Opinion
Irving Seidman, of New York City (Herman H. Solnit, of New York City, of counsel), for plaintiff.
Robert S. Allyn, of New York City, for defendant.
COXE, District Judge.
Under Section 4918 of the Revised Statutes, 35 U.S.C.A. § 66, a suit to declare invalid an alleged interfering patent may be brought 'against the owners of the interfering patent. ' The complaint alleges that the Lazarus patent No. D. 128,396 was assigned to the defendant Seed Filter & Manufacturing Company, Inc., and the patent itself shows that it was issued in the name of that company. I do not think, therefore, that the defendant Lazarus is a necessary party to a suit for relief under the section.
It is not clear from the complaint whether the plaintiff intends to charge the defendants jointly with infringement of the Weiss patent No. D. 122,475. The defendant Lazarus is mentioned in the body of the pleading only in connection with the claim of interference with the Lazarus patent No. D. 128,396. The ninth paragraph, although alleging generally that both defendants have infringed, speaks later in the same sentence as if only one defendant is involved. With patents of such doubtful validity as these two design patents, it is not too much to expect that the complaint show what each defendant is charged with. I do not think that the mere selling of materials for use in the manufacture of such a sandglass timer as is disclosed in the Weiss patent No. D. 122,475 is enough to support a claim of contributory infringement. I hold, therefore, that the complaint in its present condition is insufficient as against the defendant Lazarus.
The service of the duplicate process on the defendant Lazarus in the Eastern District was proper under 28 U.S.C.A. § 113.
The motion of the defendant Lazarus to dismiss as to him is granted to the extent above indicated, and the plaintiff may have 20 days within which to amend, if his disposition is to proceed further against such defendant.