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BROSE v. SEARS, ROEBUCK AND COMPANY

No. 29816.

455 F.2d 763 (1972)

Horace B. BROSE, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

January 26, 1972.

Attorney(s) appearing for the Case

Carl V. Wisner, Jr., Fort Lauderdale, Fla., John Cyril Malloy, Miami, Fla., for plaintiff-appellant.

Peter J. Wisners, Tampa, Fla., G. Franklin Rothwell, Washington, D. C., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and GODBOLD, Circuit Judges.

JOHN R. BROWN, Chief Judge.

This appeal is taken by Brose from the Trial Court's dismissal, at the conclusion of the plaintiff's evidence, of a qui tam informer's suit alleging "mismarking" under 35 U.S.C.A. § 292.1 The Trial Court found that Appellant failed to prove (i) falsity of the marking in issue, (ii) intent to deceive the public on the part of Sears, (iii) any marking by Sears, and (iv) that the marking was done to any "unpatented...

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