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charter of the corporation has expired when the company still exists for the purpose of winding up its affairs. The rule does not apply to a suit to restrain corporate actions to which the president of the corporation is made a party solely for purposes of discovery." Nor to a bill by a depositor on behalf of himself and the other depositors to hold the directors of a bank responsible for losses caused by their misconduct.10 Nor to a bill by a mortgagee of the assets of a corporation to prevent their destruction." Nor to a case where it clearly appears that the corporation would certainly refuse the right upon which the suit is founded.12 For example, a bill by a minority stockholder to set aside a contract fraudulently made between his corporation and another in which a majority of his fellow stockholders are interested, need not allege a previous demand upon his board of directors to bring the suit and their refusal, when it shows that such board has been elected by the hostile majority for their own interest.13 It was held in New York that a previous demand upon a corporation to

assignee has refused to bring the suit. Streight v. Junk (C. C. A.), 59 Fed. R. 321.

Culver, 147 N. Y. 241, 246; Earle v. Seattle, L. S. & E. Ry. Co., 56 Fed. R. 909; Eldred v. Am. P. C. Co., 99 Fed.

8 Taylor v. Holmes, 127 U. S. 489; R. 168; Berwind v. Canadian Pac. S. C., 14 Fed. R. 498.

Ry. Co., 98 Fed. R. 158. Where a

Leo v. Union Pac. Ry. Co., 17 Fed. stockholder's bill to redeem property R. 273. of the corporation sold under an exe10 Foster v. Bank of Abingdon, 88 cution upon a judgment, which was Fed. R. 604.

11 Consolidated Water Co. v. San Diego, 89 Fed. R. 272. But see Newby V. Oregon C. R. Co., 1 Sawyer, 63.

12 County of Tazewell v. Farmers' L. & T. Co., 12 Fed. R. 752; Ranger v. Champion C. P. Co., 52 Fed. R. 611; Rogers v. Nashville, C. & St. L. Ry. Co. (C. C. A.), 91 Fed. R. 299; De Neufville v. N. Y. & N. Ry. Co. (C. C. A.), 81 Fed. R. 10. But see Squair v. Lookout Mountain Co., 42 Fed. R. 729; Farmers' L. & T. Co. v. Toledo, A. A. & N. M. Ry. Co., 67 Fed. R. 49; Church v. Citizens' S. R. Co., 78 Fed. R. 526. 13 Rogers v. Nashville, C. & St. L. Ry. Co. (C. C. A.), 91 Fed. R. 299; De Neufville v. N. Y. & N. Ry. Co. (C. C. A.), 81 Fed. R. 10; Sager v.

alleged to have been fraudulently obtained through the collusion of a majority of the directors, showed that the time allowed for redemption would expire within a few days, it was held that a previous demand upon the board was unnecessary. Young v. Alhambra Mine Co., 71 Fed. R. 810. Where a contract for the transfer of the corporate property was made by the stockholders individually, it was held that they might sue to rescind it for fraud, joining the corporation as a defendant, without showing a compliance with Rule 94. Old Colony Tr. Co. v. Dubuque, L. & T. R. Co., 89 Fed. R. 794.

disregard a lease did not authorize a suit to annul the same.1 It has been held that the rule does not apply to a suit by a stockholder to enforce a right of action which the corporation could not enforce in its entirety, such as a suit which prayed the dissolution of the corporation as well as the rescission of a contract made by it.15 Nor to a stockholder's bill filed in a State court and thence removed.16

In cases where the jurisdiction of the court depends upon the amount involved, the bill should show that the value of the matter in dispute exceeds the jurisdictional amount.17

If a bill be filed to impeach a patent or other grant by the United States and be not brought by the Attorney-General, or some other officer authorized by statute to do so, it should contain an allegation that the Attorney-General has "given such order for its institution as will make him officially responsible for it, and show his control over the cause." 18 The signature of the Attorney-General subscribed to the bill is sufficient to show his authority for filing it.19 Where the Attorney-General is disqualified, the bill may be signed by the Solicitor-General and filed in his discretion.20

§ 77. Bills to enjoin the infringement of patents.— A bill to restrain the 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;1 that it has not been previously patented, nor described in

14 Flynn v. Brooklyn C. R. Co., 158 N. Y. 493, 509. The bill should show the time and manner of the demand and that the board of directors has not changed. Swope v. Villard, 61 Fed. R. 417. Where the bill showed that the corporation had refused to sue upon the advice of counsel that the proceeding could not be successfully maintained, it was dismissed. Hendrickson v. Bradley (C. C. A.), 85 Fed. R. 508.

15 Barcus v. Gates (C. C. A.), 89 Fed. R. 783, 793. See Towle v. Am. B. L. & I. Co., 60 Fed. R. 131; Excelsior P. P. Co. v. Browne (C. C. A.), 74 Fed. R. 321. But see Becker v. Hoke (C. C. A.), 80 Fed. R. 973.

