Page:Federal Reporter, 1st Series, Volume 7.djvu/368

 856 FEDERAL REPORTER. That on the seventh day of Janury, 1881, the said Jacob H. Burtia sold and assigned said letters patent to James M. Harper, who purchased the same as attorney in fact for the complainants, and who, on the twenty- fourth day of January, 1881, assigned and transferred the same to the complainants ; and that said parties, during the terms of their several ownerships of said letters patent, have had and maintained exclusive pos- session and enjoyment of said invention, except the infringement com- plainud of ; that the respondent, having f ull knowledge of the premises, and in violation of complainants' exclusive rights and privileges, and dis- regarding the same, has, since the date of the assignment to complainants, and for a long time before, and without license at any time, at Covington, Kentucky, manufactured, used, and sold, and still continues to use and sell, many fly-traps, ejnbracing the improvements so secured to com» plainants. The bill prays for discovery, for an account, and for an injunc- tion. The amended bill alleges the issuing of letters patent on the twenty- second day of November, 1870, to John Harper, for an improved fly-trap, which letters patent he surrendered, and re-issued letters patent issued to him on the twenty-first of December, 1875 ; and that complainants, by various deeds of assignment, have become the sole owners of said letters patent ; that respondents liave infringed complainants' rights by making and selling large numbers of said improved fly-traps, embracing the in- ventions secured to them by said re-issued letters patent, and in violation of their rights tliereunder, and prays for discovery, for an account, and for an injunction. The respondent, by his ansvver, admits the issuing and assignment of the letters patent, but denies that Harper or Burtis were the ori- ginal inventors ; denies the validity of the re-issued letters patent, and denies complainants' title to either of said patents, and alleges their invalidity by prier patents and publication, and by prior use. The answer also sets up a license. To the answer, complainants flled a general replication, and after- wards filed their motion for leave to withdraw their replication for the purpose of flling exceptions to the answer. The motion does not disclose the exceptions which com- plainants desire to take to the answer, but they were stated in argument to be that the answer contains ineonsistent de- fences; that the defence that the respondent is making and vending the patented article under a license from the patentee is not consistent with the defence that the patents are invalid. If this were so, the answer would be objectional, and in our discretion we might permit the replication to be withdrawn and in some proper form have the question presented for our determination. If it be determined, however, that the answer is not subject to the objection, it would be unnecessary to