
    Overman Wheel Co. v. Elliott Hickory Cycle Co.
    
      (Circuit Court, D. Massachusetts.
    
    March 24, 1892.)
    Patents fob Intentions — Infringement—Pleading.
    Under Rev. St. § 4886, providing for the issuing of a patent where, inter alia, the invention has not been patented or described in any foreign country before the dato of the invention, a bill for infringement of a patent is demurrable which does not allege such, facts.
    In Equity. Suit by tho Overman Wheel Company against the Elliott Hickory Cycle Company for infringement of a patent. Heard on demurrer to the bill.
    Demurrer sustained.
    
      Chamberlin, White & Mills, for complainant.
    
      William A. Redding, for defendant.
   Colt, Circuit Judge.

Upon inspection of the patent granted to A. H. Overman, April 14, 1885, numbered 315,537, for improvements in rubber tires for wheels, I am not prepared to say that it is invalid for want of patentable novelty. Taking this view', it seems to me it would serve no good purpose to enter into a discussion of the patent at this stage of the proceedings. The first three grounds of demurrer are therefore overruled.

The fourth special ground for demurrer is that tho bill does not aver that the alleged invention shown and described in said letters patent had not been patented nor described in any printed publication in this or any foreign country before tho date of said alleged invention. An allegation of this character appears to be necessary, under the provisions of the statute, and the courts have so held. Rev. St. § 4886; Consolidated, Brake Shoe Co. v. Detroit Steel & Spring Co., 47 Fed. Rep. 894; Coop v. Institute, Id. 899. Upon this ground I shall sustain the demurrer, with costs, with leave to the complainant to amend its bill within 10 days. Demurrer sustained.  