Brandtjen & Kluge, Inc., brought this suit in the District Court for Eastern New York against Joseph Freeman, Inc. The bill alleges that plaintiff is the owner of patent No. 1,363,200 for 'Improvements in Automatic Feed and Delivery for Platen Presses,' that defendant is using an infringing printing press, and prays injunction and accounting. Before answer by defendant, the Chandler & Price Company applied to the court for leave to intervene as a party defendant. The substance of the facts it alleges in order to show that it has an interest in the litigation (Equity Rule 37, 28 USCA following section 723) is as follows: Petitioner is engaged in manufacturing and selling printing presses. It made and sold to defendant the one of which the bill complains, and intends openly to defend this suit. After it put its machine upon the market, plaintiff threatened to sue users for infringement, and as a consequence petitioner's customers required it to give bonds for their protection. Before bringing this suit, plaintiff's counsel wrote defendant inclosing a copy of plaintiff's patent and asked defendant to respect their client's rights. That letter having been referred to petitioner, its counsel inquired of plaintiff's counsel whether suit would be brought against defendant (a user of one press) in the Eastern District of New York rather than directly against petitioner (a manufacturer and seller) in the Northern District of Ohio. Plaintiff's counsel answered that decision to sue defendant in the New York district had been reached and promised to serve a copy of the bill upon petitioner's counsel. Shortly after commencement of suit that was done. Plaintiff's threats to bring infringement suits against users injured petitioner's business and unnecessarily harassed its customers. Although long before commencement of the suit its device had been shown to plaintiff's counsel and plaintiff knew that it was being sold throughout the United States, plaintiff did not sue petitioner. Defendant has not sufficient interest in the result of the litigation to defend this suit on its own account. Petitioner's intervention is necessary for the protection of its interest.
Contrary to the better practice, the application for intervention did not present a proposed answer. Cf. Toler v. East Tennessee, V. & G. Ry. Co. (C.C.) 67 F. 168, 174; Stallings v. Conn (C.C.A.) 74 F.(2d) 189, 191. It did not suggest that, independently of defendant or otherwise, petitioner sought opportunity in this suit to enforce a claim for patent infringement against the plaintiff. After hearing, the court granted the leave applied for. Thereupon, the defendant and intervener filed an answer in which jointly they deny infringement and assert invalidity of plaintiff's patent. And in the same answer the intervener separately sets up a counterclaim against the plaintiff for infringement of patent No. 1,849,314 for 'Improvements in Sheet Transferring Mechanism for Printing Presses' owned solely by it, and prays decree against plaintiff for injunction and accounting. Maintaining that it states a cause of action to which the original defendant is a stranger, plaintiff moved to dismiss the intervener's counterclaim. The District Court granted the motion. The Circuit Court of Appeals affirmed. Brandtjen & Kluge, Inc., v. Joseph Freeman, Inc., 75 F.(2d) 472.
The order granting intervention is not here challenged. The sole question is whether intervener may bring into this suit a controversy between it and plaintiff in which defendant has no interest.