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DYKEMA v. LIGGETT DRUG CO.

DISTRICT COURT, W.D. NEW YORK


May 10, 1937

DYKEMA
v.
LIGGETT DRUG CO., Inc.

Supplemental Opinion.

Four questions are raised concerning the form of the proposed decree herein. Each of such questions and the holding follow:

1. Whether the decree should hold claims 8 and 9 of the patent in suit to have been infringed by defendant's structure No. 2.

I hold that structure No. 2 infringes all claims, except claims 8 and 9. In my opinion rendered herein, an error appears on page 15 where it is recited that "defendant's structure No. 2 infringes 2 to 9, inclusive," etc. This latter statement is in conflict with the language of the opinion appearing on page 11.

 2. Whether the accounting should commence from the date of the issue of the original patent in February, 1932, or at some later date.

 Defendant contends that the accounting should be restricted to the period subsequent to the filing of the bill of complaint in 1935. I think that insufficient reasons are shown to justify the court in disallowing an accounting as of the date of the issuance of the patent. The defendant does not show laches within the rule, as laid down by the courts. It rather presents certain matters upon which it bases an equitable plea for the exercise of the discretion of the court in fixing some date later than the patent date.

 I hold that the plaintiff is entitled to an accounting from the date of the issuance of the patent.

 3. Whether the accounting should be restricted to defendant's structures Nos. 2 and 3 or should be directed to defendant's infringement generally.

 As I understand, the parties have now agreed upon the form of the decree with respect to this question.

 4. Whether plaintiff should recover his entire costs from defendant.

 I hold, as I have advised counsel, that each party shall pay one-half of the costs.

19370510

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