them.128 In other cases, when the dissenter who files the bill does not offer to bid more for the assets than was paid at the sale which he seeks to set aside; the court may direct that the property be sold at public sale, no bid to be accepted for less than what has been already paid.129 Where the property has become so confused with the property of the vendee that it is practically impossible to place matters in statu quo, the court may declare the vendee a trustee and impress a lien upon the property for the benefit of unpaid stockholders and creditors. 130

A statute, which provides compensation to be paid to a stockholder who refuses to join in a consolidation, refers to one authorized by law and affords no adequate remedy to a stockholder who seeks to enjoin an illegal consolidation.131 When a stockholder sued to enjoin a consolidation, it was held that he was entitled to an accounting of all the earnings from the assets of his company made by the corporation into which it had been. consolidated.132

In certain cases, where a small minority of stockholders have been injured by a fraud the sale will not always be rescinded; but the court may direct a valuation of the complainant's stock and the payment of this amount to them under such a penalty as will give them ample security.188 This will not be done where such a valuation is impracticable. 134 When the contract attacked transferred the assets directly or indirectly to a new company in which the complainants were given no interest, the court may award to them such interest in the stock of the new company as would give them full compensation.135

§ 146. Bills to enjoin the infringement of patents. According to the rules of pleading which were in force before the adoption of the equity rules of 1912: a bill to restrain the

128 Stebbins v. Michigan Wheelbarrow & Truck Co., C. C. A., 212 Fed. 19.

129 Geddes v. Anaconda Copper Mining Co., 222 Fed. 120.

130 Re Dennett, 221 Fed. 350.

131 General Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160.

132 Miller v. Chicago & A. R. Co., C. C. A., 204 Fed. 436.

133 Binney V. Cumberland Ely Copper Co., 183 Fed. 650, 653. See Jones v. Missouri-Edison Electric Co., C. C. A., 203 Fed. 945.

134 Jones v. Missouri Edison El. Co., C. C. A., 203 Fed. 945.

135 Bogert v. Southern Pac. Co., 250 U. S. 483.

infringement of a patent must allege: that the complainant or the person through whom he claims was the inventor or discoverer of the thing or process patented; that it has not been previously patented, nor described in any printed publication; 2 in this or in any foreign country; 3 nor patented in any foreign country in the twelve months, or in the case of a design patent, in the four months, prior to the application; that it was not in public use nor on sale for more than two years before the application. It must show that the patent was duly issued; that the plaintiff has and had, at the time when the bill was filed," a title to the patent, or such an interest in the same as gives him the right to the protection from the court; and that the

§ 146. 1 Sullivan v. Redfield, 1 Paine, 441; Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349. For a precedent of a bill for the infringement by the original patentee, see McCoy v. Nelson, 121 U. S. 484, 30 L. ed. 1017.

An allegation in a bill for infringement that a person named was "within the meaning of the statutes of the United States then in force the inventor" of the patented process, while informal, is equivalent to an allegation that he was the original and first inventor or discoverer. Schaum & Uhlinger, Inc., v. CopleyPlaza Operating Co., 243 Fed. 924. See § 29, supra, § 277, infra.

2 Hutton v. Star S. S. Co., 60 Fed. 747; Diamond Match Co. v. Ohio W. Co., 80 Fed. 117; Goebel v. Am. Ry. Supply Co., 55 Fed. 825; Rubber T. W. Co. v. Davis, 100 Fed. 85; Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349; Bayley & Sons v. Braunstein Bros. Co., 237 Fed. 671.

3 Moss v. McConway Torley Co., 144 Fed. 128; Elliott & Hatch Book Typewriter Co. v. Fisher Typewriter Co., 109 Fed. 330, 331; Bayley & Sons v. Braunstein Bros. Co., 237 Fed. 671.

6

4 U. S. R. S. § 4887, as amended, 29 St. at L. 693, 32 St. at L. 1225, Comp. St. 9431; Moss v. McConway Torley Co., 144 Fed. 128; Victor Talking Mach. Co. v. Leeds & Catlin Co., 165 Fed. 931; Elliott & Hatch Book Typewriter Co. V. Fisher Typewriter Co., 109 Fed. 330.

