Opinion
T. J. Geisler, of Portland, Or., for plaintiff.
Joseph L. Atkins and Leicester B. Atkins, both of Portland, Or., and Cooley, Horan & Mulvihill, of Everett, Wash., for defendants.
BEAN, District Judge (in memorandum).
The case of Murray v. Sumner Iron Works et al. is a suit for an alleged infringement of patent. The defendants set up or refer to certain patents by number and date of issue, which they allege are prior publications. The plaintiff filed interrogatories under equity rule No. 58 (198 F. xxxiv, 115 C.C.A. xxxiv), and among others was one requiring the defendants to specify which particular mechanical feature or combination in each or any of the patents cited they would rely on in the trial of this case, as an instance of prior publication. To this interrogatory the defendants answered that none of the patents designated in the interrogatory are relied upon as exact publications, but all show collectively the prior state of the art, and show the anticipation in invention of plaintiff's patent.
Objection was made to this answer, because it is not sufficiently definite and certain. Rule 58 provides that either party to a suit may file interrogatories for the discovery by the opposite party of facts and documents material to the support or defense of the cause. This rule, as I interpret it, was intended to enable the party to obtain in advance of the trial a statement from his opponent on any facts or documents which might be material to his cause of action or defense, as the case may be, but not to require a party to disclose the ground of his defense, nor the argument which he proposes to make, based upon certain facts.
Now, this answer, it seems to me, is as definite and certain as defendants could be required to make under the rules. They say that the patents are not exact duplicates, but they propose to claim on the trial that, taking them all together, they show prior publications, and that, it seems to me, is as far as they can be required to go under the rules.
The objection will be overruled.