DISTRICT COURT, E.D. NEW YORK
May 10, 1941
TAMPAX, Inc., et al.
PERSONAL PRODUCTS CORPORATION et al.
On Motion for Order Requiring Plaintiffs to Pay Reasonable Expenses
This is a motion for an order requiring plaintiffs to pay reasonable expenses, including reasonable attorney's fees, incurred in making proof of matters of fact set forth in paragraph 3 of the request for admission filed on or about October 17, 1940.
At the outset it should be noted that the requests numbered 1 and 2 were strictly requests for admission of facts, and they were admitted by the plaintiffs.
The third request for admission, however, which included four subdivisions, which need not be restated, contained the following general statement: "that beginning at a time more than two years prior to June 2, 1934 the filing date of the application for said Haas Patent No. 2,024,218, and more than two years prior to the filing of any application by the said Haas which disclosed said 'combined container and applicator' as described and claimed in said Patent No. 2,024,218, and which was copending with the aforesaid application filed June 2, 1934." Then follow the subdivisions.
The general statement is not a mere request for admission of a fact.
The plaintiffs contend, and have at all times contended, that the filing date for this patent went back to November 19, 1931, the filing date of the original application, which eventuated into Patent No. 1,926,900, of which it is contended the patent in question is a continuation.
Furthermore, plaintiffs contend that the container and applicator were shown in the drawings of an intervening continuing application, which eventuated into Patent No. 1,964,911, which they contend is the link connecting the application for the Patent No. 2,024,218, with the original application, which eventuated into Patent No. 1,926,900, therefore, the request in question for admission was not solely a request for an admission of fact, but was a request for an admission as to a conclusion of law, which would have deprived the plaintiffs of the opportunity to litigate that which was one of the important questions of law, that I was required to determine, therefore, the motion is denied.
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