(dissenting in part).
The amended bill of complaint alleged that there was an actual controversy between plaintiff (appellee) and defendant (appellant), in that defendant had claimed and was claiming that certain tractors manufactured by plaintiff infringed certain patents owned by defendant, whereas plaintiff claimed that said tractors did not infringe said patents. This allegation was not denied. The answer to the .amended bill denied that the controversy existed when the answer was filed,1 *3but it did not deny that the controversy existed when the anlended bill was filed.2 Thus, in effect, it admitted the existence of the controversy on that date.3
Defendant’s claim of infringement was made in a letter written to plaintiff by defendant on September 25, 1936. The answer admitted that defendant wrote the letter. The letter did not designate by name or number the tractors which, it charged, infringed defendant’s patents, but referred to them as the “track type tractors” which plaintiff had “brought out” subsequently to those held by a decision of this Court4 to be infringements of defendant’s patents.
The amended bill alleged that plaintiff’s line of “track type tractors” comprised various models; that the entire line was exemplified by those known as Model T-20, Model TD-40, Model TA-40 and Model TD-60; and that defendant’s charge of infringement related “to all the aforesaid tractors” — including, of course, Model TD-60. These allegations were not denied. The answer stated that defendant had no knowledge as to the allegations, but it did not state that defendant was without knowledge or information sufficient to form a belief as to the truth thereof. Thus, in effect, the allegations were admitted.5 There is, therefore, no basis for the contention that the controversy between plaintiff and defendant did not relate to Model TD-60.
The amended bill alleged that plaintiff’s said tractors (Models T-20, TD-40, TA-40 and TD-60) did not, in fact, infringe any of defendant’s patents. The answer admitted this allegation, thus, in effect, admitting that defendant’s claim of infringement was false and unfounded.
To me, it seems clear that this was a suit arising under the patent laws of the United • States, within the meaning of § 24(7) of thé Judicial Code, 28 U.S.C.A. § 41(7); that it was a case of actual controversy, within the meaning of § 274d of the Judicial Code, 28 U.S.C.A. § 400; that the controversy related to plaintiff’s Model TD-60 tractors, as well as to the other models mentioned above; that the District Court had jurisdiction of the controversy with respect to all of said tractors, including Model TD-60; and that, upon the admitted facts, plaintiff was entitled to a declaratory • decree and a permanent injunction, as prayed in the bill.
Whether depositions taken in this case may be used in other litigation ti is a question to be determined — if and when it arises— in such other litigation. The decree should be modified by striking therefrom so much thereof as declares that such depositions may be so used. As thus modified, the decree should be affirmed.
November 29, 1938.
April 6, 1938.
Federal Rules of Civil Procedure, Rule '8(d), 28 U.S.C.A. following section 723c.
Reinharts, Inc., v. Caterpillar Tractor Co., 9 Cir., 85 F.2d 628.
Federal Rules of Civil Procedure, Rule 8(b), (d).