
    S. S. WHITE DENTAL MANUF’G CO. v. JOHNSON et al.
    (Circuit Court, E. D. Pennsylvania.
    June 6, 1893.)
    Patents for Inventions — Infringement—Preliminary Injunction.
    Complainant in a suit for the infringement of a patent is entitled to a preliminary injunction where it appears that the supreme court of the District of Columbia has in a prior suit sustained the validity of his patent, and held that .it was infringed hy a device which was substantially the same as that of the present defendant.
    In Equity. Suit by the S. S. White Dental Manufacturing Company against Johnson and others for the infringement of complainant’s patent. Complainants move for a preliminary injunction.
    Writ granted.
    Jos. C. Fraley, for complainant.
    George Harding-, George B. Selden, and Jerome Carty, for defendants.
   DALLAS, Circuit Judge.

This is a motion for preliminary injunction. The circumstances which have been urged in argument as showing acquiescence by the plaintiffs in the conduct of the de-fe-inlands, and as estopping (lie plainliifs from asserting Iliac Hie “foot rest,'’ of the defendants is ¡m infringement, of the patent, in suit, have been fully examined and carefully considered, but nothing has been shown which, in my opinion, amounts to a waiver of the; complainants’ rights, or which precludes them from maintaining them in a court of equity. Therefore, it is necessary to dispose of this motion upon ihe oilier defenses which have been interposed, and these are, (1) that the patent is invalid; and (2) that the defendants have not infringed, lipón both points this motion is supported by the decree of the supreme court of the District of Columbia in the case of Morrison v. Dental Chair Co., 49 O. G. 735. Thai, case in volved the same claim as is here in question, viz. the ninth claim of letters patent .No. 269,295, dated August 20, 1887, granted to James B. Morrison for •‘adjustable chairs,” as follows:

“In combination wild a chair body having a platform or stop attached thereto, ¡i supplemental foot rest, and anus, to sustain said rest, pivoted to the platform, to swing forward and backward to a limited extent, and interlocking with said platform in an upright, operative position, when turned rearward as well as forward, whereby said arms are adapt,(Mi to sustain the rest in cither of two operative positions at different distances from the chair seat.”

This claim was disHudly sustained by ihe decree to which I have referred, and, for the purpose of this application, iis validity is thereby conclusively established. Brush Electric Co. v. Accumulator Co., 50 Fed. Rep. 833; Cary v. Spring-Bed Co., 27 Fed. Rep. 299; Cary v. Manufacturing Co., 24 Fed. Rep. 141. But. if this were otherwise, siiil the only new mat ter set up and insist (id upon here is a patent issued to C. L. Rauder, April 6,1842, for a “foot, rest” so manifestly different from that of Morrison, and so plainly incapable of accomplishing iis object, that it is obvious, upon inspection, that, (hey do not conflict. The supreme court of the District of Columbia also ¡id-judged the defendant in ihe Morrison Case had infringed ¡his patent by the use of an appliance which was substantially the same as that of the defendants in Ihe present case. The infringing device of the Chair Company was said b.v Judge; Coxe to be identified with that of the patent “by Ihe fact that there are lugs placed upon the frame, which are exactly as in the other, for the very purpose of preventing Ihe rest from going down to a level with the platform, and for the purpose of keeping it in position where it can operate as a foot rest.” Bo, also, in speaking of certain devices which had been introduced to show anticipation, the learned judge, in distinguishing them, said: The rest, when it is turned rearward, instead of being used as a rest for the foot, simply folds up flat with the body of the chair or platform, and therefore it does nor, serve the purpose of a rest at ail.” And. again: “The rest' was folded into ihe body of platform, or went, down immediately upon ii, and was not suiiiciently elevated from it to be used at, all.” It is evident that it was not the mere presence of “lugs” which was considered important, hut the fact that they were present “for ihe purpose; of trooping it [tlie rest] in position where it can operate; as a foot rent:;” and, although lugs are absent from the contrivance of these'defendants, yet their purpose is accomplished hy simply increasing the diameter of the foot rest. The end is the same, and the difference in means is not substantial; and, therefore, if there was infringement in the case decided by Judge Coxe, there is also infringement in this one.

I should not be unders tood as intimating any independent opinion upon either of the two questions which were determined by the supreme court of the District of Columbia, but only as holding that, because they have been determined by that court, and upon substantially the same evidence as has been now adduced, they are not open for present consideration.

The motion.for a preliminary injunction is granted, and the writ may' issue accordingly.  