MID-CONTINENT METAL PROD. CO. v. Maxon Premix Burner Co.
| Decision Date | 25 October 1966 |
| Docket Number | No. 15617.,15617. |
| Citation | 367 F.2d 818 |
| Parties | MID-CONTINENT METAL PRODUCTS CO., Plaintiff-Appellant, v. MAXON PREMIX BURNER COMPANY, Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Dennis B. Haase, Thomas F. McWilliams, Chicago, Ill., for appellant.
James P. Hume, Granger Cook, Jr., Hume, Groen, Clement & Hume, Chicago, Ill., for appellee.
Before HASTINGS, Chief Judge, and KNOCH and FAIRCHILD, Circuit Judges.
Mid-Continent Metal Products Co. has appealed from a judgment of the district court dismissing, for want of venue, its amended complaint charging Maxon Premix Burner Company, Inc., with infringement of its United States Letters Patent No. 3,186,697, issued June 1, 1965 and entitled "Gas Fired Heater".
The affidavit of Lowell F. Crouse, a vice-president of Maxon, Maxon's answers to interrogatories and the deposition of Roy Sundling, manager of Maxon Premix Burner Sales and Service, disclose that Maxon is an Indiana corporation having its principal place of business and all of its manufacturing activities in Muncie, Indiana, which is not in the district of suit, the Northern District of Illinois. In Chicago, Illinois, however, which is within the district of suit, Maxon owns and operates a local office, Maxon Premix Burner Sales and Service.
While Maxon's Chicago office has solicited orders for the accused burners, Maxon has never displayed or demonstrated the accused burners in the district. Demonstrations of the accused burners are offered, but all are made in Muncie, Indiana. Since the issuance of the patent in suit, Maxon's Chicago office has not made arrangements for demonstrating the accused burners, either in or outside the district of suit.
All orders for Maxon's products solicited in the district of suit are forwarded to Maxon's Muncie office for acceptance or refusal. If the offer is accepted, Maxon ships the product directly to the customer, and title passes to the customer when the product, in this case, the accused burner, has been delivered to the carrier in Muncie. The customer is billed directly by the Muncie office.
In addition to soliciting orders for the accused burners, it appears that Maxon's Chicago office provides consultation and some service functions for them. At least one accused burner installation exists and is operated within the district of suit.
The deposition reveals that Maxon sends sales literature from Muncie to present and prospective customers. Sales literature describing the accused burner was mailed from Muncie on May 29, 1964, over a year prior to the grant of the patent in suit. There apparently has been no active solicitation from the Chicago office for a long period of time; virtually all business came from calls to the office from prospective buyers.
Venue in patent infringement actions is controlled solely by 28 U.S.C.A. § 1400 (b), Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 229, 77 S.Ct. 787, 788, 1 L.Ed.2d 786 (1957), which reads:
"Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business."
Maxon does not reside within the district of suit, but it has admitted that it has a regular and established place of business in the district. Under the venue statute, therefore, venue...
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