and with other statutory powers, but had complied with another statute appointing the State auditor its attorney to accept. such service; it was held to be liable to suit in either of the Federal districts of the State, by attachment and publication, or by serving process upon the State official in that or the other district.

§ 62. Residence in patent cases. The Judicial Code provides: "§ 48. In suits brought for the infringement of letters patent the District courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought."1

In a suit to enjoin the infringement of a patent, the defendant, even if he is an alien,2 may be sued in any district where his infringement occurred, if he has a regularly established place of business there, or else in the district of which he is an inhabitant, but unless he is an alien, not elsewhere.*

It has been held that such a suit against an alien may be maintained in any district where he can be served.5

When the suit is brought in the district of which the de

9 Lemon V. Imperial Window Glass Co., 199 Fed. 927.

§ 62. 136 St. at L. 1087.

2 United Shoe Machinery Co. v. Duplessis Independent Shoe Machinery Co., 133 Fed. 930; Smith v. Farbenfabriken of Elberfeld Co., C. C. A., 203 Fed. 476.

3 Bowers v. Atlantic G. & P. Co., 104 Fed. 887; Chicago Pneumatic Tool Co. v. Phila. Pneumatic Tool Co., 118 Fed. 852; U. S. Consol. Seeded Raisin Co. v. Phoenix Raisin, S. & P. Co., 124 Fed. 234. But see

Noonan v. Chester Park Athletic
Club Co., 75 Fed. 334.

4 Feder v. A. B. Fiedler & Sons, 116 Fed. 378; Underwood Typewriter Co. v. Fox Typewriter Co., 158 Fed. 476.

5 Sandusky Foundry & Machine Co., v. De Lavaud, 251 Fed. 631. Smith v. Farbenfabriken of Elberfeld Co., C. C. A., 203 Fed. 476; Arbetter Felling Mach. Co. v. Lewis Blind Sitch Mach., C. C. A., 230 Fed. 992. Supra, § 45.

fendant is not an inhabitant, he must have a regular and established place of business there, at the time when the suit is brought. Whether that was the case at the time of the commission of the acts of infringement there, is immaterial.

The maintenance of "an established place of business" in the district will not give jurisdiction if no act of infringement was there committed.8

It has been held: that a corporation cannot be sued in a district where it has no regular and established place of business, although it has one in another district in the same State, which is the State of its incorporation, and it is charged with an infringement made jointly with other defendants residing in the district where the suit is brought and a claim of damages. for conspiracy is joined with the prayer for an injunction and accounting. That where the non-residence of defendant' appears in the bill, there must be averments of infringement in the district.10 But that the phrase, “maintains a regular and established place of business," need not be used where that fact appears from the allegations. That a bill against a corporation and its president and general manager, who is so described, is not insufficient when it avers joint acts of infringement within the district and the maintenance of a regular and established place of business by the corporation there, although it is silent as to the individual defendant's habitation and place of business.11

That where the defendant sells the infringing articles at a fixed place within the district and also assembles different parts of the same, there the court has jurisdiction.12 Where the

6 Feder v. A. B. Fiedler & Sons, 116 Fed. 378; Underwood Typewriter Co. v. Fox Typewriter Co., 158 Fed. 476.

7 Underwood Typewriter Co. V. Fox Typewriter Co., 158 Fed. 476.

8 United Autographic Register Co. v. Egry Register Co., 219 Fed. 637; U. S. Envelope Co. v. Transo Paper Co., 229 Fed. 576.

9 Cheatham El. Switching Device Co. v. Transit Development Co., 191 Fed. 727.

10 International Wireless Telegraph Co. v. Fessenden, 131 Fed. 491; National El. Signaling Co. v. Telefunken Wireless Teelgraph Co., 194 Fed. 893.

11 Thomson-Houston El. Co. v. Electrose Mfg. Co., 155 Fed. 543.

12 Am. Stoker Co. v. Underfeed Stoker Co., 182 Fed. 642. See Consol. Rubber Tire Co. v. Diamond Rubber Co., C. C. A., 215 Fed. 106.

defendant sells through mail orders which he receives and makes the collections at his home but keeps his goods in a warehouse from which they are shipped within another district, he has a "regular and established place of business" in the latter and can there be sued for infringement of a patent.13 Proof that the defendant, who has constructed an infringing machine in another State, has assisted in the installation of the same for use by another defendant within the district; is sufficient to support the jurisdiction when it has an established place of business there.14

The complainant has the burden of proof to establish an infringement within the district and the maintenance by the defendant of a regular established place of business there.15 It has been held that a foreign corporation does not have a "regular and established place of business" in a district where it has a salesagent who keeps an office there at his own expense and takes orders on commission which are filled at the principal office of the company where it also makes the collections.16 Nor where it keeps an office in the district with one stenographer and a salesman in charge who solicits orders which are filled in another district from which collections are made.17 Nor where its goods are sold by a jobber whom it agrees to protect against patent suits although its letter-heads give addresses in different places, including one in the district of the suit, and the man in charge of the jobber's office states that they are the representatives of the company in such district.18

13 Smith v. Farbenfabriken of Elberfeld Co., C. C. A., 203 Fed. 476.

14 Edison V. Allis-Chalmers Co., 191 Fed. 837.

15 Underwood Typewriter Co. v. Fox Typewriter Co., 181 Fed. 541. For another case of defective proof, see Consolidated Rubber Tire Co. v. B. F. Goodrich Co., 195 Fed. 764. It has been held that proof that the label, New York," was upon infringing articles sold in another State by a corporation with a regular and established place of business in New York, is insufficient to prove that they were manufactured

in New York, Rumford Chemical Works v. Egg Baking Powder Co., 145 Fed. 953. See also the note to Bailey v. Mosher, 11 C. C. A., 304, 313.

