Chadeloid Chemical Co. v. Daxe Varnish Co.

180 F. 1004, 1910 U.S. App. LEXIS 5549

Opinion

CHATFIEED, District Judge.

I see no reason why an injunction should not issue. The Ellis patent has been frequently adjudicated valid in terms broad enough to cover the defendants’ composition and process. Infringement seems to be clear, and the only defenses are prior use (which is not satisfactorily shown) and a slightly different composition procured by the use of petroleum jelly and kerosene. These latter ingredients are within the general terms of the Ellis claims as previously held valid, and also within the specified materials of the Ellis patent. The D’axe patent, No. 91-8,814, of Eebruary 8, 1910, seems to have been granted for the particular formula'used with; petroleum jelly and kerosene in exact quantities or proportions. The' kerosene is claimed to be an additional or new element over the Ellis formula, but is in such slight proportion and so plainly indicated in the composition of the Ellis patent as to make no new product, but merely an equivalent variation of the complainant’s preparation.

The injunction pendente lite may be issued.