Stromberg Motor Devices Co. v. Holley Bros. Co.
| Decision Date | 16 July 1919 |
| Docket Number | 275. |
| Citation | 260 F. 220 |
| Parties | STROMBERG MOTOR DEVICES CO. v. HOLLEY BROS. CO. et al. |
| Court | U.S. District Court — Eastern District of Michigan |
Brown Hanson & Boettcher, of Chicago, Ill., for plaintiff.
Whittemore Hulbert & Whittemore, Paul B. Moody, and Angell, Bodman & Turner, all of Detroit, Mich., for defendants.
This is a motion to dismiss the bill of complaint herein. The bill charges infringement by the defendant of two patents on automobile carburetor improvements owned by plaintiff, and prays for the usual temporary and permanent injunctions and accounting against all of the defendants. No separate application, however, for a temporary injunction was made and no such injunction was issued. The bill was brought against defendant corporation and certain individual defendants, and it charges that the defendants last mentioned are and have been stockholders of, and have in the past owned, controlled, directed, supervised, and managed, the defendant corporation, and that they now continue so to do, and that said defendant corporation and the other defendants, both as individuals and as stockholders as aforesaid, have infringed the patents in suit, and are continuing, preparing, and threatening to do so in the future, and are preparing, aiding, and encouraging others so to do.
The motion to dismiss is based upon grounds which may be grouped as follows: (1) That the defendant corporation was dissolved in accordance with the statutes of the state of Michigan prior to the filing of the bill herein; (2) that such corporation has not, since the end of the year 1917, manufactured, sold, or used carburetors of any kind; (3) that the individual defendants were connected with the manufacture, sale, and use of carburetors prior to the end of 1917 only as managers and supervisors of said defendant corporation, and not as individuals; (4) that since the time when the defendant corporation ceased, as already alleged, to manufacture, sell, or use carburetors, the individual defendants have not, as officers, stockholders, or directors of said corporation, or as individuals, made, used, or sold carburetors; (5) that at no time prior to the filing of the bill herein has any one notified any of the defendants of any claims of infringement under either of the patents in suit; (6) that one of said patents, the so-called Ahara patent, expired by limitation on October 15, 1918, 17 days after the date of the filing of such bill; (7) that the other of said patents, the so-called Mingst patent, is void on its face for lack of novelty and of invention. These contentions will be discussed in the order named.
(1-5) It is clear that the first five of the objections to the sufficiency of the bill, as just stated, cannot be passed upon or considered upon this motion to dismiss the bill, as they are all based on allegations of facts contradictory to positive averments in such bill. It is elementary that on such a motion the allegations of material facts which are well pleaded in the bill must be accepted as true for the purposes of the motion, and that only defenses in point of law arising upon the face of the bill may be raised in this manner and called up and disposed of by the court before final hearing. Equity Rule 29 (198 F. xxvi, 115 C.C.A. xxvi); Tompkins v. International Paper Co., 183 F. 773, 106 C.C.A. 529; Krouse v. Brevard Tannin Co., 249 F. 538, 161 C.C.A. 464; Edwards v. Bodkin, 249 F. 562, 161 C.C.A. 488.
In this connection, however, it may not be amiss to point out that the mere fact, if it be a fact, that the only acts of the individual defendants in manufacturing, selling, or using infringing devices were performed by them as officers or directors of the defendant corporation, does not necessarily relieve them from liability as infringers in this suit. Graham v. Earl, 92 F. 155, 34 C.C.A. 267; National Cash Register Co. v. Leland, 94 F. 502, 37 C.C.A. 372; Harrington v. Atlantic & Pacific Telegraph Co. (C.C.) 143 F. 329; Saxlehner v. Eisner, 147 F. 189, 77 C.C.A. 417; Brennan & Co. v. Dowagiac Mfg. Co., 162 F. 472, 89 C.C.A. 392; Steber Machine Co. v. Randon Milling Co. (D.C.) 217 F. 796; Reed v. Cropp Concrete Machinery Co., 225 F. 764, 141 C.C.A. 90.
Nor does the fact that a defendant who has been guilty of infringement of a patent has later ceased such infringement deprive the owner of such patent of the right to an injunction against the infringer, since if the latter act in good faith the injunction can do him no...
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