Adams v. Bellaire Stamping Co.

Sage, J.

1. It is my opinion that the plaintiff in these actions, by virtue of his title as assignee, has the right to sue in his own name for all'infringements, including those of date prior to the assignments under which he claims. This opinion is based upon the provisions of section 4919, Bev. St., that damages for infringement may be re *271 covered in the namq of the party interested. In cases where the assignment does not include prior claims for infringement the holder of the patent at the time of the prior infringement should he joined as a plaintiff, but only for the reason that the assignment of a patent does not carry with it claims for prior infringements. That was the point decided in Moore v. Marsh, 7 Wall. 515 . But in the case at bar the assignments include, in terms, all claim for prior infringements. The plaintiff is therefore the only party interested, and the actions are rightly brought in his ñame.

2. The state statute of limitations does not apply. The authorities are in conflict, and the question is one of great difficulty. Without entering upon discussion I have concluded, while deciding this point against the defendants, that the cases in their further progress should be so shaped as, in the event of verdict for the plaintiff, to save the question for decision by the appellate court without putting the parties, whatever that decision may be, to the expense or delay of a now trial.

The demurrers will be overruled, with leave to defendants to plead within 30 days. If they plead the statute of limitations, the plea will be overruled on demurrer; but on the trial the jury will be instructed, if they find for the plaintiff, to find separately, by special verdict, the damages prior and those subsequent to the limitation claimed.