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forth in the same cause of action facts which were violations of

recover

same into effect, which are declared engaged in manufacturing and dealto be unlawful by the aforesaid ing in shoe machinery, and of drivact of Congress of July 2, 1890, ing out of business other companies chapter 647, to the amount of three or concerns engaged in that business, hundred thousand ($300,000) dol- and of preventing other companies lars, to

threefold which or concerns from entering into that, damages and costs of suit, including business, thereby suppressing and a reasonable attorney's fee under preventing competition and acquirsection 7 of said act, this suit is ing and maintaining a monopoly of brought.” Cilley v. United Shoe the shoe machinery business, and Mach. Co., 202 Fed. 598, 599, 600. that it has acquired and now main

A declaration was held to be suffi. tains a practical monopoly of that cient which alleged in substance business; that the defendants Wins. that the plaintiff is trustee of the low, Brown, and Hurd are, and have Goddu Sons Metal Fastening Com- been since the organization of the pany, duly appointed by the Su- United Shoe Machinery Company, preme Judicial Court of Maine in officers and directors and members proceedings for the dissolution of of the executive committee of that that corporation; that as such trus- corporation, exercising management tee he holds title to all property and control of its business affairs; and rights of action of the Goddu that in pursuance of the plan to supSons Metal Fastening Company; press and eliminate competition, and that the Goddu Sons Metal Fasten- to support and protect the monopoly ing Company, after its organization of the United Shoe Machinery Comin 1897, acquired certain patents pany, the individual defendants, or pertaining to shoe machinery, and some of them, entered into negotiathat it made preparations to place tions with certain of the stockholdupon the market machines

ers of the Goddu Sons Metal Fasstructed under its patents, and tening Company for the purchase of spent a considerable sum in adver- their stock, and that as a result of tising that it constructed machines these 'negotiations the United Shoe ready for sale or lease; that a num. Machinery Company acquired a maber of shoe manufacturers were de.. jority of the stock and the control sirous of using these machines upon and management of the Goddu Sons terms beneficial to the company; Metal Fastening Company; that in that the company was prepared and pursuance of its plan to eliminate intended to engage in trade and competition, and to support and procommerce, and to do a large and tect its monopoly, the United Shoe profitable business in shoe machin- . Machinery Company caused its ery among the several states and president, the defendant Winslow, with foreign nations; that the de- to be elected president of the Goddu fendant the United Shoe Machinery Sons Metal Fastening Company, its Company was organized in 1899, for own treasurer, the defendant Brown, the purpose of acquiring by legal to be elected treasurer of the Goddu and illegal means certain companies Sons Metal Fastening Company, and

Fed. Prac. Vol. III-3

con

the Act of July 2, 1890, with other facts which were violations of the Clayton Act of October 15, 1914,3 the plaintiff was ordered to make a separate statement of them as separate causes of action. It has been held that a declaration in an action to recover damages under the Anti-Trust law is bad for duplicity, when it alleges, in a single count, that defendant entered into a contract, combination and conspiracy in restraint of trade, and that it is bad for duplicity and uncertainty, when it gives no information concerning the combination and conspiracy, "except that the combination is in the form of a trust, and that the combination and conspiracy are in restraint of trade,” not stating when, how, by whom, or for what purpose they were formed.

a part of its own directors, including the defendant Hurd, to be elected as the entire board of directors of the Goddu Sons Metal Fastening Company; that the persons so elected have ever since been continued in their respective offices by means of the stock control exercised by the United Shoe Machinery Company; that the control thus acquired by the United' Shoe Machinery Company has been exercised, not for the purpose of carrying on and developing the business for which the Goddu Sons Metal Fastening Company was organized, but for the purpose of preventing that company from doing business, thereby preventing and destroying its competition, and protecting and supporting the monopoly of the United Shoe Machinery Company; that the officers of the Goddu Sons Metal Fastening Company, in pursuance of the plan and purpose of the United Shoe Machinery Company, have continuously declined to cause the Goddu Sons Metal Fastening Company to make any use of its patents and patent rights, or to permit it to do any business, that the assets of the Goddu Sons Metal Fastening Company have

thus remained idle and have become wasted, and thus that its patents are now about to expire and have become practically worthless; that the United Shoe Machinery Company and the individual defendants have thus accomplished their purpose of destroying the competition of the Goddu Sons Metal Fastening Company, and of sustaining the monopoly of the United Shoe Machinery Company; that the Goddu Sons Metal Fastening Company has been greatly injured in its business and property; and that the plaintiff is entitled, under the Sherman AntiTrust Act, to recover threefold damages, costs of suit, and a reasonable attorney's fee."

Stow v. United Shoe Mach. Co., 202 Fed. 602, 603, 604.

3 38 St. at L. 730, ch. 323, Comp. St. $$ 8835a-8835i.

4 Baran v. Goodyear Tire & Rubber Co., 256 Fed. 570.

5 Rice v. Standard Oil Co., 134 Fed. 464. But see Buckeye Powder Co. v. E. I. Du Pont de Nemour Powders Co., 196 Fed. 514.

6 Rice v. Standard Oil Co., 134 Fed. 464, 468.

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In the Third Circuit plaintiff was compelled to elect whether he should continue his suit under section 1 of the Sherman Act for a contract, combination of conspiracy in restraint of trade, or under $ 2 for monopolizing or attempting to monopolize or combining or conspiring to monopolize trade or commerce.?

