The opinion of the court was delivered by: BYERS
This is an action in equity in which the plaintiff seeks an injunction and accounting for alleged infringement of reissue letters patent No. 15061.
The defendant is a dealer in the device described, and is an inhabitant of this district.
The bill was filed February 6, 1934; the subpoena was served on February 8th, and notice of appearance was filed on February 27th.
By stipulation, time to answer was extended until March 24th, although that pleading seems to have been filed on April 27th.
In the meantime, the defendant made a motion for a bill of particulars, which seems to have resulted in an order, for such a bill of particulars was filed on May 1, 1934.
Under date of April 12th, the defendant filed an affidavit of a Chicago attorney to the effect that on February 3, 1934, a bill of complaint by the same plaintiff was filed against the Victor Manufacturing and Gasket Co., of Chicago, the manufacturer of the device which this defendant is selling.
This motion, based upon that affidavit and a supplemental affidavit made by the same attorney on April 21st, in which the Chicago suit is described as the main suit of these two, is made by the defendant, for a stay of all proceedings in this cause pending the final adjudication of the suit against the manufacturer.
It is to be understood that the manufacturer's attorneys represent this defendant, and the expenses involved are being assumed by the former.
There is no allegation concerning any other litigation pending in any court involving this reissue patent, and hence this motion has not been justified for the purpose of avoiding a multiplicity of suits.
No case has been cited by the defendant in which a dealer has been accorded a stay upon the theory that he ought not to be called upon to defend his own alleged infringement because the manufacturer is meeting the same issue in another forum.
For all that appears from the papers, if the defendant in this cause were appearing by its own attorney, the stay would not be sought, because the practical reason advanced in behalf of the motion is that the manufacturer should not be required to assume the additional expense which would be entailed by its participation in the defense of this cause "many hundreds of miles from home where it is necessary to employ additional counsel and * * * either to take testimony by deposition or bring witnesses all the way from Chicago to New York to testify."
It is further urged that the present suit is an affront to the Illinois District Court.
The plaintiff stands upon its legal right to maintain this action against an alleged infringer of the patent in this district, and disclaims any purpose of harassing the Victor Manufacturing and Gasket Co. by seeking to interfere with the distribution of its product through widespread ...