National Folding-Box & Paper Co. v. Brown & Bailey Co.

98 F. 437, 1899 U.S. App. LEXIS 3403

Opinion

DALLAS, Circuit Judge.

If the moving papers submitted on behalf of the plaintiff were alone to be considered, its motion for a preliminary injunction would seem to be adequately supported. But the affidavits presented for the defendant have at least created a serious doubt in my mind respecting the question of infringement, and the existence of such a doubt requires a denial of the writ. It is not necessary or desirable that the validity of the patent in suit should now be passed upon. As to its infringement by the defendants, the experts on either side have given repugnant opinions. The question is a nice and difficult one, and cannot he solved by the court upon its own inspection of the exhibits, aided only by conflicting ex parte affidavits. This conflict may possibly be reconciled, and will at all events probably be made more easy of determination, by cross-examination of the respective witnesses, but it certainly could not be safely decided upon the present proofs. The views expressed by the court of appeals for this circuit in Blakey v. Manufacturing Co., 37 C. C. A. 27. 95 Fed. 136, are applicable to this case. Preliminary injunction denied.