wintroath,252 U.S. 126, 136, 40 Sup.Ct. 234.The following recent authorities have held that the effect of the decision in the Chapman Case, supra, is to fix the period during which divisional applications must be filed at two years from the date of issuances of a prior patent: Splitdorf Electrical Co. v. Webster Electrical Co. (C.C.A.)283 F. 83, 93;Wahl v. Main,280 F. 974, 51 App.D.C. 398;Ex parte Nathan, 279 F. 925, 51 App.D.C....