Kim Bros., a Partnership v. L. A. Hagler

This action involves the alleged infringement of United States Plant Patent No. 974, 35 U.S.C. §§ 161-164 . The court below had jurisdiction. 28 U.S.C. § 1338 . It denied the injunctive relief and damages sought. The appeal is properly before this Court. 28 U.S.C. §§ 1291 , 1294(1).

The plant patent covered a Sun Grand nectarine, the alleged accused fruit is herein referred to as the Red King nectarine.

Among the principal nectarines grown in and shipped commercially from California are the Kim (U. S. Plant Patent No. 173); the Bim (U. S. Plant Patent No. 575); the Le Grand (U. S. Plant Patent No. 549) the Sun Grand (U. S. Plant Patent No. 974, the alleged infringed fruit); as well as the Quetta, the John Rivers, and the Gower. Each is noted for some particular quality, such as external color, color of flesh, date of ripening, size, etc. The accused Red King (U. S. Plant Patent No. 1718) was alleged in its patent application to have been a sport from the Le Grand variety.

Appellant and appellee grow nectarines commercially. They have had previous disputes. On November 14, 1949, Kim Bros., a partnership, were the owners of “Le Grand” Plant Patent No. 549. They accused defendant…