16 General El. Co. v. Best El., 220 Fed. 347; United Autographic, Register Co. v. Egry Register Co., 219 Fed. 637.

17 Amer. El. Welding Co. v. Lalance Grosjean Mfg. Co., 256 Fed.

34.

18 Stryker Deflector Co., Inc., v. Perrin Mfg. Co., C. C. A., 256 Fed. 656.

The employment of an agent in the district who in the course of his business uses infringing articles, and who has power to make a contract in the district, is immaterial if the defendant has no regular and established place of business there.18 It has been held: that paying an agent to solicit orders to be executed at the office of its domicile, sharing the expenses of the agent, including salary and rent, with another corporation which employs him, when he merely solicits orders which are executed at the home office, is not the maintenance of a regular and established place of business.20 That proof that salesmen of the defendant exhibited infringing articles within the district and that one of them said that his employer had sold many there, is insufficient to establish the jurisdiction.21

It is necessary to prove and allege a complete act of infringement within the district and not merely a threat or an evident purpose to infringe there.22 The contributory act within the jurisdiction must be proved to have resulted in a complete infringement.23

The provision that service of process may be made upon the agent engaged in conducting the business within the district, is permissive only, and service may be made upon an officer of a corporation who is there found.24

Under the former statute, it was held that a suit to compel the issue of a patent might be brought in any district where valid service could be made upon the defendant.25

When the defendant is a non-resident, the bill must show that it had a regular and established place of business within the district when the infringement occurred.26 An allegation that the defendants "are now doing business" at a designated

19 Chicago Pneumatic Tool Co. v. Philadelphia Pneumatic Tool Co., 118 Fed. 852; U. S. Envelope Co. v. Transo Paper Co., 229 Fed. 576.

20 W. S. Tyler Co. v. Ludlow Saylor Wire Co., 236 U. S. 723.

21 Gray v. Grinberg, 147 Fed. 732. See also the note to Bailey V. Mosher, 11 C. C. A. 304, 313.

22 Westinghouse El. Co. v. Stanley El. Co. 116 Fed. 641; Gray v. Grinberg, 147 Fed. 732.

23 Consolidated Rubber Tire Co.

v. Republic Rubber Co., 195 Fed. 768.

24 National El. Signaling Co. v. Telefunken Wireless Telegraph Co., 194 Fed. 893.

25 Lewis Blind Stitch Co. v. Ar better Felling Mach. Co., 181 Fed. 974.

26 Internat. Wireless Tel. Co. v. Fessenden, 131 Fed. 491; Underwood Typewriter Co. v. Fox Typewriter Co., 158 Fed. 476.

place within the district is insufficient.27 The denial of a motion to quash the summons or subpoena, ruling that the facts show that the person upon whom service was made was the defendant's duly authorized agent within the district, is not an adjudication that it maintained a regular and established place of business there.28 Where the bill joins causes of action. for tort or breach of contract with one arising under the patent laws, if brought in a district where the defendant does not reside, so much thereof as sets forth the former causes of action must be dismissed.29 The objection that the suit was not brought in the proper district may be waived.30 A general appearance or answer to the merits is such a waiver.31 Where the answer admitted that the defendant was a corporation organized under the laws of West Virginia with its principal place of business in the state of Ohio and it appeared that this was the first of several companies organized in different states under the same name and had originally had an established place of business in Illinois, it was held that this was sufficient to sustain the allegations in the bill that at the time of the infringement, it still maintained an office in Illinois, although it appeared that at some time, the date of which was not shown, this office was taken by one of the other companies.32

Where the bill alleges infringement in the district only and this is denied by the defendant, the issue is limited to an infringement within such district.33 The bill cannot after a general appearance then be amended so as to allege infringement beyond the district.34 Where the bill alleged infringement in the district and elsewhere in the United States, a defendant

27 Scheuerle v. One Piece Bifocal Lens Co., 241 Fed. 270.

28 Geneva Furniture Co. v. Karpen, 238 U. S. 254.

29 Cheatham El. Sw. Device Co. v. Transit Develop. Co., 191 Fed. 727. 30 See $62a.

31 Corrugated Paper Patents Co. v. Paper Working Mach. Co. of N. Y., 237 Fed. 380; Sandusky Foun dry & Mach. Co. v. Delavaud, 251 Fed. 631; infra, $170. But see Bowers v. Atlantic G. & P. Co., 104 Fed. 887; Streat v. American Rub

ber Co., 115 Fed. 634; Westinghouse Elec. & Mfg. Co. v. Stanley Elec. Mfg. Co., 115 Fed. 641; Rumford Chemical Works v. Egg Baking Powder Co., 145 Fed. 953; Feder v. A. B. Fiedler, C. C. A., 116 Fed. 378.

32 Consol. Rubber Tire Co. v. Dianond Rubber Co., 215 Fed. 106.

33 Gray v. Grinberg, C. C. A., 159 Fed. 138.

34 Western Wheel Scraper v. Gehagen, 152 Fed. 648. See infra, §§ 169, 170.