106 F. 230 | U.S. Circuit Court for the District of Connecticut | 1901
Upon this hearing defendant moves “that the bill of complaint in the above-entitled cause be dismissed out of this court, for want of equity, upon the accompanying affida
“One of the principal questions pressed upon our attention related to the power of the court of appeals to order the dismissal of the bill before answer tiled or proofs taken, upon appeal from an order granting a temporary injunction.”
He then discusses the question, and says, as to “a case where a temporary injunction is granted pendente lite upon affidavits,” as follows:
“If the patent manifestly fail to disclose a patentable novelty in the invention, we know of no reason why, to save a protracted litigation, the court may not order the bill to be dismissed. Ordinarily, if the case involve a question of fact, as of anticipation or infringement, we think the parties are entitled to put in their evidence in the manner prescribed by the rules of Ibis court for taking testimony in equity causes. But if there bo nothing in the affidavits ¡ending to throw a doubl upon the existence or date of the antici paling devices, and giving them their proper effect, they establish the invalidity of the patent; or if no question be made regarding the identity of the alleged infringing device, and it appear clear that such device is' not an infringement, and no suggestion be made of further proofs upon the subject, we think the court should not only overrule the order for the injunction, but dismiss rlie lull.” Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 194, 495, 20 Sup. Ct. 712, 44 L. Ed. 856.
Counsel for defendant contend that under this decision this court should order the dismissal of the bill in the present case. , They have filed it number of expert and other affidavits, comprising some 30 jjages of matter, discussing G patents and 8 exhibits. A consideration thereof and of the exhaustive arguments of counsel has satisfied me that the questions of validity and infringement herein are too close and complicated to be disposed of on affidavits. If it had not been for the knowledge acquired by the writer in previous liti-gations concerning similar devices, it would have been impracticable on such hearing to satisfactorily determine the bearing of the prior art on (lie invention in-suit. Therefore, even if the doctrine of Mast, Foos & Co. might otherwise be applied in this class of cases, this one “involves a question of fact, * ®” where “the parties are entitled to put: in their evidence in the manner prescribed,” etc. Mast, Foos & Co. v. Stover Mfg. Co., supra. But inasmuch as the exhaustive brief of counsel for defendant raises a novel question of practice, and urges a radical departure from the existing practice, it has seemed desirable that the court should state its-views thereon. -