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SHARP v. BELLINGER et al.

(Circuit Court, N. D. New York.

July 23, 1907.)

Patents — Suit for Infringement — Preliminary Injunction.

A motion for a preliminary injunction against infringement of a patent denied where the patent was new and unadjudicated and not a pioneer and infringement was denied and in doubt on the showing made.

[Ed. Note.' — For cases in point, see Cent. Dig. yol. 38, Patents, § 489. Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]

In Equity. Motion for preliminary injunction in suit for alleged infringement of patent to Judson C. Sharp, for fire escape, issued November 13, 1906, on application filed July 13, 1904.

Franklin H. Hough (Charles J. Williamson, of counsel), for complainant.

Robinson, Martin & Jones, for defendants.

RAY, District Judge.

The patent in suit was issued in November, 1906, some two years after application filed. The delay in issuance was occasioned by an interference proceeding declared in the Patent Office between the application of complainant and that of one William A. Burnop, and which interference was decided in complainant’s favor. Defendant Davy is the assignee of Burnop. The question there was, not the validity of the patent, but who was the first inventor. The validity and breadth and scope of complainant’s patent has not been adjudicated in any court, and, of. course, there has been no long acquiescence in its validity. This is not a new art, and complainant’s is not, in any sense, a pioneer invention. Defendants’ fire escape, alleged to infringe, is not a Chinese copy of complainant’s. There are differences in construction and in mode of operation. Defendants insist they do not use one or more of the essential elements of complainant’s apparatus or the substantial equivalent. There is an essential contradiction in the affidavits, and on the whole, without forming or expressing an opinion as to the merits of the controversy, I think the case is one where the decided cases preclude the granting of a preliminary injunction. Diligence will bring the case to a final hearing at an early day.

Motion denied.

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