LOOMIS-MANNING FILTER CO. v. MANHATTAN FILTER CO. et al.

LOOMIS-MANNING FILTER CO. v. MANHATTAN FILTER CO. et al. (Circuit Court, S. D. New York. May 10, 1902.) 1. Patents—Infringement by Corporation—Liability of Officers. A suit for infringement cannot be maintained against an individual who is not alleged to have infringed, except in his official capacity as an officer of a corporation charged to have committed the infringement, and not shown to be insolvent, unless some other special reason appears. In Equity. Suit for infringement of patent. On demurrer to bill. Ivins, Kidder & Melcher (Ernest Hopkinson, of counsel), for complainant. Dyer, Edmonds & Dyer (S. O. Edmonds, of counsel), for defendants. [MAJORITY — HAZEL, District Judge.] HAZEL, District Judge. The essence of the bill discloses a similar state of facts as shown in Mergenthaler Linotype Co. v. Ridder (C. C.) 65 Fed. 853. By paragraph 12 of the bill in suit, it appears that the infringement complained of is that of the defendant corporation. The individual defendants are officers thereof, and as such participated in the acts of infringement. In the absence of some special reason for joining the officers of the alleged infringing corporation as defendants,—such as insolvency of the company, or the use of the name of the corporation to conceal a fraud or conspiracy, or as a protection against liability of others,—I am not inclined to hold differently than was held by Judge Townsend in the Mergenthaler Case, and by Judge Coxe in Bowers v. Atlantic, G. & P. Co. (C. C.) 104 Fed. 892. These cases are analogous, and the decisions are followed by me. The demurrer is therefore sustained, with costs. Complainant has leave to amend within 30 days.