
    MUSHER FOUNDATION, Inc., v. ALBA TRADING CO., Inc.
    District Court, S. D. New York.
    Oct. 28, 1941.
    Harry Price, of New York City, for plaintiff.
    Joffe & Joffe, of New York City (Joseph Joffe, Max Schoengold, and Max Apfelbaum, all of New York City, of counsel), for defendant.
   HULBERT, District Judge.

Defendant moves: (1) To strike out certain allegations of the complaint contained in paragraphs 10 to 15 inclusive; (2) for a bill of particulars indicating what specific claims of each patent the plaintiff proposes to rely upon; and (3) for a ruling upon objections to interrogatories served by plaintiff under Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, before the joinder of issue, and without leave of court.

The action is for infringement of each and every claim in three patents, owned by plaintiff; there are 7 claims in each of two patents and 2 claims in the third, making a total of 16.

Plaintiff’s patent No. 2,069,265, issued February 2, 1937, is entitled “Stabilized Fats and Oils”.

Patent No. 2,199,364, issued April 30, 1940, is entitled “Treatment of Glyceride Oils”.

Patent No. 2,22,404, issued November 12, 1940, is entitled “Treatment of Glyceride Oils”.

Defendant sells, distributes or merchandises vegetable frying, cooking and salad oils.

It is alleged in the complaint that these patents “have been subjected to extensive commercial exploitation by American Maize-Products Co. * * * in manufacturing and packaging, and by George Sirota & Co. Inc. * * * in distributing and selling, ‘Ricola’ Olive ‘Infused’ Corn Oil to the Italian trade”, and that such product has become widely and favorably known “as an oil made by patented processes and as having superior quality, stability, flavor and taste”, and that defendant has been and is imitating and simulating and infringing said patents and processes and products, “not only by making, using and/or selling Olive ‘Infused’ oil, but also is putting out inferior and cheaper grades of oil substantially devoid of the delicate flavor and aroma of ‘Ricola’ Olive ‘Infused’ oil and in so doing is injuring and destroying the reputation of plaintiff’s products and of the products of George Sirota & Company, Inc. in trespass upon said plaintiff’s, patent rights” and is “deliberately attempting to mislead customers and prospective customers and purchasers of corn oil into believing that its product has been manufactured and is made according to the special procedures and according to the ‘Infused’ procedure patented by plaintiff” described and covered in the three patents in suit.

■It is further alleged that “defendant’s campaign of patent infringement and unfair competition and threat of further infringement and unfair competition” has alienated customers, and George Sirota & Company, as well as plaintiff, have sustained a loss of $25,000 “for which plaintiff prays for recovery”.

Just how Sirota’s loss is a pertinent item, and what portion of the recovery is for patent infringement and what portion is for unfair competition, and whether plaintiff has registered, or owns the registered trademark name “Ricola” Olive “Infused” oil, are wholly left to conjecture.

The motion to strike out must be granted, without prejudice, insofar as the plaintiff may have another cause of action; the prayer for relief should be amended accordingly ; the motion for a bill of particulars is denied since the plaintiff alleges the infringement of each and every claim under all patents, and the objections to the interrogatories are sustained as premature, without prejudice to renewal after issue joined. Settle order on notice.  