16 Earle v. Seattle, L. S. & E. Ry. Co., 56 Fed. R. 909; s. C., Eabens v. Union Pac. Ry. Co., 58 Fed. R. 497.

17 U. S. v. Pratt C. & C. Co., 18 Fed. R. 708; Murphy v. East Portland, 42 Fed. R. 308; Lehigh Z. & I. Co. v. N. J. Z. & L. Co., 43 Fed. R. 545, 546; Olson v. Nor. R. Co., 43 Fed. R. 112. 18 Miller, J., in U. S. v. Throckmorton, 98 U. S. 61, 71.

19 U. S. v. Mullan, 10 Fed. R. 785; S. C., 118 U. S. 271.

20 U. S. v. Am. Bell Tel. Co., 128 U. S. 315.

§ 77. 1 Sullivan v. Redfield, 1 Paine, 441. For a precedent of a bill for the infringement of an original patent, see McCoy v. Nelson, 121 U. S. 484.

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any printed publication; that it was not in public use nor on sale for more than two years before the application; that the plaintiff has a title to the patent or such an interest in the same as gives him the right to protection from the court; and that the defendant has infringed the patent. The bill must also

2 Hutton v. Star S. S. Co., 60 Fed. R. 747; Diamond Match Co. v. Ohio W. Co., 80 Fed. R. 117; Goebel v. Am. Ry. Supply Co., 55 Fed. R. 825; Rubber T. W. Co. v. Davie, 100 Fed. R. 85; infra, § 545.

3 Blessing v. John Traeger S. L. Works, 34 Fed. R. 753; Krick v. Jansen, 52 Fed. R. 823. 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. R. 990.

The bill must allege the ownership of the patent when it is filed. Krick v. Jansen, 52 Fed. R. 823. 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. R. 81. 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 letters-patent, 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 letterspatent of the United States therefor; " it was held sufficient. American Cable Ry. Co. v. City of N. Y., 42 Fed. R. 60. It has been held to be a sufficient allegation of title and infringement for the plaintiff to allege

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that he "was the true, original and first inventor of a certain new and useful improved application of steam power to the capstan of vessels, not known or used before;" "that a description or specification of the aforesaid improvement was given in his schedule to the aforesaid letterspatent annexed, accompanied by certain drawings referred to in said last mentioned schedule, and forming parts of said letters-patent, the said letters-patent and the said specifiation thereto annexed (which, or an exemplified copy of which, your orators will produce, as your honors may direct) were duly recorded in the patent office; and "that the defendant is now constructing, using, and selling steam-power capstans for vessels in some parts thereof substantially the same in construction and operation as in the said letters-patent mentioned." McMillin v. St. Louis & Mississippi Valley Transportation Co., 18 Fed. R. 260, 261. See McCoy v. Nelson, 121 U. S. 484. A bill for an injunction and an accounting was held to be good on demurrer, although it did not allege that the complainant was engaged in using the invention patented, or that it was a source of profit to him, when it alleged that the defendant had made profits by the use of the invention. Wirt v. Hicks, 46 Fed. R. 71.

5 It has been held that a simple averment that the defendant has infringed the patents above described is sufficient. Am. Bell Tel. Co. v. Sou. Tel. Co., 34 Fed. R. 803. See also McMillin v. St. Louis & M. V. Tr. Co., 18 Fed. R. 260; McCoy v.

contain a substantial description of the patent or else set out the patent itself, or have the same annexed as an exhibit. The history of the invention, and a description of patents issued to the complainant before that sued upon, are proper averments.'

Nelson, 121 U. S. 484; Cleveland F. & B. Co. v. U. S. Rolling S. Co., 41 Fed. R. 476. But see Am. S. L. B. Co. v. Empire S. N. Co., 50 Fed. R. 929. A bill which alleged the issue of a patent for a "process" of making furniture nails, which it set forth, alleged that the defendant, "in infringement of the aforesaid letterspatent," did wrongfully "make, use, and vend to others to be used, furniture nails embracing the improvement set forth and claimed in the aforesaid letters-patent," was held demurrable as not containing sufficient averment of infringement. Am. S. L. B. Co. v. Empire S. N. Co., 50 Fed. R. 929. It has been held that in a suit against two or more for the infringement of a patent, a general allegation of infringement is sufficient without a specific allegation that they are joint infringers. Indurated F. I. Co. v. Grace, 52 Fed. R. 124, 127; Diamond Match Co. v. Ohio Match Co., 80 Fed. R. 117. Contra, Shickle v. Foundry Co., 22 Fed. R. 105. A bill to enjoin the infringement of a patent by the use of a machine need not state what articles the defendant has made by the use of the machine. Fischer v. Hayes, 6 Fed. R. 76, 78. An allegation that the defendant "since the date of said patent" had infringed was held upon demurrer not to signify "ever since," but "after or subsequently to" that date. Brush El. Co. v. Ball El. Light Co., 43 Fed. R. 899. A bill which alleged that a complainant had obtained a certain patent, that the defendant had obtained patents of a later date which interfered with complainant's rights, and that defendant is making and selling ma

chines under his patents, and has in other ways disturbed complainant in the use and enjoyment of the rights granted by his patent, was held to charge interference sufficiently. Stonemetz P. M. Co. v. Brown F. M. Co., 46 Fed. R. 72.

