Opinion
No. 6664.
June 22, 1938.
Appeal from the District Court of the United States for the District of New Jersey; Guy L. Fake, Judge.
Suit by the Chipman Chemical Engineering Company, Inc., against the Reade Manufacturing Company, Inc., for infringement of a patent. From a decree, 20 F. Supp. 674, dismissing a petition to adjudge defendant guilty of contempt for infringement of a patent claim adjudicated valid, plaintiff appeals.
Affirmed.
Anthony W. Deller, of New York City, for appellant.
Lewis J. Doolittle, of New York City, for appellee.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
The question here involved is whether when one claim of a patent has been adjudged valid and other claims adjudged invalid, the failure of the patentee to file, within a reasonable time, a disclaimer of the invalid claims thereby renders the valid claim invalid. The question arises on a motion of the plaintiff patentee to have the Reade Manufacturing Company, a defendant, adjudged guilty of contempt for infringement of the adjudicated valid claim. The court, after hearing, dismissed the petition. Whereupon this appeal was taken.
The facts of this case are as follows: On March 2, 1932, in a suit on the patent it was held (D.C., 56 F.2d 1048) that claim 7 was valid and infringed and the other claims invalid. On appeal, this Court (3 Cir., 62 F.2d 430) sustained the finding of invalidity and on January 26, 1933 returned its mandate to the court below. The plaintiff did nothing further until September 29, 1934 — a period of twenty months and two days — when the motion for contempt was filed. Thereupon the court held (20 F. Supp. page 675):
"Considering all the factors involved, I am of the opinion that the plaintiff has allowed an unreasonable time to elapse without taking advantage of the Disclaimer Act [35 U.S.C.A. §§ 65, 71] and the patent has therefore become void. See Ensten v. Simon Ascher Company, 282 U.S. [445] 455, 51 S.Ct. 207, 75 L.Ed. 453."
So holding, the court committed no error and its decree is affirmed.