Reynolds International Pen Co. v. Eversharp, Civil Action No. 739.
| Decision Date | 17 November 1945 |
| Docket Number | Civil Action No. 739. |
| Citation | 63 F. Supp. 423 |
| Parties | REYNOLDS INTERNATIONAL PEN CO. v. EVERSHARP, Inc., et al. |
| Court | U.S. District Court — District of Delaware |
Clair J. Killoran (of Killoran & VanBrunt), of Wilmington, Del., Thurman Arnold (of Arnold & Widrup), of Washington, D. C., and Julian H. Levi and Norman Gerlach, both of Chicago, Ill., for plaintiff.
James R. Morford (of Marvel & Morford), of Wilmington, Del., and Harold T. Edwards, of New York City. for defendant Eberhard Faber.
Aaron Finger (of Richards, Layton & Finger), of Wilmington, Del., Boykin C. Wright and Garrard Winston (of Shearman & Sterling & Wright), of New York City, and Grier D. Patterson (of Winston, Strawn & Shaw), of Chicago, Ill., for defendant Eversharp, Inc.
The affidavits in support of the motion for preliminary injunction charge that defendants have falsely asserted that their two Biro patents cover all ball-bearing pens and that anyone who makes and vends such a pen infringes. Plaintiff contends the ball-pointed pen is old in the art (circa 1888) and defendants' patents cover merely containers, springs, plungers, pistons, etc. — useful in a ball-pointed pen — and that the patents cannot cover the ball-pointed pen itself. Jurisdiction and immediate injunctive relief are based upon threats made by defendants to retailers throughout the United States that if they attempted to market plaintiff's pen they not only may face a possible infringement suit but that defendants will retaliate by refusing to sell to such retailers any of defendants' pen or pencil products. Much statement is made that with the termination of manufacture of war materials and a high purchasing power present, a seller's market exists for the sale of fountain pens and if plaintiff is prevented from satisfying the needs of the Christmas trade plaintiff will suffer irremediable damages.1
Defendants contend the real situation reveals that they and not plaintiff should receive injunctive relief. Defendants' affidavits recite that their engineers have engaged in intensive laboratory and technical research for the past year in developing the ball-pointed pen covered by the two Biro patents. When they offer their pen to the American public it is their wish that such a pen will not only be efficient but a credit to the names of the two defendants who will sponsor it. They charge that plaintiff is financially irresponsible, is in no position to maintain a repair service, and does not have the facilities to fill orders to the extent of 50,000 pens. Defendants also charge that plaintiff is not able to produce 20,000 pens a day, and that plaintiff's claim that the Reynolds pen will write two years without refilling ("it never smudges or smears — it won't leak or drip in pocket or handbag — it writes clearly through four to eight carbons — it writes on cloth or under water or at stratosphere altitudes without leaking") is simply just not so.2 At the time of argument defendants requested the Court to enter an order directing plaintiff to sell defendants one of the Reynolds pens because they had not even seen one until the day before the argument, when defendants' engineers looked at one of the pens, which was a physical exhibit, in the Clerk's office. If on the day of argument defendants had not had time to make a satisfactory examination of the device, their argument that the plaintiff's pen lacks utility seems unconvincing under these circumstances.
In addition to plaintiff's misrepresentations to the pen-buying public, defendants finally allege that plaintiff is falsely charging them with violation of the antitrust laws.
Plaintiff states the purpose of the present application for preliminary injunction is to seek judicial aid in gaining access "to a market guaranteed by fundamental American law for a new and vigorous, independent enterprise that wants to use war plants and convert them to the peace effort and furnish the...
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Henis v. Compania Agricola de Guatemala, Civ. No. 1530.
...issue under such circumstances. Sneider v. Transcontinental & Western Air., D.C.Del., 79 F. Supp. 339, 341; Reynolds International Pen Co. v. Eversharp, D.C.Del., 63 F. Supp. 423, citing Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292; Murray Hill Restaurant v. Thirteen Twenty One Lo......
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Acme Fast Freight v. United States
...affirmed 3 Cir., 210 F.2d 950; Sneider v. Transcontinental & Western Air., D.C.Del., 79 F.Supp. 339, 341; Reynolds International Pen Co. v. Eversharp, D.C.Del., 63 F.Supp. 423, citing Warner Bros. Pictures v. Gittone, 3 Cir., 110 F. 2d 292; Murray Hill Restaurant v. Thirteen Twenty One Locu......
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Benton v. Glenn McCarthy, Inc.
...affirmed 3 Cir., 210 F.2d 950; Sneider v. Transcontinental & Western Air., D.C. Del., 79 F.Supp. 339, 341; Reynolds International Pen Co. v. Eversharp, D.C. Del., 63 F.Supp. 423, citing Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292; Murray Hill Restaurant v. Thirteen Twenty One Loc......
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Sneider v. Transcontinental & Western Air
...pendente lite does not issue where parties are in serious dispute on conflicting questions of fact and law. Reynolds International Pen Co. v. Eversharp, D.C.Del., 63 F.Supp. 423, citing Warner Bros. Pictures v. Gittone, 3 Cir., 110 F. 2d 292; Murray Hill Restaurant v. Thirteen Twenty One Lo......