Eddy v. Kramer

• Decision Date: 05 February 1918
• Docket Number: 1513,1515.
• Citation: 247 F. 962
• Parties: EDDY et al. v. KRAMER et al. EDDY v. MATHER et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

247 F. 962

EDDY et al. v. KRAMER et al.

EDDY v. MATHER et al.

Nos. 1513, 1515.

United States District Court, E.D. Pennsylvania.

February 5, 1918

Ward W Pierson, of Philadelphia, Pa., and Russell Everett, of Newark, N.J., for plaintiffs.

Arno P Mowitz and Fenton & Blount, all of Philadelphia, Pa., for defendants.

DAVIS District Judge.

James Francis Eddy and Dando Printing & Publishing Company filed their bills against the defendants in the above-stated causes, charging them with infringing the three claims of United States patent No. 1,153,543, and the first claim of United States patent No. 1,153,545. The three claims of the first-mentioned patent are as follows:

'1. The hereindescribed pad for daily date signs, comprising in combination a plurality of leaves, a cap consisting of a piece of sheet material bent longitudinally into channel form with its intermediate portion lying upon the top edges of said leaves and its opposite parallel side flanges lying one in front of and the other behind the upper part of said leaves, the rear flange of the cap having a tongue depending therefrom substantially in the plane of the flange adapted to be exposed for entering a supporting slot by flexing the leaves and cross-pins extending through said cap flanges and leaves adjacent the opposite ends thereof connecting said flanges and supporting said leaves.

'2. The hereindescribed pad for daily date signs, comprising in combination a plurality of leaves, a cap consisting of a piece of sheet material bent longitudinally into channel form with its intermediate portion lying upon the top edges of said leaves and its opposite parallel side flanges lying one in front of and the other behind the upper part of said leaves, the rear flange of the cap having a tongue depending therefrom substantially in the plane of the flange adapted to be exposed for entering a supporting slot by flexing the leaves and having an edge portion adjacent said tongue adapted to engage the wall of the slot as a stop, and cross-pins extending through said cap flanges and leaves adjacent the opposite ends thereof connecting said flanges and supporting said leaves.

'3. The hereindescribed pad for daily date signs, comprising in combination a plurality of leaves, a cap consisting of a piece of sheet material bent longitudinally into channel form with its intermediate portion lying upon the top edges of said leaves and its opposite parallel side flanges lying one in front of and the other behind the upper part of said leaves, said cap extending substantially the entire length of the top edges of the leaves and having a tongue depending from the free edge of its rear flange adapted to be exposed for entering a supporting slot by flexing the leaves and having adjacent said tongue edge portions of said rear flange adapted to seat on the wall of the slot, and cross-pins extending through said cap flange and leaves between the ends thereof and said seat portions of the rear flange connecting said flanges and supporting said leaves.'

The claim of the second patent is:

'The hereindescribed pad for daily date signs, comprising in combination with a plurality of leaves, a cap having opposite parallel flanges one in front of said leaves and the other behind them and an intermediate portion at the top edges of said leaves holding said flanges in spaced relation, said flanges including pairs of opposite ears at the ends of the cap and the rear flange including a depending tongue between the ears and separated therefrom, said tongue being adapted to hook over a strip or the like while said ears lie against its front, and cross-pins extending one through the opposite ears of each pair and the leaves of the pad so as to connect the cap flanges and support the leaves while leaving the tongue free to be exposed for entering a supporting slot by flexing the leaves.'

The defendants urge that the bills should be dismissed for technical reasons:

1. The bill against Mather & Co. should be dismissed for lack of proof of any alleged infringing act committed between the issue of the patents, September 14, 1915, and the filing of the bill, December 31, 1915. The evidence is that Mather & Co. on April 22, 1915, ordered calendars from the Quaker City Calendar Company, and those calendars, except a few which were sent Mather & Co., were sent direct to customers of Mather & Co. by the Quaker City Calendar Company. The said surplus calendars, not sent out by the Quaker City Calendar Company to customers of Mather & Co., were delivered to Mather & Co. 'some time during December, 1915,' and some of those few were used by Mather & Co., being hung upon the walls of their office on December 29, 1915, just how much prior to that date does not appear. The Quaker City Calendar Company in sending said calendars to customers of Mather & Co. were acting as their agent, and Mather & Co. are liable for the said acts of their agent. These calendars were for the year 1916, and were sent out some time during December, 1915, and on or before December 29, 1915, on order of April 22, 1915. The presumption is that they were sent out some time before December 29, 1915. The surplus were delivered to Mather & Co., 'sometime during December, 1915,' and on or before December 29th. It follows that Mather & Co. did sell said calendars, and used some before December 31, 1915, the date the bill was filed against Mather & Co.

2. Individuals composing a corporation defendant, charged to infringe, are not liable in their individual capacity for torts of the corporation, and the bill should be dismissed as to all the codefendants, except the De Lone Ehmling Company.

This statement may be the law as to the subordinate agents or mere employes of an infringing corporation, but it is not as to directors:

'We are of opinion, therefore, that by the general principles of law, and by analogy with other torts, a director of a corporation, who, as director by vote or otherwise specifically commands the subordinate of the corporation to engage in the manufacture and sale of an infringing article, is liable individually in an action at law for damages brought by the owner of the patent so infringed. As with other infringers, it is immaterial whether the director knew or was ignorant that the articles manufactured and sold did infringe a patent. ' National Cash Register Co. v. Leland, 94 F. 502, 511, 37 C.C.A. 372, 381; National Car-Brake Shoe Co. v. Terra Haute Car & Mfg. Co. (C.C.) 19 F. 515; Peters v. Union Biscuit Co. (C.C.) 120 F. 679, 687; Harrington v. Telegraph Co. (C.C.) 143 F. 329, 337.

This rule was restricted in the cases of Hutter v. De Q. Bottle Stopper Co., 128 F. 283, 286, 62 C.C.A. 652; Cazier v. Mackie-Lovejoy Mfg. Co., 138 F. 655, 656, 71 C.C.A. 104, 106, to directors who had infringed personally or had directed infringement and 'acted beyond the ordinary scope of their office. ' In the case at bar, the defendants, De Lone and Hobson, who composed the Quaker City Calendar Company, sold the calendars to jobbers all over the country. They were individuals trading under a firm name, and composed the whole firm, and so, as individuals, actually carried on the business of selling, and are liable if the patents in question were infringed. De Lone and Hobson are two of the directors who managed the corporate defendant. They directed the business transacted by both the De Lone Ehmling Company, Incorporated, and the Quaker City Calendar Company. Under such circumstances, they are liable. National Cash Register Co. v. Leland et al., supra. 'The executive officers of a corporation, who necessarily inspire all its acts, cannot shield themselves behind an artificial, and sometimes irresponsible, creation, from the consequence of their own acts, even though performed in the name of the artificial body. ' Peters v. Union Biscuit Co., supra. Kramer was given the territory of Philadelphia, and sold upon a commission. He was not the ordinary employe or officer of either company. He is liable, if the patents were infringed.

3. Claim 1 of the second patent is 'wholly indistinguishable in substance from the disclosure and claims of the first patent. * * * No man can have two valid patents for the same or substantially the same thing. ' Claim 1 of the second patent does, however, disclose some features not contained in the first patent, for instance, 'pairs of opposite ears' upon the flanges 'at the ends of the...