ARNOLD MONOPHASE ELECTRIC CO. v. WAGNER ELECTRIC MFG. CO.

ARNOLD MONOPHASE ELECTRIC CO. v. WAGNER ELECTRIC MFG. CO. (Circuit Court, S. D. New York. August 11, 1902.) 1. Evidence—Witnesses—Premature Examination. Where, in an action to restrain infringement of a patent, its validity and the infringement are not disputed, and complainant claims as an assignee, and proves such assignment, its prima facie case is complete, and an application by it to examine witnesses as to defendant’s knowledge of the assignment is premature. Louis C. Raegener, for the motion. Lawrence B. Sexton, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. The pleadings are not now before the court, but, from the statements which have been as to their contents, this application to examine witnesses as to the defendant’s knowledge of the assignment to the complainant seems to be premature. Validity of the patent and infringement are not disputed. All that complainant has to do is to prove assignment to it. Its prima facie case is then complete, whether or not such assignment was duly recorded in the patent office or not. It is for defendant to show that it was a purchaser for value, without notice, if it wishes to avoid the assignment to complainant on the ground that it was not duly recorded. Complainant has not changed the situation by inserting in the bill unnecessary averments to the effect that defendant had notice of the prior unrecorded assignment. For this reason, the motion is denied.