77 F. 191 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1896
The Schultz patents were sustained by the circuit court of appeals for this circuit in the case of Patent Co. v. Zahn, 28 U. S. App. 620, 17 C. C. A. 552, 70 Fed. 1003, after bona ñde and protracted litigation upon the merits. In that case the validity of the patents was most vigorously contested. The proofs were voluminous, and the defense was conducted by experienced counsel. The pendency of that suit was well known to the trade most interested in defeating the patents. It is, then, a fair presumption that the defense there made against the validity of the patents was exhaustive. Purifier Co. v. Christian, 3 Ban. & A. 42, Fed. Cas. No. 307. Infringement by the present defendants is not denied. How, upon applications for preliminary injunctions to restrain infringements of patent j-ights, 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.
I do not think that I am called on, at this preliminary stage of the case, to discuss with particularity the two antecedent publications and the 12 prior patents which are now for the first time set up as a defense. It is enough to say that, considered singly or together, they do not, in my judgment, afford convincing evidence of the invalidity of the Schultz patents. Especially is this so when the new documentary proofs are read in the light of the conflicting affidavits. Every material allegation contained in the supporting affidavits is denied in the counter affidavits. Taking the proofs now presented as a whole, they are insufficient, under the rule above stated, to warrant a departure from the decision of the circuit court of appeals sustaining the Schultz patents.
No equitable reason appears for relieving the defendants from the operation of the preliminary injunction. The defendants have per