
    New York Grape Sugar Co. v. Buffalo Grape Sugar Co. and others. Same v. American Grape Sugar Co. and others.
    
      (Circuit Court, N. D. New York.
    
    June 2, 1884.)
    Patent Law — -Amendment of Bill — Assigned Claims for Damages.
    TJ e assignee of a patent., in an action against, an alleged infringer, can move, befo 'e the signing of an interlocutory decree, to amend his bill so as to include the subject of assigned claims for damages and profits which were due to mes íe assignors, the bill having been brought, answered and tried upon the thee ry that, a recovery upon the assigned claims was sought.
    Mot on to Amend Bills.
    
      E. il. Dickerson, for plaintiff.
    
      Geo ‘ge Harding and Franklin D. Locke, for defendants.
   Sim man, J.

In these cases the plaintiff moved, before the signature o the interlocutory decree, to amend each bill by the insertion of ave ’merits that the assignment of the letters patent, which are the sub;je< t of the respective bills, also conveyed to the plaintiff and present o\ ner the right of recovery for prior infringements of said letters, both i a regard to profits and damages, during the previous life of the paten ;s, and by the insertion of a prayer for an accounting for the infrin cement by the defendants of the letters patent from the date of the is suing of them, severally, and for the violation of the rights of the mean s assignors, and each of them. The motion has been argued solely upon tho propriety of allowing the amendments, and not upon the effeci of the allowance, if made, upon tho decree. The counsel for the plain tiff asks for the amendments upon this ground. He admits that, as a general rule, an amendment which changes the character of the bill, f r which introduces a new ca.use of action, ought not to be allowed, espe dally after the bill has been heard, (The Tremolo Patent, 23 Wall. 518;) but he says that these bills were brought, not only for an injm lotion and for an accounting in respect to the amount which the piad itiii, as an owner of the patent, should recover, but to recover the assigned claims for damages and profits; that the plaintiff supposed that the averments were sufficient; that all tho equitable objections to a recovery for infringements prior to the plaintiff’s purchase were set ip in the answer; and that the defendants knew that a recovery upo i the assigned claims was sought. I think that these positions are true. In view of the history of the case, it is not possible that the plaintiff brought its bills without intending to include, and sup-pos ng that it had included, the subject of the assigned claims for the dar ¡ages and profits which were due to the mesne assignors, although I ar n clearly of opinion that tho averments of the bills did not include sue i claims. It is also true that the defendants know that a recovery for such claims was sought, and defended against them. Under these circumstances, I think that, the allowance of the amendments being within the power of the court, it is its duty to allow them; and that to refuse the allowance would be an improper precedent. The question will hereafter arise as to the propriety of a decree for an account of the profits, or an assessment of the damages which accrued before the purchase of the patents.

The motion is granted.  