Oertel v. Jacoby , 42 How. Pr. 218 ( 1872 )

Brady, J.

The averment in the complaint, that the plaintiffs asserted and vindicated the claim set up here in another action, is not irrelevant or redundant.

It is substantially an allegation that they have not acquiesced in any invasion of their rights, and, in that way, dedicated the picture to public use. This element, though it may not be regarded as a judgment binding upon the defendant in this action, nevertheless has an important bearing on the right of the plaintiffs to the preliminary injunction for which they pray.

If a patentee after obtaining his patent dedicates or surrenders it to the public use, or acquiesces in the public use of it, he is not entitled to the aid of a court of equity to protect it (Curtis on Patents, § § 351, 352).

The cases are kindred, and therefore the importance of the averment referred to. Such averment cannot be said to have no substantial relation to the controversy, and it is equally clear that the defendant is not bound to answer it, unless he intends to employ as a defense such use or dedication, in which case its relevancy becomes apparent.

For these reasons, the motion must be denied.