142 F. 467 | 3rd Cir. | 1906
This is an appeal from a decree for a preliminary injunction, restraining the defendants below (appellants here) from infringing the first two claims of patent No. 669,011, dated February 26, 1901, which was issued to Nathan C. Kahn, assignor, etc., for improvements in the art of making Flat Knit Caps.
The assignment of errors is based upon the assumption that, because, as it avers, the proofs “were at least sufficient to raise a reasonable doubt as to the validity of claims 1 and 2,” and “as to the infringement by defendants” of those claims, a preliminary injunction should not have been awarded. But the position thus taken, however impregnable it might be in some cases, is untenable in this one. These claims were sustained by this court in Kahn v. Starrells, 135 Fed. 532, 68 C. C. A. 82, and, in view of that decision, evidence sufficient merely to raise a doubt, even though it be a reasonable one, as to their validity, would not, in this subsequent suit, have justified a denial of an injunction pendente lite; for “upon applications for preliminary injunctions to restrain infringement of patent rights, after the validity of the patent has been sustained by a circuit court of appeals, the general rule, as authoritatively laid down in this circuit, is that the only question open is that of infringement; the consideration of other defenses being postponed until final hearing, except where there is new evidence of such a conclusive character that, if it had been introduced in the former case, it would probably have led to a different deter-
The defense of noninfringement has not been separately discussed in the briefs of counsel, and we need not enlarge upon it. The defendants below do not substantially complete the shaping of their caps by knitting, but shape them after the knitting has been done; and in this, as we said in Kahn v. Starrells, the essence of the patented invention resides.
The decree of the Circuit Court is affirmed.
