Patent Tube Corporation v. Bristol-Myers Co.
| Decision Date | 06 December 1938 |
| Citation | 25 F. Supp. 776 |
| Parties | PATENT TUBE CORPORATION v. BRISTOL-MYERS CO. |
| Court | U.S. District Court — Southern District of New York |
Armand E. Lackenbach, of New York City, for plaintiff.
Merrell E. Clark, of New York City (John Vaughn Groner, of New York City, of counsel), for Bristol-Myers Co.
The defendant, appearing specially, moves to dismiss the complaint on the ground that this court lacks jurisdiction to entertain the suit. This is a patent infringement suit. Before this court can assume jurisdiction, it is incumbent upon the plaintiff to show: (1) That the defendant has a regular and established place of business in this district, and (2) that the defendant has committed acts of infringement within the district as provided by statute. The first element is undisputed so that the court must decide whether the defendant has committed acts of infringement within the District.
A patentee under the statute has three distinct and independent patent rights, namely, the right to make, the right to use, and the right to sell. Daimler Mfg. Co. v. Conklin, 2 Cir., 170 F. 70, 27 L.R.A., N.S., 534. The manufacture and sale of the patented article are not involved on this motion. The complaint here is that the defendant used the patented article within the meaning and intent of the patent statutes.
The defendant admits having sent some containers allegedly containing the patented device through the mails from New Jersey to several physicians and dentists within the Southern District of New York. It also admits that some of its salesmen may have carried some of the containers in this District in their pockets and have distributed them to physicians and dentists. This, it is claimed, is done solely as an advertisement feature of its business and was not distributed for sale or any other monetary compensation.
The defendant takes the position that these instances are merely nominal uses of the patented device, whereas the statute contemplates a substantial use before the court will entertain jurisdiction of a patent suit.
While no authorities have been submitted directly in point, nor has the court independently been able to discover any, the court is of the belief that it should entertain jurisdiction. The distribution of the patented device only for advertising purposes and without actual monetary compensation therefor, in my opinion, creates no exception to the general rule that use of the patented device is forbidden. To hold so would be permitting the doing of something indirectly which is forbidden to be done directly. It is common knowledge that...
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...novel doctrine that infringement is avoided by failing to collect a bill for the infringing product. Compare Patent Tube Corp. v. Bristol-Myers Co., D.C.S.D.N.Y., 25 F.Supp. 776; Scott & Williams, Inc., v. Hemphill Co., D.C.S.D. N.Y., 14 F.Supp. 621. The fact that the parties did spar as to......
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Ferguson v. Ford Motor Co.
...operation and cost, and other germane subjects. While such activity might not alone amount to infringement (Patent Tube Corporation v. Bristol-Meyers Co., D.C., 25 F. Supp. 776), there is a more convincing circumstance alleged to have occurred within this district, involving all defendants,......
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Union Asbestos & Rubber Company v. Evans Products Company
...supplied the accused cigarette lighters to its salesmen for exhibition and demonstration to customers; and in Patent Tube Corp. v. Bristol-Myers Co., 25 F.Supp. 776 (S.D.N.Y.1938), where defendant's salesmen distributed some of the accused devices to physicians and dentists within the distr......
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Applied Biosystems, Inc. v. Cruachem, Ltd.
...these acts, since mailing samples of an infringing product may constitute direct patent infringement, see Patent Tube Corp. v. Bristol-Myers Co., 25 F.Supp. 776, 777 (S.D.N.Y.1938), and a cause of action for inducing patent infringement arises out of advertising. These acts, however, do not......