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WILLIAMS et al. v. McNEELY et al.

(Circuit Court, E. D. Pennsylvania.

June 6, 1893.)

No. 44.

Patents nob, Invtsntions — Infringement—Pummminahy Injunction.

A preliminary injunction will not be granted in an infringement suit where the affidavits of experts disclose a conflict that cannot bo decided in complainant’s favor without danger of unjustly interfering with the business of defendants, who are merely users of Hie device in question, and whose financial responsibility is not questioned.

In Equity. On motion for preliminary injunction in a suit by Williams & Webster against McISfeely & Co. for alleged infringement of a patent.

Writ denied.

Ernest Howard Hunter, for complainants.

S. Hollingsworth, for respondents.

DALLAS, Circuit Judge.

An application for a preliminary injunction is not, in patent causes any more than in others, ait available short cut to an adjudication upon asserted, but disputed and doubtful, rights. Where, upon such, a motion, the defendant avers that the subject-matter of the infringement alleged differs substantially from that of the patent, the question thus presented ought not, in my judgment, to he decided upon the ex parte affidavits, but should be left, unless the defendant’s contention be plainly frivolous and unsupported, entirely open for decision upon the evidence as finally [(resented.

In this case it is not necessary that I should express any opinion upon the several points which have been discussed by counsel. It is sufficient to say that a conflict of expert opinion as to the fact of infringement has been disclosed, which possibly may be reconciled, or be made easy of determination, by cross-examination of the respective witnesses, but which cannot now be decided in *266favor of tlie complainants without danger of unjustly interfering with the business of the defendants, whose financial responsibility is not questioned, and who are but users, and not manufacturers or vendors, of the mechanism in question. The motion for preliminary injunction is denied.

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