Kittle v. De Graaf
| Decision Date | 07 May 1887 |
| Citation | 30 F. 689 |
| Parties | KITTLE v. DE GRAAF and others. |
| Court | U.S. District Court — Southern District of New York |
James P. Foster and Charles N. Judson, for complainant.
James A. Whitney and Frederick A. Burnham, for defendants.
This is an equity action for infringement. The bill, mutatis mutandis, is in the usual form. The principal grounds of demurrer are-- First, that equity has no jurisdiction, for the reason that the action was commenced 21 days prior to the expiration of the patent, and the complainant has amply remedy at law; second, that it appears from the bill that the complainant has been guilty of laches in asserting his rights.
As the patent in question, and the conduct of the complainant, which is now the subject of criticism, were recently examined by this court in Kittle v. Hall, 29 F. 508, care should be taken not to confound what was proved in that action with what is alleged in this. The present controversy should be confined strictly to the averments of the bill, and every reasonable inference must be permitted in their support. Lorillard v. Clyde, 86 N.Y. 384, 389.
The question to be determined is, does the bill upon its face show that the court is without jurisdiction? or, stated in another form, did the bill, when placed upon the files of the court, present a case upon which, if uncontradicted, the complainant would be entitled to the relief prayed for? It was conceded on the argument that the fact that the patent expired three weeks after the commencement of the action was not alone sufficient to oust equity of jurisdiction. By rule 36 of this court, notices of motion are to be served at least four days before the hearing. It is entirely clear therefore, that, had a notice of motion for a preliminary injunction been served with the subpoena and bill, an injunction might have been granted, and, if the defendants had not appeared, it probably would have been granted, and would have remained in force for a period of 17 days. A case can easily be imagined where the protection of an injunction even for so short a period, would be of vital importance.
As the allegations of the bill entitled the complainant to equitable relief at the time the action was commenced, though only for a short period and on narrow grounds, the cause should not now be dismissed.
It is though that the doctrine laid down in Clark v Wooster, 119 U.S. 322, 7 S.Ct. 217, is conclusive of the present...
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