Scheuerle v. Onepiece Bifocal Lens Co.

• Decision Date: 22 March 1917
• Docket Number: 1617.
• Parties: SCHEUERLE v. ONEPIECE BIFOCAL LENS CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

241 F. 270

SCHEUERLE v. ONEPIECE BIFOCAL LENS CO. et al.

No. 1617.

United States District Court, E.D. Pennsylvania.

March 22, 1917

Arthur E. Paige, of Philadelphia, Pa., for plaintiff.

John E Hubbell, of Philadelphia, Pa., and V. H. Lockwood, of Indianapolis, Ind., for defendants Onepiece Bifocal Lens Co. and Rau.

Charles H. Edmunds, of Philadelphia, Pa., for defendant Wall & Ochs.

BRADFORD District Judge.

The bill in this case was filed by Marie Scheuerle administratrix of Henry A. Scheuerle, deceased, against the Onepiece Bifocal Lens Company, a corporation of Indiana, John Rau, president of said corporation, Wall & Ochs, a corporation of Pennsylvania, Charles F. Wall, William L. Wall and J. Harry Bowers, individually and as officers of Wall &amp Ochs. The bill charges infringement of reissue letters patent of the United States No. 13,954. The Onepiece Bifocal Lens Company and John Rau, two of the above named defendants, have appeared specially for the purpose of moving that the service of the bill and the subpoena issued thereon be set aside as to them, and have also moved that the bill be dismissed as to them. The remaining defendants, namely, Wall & Ochs, Charles F. Wall, William L. Wall and J. Harry Bowers, individually and as officers of Wall & Ochs, have moved that the bill be dismissed as to them. The motions submitted in behalf of the Onepiece Bifocal Lens Company and John Rau will first be considered. Section 48 of the Judicial Code of the United States is as follows:

'Sec. 48. In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought.'

It does not appear that the Onepiece Bifocal Lens Company is an inhabitant of the eastern district of Pennsylvania or has 'a regular and established place of business' in that district. On the contrary, it is stated in the bill that 'the Onepiece Bifocal Lens Company' is 'a corporation organized and existing under the laws of the state of Indiana, a citizen and inhabitant of the state of Indiana, having a place of business at the city of Indianapolis, in the county of Marion in the state of Indiana. ' Nor does it appear that John Rau either as president or in his individual capacity is an inhabitant of the eastern district of Pennsylvania or that he there has 'a regular and established place of business. ' On the contrary, the bill avers that he is 'a citizen of said state of Indiana and a resident of said city of Indianapolis ' and nowhere alleges, directly or indirectly, that he has 'a regular and established place of business' in the eastern district of Pennsylvania. It is true that it is averred in the bill that the defendants 'have jointly and severally infringed' the letters patent sued on 'within the eastern district of Pennsylvania,' and that all of the defendants 'are now doing business under the name or style of Wall & Ochs at 1716 Chestnut Street, in said city of Philadelphia. ' But these averments fall far short of an allegation that the defendants 'have a regular and established place of business' in the city of Philadelphia. Wholly aside from the rule that pleadings, other things being equal, are to be taken more strongly against the pleader, the statement that the defendants 'are now doing business' at a certain place fails to disclose that they there have 'a regular and established place of business. ' See Scott v. Stockholders' Oil Co. (C.C.) 122 F. 835; Allen v. Yellowstone Park Transp. Co. (C.C.) 154 F. 504; Jackson v. Delaware River Amusement Co. (C.C.) 131 F. 134; Tyler Co. v. Ludlow-Saylor Wire Co., 236 U.S. 723, 35 Sup.Ct. 458, 59 L.Ed. 808; Mechanical Appliance Co. v. Castleman, 215 U.S. 437, 30 Sup.Ct. 125, 54 L.Ed. 272; General Electric Co. v. Best Electric Co. (D.C.) 220 F. 347. But further, section 48 above quoted provides that in a district where acts of infringement have been committed, of which the defendant is not an inhabitant, but has 'a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought. ' The return by the United States Marshal for the eastern district of Pennsylvania on the writ of subpoena was as follows:

'At Philadelphia, in my district, on October 23d, 1916, served the within writ on William L. Wall and J. Harry Bowers, by handing to each of them respectively, a true and attested copy thereof, together with a certified copy of bill of complaint, at same time making contents known to each. On the same date served the within writ on Wall & Ochs, by handing a true and attested copy thereof, together with a certified copy of bill of complaint to

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