although one is for a process and the other for a product.97 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 the defendant," 98 but, before the new Equity Rules, a general allegation of their infringement collectively was usually held to be sufficient.99 An amendment adding such an averment will be allowed.100 Since these rules it has been held that the plaintiff may join in one bill causes of action for the infringement of several patents. 101 A charge of infringement, and a prayer for an injunction and accounting accordingly, may be joined with a charge of interference and a prayer for relief against the same.102 A bill seeking an injunction with damages against the infringement of a patent, and an injunction with damages against the publication of libelous circulars affecting plaintiff's patent has been held multifarious.103 A bill seeking an injunction against the infringement of a patent and the infringement of a trade-mark was held not multifarious when the allegations as to both related to the same subjectmatter; 104 but, it was held, that a complainant could not join a cause of action for the infringement of a patent with another for unfair competition in trade, though both related to the same subject-matter,105 although this might be done irre

C. C. A., 214 Fed. 578. See U. S. v. Am. Bell Tel. Co., 128 U. S. 315, 32 L. ed. 450.

96 Hunting Dry Pulverizer Co. v. Virginia-Carolina Chemical Co., 130 Fed. 558.

97 Am. Graphophone Co. v. Leeds & Catlin Co., 131 Fed. 281.

98 Gamewell F. A. Tel. Co. v. Chillicothe, 7 Fed. 351; Nellis v. McLanahan, 6 Fisher's Pat. Cas. 286; Robinson v. Chicago Rys. Co., C. C. A., 174 Fed. 40, 42.

90 Luten v. Sharp, 200 Fed. 151. 100 Union L. & S. Co. v. Philadelphia R. Co., 68 Fed. 914; Electric Goods Mfg. Co. v. Benjamin Electric Mfg. Co., 169 Fed. 832.

101 Crysal Percolator Co. v. Landers, 258 Fed. 28, supra, § 142.

102 Leach v. Chandler, 18 Fed. 202; Holiday v. Pickhardt, 29 Fed. 853; Swift v. Jenks, 29 Fed. 642; American Roll Paper Co. v. Knopp, 44 Fed. 609, 612; Stonemetz P. M. Co. v. Brown F. M. Co., 46 Fed. 72. 103 Fougeres v. Murbarger, 44 Fed. 292. See International T. C. Co. v. Carmichael, 44 Fed. 349.

104 Jaros H. U. Co. v. Fleece H. U. Co., 60 Fed. 622; Adam v. Folger, 120 Fed. 260; Globe-Wernicke Co. v. Fred Macey Co., C. C. A., 119 Fed. 696, 703, 56 C. C. A. 304; T. B. Woods Sons Co. v. Valley Iron Works, 168 Fed. 770. Contra, Cushman v. Atlantis Fountain Pen Co., 164 Fed. 94; Mecky v. Grabowski, 177 Fed. 591. See supra, §§ 24, 142. 105 Ball & S. F. Co. v. Cohen, 90

spective of the citizenship of the parties when the unfair competition was incidental to the infringement.106 For example, an imitation of the form 107 and design,108 and of pictures of the device in catalogues. 109 When the requisite diversity of citizenship exists, a bill seeking these two kinds of relief can be sustained.110 But not, when neither party is a resident of the district and the acts of unfair competition were committed elsewhere.111 Where there was no diversity of citizenship it was held when the patent was sustained and its infringement found, that profits and damages for unfair competition might be included in the accounting.112 But where relief because of alleged infringement of a patent was denied, courts have held that they had no jurisdiction to consider a cause of action founded upon unfair competition 113 in the same.

Fed. 664; C. L. King & Co. v. Inlander, 133 Fed. 416; Cushman v. Atlantis Fountain Pen Co., 164 Fed. 94; Mecky v. Grabowski, 177 Fed. 591; National Casket Co. v. N. Y. & Brooklyn Casket Co., 185 Fed. 533; Malinson v. Ryan, 242 Fed. 951. See supra, §§ 24, 142. See, however, Keasby & Mattison Co. v. Phillip Cary Mfg. Co., 113 Fed. 432; C. L. King & Co. v. Inlander, 133 Fed. 416.

106 T. B. Woods Sons Co. v. Valley Iron Works, 166 Fed. 770; Lovell-McConnel Mfg. Co. v. Automobile Supply Co., 193 Fed. 658; Climax Lock & Ventilator Co. v. Ajax Hardware Mfg. Co., 192 Fed. 126; Sayre v. McGill Ticket Punch Co., C. C. A., 200 Fed. 771. Farmers' Handy Wagon Co. v. Beaver Silo & Box Mfg. Co., C. C. A., 236 Fed. 731. K. W. Ignition Co. v. Temco El. Motor Co., C. C. A., 243 Fed. 588; Detroit Show Case Co. v. Kawneer Mfg. Co., C. C. A., 250 Fed. 234. Contra, H. D. Smith & Co. v. Southington Mfg. Co., 235 Fed. 160; Schrauger & Johnston v. Phillip Bernard Co., 240 Fed. 131;

Under the former practice

Unit Const. Co. v. Huskey Mfg. Co., 241 Fed. 129; Mallinson v. Ryan, 242 Fed. 951.

107 T. B. Woods Sons Co. v. Valley Iron Works, 166 Fed. 770; Lovell-McConnell Mfg. Co. v. Automobile Supply Mfg. Co., 193 Fed. 658. Contra, H. D. Smith & Co. v. Southington Mfg. Co., 235 Fed. 160.

