Liggett & M. Tobacco Co. v. Miller

• Decision Date: 01 January 1880
• Citation: 1 F. 203
• Parties: LIGGETT & MYERS TOBACCO CO. v. MILLER and others.
• Court: U.S. District Court — Eastern District of Missouri

1 F. 203

LIGGETT & MYERS TOBACCO CO. v. MILLER and others.

United States Circuit Court, E.D. Missouri.

March Term, 1880

S. S Boyd, for complainant.

Hatch &amp Stem and Winchester & Beattie, for defendants.

McCRARY J., (orally.)

This is a proceeding under section 4918 of the Revised Statutes of the United States, touching interfering patents. I will read the section in full:

'Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void, in whole or in part, or inoperative or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudication shall affect the right of any person except the parties to the suit, and those deriving title under them subsequent to the rendition of such judgment.' When this case was brought to our attention, on the second day of February last, we held that the proceeding contemplated by this section was an ordinary proceeding in chancery; that it was not a summary proceeding, but an adversary proceeding, in which the party must file the usual bill in chancery and issue the subpoena required by the chancery practice. In accordance with that ruling counsel amended his bill so as to make it conform to the chancery practice, and issued the usual subpoena, which has been served on the defendants who were within the district. He furthermore issued a notice which has been served on parties outside of the district. The notice is as follows, addressed to the several defendants:

'Please take notice that we have this day filed an amended bill in equity in the above entitled cause, under section 4918, Rev. St. of the United States, praying, among other things, that said court may adjudge and declare Re-issue Letters Patent, No. 8060, granted the above named defendants, January 29, A.D. 1878, for 'Improvement in Finishing Tobacco Plugs,' to be utterly null and void.

'Respectfully, etc., 'LIGGETT & MYERS TOBACCO CO. 'By SAM'L S. BOYD, Solicitor.'

The question presented now is, and it is presented really for the second time, whether in such a case as this the complainant may depart from the usual chancery practice, and issue a notice of this character to be served outside of the district.

Counsel has very properly, I think, brought the matter again before us, for the reason that it was considered very hurriedly on the former occasion, and for the further reason that he ought to have the...