Action by the United States of America against Imperial Chemical Industries, INv., E.I. duPont de Nemours Company, and others. On objection by E.I. duPont de Nemours Company to a certain interrogatory.
Objection overruled.
RYAN, District Judge
This motion by defendant E.I. duPont de Nemours and Company is addressed to interrogatories served by plaintiff. DuPont asks for time within which to answer certain of the interrogatories and also objects to interrogatory No. 1(f).
Interrogatory No. 1 reads: `With respect to each class of products coming within the provisions of the written agreements, referred to in paragraphs 32 to 193 of the Complaint herein, and listed in the appendix attached hereto, list in tabular form under appropriate column headings:
"(a) the United States patents issued to duPont and duPont's pending patent applications, and
"(b) United States patents and pending patent applications assigned or licensed to duPont by any defendant or co-conspirator named in the complaint, and
"(c) The date of issue of each such patent,
"(d) The name of the assignor or licensor
[PAGE MISSING] and to restrain the foreign and domestic trade and commerce of the United States. It is alleged by way of defense that the challenged agreements between the defendants were valid patent agreements.
It is plaintiff's contention that patents of no commercial value were used to keep Imperial Chemical Industries out of the United States, and that by unlawful use and non-use of duPont United States patents, duPont was able to secure a division of world markets. Proof in support of this contention is admissible within the allegations of the complaint. The extent of duPont's use or non-use of these patents would throw light upon the intent and purpose with which duPont entered into the alleged illegal agreements with its alleged co-conspirators. Intent and purpose are at times most difficult of proof and evidence bearing upon either is to be received with great liberality. A search for proof of intent should not be unduly hampered. The extent to which these patents were commercially used will be of help in determining whether the patents were the inducing reason for the agreements or simply a screen to conceal a hidden purpose to restrain trade. Plaintiff states that it expects to show by the answer to this interrogatory that but a trifling number of these many patents was used. If this hope is fulfilled, it appears that it will have disclosed by the interrogatory evidence of considerable probative value. The interrogatory concerns relevant and material matters, vital to plaintiff's case.
We now consider the reasonableness of the extent and scope of the interrogatory.
When preparing its answer to interrogatories No. 1(a) to 1(e) inclusive, duPont must set out its patents, stating whether they were duPont developments, or acquired by license, and if so the nature of the license. This will, of necessity, entail an examination of all its patents. All that is further required by interrogatory No. 1(f) is that information be given as to whether the United States' patents issued to duPont, and pending patent applications, were used by it in the commercial manufacture of any product. This does not appear to be unreasonably burdensome, when considered with its relevancy to the issues and the ever present possibility that it will result in the discovery of admissible evidence.
DuPont points out that all of this can only be accomplished by personal inquiry of duPont employees at its various manufacturing plants, because `there are no records available which contain this information.' It taxes credulity almost beyond bounds to hear that in the entire duPont organization information concerning the use of these patents rests not in recorded writings but solely in the memory and recollection of mortal employees. Be that as it may, it does appear that within the last several months duPont placed upon the United States Register some 4,500 patents. Common sense urges that at least in regard to some (if not most) of these patents, consideration was given to commercial use, past as well as present.
This interrogatory, duPont states, will cover classification of approximately 8,000 patents and 1,700 applications according to commercial use. This is truly an impressive and overwhelming number. The task would be incapable of performance by a smaller business venture, but duPont is alleged to be a world-wide business organization and a vast enterprise, which has during a period of the last 45 years, produced, manufactured and marketed some 4600 different products. The complaint alleges that duPont is `by far the largest manufacturer of chemical products in the United States, and has total assets of approximately one billion dollars.' When considered in the light of operations of such magnitude, the interrogatory is not unduly burdensome.
It is suggested that knowledge of the commercial use of some of these patents may no longer be available, having gone with the passing of former employees and that others, at one time in duPont's employ, may be unable to be located. Should this be so and information as to any particular patent, after thorough and diligent efforts have been made, be unobtainable, as to such patent or patents, duPont may so state under
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