
    KRASNOW v. SACKS & PERRY, Inc.
    District Court, S. D. New York.
    Jan. 3, 1945.
    
      Irving F. Goodfriend, of New York City, for plaintiff.
    J. B. Felshin, of New York City, for defendant.
   HULBERT, District Judge.

Plaintiff moved, pursuant to Rule 41(a) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss the action, with prejudice, and defendant served a cross-motion for summary judgment, Rule 56(c), Federal Rules of Civil Procedure.

The action is one for alleged infringement of a designed patent. The bill of complaint was filed January 8, 1944. Defendant interposed its answer on February 14, 1944, and the case is now on the day calendar. Meanwhile, the plaintiff served interrogatories, which the defendant answered, and defendant has had an examination of the plaintiff before trial. Plaintiff concedes that such examination revealed his patent is not infringed and sought to withdraw the suit on the basis of non-infringement.

If the plaintiff cannot establish infringement, the Court is without power to determine that his patent is valid. Electrical Fittings Corporation v. Thomas & Betts, 307 U.S. 241, 242, 59 S.Ct. 860, 83 L.Ed. 1263; Katz v. Homi Signal Mfg. Co., 2 Cir., 145 F.2d 961; Altvater v. Freeman, 319 U.S. 359, 363, 63 S.Ct. 1115, 87 L.Ed. 1450.

The defendant seeks an adjudication that the plaintiff’s patent is invalid. Cover v. Schwartz, 2 Cir., 133 F.2d 541, 545, certiorari denied 319 U.S. 748, 63 S.Ct. 1158, 87 L.Ed. 1703.

The Court is not persuaded that the record contains all of the essential elements upon which a judgment that the patent is invalid may be properly predicated and the defendant’s motion is, therefore, denied.

But the plaintiff brought the defendant into Court when, as it now appears, . a substantial doubt must have existed that his course was justified. His motion will, however, be granted, with prejudice. The defendant may have judgment in its favor for the taxable costs and disbursements, the fees of the stenographer reporting the examination before trial amounting to $45.75, and a counsel fee of $100. Submit order and judgment on notice.  