Kulesza v. Kalisz

Full title: Louis Kulesza et al., Appellants, v. Steve Kalisz et al., Appellees

Court: Appellate Court of Illinois, First District

Date published: Dec 13, 1943

51 N.E.2d 321 (Ill. App. Ct. 1943)

51 N.E.2d 321

Opinion

Gen. No. 42,688.

Opinion filed December 13, 1943.

1. PATENTS AND INVENTIONS, § 25^_ — when complaint is subject to dismissal on court's own motion. In class suit to establish equitable lien on certain patents, held that fact that all of patents had expired some 17 years before action was brought would have justified trial court in dismissing complaint on such court's own motion.

_ See Callaghan's Illinois Digest, same topic and section number.

2. PATENTS AND INVENTIONS, § 5^fn_ — effect of patent's expiration. With expiration of patent, there cease all rights of manufacture, sale, or use thereunder, and also right to institute equitable proceedings for infringement.

3. EQUITY, § 19^fn_ — vindication of abstract principle. Equity will not take jurisdiction to vindicate abstract principle which is devoid of tangible significance.

4. PATENTS AND INVENTIONS, § 25^fn_ — what is insufficient to save complaint from dismissal. In class suit to establish equitable lien on certain patents, all of which had expired some 17 years before suit was brought, held that proposition, advanced by plaintiffs, that if interest in patents was established, plaintiffs might appeal to Congress for patents' renewal was not sufficient to save complaint from dismissal, since, if power of renewal existed, exercise of power rested solely in Congress as matter of favor or grace and created no right or interest in plaintiffs recognized in law.

Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. JULIUS H. MINER, Judge, presiding. Heard in the first division of this court for the first district at the June term, 1943. Affirmed. Opinion filed December 13, 1943.

HAROLD O. MULKS, of Chicago, for appellants.

MITCHELL KILANOWSKI, of Chicago, for appellees.

MR. JUSTICE NIEMEYER delivered the opinion of the court.

In 1942 plaintiffs brought a class suit to establish an equitable lien upon certain patents covering car wheels, axles, etc., for the benefit of themselves and several thousands of other holders of notes totaling $85,000,000, given in consideration of $2,500,000 loaned to the inventor and original owner of the patents prior to 1920. On motion of defendants, sued as the present owners of the patents, the second amended complaint was dismissed. Plaintiffs appeal.

Defendants assign several grounds for the dismissal of the complaint. However, there is a controlling reason which would have justified the court, upon its own motion, taking such action. The complaint shows that through the lapse of time the subject matter of the litigation has wasted away, so that granting relief would be futile, benefiting no one. The latest patent involved was issued in 1908. All patents had expired by 1926. With their expiration all rights to manufacture, sale or use thereunder ceased ( Kellogg Co. v. National Biscuit Co., 305 U.S. 111; Delong Hook Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359), as did the right to institute equitable proceedings for infringement. Root v. Lake Shore M. S. R. Co., 105 U.S. 189; Rice Adams Corp. v. Lathrop, 278 U.S. 509. Furthermore, the federal statute (U.S. Code, Title 35-Patents, sec. 70) provides that "in any suit or action brought for the infringement of any patent there shall be no recovery of profits or damages for any infringement committed more than six years before the filing of the bill of complaint or the issuing of the writ in such suit or action." Therefore, nothing remains but an abstract principle, devoid of tangible significance, and for the vindication of that equity will not entertain jurisdiction. 19 Am. Jur., Equity, secs. 20, 21. Nicholson v. Nicholson, 67 Mont. 517, 522.

Upon oral argument plaintiffs advanced the proposition that if interest in the patents was established, they might appeal to Congress for a renewal of the patents. If this power of renewal exists the exercise of it rests solely in Congress as a matter of favor or grace and creates no right or interest in plaintiffs recognized in law. Their position is not unlike that of a person who seeks to protect the estate of a rich relative in the hope or expectation that if the estate is preserved the active litigant may inherit a share of it. This expectancy, subject to defeat by the lawful act of the owner of the estate, is too conjectural and remote to be recognized as a legal right. Sanborn v. Carpenter, 140 Wis. 572.

The order of the circuit court is affirmed.

Affirmed.

O'CONNOR, P.J., and MATCHETT, J., concur.