In-A-Floor Safe Co. v. Diebold Safe & Lock Co.

This is an appeal from an order denying defendant in a patent infringement suit the right to file a counterclaim.

On December 18, 1934, appellee, Die-bold Safe & Lock Company, filed a complaint against the defendant-appellant alleging the ownership by plaintiff of letters patent 1,965,296, granted upon the application of one Miller, the patent being for a type of money chest or safe. The complaint alleged that defendant was infringing the patent and prayed an injunction and accounting.

The defendant answered on January 7, 1935, contesting the validity of the patent and alleging lack of novelty, prior public, use and noninfringement. No counterclaim was filed with or at the time of filing the answer as required by Equity Rule 30 (28 U.S.C.A. following section 723).

Ten months later, on November 9, 1935, defendant moved the court to allow it to file an amended answer and a counterclaim. The motion for leave to amend set up no reasons explaining the delay. The amended answer, filed with the motion, set out more particularly the defenses set up in the original answer. The counterclaim filed with the motion alleged that defendant was the exclusive licensee under letters patent…