5 Blessing v. John Traeger S. C. Works, 34 Fed. 753; Krick v. Jansen, 52 Fed. 823; Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349; Hayes-Young T. P. Co. v. St. Louis Transit Co., 130 Fed. 900. An allegation that it had not been so used or sold with the consent of the inventor is insufficient. Ibid. The bill need not allege that the invention was not abandoned before the application for the patent. Warren F. Co. v. Warner Bros. Co., 92 Fed. 990; Bayley & Sons v. Braunstein Bros. Co., 237 Fed. 671. 6 It has been held; that an allegation that a patent was duly issued, upon application to the "proper department of the government, is insufficient. Vant Woud Rubber Co. v. Sternau, 145 Fed. 197.

7 Krick v. Jansen, 52 Fed. 823. But see Arrott v. Standard Mfg. Co., 113 Fed. 1014.

8 Krick v. Jansen, 52 Fed. 823;

defendant has infringed, and still infringes, the patent; 9 or threatens to infringe the same.10 When the bill alleges that a patent was issued, it is unnecessary to allege that an application was made. The filing of the application in due form commensurate with the grant is presumed from the issue of the patent.11 When, to meet a defense of prior public use, the plaintiff relied upon a former application which had been abandoned, it was said that the date and facts concerning the same should have been pleaded in the bill.12

It is the safer practice still to comply with these rules of pleading.13 It has been held, however, that an allegation that the patentee has complied with all of the requirements of the statutes of the United States obviates the necessity of specifically pleading a compliance with each of such requirements.14 It has also been held, that when the bill sets forth the issue of certain properly described letters patent to a person named as inventor, there is no need of alleging that the invention was new, novel or useful; that the patentee was the first and true inventor thereof; that it was not patented nor described in any

Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349. It has been held insufficient to aver simply the issue to complainant of the patent and that the letters-patent are in his possession. Lettelier v. Mann, 79 Fed. 81. But see Arrott v. Standard Mfg. Co., 113 Fed. 1014. When a bill alleged "that the patentee was the original, first and sole inventor of a certain new and useful improvement in the construction of cable railways, fully described in the specification of the said letterspatent, which had not been patented to himself or to others, with his knowledge or consent, in any country, and had not, to his or the orator's knowledge, been in public use or on sale in the United States for more than two years prior to his invention and discovery thereof, and application for letters-patent of the United States therefor" it was

held sufficient. American Cable Ry. Co. v. City of N. Y., 42 Fed. 60.

9 Western El. Instrument Co. v. Valee Bros. El. Co., 145 Fed. 534.

10 Bowers v. Bucyrus Co., 132

Fed. 39.

11 Bowers v. Bucyrus Co., 132 Fed. 39; Maxwell Steel Vault Co. v. Nat. Casket Co., 205 Fed. 515, 525.

12 Corrington v. Westinghouse Air Brake Co., C. C. A., 178 Fed. 711.

13 Schaum & Uhlinger, Inc., v. Copley Plaza Operating Co., 243 Fed. 924; Maxwell Steel Vault Co. v. Nat. Casket Co., 205 Fed. 515; Bayley & Sons v. Braunstein Bros. Co., 237 Fed. 671. But see Zenith Carbureter Co. v. Stromberg Motor Devices Co., 205 Fed. 128.

14 Zenith Carbureter Co. v. Stromberg Motor Devices Co., 205 Fed. 128; General Bakelite Co. v. Nikolas, 207 Fed. 111, 114.

printed publication in this or any foreign country before his invention and discovery thereof, since such matters are presumed and inferred from the issue of the patent.15

The bill must also contain a substantial description of the patent or else set out the patent itself, or have the same annexed as an exhibit.16

Profert of the patent will, however, suffice,17 and will supply any deficiencies concerning its contents or signature which therein appear.18 In such a case, only its title need be set forth.19 It is insufficient to allege: "as by the said letters patent and specifications, all in due form of law, ready in court to be produced, will fully appear;" 20 but it is the safer practice also to state the number of the patent, and the volume and page of its

