Upton v. Wayland

36 F. 691, 1888 U.S. App. LEXIS 2668

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 8, 1888
• Status: Published

Opinion

Wallace, J.

An examination of tbe deposition and exhibits used upon the motion for a preliminary injunct-un does not disclose anything in the facts of the case to except it from the application of the ordinary rule by which such an ii-junction is not granted upon a patent of recent date, which has not been adjudicated when the patentable novelty of the improvement described in it is fairly contested, and there has been no well-defined or significant recognition of the validity of the patent by the public. The “wick-raiser” which is the subject of the patent is one of nine patented improvements embodied in the “Rochester lamp.” These lamps have been extensively dealt in by jobbers, and used by the public with acquiescence in the exclusive right of the owners of the patents, but this is not.cogent evidence of recognition of the novelty, or value of the wick-raiser, or the validity of the patent therefor. Non constat that recognition is not due to the other patented improvements. The motion is denied.