8 454m. Pleading in actions at common law upon patents. By the Revised Statutes: “Damages for the infringement of any patent may be recovered by action on the case, in the name of the party interested, either as patentee, assignee, or grantee. And whenever in any such action a verdict is rendered for the plaintiff, the court may enter judgment thereon for any sum above the amount found by the verdict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of such verdict, together with the costs.

It has been held in the Sixth Circuit that the pleadings of both the plaintiff and the defendant in such an action must conform to the rules of pleadings in actions on the case at common law,2 but there seems to be no reason why the State practice, except in so far as this has been changed by an act of Congress, should not be followed. 3

The plaintiff should allege either that he has fixed the word "patented,” together with the day and year the patent was granted on the patented article, or when, from the character of the article, this cannot be done by fixing to it, or to the package in which one or more of them is enclosed, a label containing a like notice; or else that the defendant was duly notified that he was infringing the patent and continued the infringement after such notice. When the articles were thus marked, no further notice is required.5

on

7 Buckeye Powder Co. v. E. I. Du Pont de Nemours P. Co., C. C. A., 223 Fed. 881.

$ 454m. 1U. S. R. S. $ 4919; Comp. Stat. & 9464. As to damages see supra, § 389e.

2 Myers v. Cunningham, 44 Fed. 346, per Ricks, J.; Moy v. Mercer County, 30 Fed. 246; Marvin v. C. Aultman & Co., 46 Fed. 338,

339; Walker Patents, $ 442. Contra, Cottier v. Stimson, 20 Fed. 906, 907.

3 U. S. R. S. $ 914; supra, $ 454.

4 U. S. R. S. $ 4900: Comp. Stat. $ 9416; Sprague v. Bramhall-Deane Co., 133 Fed. 738; supra, $ 146.

5 Munger v. Perlman Rim Corp., C. C. A., 244 Fed. 799.

The plaintiff must show: that he or the person through whom he claims was the inventor or discoverer of the thing or process patented; that it had not been previously patented nor described in any printed publication, in this or in any foreign country; 8 nor patented in any foreign country in the twelve months or in the case of a design patent in the four months, prior to the application ;o that it was not in public use or on sale for more than two years before the application.10 He must allege: that the patent was duly issued under the seal of the Patent Office and signed by the Commissioner of Patents.11 That the plaintiff had at the time of the infringement, a title to the patent, or such an interest therein, as made him legally aggrieved. 11a Where he was not the original patentee, he must show how he acquired his title.12 He must allege infringement by the defendant.18 A simple averment that defendant has infringed the patent above described was held to be sufficient.14

The Revised Statutes provide: “In any action for infringement the defendant may plead the general issue, and, having given notice in writing to the plaintiff or his attorney thirty days before, may prove on trial any one or more of the following special matters :

First. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect; or,

Second. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who

197,

6 Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349; supra, $ 146.

7 Ibid.

8 Mass v. McConway Farley Co., 144 Fed. 128; supra, $ 146.

9 U. S. R. S. $ 4887, as amended 29 St. at L. 693, 32 St. at L. 1225, supra, $ 146.

10 Am. Graphophone Co., supra, $ 146.

11 § 4883; 25 St. at L. 40; 32 St.

at L. 95; Comp. St. $ 9427, supra, $ 146.

11a Krick v. Jansen, 52 Fed. 823, supra, 146.

12 Vant Woud Rubber Co. V. Sternau, 145 Fed.

supra, $ 146.

13 Western El. Instrument Co. v. Valee Bros. El. Co., 145 Fed. 534; supra, $ 146.

14 Am. Bell Tel. Co. v. So. Tel. Co., 34 Fed. 803; supra, $ 146.

was using reasonable diligence in adapting and perfecting the same; or,

Third. That it had been patented or described in some printed publication prior to his supposed invention or discovery thereof, or more than two years prior to his application for a patent therefor; or,

Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or,

Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public. And in notices as to proof of previous invention, knowledge or use of the thing patented, the defendant shall state the names of patentees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented, or to have had the prior knowledge of the thing patented, and where and by whom it had been used; and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him with costs. And the like defenses may be pleaded in any suit in equity for relief against an alleged infringement; and proofs of the same may be given upon like notice in the answer of the defendant, and with the like effect.” 16

The burden of proof rests upon the plaintiff to establish novelty and invention. 16 Disputed questions as to invention and infringement are, in general, questions of fact which should be submitted to the jury under proper instructions.17 Where the facts are undisputed, as to the meaning of the claims, or as to the prior art, novelty and invention are questions of law to be decided by the court.1

Profits cannot be recovered in an action at law,19 but where the complaint alleged that the damages to the plaintiff and the

18

15 U. S. R. S., $ 4920. 16 Supra, $ 188.

17 Prepayment Car Sales Co. v. Orange County Traction Co., C. C. A., No. 122, 221 Fed. 939; Trustees of Masonic Hall and Asylum Fund v. Fountain Electrical Floor Box

Corporation, C. C. A., 218 Fed. 642.

18 Prepayment Car Sales Co. v. Orange County Traction Co., C. C. A., 221 Fed. 939, 941.

19 Brown v. Lanyon, C. c. 8., 148, 838, 78 C. C. A. 728.

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