The opinion of the court was delivered by: BYERS
Motions in a patent cause, by plaintiffs for a preliminary injunction, and by defendant to dismiss as to two of the plaintiffs' patents. These will be considered together.
The bill alleges that the following patents, which were issued to Rosenberg, have been infringed by the defendant, and the co-plaintiff is the sole licensee of said patents:
United States Letters Patent No. 1,482,151,
United States Letters Patent No. 1,545,471,
United States Letters Patent No. 1,686,468,
United States Letters Patent No. 1,912,222,
United States Letters Patent No. 1,978,145.
Of the foregoing, the First has been adjudicated by the Second Circuit Court of Appeals in the case of Rosenberg v. John Hassall, Inc., 73 F.2d 58, as to claims 5, 6, 8 and 9. The last is said by the plaintiffs to enjoy the status of an adjudicated patent, because it was granted as the result of a suit against the Commissioner of Patents, under U.S. Rev. St. § 4915 (Title 35 U.S.C. § 63 [35 USCA § 63]), in the Supreme Court, District of Columbia, reported as Rosenberg v. Coe, Commissioner, 62 Wash. Law. Rep. 780.
It is not alleged in the bill that, in the last-mentioned suit in equity, there was any opposing party other than the commissioner.
At most, patent No. 1,978,145 is before the court carrying the usual presumption of validity proceeding from the grant, and fortified by a judicial decree which imports patentability. Hill v. Wooster, 132 U.S. 693, 10 S. Ct. 228, 33 L. Ed. 502. None the less the patent has not been tested in a controversy in which validity was in issue at the instance of a party entitled to be heard on the question, and the decree will not, therefore, be treated as though the patent had been adjudicated in the sense that applies to patent No. 1,482,151.
The other three patents, namely, Nos. 1,545,471, 1,686,468 and 1,912,222, concededly have not been adjudicated, and, as to the defendant's alleged infringement thereof, the motion for preliminary injunction will be denied.
The devices which are alleged to infringe are three in number, designated Specimen A, Specimen B, and Defendant's Exhibit 3.
They are all anchorage or fastening devices, hammer driven into a hole drilled in metal to receive them, and are employed, as the defendant says (except Specimen B) to hold fabric lace (i.e., anti-squeak strips) to a ...