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A. H. EMERY COMPANY v. MARCAN PRODUCTS CORPORATION

No. 157, Docket 31684.

389 F.2d 11 (1968)

The A. H. EMERY COMPANY, Plaintiff-Appellee, v. MARCAN PRODUCTS CORPORATION, Marshall Control Products Corp., Hugh A. Mills, Ronald R. Marshall, and David E. Golding, Defendants-Appellants.

United States Court of Appeals Second Circuit.

Decided January 18, 1968.

Attorney(s) appearing for the Case

Ronald J. St. Onge, Stamford, Conn. (John C. Blair, Robert A. Cahill, Charles I. Sherman, and Blair, Buckles, Cesari & St. Onge, Stamford, Conn., on the brief), for plaintiff-appellee.

John M. Calimafde, New York City (Roy C. Hopgood, Paul H. Blaustein, and Hopgood & Calimafde, New York City, on the brief), for defendants-appellants.

Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

The complaint in this action charged the defendants with patent infringement and unfair competition. Federal jurisdiction was based on 28 U.S.C. § 1338(a) and (b). During pre-trial discovery it became apparent that the patent asserted in the suit was invalid but the defendants wanted the patent issue to remain in the case in order that judgment might be rendered on their counterclaim for invalidity. At the trial the plaintiff offered...

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