6 Stirrat v. Excelsior Mfg. Co., 44 Fed. R. 142. When profert of the patent is made in the bill it has been held that only its title need be set forth. McMillin v. St. Louis & Miss. Valley Transportation Co., 18 Fed. R. 260. See Dickerson v. Greene, 53 Fed. R. 247. It has been said that the word "profert," as now used, does not imply that the recorded instrument, of which profert is made, is annexed to the bill or actually produced in court; and that it may be retained in the custody of the pleader. Germain v. Wilgus (C. C. A.), 67 Fed. R. 597. It has been held that the allegation "as by the said letters-patent and specification, all in due form of law ready in court to be produced, will fully appear," is equivalent to profert in the most formal and ample terms. It tenders the entire grant to the inspection of the court and party. Wilder v. McCormick, 2 Blatchf. 31; Dickerson v. Green, 53 Fed. R. 247; Bogart v. Hinds, 25 Fed. R. 484. See infra, § 106. But it is safer practice to allege also the number of the patent, and the volume and page of its record in the patent office. An allegation of the date without profert is not sufficient. Electrolibration Co. v. Jackson, 52 Fed. R. 773, 776. See Welsbach L. Co. v. Rex L. L. Co., 87 Fed. R. 477.

7 Steam G. & L. Co. v. McRoberts, 26 Fed. R. 765.

It is also proper to describe previous litigation over the same or similar patent. It was held at Circuit that in a bill founded upon a reissued patent it is not necessary to aver specifically the ground upon which the original patent was surrendered;" but if such a bill shows a delay of more than two years in the application for the reissue,1o or in the patent office," it must allege sufficient excuse for the delay. A bill to enjoin the infringement of several distinct patents has been held multifarious,"2 but if all the patents are infringed in the use of or manufacture of a single machine, process, manufacture, or composition of matter and it is so alleged, the bill is good. It has been said that the complainant "should aver that said inventions are capable of conjoint as well as separate use, and are so used by

8 Steam G. & L. Co. v. McRoberts, 26 Fed. R. 765; Am. Bell Tel. Co. v. So. Tel. Co., 34 Fed. R. 803. But see Western El. Co. v. Williams-Abbott El. Co., 83 Fed. R. 842.

9 Spaeth v. Barney, 22 Fed. R. 828. Upon a demurrer for both uncertainty and want of equity to a bill founded upon a reissued patent, when the only allegations concerning the reissue were "that said Charles T. Day having, for good and lawful cause and with the consent and approbation of your orator, surrendered said letters-patent to the Commissioner of Patents, and having made due application therefor, and having in all things complied with the acts of Congress in such case made and provided, did, on the eighteenth of February, 1879, obtain new letters-patent, being reissued let ters-patent, for the same invention for the residue of said term, and which were marked 'reissue, No. 8,590,' and were issued in due form of law to your orator, as assignee, under the seal of the patent office of the United States, signed by the Secretary of the Interior and countersigned by the Commissioner of Patents, and bearing date the day and year aforesaid, as by the last

The

mentioned reissued letters-patent,
ready here in court to be produced,
will appear; " it was held that the
bill was not objectionable.
court then said: "It is not necessary
to aver, specifically, the ground on
which the original patent was sur-
rendered. The reissue of letters-
patent by the Commissioner is prima
facie evidence that such reissue is
founded on sufficient cause, and is
in accordance with law. It is also
presumed that the Commissioner
acted within his statutory authority
until the contrary is proved." Ibid.

10 Wollensak v. Reiher, 115 U. S. 96.
11 Gandy v. Marble, 122 U. S. 432.
12 Hayes v. Dayton, 8 Fed. R. 702;
Shickle v. South St. Louis F. Co., 22
Fed. R. 105; Thomas H. El. Co. v.
Sperry, 46 Fed. R. 75; Louden M.
Co. v. Montgomery W. & Co., 96 Fed.
R. 232.

13 Nourse v. Allen, 4 Blatchf. C. C. 376; Perry v. Corning, 7 Blatchf. C. C. 195; Case v. Redfield, 4 McLean, 526; Gamewell F. A. Tel. Co. v. Chillicothe, 7 Fed. R. 351; Nellis v. McLanahan, 6 Fisher's Pat. Cas. 286; Diamond Match Co. v. Ohio M. Co., 80 Fed. R. 117. See U. S. v. Am. Bell Tel. Co., 128 U. S. 215.

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