Tolman Bros. Mfg. Co. v. Silberstein , 176 F. 373 ( 1909 )

NOYES, Circuit Judge.

The patent in suit has never been adjudicated, and the defendant asserts that he intends to contest its validity. The affidav its and earlier patents show that there is a serious question as to its novelty. The proof as to long-continued acquiescence is not sufficient. Regarded as a suit to restrain the infringement of a patent, the case is too doubtful to warrant the issuance of a preliminary injunction.

If it be possible to regard tlie suit as one to restrain unfair competition, the same conclusion must be reached. The affidavits fail to show imitation of the complainant’s article in unessential particulars.

The application for a preliminary injunction is denied.