
    BURROWES et al. v. CARROM-ARCHARENA CO. et al.
    
    (Circuit Court, W. D. Michigan, S. D.
    May 10, 1911.)
    1. Trade-Marks and Trade-Names (§ 92) — Suit for Unfair Competition— Sufficiency of Bill.
    A bill held not' to state a cause of action for unfair competition.
    [Ed. Note.' — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 102-, 103; Dec. Dig. § 92
    
    Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]
    2. Patents (§ 310) — Suit for Infringement — Demurrer to Bill.
    A demurrer to a bill for infringement on the ground that the patent is void on its face is good only where it is clear that the patent cannot be sustained by any evidence that might be produced on final hearing.
    [Ed. Note. — For other cases, see Patents, Dec. Dig, § 310.]
    In Equity. Suit by Edward T. Bdrrowes and others against the Carrom-Archarena Company and others. On demurrers to bill.
    Sustained in part, and overruled in part.
    E. S. Bacon and James Whittemore, for complainants.
    ' Chappell & Earl, for defendants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   DENISON, District Judge.

This is a bill for patent infringement and unfair competition. Defendants demur, because the only two claims of the patent upon which reliance is now placed obviously do not involve any patentable invention, and because no facts are stated sufficient to make a case of unfair competition.

Upon the latter subject, I find nothing in the bill which can distinguish this case from the decision of the Court of Appeals in Globe-Wernicke Company v. Macey, 119 Fed. 696, 56 C. C. A. 304. So much of the demurrer as pertains to this subject will therefore be sustained.

Claims 5 and 6, if given the broadest scope which their language would permit, go down very near to, if they do not cross, the lower border line of the field of invention. On the other hand, if they can be considered to be limited to a table with folding legs and with the described cross-bars, which make pockets for receiving, wholly within the frame, the legs when folded, the court would not be justified in sustaining the demurrer. The presence of other claims tends to support the argument that these claims were not intended to be limited in the manner suggested; but I have concluded that I cannot say that the court may not, on final hearing, give these claims such a construction as will make them valid.

Eor these reasons, and under the well-settled rule that such a demurrer is good only where it is clear that the claim cannot be sustained upon final hearing, so much of the demurrer as pertains to the question of patent infringement will.be overruled.

Counsel may prepare an order.  