LAYNE et al. v. GETTY, 222 F. 917

PER CURIAM. Bill was filed by the appellants, in the court below, charging infringement of letters patent No. 821,653, and praying an injunction and for profits and damages. A hearing was had upon the motion for a preliminary injunction, based upon ex parte affidavits, and the injunction was refused. To review this order the appellants have brought the case to this court. Claim 20, sustained as valid by this court in Van Ness v. Layne, 213 Fed. 804, 130 C. C. A. 462, is the only claim of the patent involved in the present controversy.

As before stated, the hearing before the District Judge was had upon mere ex parte affidavits. Appellee denied that his improvement infringed claim 20 of appellants’ patent, and it is apparent from an examination of the contradictory affidavits that the question of infringement vel non is left in considerable doubt. Without expressing, an opinion upon the merits of the question submitted, we think that the discretion exercised by the trial judge in refusing the preliminary injunction should-not be revised by this court.

When the cause comes up for final hearing upon full proofs, the court will be in a position to intelligently determine whether an injunction should issue. See Texas Traction Co. v. Barron G. Collier, Incorporated, 195 Fed. 65, 115 C. C. A. 82; Stearns-Roger Mfg. Co. v. Brown, 114 Fed. 939, 52 C. C. A. 559; Crescent Specialty Co. v. National Fireworks Distributing Co., 219 Fed. 130, 135 C. C. A. 28; Whippany Mfg. Co. v. United Indurated Fibre Co., 87 Fed. 215, 30 C. C. A. 615. The order of the lower court is affirmed.