
    ARMSTRONG v. RADIO CORPORATION OF AMERICA et al.
    Civil Action No. 1139.
    United States District Court D. Delaware.
    Nov. 30, 1948.
    William Prickett, of Wilmington, Del., Alfred McCormack (of Cravath, Swaine & Moore) and Robert W. Byerly (of Byerly, Townsend & Watson), both of New York City, and Walton H. Hamilton, of Washington, D. G, for plaintiff.
    C. S. Layton (of Richards, Layton & Finger), of Wilmington, Del., and John T. Cahill, William H. Davis, Stephen H. Phil-bin, and Mathias Correa, all of New York City, for defendants.
   LEAHY, Chief Judge.

This is an infringement action. Defendants move under Rule 12(f) Federal Rules of Civil Procedure, 28 U.S.C.A., to strike paragraphs 12 through 14 of the complaint because they are redundant, immaterial, and impertinent. Defendants are charged with being monopolists who are obstructing exploitation of plaintiff’s patents by refusing to accept a license under them and by discouraging others from doing so.

I cannot see at this time the relevancy of paragraphs 12 through 14 on the issues of infringement or validity. They may have bearing on the question of damages.

I shall reserve decision on defendants’ motion to strike. But, I shall rule now that the issue of damages is to be postponed until validity and infringement (as well as 'contributory infringement) have been established in plaintiff’s favor. I am simply applying my opinion in Zenith Radio Corporation v. Dictograph Products Co., D.C., 6 F.R.D. 597. After plaintiff has established validity and infringement, defendants may ask for further consideration of their motion. In passing, the motion may be renewed and included in defendants’ answer.

The effect of the present ruling is that the matters now appearing in paragraphs 12 through 14 will not be presently considered as being in issue, but with one exception. Evidence may be prepared and taken under those paragraphs with respect to the issue of contributory infringement.

An order may be submitted carrying these ideas into effect or the parties may wish to stipulate.  