The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a motion to dismiss the bill of complaint filed herein and for an order and decree to such effect on the ground that neither of the claims of the United States patent No. 1,571,930 referred to in the bill of complaint is infringed by either or the devices illustrated as Exhibits A and B of the defendant's interrogatories filed with the clerk of this court on July 2, 1932, which devices the parties agree, as indicated by the defendant's interrogatories and the answers thereto dated July 18, 1932, are the devices alleged to infringe.
By this motion under Rule 29 of the Equity Rules (28 USCA § 723), which is the substitute for the old demurrer, the defendant admits, for the purposes of this motion, the validity of the patent in suit, and the only question presented is infringement.
By the interrogatories and the answers thereto, the plaintiff has limited himself to the contention that the machines Exhibits A and B shown in the interrogatories are the only machines made by the defendant which he claims infringe his patent in suit.
The motion to dismiss is properly made under Equity Rule 29. Bronk v. Charles H. Scott Company (C.C.A.) 211 F. 338; Chase et al. v. Reliable Manufacturing Co. (D.C.) 58 F.2d 676; I.T.S. Rubber Company v. Essex Rubber Company (D.C.) 270 F. 593, reversed 281 F. 5, by the Circuit Court of Appeals of the First Circuit on the ground that the question of infringement was arguable but that specifically approved the procedure of dismissing on motion where the question was not arguable.
The test here is whether the decree can be sustained by an application of the law to the facts alleged by the plaintiff in his bill of complaint and admitted in his answers to the interrogatories propounded by the defendant. If it cannot, then the motion should be denied and the case sent to trial in its regular order. If it can, the motion should be granted.
The presence of an answer in this case does not prevent defendant from making this motion. Andrew Jergens v. Bonded Products Corporation (D.C.) 9 F.2d 114.
The practice of dismissing a bill on motion on the grounds of invalidity or lack of novelty appearing on the face of the patent has been approved. Richards v. Chase Elevator Company, 158 U.S. 229, 301, 15 S. Ct. 831, 39 L. Ed. 991; Kuhn et al. v. Lock-Stub Check Company (C.C.A.) 165 F. 445, 446.
That being so, I agree with the statement of Judge Anderson in I.T.S. Rubber Company v. Essex Rubber Co. (D.C.) 270 F. 593, at page 598, where he said: "Ordinarily -- certainly in this case -- infringement is a sharper, narrower, and cleaner-cut issue than patentability."
Upon undisputed evidence, infringement or noninfringement is a question of law. Singer Mfg. Co. v. Cramer, 192 U.S. 265, 275, 24 S. Ct. 291, 48 L. Ed. 437; Sanitary Refrigerator Company v. Winters, 280 U.S. 30, 36, 50 S. Ct. 9, 74 L. Ed. 147.
Expert testimony is not required in a case like that at bar, where the specifications and claims are comparatively simple and all that is required is the comparison of the patent in suit with the defendant's structures alleged to infringe. Hardinge Conical Mill Co. v. Abbe Engineering Co. et al. (C.C.A.) 195 F. 936, 939.
On this motion I am restricted to a consideration of only the bill of complaint, the patent in suit, the interrogatories and answers thereto, and the physical exhibits pictured in the interrogatories.
If on a consideration thereof I am convinced that there is no infringement and that plaintiff cannot so broaden its claims as to cover the defendant's said devices, then the motion should be granted.
If on the other hand I should believe that plaintiff on a trial could possibly show infringement by the defendant, ...