Wenborne-Karpen Dryer Co. v. Dort Motor Car Co.
| Decision Date | 15 July 1924 |
| Docket Number | 41. |
| Citation | 300 F. 404 |
| Parties | WENBORNE-KARPEN DRYER CO. v. DORT MOTOR CAR CO. |
| Court | U.S. District Court — Eastern District of Michigan |
Charles F. Delbridge, of Detroit, Mich., and Cyrus W. Rice and William R. Rummler, both of Chicago, Ill., for plaintiff.
Carton Roberts & Stewart, of Flint, Mich., and J. William Ellis, of Buffalo, N.Y., for defendant and intervener.
This is a patent infringement suit. Plaintiff, the Wenborne-Karpen Dryer Company, the owner of a patent for a process for drying coated surfaces, filed its bill of complaint herein against the Dort Motor Car Company as defendant, alleging that said defendant had infringed and was infringing said patent by practicing said process by the use of a certain dry kiln known as a 'Cutler kiln' and 'furnished by Cutler Dry Kiln Company' (hereinafter called the Cutler Company). The bill alleged that the patent in question had been adjudicated in a previous suit brought by the same plaintiff against one Rockford Bookcase Company as defendant in the United States District Court for the Northern District of Illinois, and had been, in such suit, sustained by the decree of said court. The bill further alleged that the same patent had also been involved in a suit brought by said plaintiff against the Cutler Company, as an alleged infringer thereof, in the United States District Court for the Western District of New York, and had been sustained by that court in that suit.
Defendant answered the bill, admitting that the dry kiln used by it for drying coatings was known as a 'Cutler kiln,' but denying infringement of plaintiff's patent, and claiming that such patent was void for lack of invention and lack of novelty.
Thereafter defendant filed a petition for leave to file a supplemental answer herein, alleging in such petition that the dry kiln (the use of which by defendant was so complained of by plaintiff) was manufactured and sold to the defendant by the Cutler Company, the defendant in the New York suit referred to in the bill of complaint herein, and that since the filing of said bill and the answer thereto the decree of the District Court in such suit had been reversed by the Circuit Court of Appeals for the Second Circuit, which court had held said patent, as to the claims involved in that suit and also in the present cause, invalid. Defendant prayed that it might be permitted to file its supplemental answer, the proposed form of which it presented with its petition. As so presented, said proposed supplemental answer refers to the aforesaid decision of the Circuit Court of Appeals, holding the claims of the patent here in suit invalid, and alleges that the United States Supreme Court has denied a writ of certiorari to review said decision; that the defendant herein purchased the alleged infringing kiln from the Cutler Company, the successful defendant in such previous suit; and that by reason of the terms of the said purchase the Cutler Company has agreed to defend the present suit.
The Cutler Company has filed its petition for leave to intervene herein and to file its answer as a defendant. In addition to the facts already mentioned, the intervening petition alleges that petitioner has a large number of vendees who are using its alleged infringing kilns, and that the plaintiff threatens to sue and has actually sued several such vendees for such claimed infringement of the patent in suit, thereby harassing its customers and greatly injuring its business that the defendant herein has not sufficient interest in the result of this suit to properly defend the same, but that petitioner has great interest in the result thereof, for the reason that petitioner fears that, if plaintiff obtains a decree against said defendant, it will pursue numerous others of petitioner's customers, all to its irreparable damage loss, and injury. The answer, which petitioner prays that it be allowed to file as a defendant herein, sets forth the facts already referred to and alleges that by reason of the aforesaid decision of the Circuit Court of Appeals the issue here involved as to the validity of claims of the patent in suit is res judicata as between it and the plaintiff, and that therefore the bill should be dismissed.
Plaintiff has moved to dismiss the said petitions, on the grounds that the allegations thereof are insufficient, if true, to justify the relief prayed.
It is the desire of all parties that the court should determine the questions as to the right of the intervening petitioner to intervene as a defendant and as to the effect of the decree in the New York suit, before proceeding to the...
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Allington v. Shevlin-Hixon Co.
...in many cases been permitted to intervene in a suit instituted against one who has sold or used the article. Wenborne-Karpen Dryer Co. v. Dort Motor Car Co. (D. C.) 300 F. 404; Continuous Extract. P. Corp. v. Eastern Cotton Oil Co. (D. C.) 264 F. 340; Baldwin v. Abercrombie & Fitch Co., 228......
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Automotive Equipment v. Trico Products Corporation, 1965.
...under Equity Rule 37, 28 USCA following section 723. Foote v. Parsons Non-Skid Co. (C. C. A.) 196 F. 951; Wenborne-Karpen Dryer Co. v. Dort Motor Car Co. (D. C.) 300 F. 404. Having intervened, the judgment as to validity or invalidity is binding upon all the parties. While intervention woul......
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General Talking Pictures Corporation v. Stanley Co.
...Fla.) 1 Fed. Cas. page 842, No. 358. Rule 37 is merely declaratory of the established equity practice. Wenborne-Karpen Dryer Co. v. Dort Motor Car Co. (D. C. E. D. Mich. N. D.) 300 F. 404. It has the same effect as a statute. Rhinehart v. Victor Talking Mach. Co. (D. C. N. J.) 261 F. 646. T......