Page:Federal Reporter, 1st Series, Volume 9.djvu/462

SHARP V. EBISSNEB. 447 �defendants. Indeeli, the defendants' affidavit on this motion states that they will desire, by answer, to put in prior patents, to limit the scope of the plaiiitiff's patent, so as to render infringement impossi- ble. It is dif&eult to see how they are to be prevented from doing this by aniswer, after the overruling of their plea. The question of the infringement of a patent depends very much on the construction of its claims, and that depends very much on prior patents on the same subject. If such prior patents are to be put in, they ought to be set up in an answer, and be put in once for all, and the issue of infringement ought to be tried but once, and under an answer, and ijot under a plea. The defendants think they will suceeed on the cLuestion of infringement; but the plaintiff thinks otherwise. If the defendants suceeed, expense will have been saved by having no other issue but that on the plea. But if the plaintiff succeeds on the plea, he must, to realize his. success, gp through a second litigation on the same question, and no expense will have been saved. The one resuit is pow to be contemplated quite asmuch as the other, Within the principles laid down in Rhode Island v. Massachusetts, 14 Pet. 210, it would be unjust.to the plaintiff to permit the issue of infringement to be determined on the plea. �Besides this, none of the adjudged cases sanction, in a suit like this, a plea merely of non-infringement, under rules of practice such as those which govern this case. On the contrary, the authorities condemn such a plea. Bailey v. Le Roy, 2 Edw. Ch. 514; Black v. Black, 15 Ga. 445; Milligan v. Milledge, 3 Cranch, 220. �It is only when a plea is unexceptionable in its form and charac- • ter that it is to be set down for argument, or to be replied to. Rhode Island V. Massachusetts, 14 Pet. 210, 257. The motion to strike this plea from the files as improper is a correct motion, and must be granted, with leave to the defendants to answer in 30 days, on pay- ment of costs. ��� �