
    CONSOLIDATED RUBBER TIRE CO. et al. v. FINLEY RUBBER TIRE CO. et al.
    (Circuit Court, N. D. Georgia.
    October 10, 1902.)
    No. 1,101.
    1. Patents — Infringement—Trial—Supplemental Pleadings—Res Judicata.
    Where, in a suit for infringement of a patent, against the seller of the patented articles, the manufacturer was permitted to intervene for the purpose of defending the action on the ground that defendant had ceased to sell its manufactured goods, and the bond given by him to prevent a preliminary injunction had probably become ineffective, and a decision was rendered holding that the original defendant was estopped to question the validity of the patent as against the plaintiff, the estoppel operating between defendant and the complainant controls the litigation, so that the manufacturer would not be entitled to file a supplemental answer setting up a decision of the circuit court of appeals holding the patent void as res judicata.
    In Equity. Application to file supplemental answer.
    Staley & Bowman, Ftoke Smith, and H. C. Peeples, for complainants.
    H. A. Toulmin and Edmund Wetmore, for defendants.
    ¶1. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.
   NEWMAN, District Judge.

The conclusions reached by the court in this casé are fully set out in an opinion filed on June 2, 1902 (116 Fed. 629). Since that time an application has been made for leave to file a supplemental answer setting up the decision of the circuit court of appeals for the Sixth circuit in the case of Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co., 116 Fed. 363, as res adjudiCata. I do not believe that the effect of making the Goodyear Tire & Rubber Company a party to this case was to enlarge the scope of the original litigation. The Goodyear Tire & Rubber Company only became a party to represent Samuel Everett Finley and the Finley Rubber Tire Company. The petition of the Goodyear Tire & Rubber Company to be made a party showed that Finley had ceased to sell its tires, and that the bond given by him, in pursuance of the order of the court, to prevent a preliminary injunction, had probably become ineffective, and it therefore desired to become a party for the purpose of carrying on the defense of the case. The issue here was as to the right of Finley and the Finley Rubber Tire Company to sell the tires he was making and selling in the territory embraced in his contract with the Rubber Tire Wheel Company, and which passed from him, by successive conveyances, to the Munford Rubber Tire Company; and, the infringement being clear, the estoppel operating between Finley and the complainants controls this litigation.

The application for leave to filé the supplemental answer is denied. After considering the forms of decree handed me by the respective counsel, I have this day entered what I consider a proper decree in the case.  