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ELLIS-FOSTER CO. v. ALDUR CORP.

June 9, 1932

ELLIS-FOSTER CO.
v.
ALDUR CORPORATION



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a motion made by the plaintiff for an order taking this case off the calendar under Equity Rule 57 (28 USCA § 723) or, in the alternative, that an order be entered dismissing the suit without prejudice and at cost of the plaintiff.

The complaint in this action was filed on April 12, 1932, and the subpoena served on or about April 14, 1932.

 The time of the defendant to answer was extended by stipulation and and including May 11, 1932.

 Notices of infringement were sent to defendant on February 13, 1932, and again on March 5, 1932, but were delayed in delivery due to being improperly addressed.

 There are four patents involved in the suit. The subject-matter thereof are method and compositions involving organic chemistry.

 The defendant by answer pleaded invalidity and noninfringement, and set up prior art in this suit consisting of eighteen United States patents, three British patents, one German patent, one Austrian patent, four German publications, one French publication, one Italian publication, one English publication, and one United States publication.

 This suit involves complex questions in chemistry, and the reference patents or publications cannot be read and applied at once to the subject-matter of the patent in suit; and this is true even if plaintiff's patentee, Carlton Ellis, did write the book described by defendant's attorney, and said Ellis was the patentee, or plaintiff was the owner of some of said patents.

 The answer was filed twenty-one days before the case appeared on the calendar.

 The last of the prior art set up in the answer was not received at the office of the plaintiff's attorneys until May 25, 1932, and this term commenced and the case appeared on the calendar for the first time on June 1, 1932, on which day a representative of the plaintiff's attorneys asked to have the case marked off under Equity Rule 57 (28 USCA § 723), but presented no affidavit.

 The court was informed at that time that Mr. Scull, who was to try the case, was at Wilmington, Del., engaged in arguing a case, and I marked the case for June 8, 1932.

 It now appears that Mr. Scull, due to a death in the family, was absent from his office from before May 25, 1932, until Saturday, June 4, 1932, and that he has an appeal to argue which is on the calendar of the Circuit Court of Appeals, having been called on June 6, 1932, and adjourned from day to day.

 No proceedings of any sort have been taken in this case, other than the filing of the complaint and answer and this motion.

 I am convinced that Mr. Scull has not had a sufficient opportunity to properly prepare the trial of this case, in view of the ...


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