Zenith Radio Corp. v. Dictograph Products Co.

• Decision Date: 12 July 1946
• Docket Number: Civ. A. No. 747.
• Citation: 66 F. Supp. 473
• Parties: ZENITH RADIO CORPORATION v. DICTOGRAPH PRODUCTS CO., Inc.
• Court: U.S. District Court — District of Delaware

66 F. Supp. 473

ZENITH RADIO CORPORATION v. DICTOGRAPH PRODUCTS CO., Inc.

Civ. A. No. 747.

District Court, D. Delaware.

July 12, 1946.

Samuel E. Darby, Jr., of New York City, and E. Ennalls Berl (of Southerland, Berl & Potter), of Wilmington Del., for plaintiff.

Walter H. Free (of Campbell, Brumbaugh & Free), of New York City, and Arthur G. Connolly, of Wilmington, Del., for defendant.

LEAHY, District Judge.

1. On the facts alleged in the complaint and if the allegations are proven, there can be no doubt a justiciable controversy exists and a claim for relief has been stated. The only point left is whether this action should be restrained. To crystallize the issues further, the issues of non-infringement and validity of defendant's patents directed at the "Zenith" hearing aids are the same in New York as here. But the question remains whether the present case and the New York case are between the same parties.

2. Ordinarily the court first acquiring jurisdiction of a controversy should proceed with it without interference. Crosley Corp v. Hazeltine Corp., 3 Cir., 122 F.2d 925, 930; Carbide & Carbon Chemical Corp. v. United States Industrial Chemicals, Inc., 4 Cir., 140 F.2d 47, 49; American Automobile Ins. Co. v. Freundt, 7 Cir., 103 F.2d 613, 617. Cf. Old Charter Distillery Co. v. Continental Distilling Corp., D.C. Del., 59 F.Supp. 528; Lockhart v. Mercer Tube & Mfg. Co., D.C.Del., 53 F.Supp. 301. Here, difficulty is engendered by questions of res adjudicata. May it be said that a judgment found for or against defendant Radionics in the New York suit will be operative for or against plaintiff Radio here? While not a named party to the New York suit, if plaintiff Radio here will actually be in control of the New York litigation, will the New York judgment be binding on Radio? Cf. Caterpillar Tractor Co. v. International Harvester Co., 3 Cir., 120 F.2d 82, 84, 85, 139 A.L.R. 1, where it was already in the past tense that International had conducted the defense in an infringement suit against one of its dealers, had paid for the entire defense and through its patent department had furnished information and assembled evidence; and E. I. duPont de Nemours & Co. v. Sylvania Industrial Corp., 4 Cir., 122 F.2d 400, 404, where, also in the past tense, although not a party to the first litigation, Sylvania's interest remained unabated and actually controlled the litigation as fully as if it had intervened.

3. To decide the questions just posed as to the...