MILWAUKEE PRINTING CO. et al. v. STOVER et al., 290 F. 387

BAKER, Circuit Judge. Appellees’ bill of complaint charged appellants with infringement of patent No. 1,404,539, January 24, 1922, to Nelson, for a confection, and further charged appellants with unfair competition between the alleged infringing

article and the patented article. On appellees’ motion, supported and opposed by affidavits, the court entered a preliminary injunction covering both features of the bill. It has been said quite generally that a preliminary injunction ought not to be granted in a patent suit, except where the validity of the patent has been upheld in other litigation, or where the public has acquiesced in the patentee’s domination of the market. But such a rule cannot be accepted as being invariably true.

A patent is presumptively valid, and that presumption might be so strongly buttressed bn the initial showing that it would be an injustice to deny the motion for a preliminary injunction. In the present case it may be conceded that the presumptive validity of the patent has not been fortified in the contest by affidavits beyond the possibility of appellants’ prevailing on final hearing.

But, inasmuch as appellants have not shown to a certainty that the patent is invalid, we find that the circumstances and methods of infringement of the presumptively valid patent were such as to justify the District Judge, without abuse of discretion, in awarding a preliminary injunction. Appellants had been in close business relations with appellees in marketing appellees’ product. When appellants cut loose and'began to market a product of their own, they did not do so in a way to present only a clear-cut question of patent infringement.

They marketed their product in a dress and by methods that appeared on this preliminary hearing' to constitute unfair competition. Having mixed their present form of infringement with fraud, they are in no position to complain, of the decree. Affirmed.