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