108 Lovell-McConnell Mfg. Co. v. Automobile Supply Mfg. Co., 193 Fed. 658.

109 Climax Lock & Ventilator Co. v. Ajax Hardware Mfg. Co., 192 Fed. 126.

110 Miller Rubber Co. v. Behrend, C. C. A., 242 Fed. 515,

111 Woerheide v. H. W. JohnsManville Co., 199 Fed. 535.

112 K. W. Ignition Co. v. Temco El. Motor Co., C. C. A., 243 Fed. 588; Detroit Showcase Co. v. Kawneer Mfg. Co., C. C. A., 250 Fed. 234; Geneva Furniture Mfg. Co. v. S. Karpen & Bros., 238 U. S. 254.

113 New Departure Mfg. Co. v. Sargent & Co., C. C. A., 127 Fed. 152, 155, 62 C. C. A. 266; Schiebel Toy & Novelty Co. v. Clark, 217

it was held as follows: A bill to set aside a contract for a partnership in royalties, which also prayed an account of matters collected under a verbal understanding before the date of the contract, is not multifarious; 114 nor a bill for an infringement, which also pleads a contract, in which it is alleged that defendants have agreed not to contest the validity of the patent.115 A supplemental bill against a new defendant, to whom the original defendant had transferred its property, pending the suit, which prayed an injunction against the use of plaintiff's patents, and that it be obliged to pay the damages caused by its predecessor's infringement; was multifarious.116 Where a bill set out a contract relating to certain patents, and asked specific performance thereof against several parties, but also contained expressions looking to relief, as in a suit for infringement, it could not be sustained as a bill with a double aspect; because the determination of who are proper parties must be made from different standpoints in the two kinds of bills.117

The Act of October 6, 1917, against Trading with the Enemy provides: "The owner of any patent, trade-mark, print, label, or copyright under which a license is granted hereunder may, after the end of the war and until the expiration of one year thereafter, file a bill in equity against the licensee in the District Court of the United States for the district in which the said licensee resides, or, if a corporation, in which it has its principal place of business (to which suit the Treasurer of the United States shall be made a party), for recovery from the said licensee for all use and enjoyment of the said patented invention, trademark, print, label, or copyrighted matter: Provided, however, that whenever suit is brought, as above, notice shall be filed with the alien property custodian within thirty days after date of entry of suit: Provided, further, That the licensee may make any and all defenses which would be available were no license

Fed. 760; H. D. Smith & Co. v. Southington Mfg. Co., 235 Fed. 160; Detroit Showcase Co. v. Kawneer Mfg. Co., C. C. A., 250 Fed. 234. See U. S. E. Bolt Co. v. H. G. Kroncke Hardware Co., C. C. A., 234 Fed. 868; Koenig v. Morris, 243 Fed. 619. Where after finding that there was no infringement the

court held it had no jurisdiction to direct a partnership accounting.

114 Patton v. Glantz, 56 Fed. 367. 115 Dunham v. Bent, 72 Fed. 60. 116 Western Telephone Mfg. Co. v. Am. El. Tel. Co., 137 Fed. 603.

117 American Box Mach. Co. v. Crosman, C. C. A., 61 Fed. 888; S. C., 57 Fed. 1021.

granted. The court on due proceedings had may adjudge and decree to the said owner payment of a reasonable royalty. The amount of said judgment and decree, when final, shall be paid on order of the court to the owner of the patent from the fund deposited by the licensee, so far as such deposit will satisfy said judgment and decree; and the said payment shall be in full or partial satisfaction of said judgment and decree, as the facts may appear; and if, after payment of all such judgments and decrees, there shall remain any balance of said deposit, such balance shall be repaid to the licensee on order of the alien property custodian. If no suit is brought within one year after the end of the war, or no notice is filed as above required, then the licensee shall not be liable to make any further deposits, and all funds deposited by him shall be repaid to him on order of the alien property custodian. Upon entry of suit and notice filed as above required, or upon repayment of funds as above provided, the liability of the licensee to make further reports to the President shall cease.

. If suit is brought as above provided, the court may, at any time, terminate the license, and may, in such event, issue an injunction to restrain the licensee from infringement thereafter, or the court, in case the licensee, prior to suit, shall have made investment of capital based on possession of the license, may continue the license for such period and upon such terms and with such royalties as it shall find to be just and reasonable.118

"Any enemy, or ally of enemy, may institute and prosecute suits in equity against any person other than a licensee under this Act to enjoin infringement of letters patent, trade-mark, print, label, and copyrights in the United States owned or controlled by said enemy or ally of enemy, in the same manner and to the extent that he would be entitled so to do if the United States was not at war: Provided, That no final judgment or decree shall be entered in favor of such enemy or ally of enemy by any court except after thirty days' notice to the alien property custodian. Such notice shall be in writing and shall be served in the same manner as civil process of Federal courts.1

118 40 St. at L. 416 Ch. 106, Comp. St. § 31151⁄2 ee (f).

119 lbid g.

119

§ 147. Bills to compel the issue of patents and bills to obtain relief against interfering patents. Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the patent-office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases, where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not." 1

"Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment." 2 Such a suit may be brought where there is an interference between patents granted to the same inventor al

§ 147. 1 U. S. R. S., § 4915, 5 Fed. St. Ann. 507, Pierce's Fed. Code, § 8780; Runstetler v. Atkinson, 23 Off. Gaz. 1025; Greeley v. Commissioner, 6 Fisher, 675; s. c., 1 Holmes, 284; Ex parte Arkell, 15 Blatchf. 437; Butterworth v. Hill,

114 U. S. 128, 29 L. ed. 119; Hill v. Wooster, 132 U. S. 693, 33 L. ed. 502.

2 U. S. R. S., § 4918, 5 Fed. St. Ann. 526, Pierce's Fed. Code, § 8783.