Gellman v. Friedman (143 F. Supp. 383, 1956)

LEVET, District Judge.

Plaintiffs have moved for an order striking out certain answers by defendants to written interrogatories which plaintiffs have served upon them on the ground that such answers are not in compliance with Rules S3 and 34 of the Federal Rules of Civil Procedure, 28 U.'S. C.A.

Defendants oppose the motion primarily on the ground that this is a suit involving an alleged patent infringement and that the plaintiffs are protected from surprise at the trial by reason of the thirty-days notice requirement in Section 282 of Title 35 U.S.C.A. which provides :

“In actions involving the validity or infringement of a patent the party asserting invalidity or noninfringement shall give notice in the pleadings or otherwise in writing to the adverse party at least thirty days - before the trial, of the country, number, date, and name of the patentee ■of any patent, the title, date, and page numbers of any publication to be relied upon as anticipation of the patent in suit or, except in actions in the United States Court of Claims, as showing the state of the art, and the name and address of any person who may be relied upon as the prior inventor or as having prior knowledge of or as having previously used or offered for sale the invention of the patent in suit. In the absence of such notice proof of the said matters may not be made at the trial except on such terms as the court requires.”

In their answer, defendants have alleged the following affirmative defenses: