The opinion of the court was delivered by: FORMAN
Plaintiff alleges that it imports, has in its possession, and offers for sale a certain chemical known under the names "Estradiol", dihydrofollicle hormone, dihydroxyestrin, dihydrofolliculin or dihydrotheelin.Upon learning of this plaintiff declares that defendant caused its agents to inform customers of plaintiff and published statements to the effect that Estradiol was covered by a patent owned by defendant and that it alone had a right to manufacture it. Plaintiff advertised the sale of Estradiol in the Drug Trade News, a trade journal, on March 14, 28 and April 11, 1938, whereupon the defendant in the same journal caused the following advertisement to be published on March 28, 1938:
"To Purchasers of Estradiol Notice By Schering Corporation
"United States Letters Patent No. 2,096,744 for Hydrogenation Products of Follicle Hormones and Method of Producing Same, has been issued to us.
"Notice is hereby given to manufacturers and importers that our patent covers the product known as
"Estradiol is also known as dihydroxyestrin, dihydrofolliculin or dihydrotheelin. Our patent also covers the process of making the same.
"All uses of this material, without our consent, including medicinal, pharmaceutical and cosmetic, are a violation of our giths [grants] under this patent.
"We are giving this notice to the trade so that there may be no misunderstanding or doubt as to the exclusiveness of our rights in the United States to the product Estradiol (also known as dihydroxyestrin, dihydrofolliculin or dihydrotheelin).
It is alleged that defendant's patent is invalid, and, hence, its claims are not in accordance with the facts and were made with intent to mislead customers of plaintiff.
Finally, plaintiff "avers that it has not, at any time, infringed or threatened to infringe any valid rights Defendant may have by virtue of the Letters Patent in suit and has not caused Defendant any damage or injury whatsoever, whereas Defendant, on the other hand, has been engaged in unfair competitive activities as against Plaintiff for reasons set forth above and has sought by fraudulent, false, oral and written misrepresentations to the public and to customers and prospective customers of Plaintiff and by unfair means and/or by unfairly or ...