Hearing on plea in abatement attacking the jurisdiction of the court.
Plaintiff is a citizen of Illinois, having its principal office in Chicago. Defendant is a citizen of Ohio, having its office and factory at Dayton.
*638[1] At an earlier hearing this court denied a motion to quash the summons based on the ground that the person upon whom it was served in the district was not the agent of defendant. The court was then of the opinion facts had been shown demonstrating that Summey, who was served, was the duly authorized agent of the defendant. Now the plaintiff pleads in abatement that it committed no act of infringement within the jurisdiction.
Plaintiff moves to dismiss the plea in abatement on the ground that the ruling on the former motion is res adjudicata. To this I do not agree, because on the former hearing the question of infringement within the district was not before the court; and granting that the defendant had a regular and established place of business in the district and that Summey was its duly authorized agent, it in no wise follows that an act- of infringement of the patent in question took place within the jurisdiction of this court.
[2] From the stipulation of facts it appears that while Summey sold a'great many things for the defendant company within the Northern District of Illinois, and a great many accessories to their main product, nevertheless no sale has been shown of the patented device, save by the taking of orders and mailing them to the defendant company to accept or reject. Westinghouse v. Stanley Co. (C. C.) 116 Fed. 641, approved in Chadeloid Chemical Co. v. Chicago Wood Finishing Co. (C. C.) 180 Fed. 770.
Inasmuch as the plaintiff’s testimony fails to prove infringement within the district, the motion to dismiss the plea in abatement will be denied, and the plea in 'abatement sustained, and the bill dismissed for want of .jurisdiction; and it is so ordered.