Slessinger v. Buckingham
| Decision Date | 29 January 1883 |
| Citation | 17 F. 454 |
| Parties | SLESSINGER v. BUCKINGHAM and others. [1] |
| Court | United States Circuit Court, District of California |
John L Boone, for complainant.
M. A Wheaton, for defendants.
In this case I am compelled to decide that the evidence is insufficient to show an infringement before the filing of this bill; or, indeed, an infringement at any time. The evidence is very slight upon those points. There are two points made by defendants, both of which, I think, are well taken. One is that if it is conceded that the articles charged to have been made are an infringement of the patent it does not appear that those articles were sold or made prior to the filing of the bill. The defendants make that point and rely upon it. The only testimony is, taking it in its aspect most favorable to the complainant, that there was a pair of boots purchased from the defendants, some time before the taking of the witness' testimony, and that it was somewhere within the last two or three months before that date. The testimony was taken about three months after the filing of the bill. There is nothing to show that the purchase was before the filing of the bill. It may have been, so far as anything to the contrary appears, a month, or two months, after the filing of the bill; and the affirmative of the issue is upon the complainant.
There is, then, no testimony, even if we concede that those boots were made and sold by the firm-- no evidence to show that they were sold, or made, before the filing of the bill.
The answer denies, categorically and distinctly, that the defendants have infringed the patent, or made the boots, as alleged to have been made in the bill, or otherwise. We have, then, the testimony of one witness only against that of another, and the testimony of that one witness does not show that the pair of boots was sold, or even made, before the filing of the bill. Again, there is no positive testimony that these boots were made, or sold, by the defendants at all. The one witness on the point testifies that he sold the boots to the complainant in this case, and he thinks it is a pair of boots that his own firm purchased of the defendants. He does not know it, but thinks so. That is all there is of that.
The other circumstance relied on is that there is a mark on the boots, which purports to be the mark of the defendant; but there is no testimony that it is the mark of the defendant or when or by whom it was put on the boots. Defendants are required to answer under oath, or, what is the same thing in substance, an answer under oath is not waived in the bill, and they deny, under oath, categorically and directly, that they made the boots alleged in the bill to have been made, 'prior to the filing of the bill, or otherwise. ' They deny the infringement alleged, and it requires positive...
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