| Wis. | Sep 28, 1897
The order which grants or dissolves an interlocutory injunction is a discretionary order, and will not be disturbed on appeal unless it shall appear to be an abuse of judicial discretion. High, Injunction, §§ 11, 1467.
It is a well-settled rule of general application, that when' all the material allegations upon which the equities of the-case rest are fully met and denied, without evasion or equiv-ocationj by the answer or the affidavits upon which the motion to dissolve is based, the injunction .will be dissolved. High, Injunctions, § 1505. It is necessary that such facts only as constitute the equity of the case be so denied. Id. The motion may be based on the sworn ansAver alone, or upon affidavits, or upon both the ansAver and affidavits. R. S. Wis. sec. 2781; 2 Wait, Prac. 115. On such motion the court must decide Avhetber, upon the facts presented, the irijunc
Evidently the defendants did not go beyond their rights, if in truth the Welsbach Light Company owns subsisting patents on which the goods handled by the plaintiff are infringements. So, the equity of the case rests upon the question whether the goods handled by plaintiff are in fact infringements of subsisting patents controlled by the defendants. Both the subsistence of the patents and the infringements are directly affirmed by the defendants and denied by the plaintiff. It is manifestly unsuitable that such questions be decided upon conflicting affidavits alone. And it is not clear that the determination of such questions is within the competency of state tribunals. Continental Store Service Co. v. Clark, 100 N.Y. 365" court="NY" date_filed="1885-11-24" href="https://app.midpage.ai/document/continental-store-service-co-v--clark-3581825?utm_source=webapp" opinion_id="3581825">100 N. Y. 365. The ultimate question may be whether the plaintiff’s goods are in fact infringements on the defendants’ patents. The more appropriate if not exclusive jurisdiction to determine that question is in the United States tribunals. Even in those .courts, when the fact of infringement is fully denied by the answer and affidavits, and the fact is doubtful on the papers presented, the court will withhold relief by interlocutory injunction, and leave the matter to be determined at the trial. High, Injunction, § 975. This is, no doubt, the safer and better practice, Besides, a court of equity should not interfere in such a case until the controverted questions are settled by a verdict in a court of law. Flint v. Hutchinson Smoke Burner Co. 16 L. R. A. 243, and the cases cited in the notes. This seems to be the rule as held in the more recent cases in this country. The order which dissolved the interlocutory in-juction was not an abuse of discretion.
By the Court.— The order of the circuit court is affirmed.