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WALLACE PRODS. v. FALCO PRODS.

August 27, 1956

WALLACE PRODUCTS, Inc.,
v.
FALCO PRODUCTS, Inc., Charles Shore, and Morton Shore



The opinion of the court was delivered by: KIRKPATRICK

The plaintiff, in its first cause of action, asks for a declaratory judgment of invalidity and non-infringement by it of two patents (2,743,978 and 2,743,979) owned by the defendant, Falco Products, Inc. The complaint charges that two advertisements inserted in a trade paper by the defendant, Falco, amounted to threats to sue the plaintiff and its customers for infringements of the patents. This is a motion by the defendants to dismiss the complaint, so far as it relates to the '979 patent, on the ground that no justiciable controversy exists.

The defendant's two advertisements are, it is true, is many ways similar to the advertisements in the case of Uniflow Mfg. Co. v. Irac Corp., 3 Cir., 185 F.2d 677, which the Court of Appeals said 'did not establish or define an area of conflict between these parties.' The significant difference, however, is that in the present case the advertisements contain pictures of the defendants' table which are so like the plaintiff's table that the trade could well believe that the threat of prosecution was specifically directed against the plaintiff and its customers. It seems to me that the decision of the Court of Appeals in Federal Telephone & Radio Corp. v. Associated Telephone & Telegraph Co., 3 Cir., 169 F.2d 1012, supports the view that these advertisements do create an area of conflict between these two parties.

 The answer would seem to be 'Yes". The declaratory judgment action was designed to grant relief where relief was needed and other forms of action were not available. A manufacturer may find peace of mind in the assurance that he himself will not have to face an infringement suit, but his business is likely to suffer as long as his customers are led to believe that they will if they buy his product.

 The motion will be denied.

19560827

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