15 Maxwell Steel Vault Co. V. Nat. Casket Co., 205 Fed. 515, 524.

16 Stirrat v. Excelsior Mfg. Co., 44 Fed. 142.

17 Wilder V. McCormack, 2 Blatchf. 31; McMillin v. St. Louis & Miss. Valley Transportation Co., 18 Fed. 260; Dickerson v. Green, 53 Fed. 247; Bogart v. Hinds, 25 Fed. 484; Hildreth v. Bee Candy Mfg. Co., 162 Fed. 40; Fichtel v. Barthel, 173 Fed. 489. "The demurrer says that the bill should make 'profert' of the letters patent, and the plaintiff replies the 'profert' is unknown to equity pleadings. Technically this may be so, but the equivalent of 'profert' is known; and whenever the law pleadings must make 'profert,' the equity pleadings must allege and prove with fullness enough to give all the benefit the 'profert' would give, and under a rule the production of the document would be compelled."' Hammond, J., in Electrolibration Co. v. Jackson, 52 Fed. 773, 776. It has been held to be sufficient allegation for the plaintiff to allege that he "was the true, original and first inventor of a Fed. Prac. Vol. I-53

certain new and useful improved application of steam power to the captain of vessels, not known or used before," that a description or specification of the aforesaid improvement was given in his schedule to the aforesaid letters-patent annexed, accompanied by certain drawing refered to in said last mentioned schedule, and forming parts of said letters-patent,— the said letters-patent and the said specification thereto annexed (which, your orators will produce, which, or an exemplified copy of which, as your honors may direct) were duly recorded in the patent office.'' McMillin v. St. Louis & Mississippi Valley Transp. Co., 18 Fed. 260. See supra, § 136, infra, $366.

18 Fichtel v. Barthel, 173 Fed. 489.

19 McMillin v. St. Louis & Miss. Valley Transportation Co., 18 Fed. 260. See Dickerson v. Greene, 53 Fed. 247. 20 Wilder V. McCormick, 2 Blatchf. 31; Dickerson v. Greene, 53 Fed. 247; Bogart v. Hinds, 25 Fed. 484. See infra, § 366.

record in the patent office; 21 together with its title. An allegation of the date, without profert, is insufficient.22 It has been held that the mention, in a bill, of prior patents to the same patentee, does not amount to a profert of such patents, so as to bring them before the court for consideration on a demurrer.2 In case of a profert, the document thus offered may be retained in the custody of the pleader until the hearing.24

23

Under the practice in the Second Circuit, complainant in a suit for infringement may declare on the patent generally and postpone the statement of the particular claims relied on until the taking of the testimony begins.25 If the patent is not set forth at length nor profert thereof made, it is the safer practice to allege, that it was issued in the name of the United States under the seal of the patent office or that it was signed by the Commissioner.26 Where the patentee and licensee joined as complainants, and there was a demurrer for misjoinder it was held, that the complainants must produce the license upon the argument of the demurrer, since it was not set out in the bill.27

The bill must show the plaintiff's title to the patent when he was not the original patentee.28 An averment that the patent was "by various mesne assignments duly assigned" to complainants without specifying such assignments was held to be insufficient.29 Where a bill by the assignee of a patent seeks damages and profits for past infringement, it must state the date of the assignment, and that the right of recovery for past damages and profits was included therein.30 Where the bill alleged that

the patent was issued to a different person from the applicant as assignee, it was held that it might be presumed that an assign

21 Electrolibration Co. v. Jackson, 52 Fed. 773, 776. See Welsbach L. Co. v. Rex I. L. Co., 87 Fed. 477. 22 Ibid.

23 Bowers v Bucyrus Co., 132 Fed. 39.

24 Germain v. Wilgus, C. C. A., 67 Fed. 597.

25 General El. Co. v. Am. Brass & Copper Co., 209 Fed. 237.

26 Schaum & Uhlinger v. CopleyPlaza Operating Co., 243 Fed. 924. See supra note 10.

27 Dver v. Cryder, 153 Fed. 767. 28 Schaum & Uhlinger, Inc., v. Copley-Plaza Operating Co., 243 Fed. 924; Zenith Carbureter Co. v. Stromberg Motor Devices Co., 205 Fed. 158.

29 Schaum & Uhlinger, Inc., v. Copley-Plaza Operating Co., 243 Fed. 924.

30 Vant Woud Rubber Co. V. Sternau, 145 Fed. 197.