SANITARY METAL TILE CO. v. NEW YORK METAL CEILING CO.

SANITARY METAL TILE CO. v. NEW YORK METAL CEILING CO. (Circuit Court, S. D. New York. November 7, 1910.) Patents (§ 310*) — Infringement—Bill—Demurrer. A demurrer will not bo sustained to a bill for patent infringement on the ground that the patent shows no patentable invention, except in the plainest cases, and when there is no room for doubt. [Ed. Note. — For other eases, see Patents, Cent. Dig. § 508; Dec. Dig. § 310.*] In Equity. Bill by the Sanitary Metal Tile Company against the New York Metal Ceiling Company for infringement of letters Patent No. 851,579, granted to Whitney and Weyand April 23, 1907, for a facing for walls and other surfaces, to which defendant demurred on the ground that the patent on its face showed no patentable invention. Overruled. James H. Griffin, for complainant. Henry D. Williams, for defendant. [MAJORITY — GONE, Circuit Judge.] GONE, Circuit Judge. I have delayed action in this cause to await the decision of the Circuit Court of Appeals in Stillwell v. McPherson, 183 Fed. 586, 106 C. C. A. 354, which has just been handed down and which, in my judgment, requires a decision here overruling the demurrer. The rule in this circuit is to the effect that it is only in the plainest cases that a demurrer to a bill founded on letters patent will be sustained and that if there be any doubt, it must be resolved in favor of the patent. It is enough to say that, tested by this rule, I am unable, at this stage,of the litigation, to say that the patent is invalid. Demurrer overruled, the defendant to answer within thirty days.