United Elec. Co. v. Creamery Package Mfg. Co.

• Decision Date: 03 March 1913
• Citation: 203 F. 53
• Parties: UNITED ELECTRIC CO. v. CREAMERY PACKAGE MFG. CO. et al.
• Court: U.S. District Court — Eastern District of Wisconsin

203 F. 53

UNITED ELECTRIC CO. v. CREAMERY PACKAGE MFG. CO. et al.

United States District Court, E.D. Wisconsin.

March 3, 1913

Harry Frease, of Canton, Ohio, and Erwin & Wheeler, of Milwaukee Wis., for complainant.

Luther L. Miller, of Chicago, Ill., for defendant Creamery Package Mfg. Co.

GEIGER District Judge.

The complainant filed its bill, seeking to restrain infringement of letters patent and alleged acts of unfair trade. The defendant Creamery Package Manufacturing Company, after answering the bill, presented its petition herein, charging that, co-temporaneously with the institution of this, another suit, identical as to parties and subject-matter, was begun by complainant in the District Court for the Northern District of Illinois; that since the commencement of such suits complainant, through its attorney, for the purpose of injuring and destroying defendant's trade in vacuum cleaners (charged to be in infringement of complainant's patent), has by means by threatening letters, advertisements and circulars attempted to influence past or prospective customers of defendant from using or purchasing its product.

The petition specifies letters written to one Long, at Akron Ohio, who had purchased from defendant, notifying him that complainant claimed such machine to infringe complainant's device, that the above-mentioned suits had been instituted, that complainant would fully protect its rights, that users as well as makers of infringing articles are liable, and requesting said Long to desist from further use and to settle with complainant. A second letter was sent reiterating the substance of the first, but further notifying him that, unless by a time specified he desisted using such machine, suit for infringement would be instituted against him. Such suit was in fact begun, and defendant charges that the bill therein is identical with that herein. It is averred generally that the suits thus begun and threatened, and the letters sent, were not intended for the protection of complainant's legitimate rights under its patent, but to annoy and harass defendant.

The complainant, its exceptions to the jurisdiction of the court having been overruled upon the authority of Warren Featherbone Co. v. Landauer (C.C.) 151 F. 130, Commercial Acetylene Co. v. Avery Portable Lighting Co. (C.C.) 152 F. 645, and other cases, demurred in part to, and answered the remainder of, the petition; and the matter was heard upon these pleadings and affidavits presented by the parties.

The answer to the petition specifically and positively denies that the suits were instituted, or the circulars and letters sent, for any purpose except the protection of the complainant's rights under its patent, or threats to bring other suits against users or dealers, excepting that two at Akron, Ohio, were so notified, which suits, however have not been brought, because one of such users had given assurance that he did not in fact use or purpose to use the alleged infringing device, and, against the other, suit has been deferred pending the outcome of suits already pending. ...