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Treemond Co. v. Corporation.

September 3, 1941

TREEMOND CO.
v.
SCHERING CORPORATION.



Appeal from the District Court of the United States for the District of New Jersey; Phillip Forman, Judge.

Author: Clark

Before CLARK, JONES, and GOODRICH, Circuit Judges.

CLARK, Circuit Judge.

Some District Courts seem to have found difficulty in freeing themselves from the strait-jacket of the "adversary" conception. They exhibit a tendency toward a narrow and technical interpretation*fn1 of an Act*fn2 intended to be construed in accordance with its broad and wise purpose.*fn3 The case at bar is, we think, a typical instance.The defendant-patentee, a manufacturer, informed the customers of the plaintiff-appellant, an importer and vendor of a certain chemical known as "Estradiol" that it alone had the right to manufacture that chemical. It also had the following advertisement published in a trade journal:

"To Purchasers of Estradiol Notice By Schering Corporation

"This has required a broadening of the conception of 'cause of action' and of the view that the judicial process is merely a means of redress for committed physical 'wrongs.' It required an appreciation of the fact that harm is done and rights are jeopardized by mere dispute or challenge without any physical attack. The mere existence of a cloud, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims, the uncertainty or insecurity occasioned by new events - these phenomena constitute operative facts, the cause for action which creates the 'right of action.' The court in rendering a judicial declaration of rights thus becomes an instrument not merely of curative but also of preventive justice." Borchard, Declaratory Judgments, 1st Ed. 1934, viii (italics ours).

United States Letters Patent No. 2,096,744 for Hydrogenation Products of Follicle Hormones and Method of Producing Same, has been issued to us.

Notice is hereby given to manufacturers and importers that our patent covers the product known as

Estradiol

Estradiol is also known as dihydroxyestrin, dihydrofolliculin or dihydrotheelin. Our patent also covers the process of making the same.

All uses of this material, without our consent, including medicinal, pharmaceutical and cosmetic, are a violation of our giths (grants)*fn4 under this patent.

We are giving this notice to the trade so that there may be no misunderstanding or doubt as to the exclusiveness of our rights in the United States to the product Estradiol (also known as dihydroxyestrin, dihydrofolliculin or dihydrotheelin).

Schering Corporation Bloomfield New Jersey"*fn5

Plaintiff-appellant thereupon brought suit for a judgment declaring the defendant's patent invalid and/or not infringed and for an injunction for unfair competition. The learned District Judge dismissed the complaint for the reasons that (1) since the plaintiff alleged that it was not infringing defendant's patent, no actual controversy existed; (2) the plaintiff did not allege that it had been given notice of the claimed infringement, and (3) ...


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