
    DOHERTY et al. v. HARRY
    (Circuit Court, W. D. Missouri.
    December 12, 1910.)
    No. 3,154.
    Patents (§ 328) — Invention—Corrugated Sheet Metal Culvert.
    The Watson patent, No. 559,642, for a corrugated sheet metal culvert, is not so clearly void on its face for lack of invention as to warrant its being so declared on demurrer to a bill for its infringement.
    In Equity. Suit by Fred H. Doherty and William B. Griffith against H. W. Harry. On demurrer to bill.
    Overruled.
    Dennis Madden, Keplinger & Trickett, Parkinson & Lane, and F. H. McVey, for plaintiffs.
    W. H. H. Piatt, H. F. Lea, and F. II. Wood, for defendant.
    
      
      For other oases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SMITH McPHERSON, District Judge.

This case is by a bill in equity reciting letters patent 559,642 with reference to corrugated culverts, under which the rights to the state of Missouri by due course of conveyances were assigned to complainants, setting forth that the respondent is infringing complainant’s rights, and for general equitable relief. To this complaint defendant has filed a demurrer, to the effect that the patent on its face is a nullity.

My views are that the question is doubtful, my first impression having been that the patent was not valid; but upon reflection I cannot say but that the matter is involved in doubt. And the rule is in cases of doubt that the complainant must be given an opportunity by proof to support and justify the action of the Patent Office in issuing the patent. It cannot now be said from the face of the complaint that in no event can the patent be sustained. The case is not free from doubt. And this court cannot say, from judicial notice as to these matters, that it is the common knowledge of all that it is not a new invention, and that it is not novel, or that it is not of utility.

Therefore the demurrer will be overruled, and the respondent required to answer.  