
    DUFF MFG. CO. v. KALAMAZOO RAILWAY-SUPPLY CO.
    (Circuit Court, W. D. Michigan, S. D.
    March 16, 1900.)
    Patents— Suit rob, Infringement — Preliminary Injunction.
    Where the validity of a patent has not, been expressly adjudicated, and the question of infringement is a close one, a preliminary injunction will not be granted.
    In Equity.
    On motion ior preliminary injunction.
    Kay & Totten, for complainant.
    Fred L. Chappell (Howard, Eoos & Howard, of counsel), for defendant.
   iSEVERKNS, Circuit Judge.

The complainant in this cause, for the purpose of showing to this court that the Barrett patent, No. 312,316, has been already adjudged in another circuit to be valid, refers to the case of Manufacturing Co. v. Forgie, 57 Fed. 748, and to the same case on appeal in the circuit court of appeals for the Third circuit, 59 Fed. 772, 8 C. C. A. 261. But, upon reference to the opinions of the circuit court and the circuit court of appeals, it appears that the question of the validity of the Barrett patent was not expressly passed upon by either of those courts, and, so far as the reports of the case show, that question was not mooted. It does, however, appear that the validity of the Barrett patent was assumed in both the circuit and appellate courts. It was taken for granted, and the patent was held not infringed by the defendant’s alleged infringing machine. This hardly Alls the measure of a judicial confirmation of the validity of the patent. The prior patents for- lifting jacks shown me create some doubt, not so much with respect to the validity of the Barrett patent, as to its scope under the limitations of the prior art. The defendant’s jack, which it is claimed infringes the complainant’s patent, is not identical therewith, but contains such variations in the character of the elements employed as to present a close question, in 1he light of what is shown upon this motion, whether it is or is not an infringement. In these conditions the court would not be justified in awarding a preliminary injunction, and accordingly an order will he entered denying the same.  