Pohl v. Heyman

• Citation: 58 F. 568
• Parties: POHL et al. v. HEYMAN. SAME v. F. & M. SCHAEFER BREWING CO.
• Decision Date: 20 November 1893
• Court: U.S. District Court — Southern District of New York

58 F. 568

POHL et al. v. HEYMAN.

SAME v. F. & M. SCHAEFER BREWING CO.

United States Circuit Court, S.D. New York.

November 20, 1893

Joseph M. Deuel, for complainants.

Witter & Kenyon, for defendants.

TOWNSEND District Judge.

These are two suits for infringement of letters patent of the United States, No. 213,447, granted March 18, 1879, to Carl Pohl. Defendants plead to the jurisdiction of the court alleging that the patentee obtained an Austro-Hungarian patent for the same invention on April 19, 1877, for one year, which was prolonged for another term of one year, or until April 19, 1879, when complainants' term expired that on August 13, 1879, judgment to that effect was duly rendered in the registry of patents in the imperial royal ministry of commerce at Vienna; and that, by reason thereof said United States patent expired April 19, 1879. It was stipulated that Carpmael's Patent Laws of the World, and a copy of the order of the imperial royal ministry of commerce, and a copy of the letters patent in suit, should be considered as duly proved in the case.

Counsel for the defendants, in his brief, says that the question raised by this plea is whether or not the law of Gramme Electrical Co. v. Arnoux & H. Electric Co., 21 Blatchf 450, 17 F. 838, is still the law of this circuit. He claims that that case has never been overruled, and that the only decision to the contrary is contained in an obiter dictum in Roller-Mill Co. v. Walker, 43 F. 575. The precise point raised here was raised in said cases. In the latter case the court rendered a decision, on other grounds, for the defendants, and afterwards wrote a further opinion, ruling the point in question for the plaintiffs, in order that it might be taken to the supreme court of the United States. The decision of the supreme court, on the appeal, was put upon other grounds, and no reference was therein made to this particular question. The question, therefore, has been considered, and will be discussed, independently of the opinion in Roller-Mill Co. v. Walker, although such independent consideration has led to the same result.

The order referred to, of the imperial royal ministry of commerce, states that 'the longest duration of all privileges granted, without any distinction, is fixed at fifteen years, which longest duration runs uninterruptedly in so far as the patentee fulfills the conditions mentioned, and that the original duration of fifteen years is due, without any exception, to each Austrian patent which has been granted according to the imperial patent of the 15th August, 1852;' also, in substance, that the patentee need only pay in advance for one year, and that reference to one or more years in a patent has the exclusive purpose to designate that the patent annuity has been paid in advance for one or more years; that the patent is really granted for 15 years, and such payment only prevents its termination before the expiration of the term by reason of the failure to pay the tax; that, to avoid erroneous interpretations in foreign countries,...