Lambert Snyder Vibrator Co. v. Marvel Vibrator Co.

138 F. 82, 1905 U.S. App. LEXIS 4588

Opinion

LACOMBE, Circuit Judge.

The patent is of very recent date, and has not heretofore been adjudicated. That circumstance, however, is not sufficient ground for refusing preliminary 'injunction, unless there is some substantial question as to validity. Fuller v. Gilmore (C. C.) 121 Fed. 129. The evidence fails to disclose any anticipating paterit, or anything in the prior art which would at all qualify the language of the first claim. The patents for toys which Have been put in proof are devised to secure vibrations in a flexible movable arm, not in the rigid rod on which such arm moves. The Wolverton patent is not in the prior art. The defendant, who uses the patented device, advertises and commends it, certainly cannot question its utility; and, even if he could, the evidence is unpersuasive to a conclusion that it does not subserve some useful purpose. Some of the devices complained of have points of difference from the device of the patent. Possibly the changes are improvements, but the combination of the first claim is 'found in all of them. It is not necessary to discuss the other claims.

Complainant may take injunction under the first claim.