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Coburn and another v. Brainard and another. *

(Circuit Court, E. D. Missouri.

March 12, 1883.)

1. Patents—Eehect of Decision as to ValidiW—Preliminary Injunction.

Where a motion is made fora preliminary injunction for an alleged infringement óf a patent which has been held valid, without collusion, in a contested patent case, the validity of the patent is considered settled for the purposes of the motion.

2. Same.

Where, however, the decision does not show what claims were held valid, nor What would be an infringement, two questions are left open, viz.: (1) What ■ are the contrivances covered by the patent 1 and (2) has the defendant infringed the same? ' . •

Motion for a Preliminary Injunction for an alleged infringement of letters patent óf the United States for an “improvement in cases' for transporting eggs,” and an “improvement in egg-boxes.”

The first of said patents contains two claims, which are as follows:

“ (1) A case for transporting eggs, in which are more than two removable trays,' each containing a series of bottomless cells or compartments, some of these cells having walls irrespective of the walls of the case, and each tray being separated from its adjoining tray by a removable diaphragm or dividing board; (2) the combination of more than two trays, each containing a series, of bottomless cells or compartments, some of these cells having walls irrespective of the walls of the case in which the combination may be used, and each tray being separated from its adjoining tray by a removable diaphragm or dividing board.”

The other patent alleged to have been infringed contains the following claims:

“(1) A tray or double series of rectangular bottomless pockets constructed of flexible material, or in separate strips, interwoven and permanently inter-, locked, beyond danger of separation, by means of straight slits or slots cut in opposite edges thereof, substantially as and for the purposes set forth; (2) a tray or double series of rectangular bottomless pockets, constructed of suitable flexible material, in two intersecting series of separate strips, each series of strips being provided with slots or slits cut in opposite edges of each strip, whereby the respective series are interwoven and permanently interlocked beyond danger of separation, substantially as and for the purposes set forth; (3) a tray or double series of rectangular bottomless pockets, constructed of suitable flexible material, in two intersecting series of separate strips, each series of strips being provided with slots or slits cut alternative in opposite edges of each strip, whereby the respective series are interwoven and permanently interlocked beyond danger of separation, substantially as and for the purposes set forth.”

*413The complainants, in their bill, allege that the defendants have acknowledged their infringement of said patents by a written agreement.

Tor remaining facts see Coburn v. Clark, 15 Fed. Rep. 804.

Overall é Judson, for complainants.

Phillips é Stewwrt, for defendants.

Tbeat, J.

In case No. 2123 (Coburn v. Clark, 15 Fed. Rep. 804) many suggestions have been made applicable to this case.

In addition thereto the question of arrangement between the parties, or confessions, are presented. Waiving that inquiry, and looking to the interlocking and also the combination claims, an injunction order must go provisionally against infringement of either of said claims.

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