
    BALLOU SHOE-MACH. CO. v. DIZER et al.
    
    (Circuit Court, D. Massachusetts.
    July, 1880.)
    Patents — Preliminary Injunction.
    A preliminary injunction will not issue against a mere user of a machine when plaintiffs have known for several years that the makers thereof were manufacturing such machines, and did not warn or proceed against them or any one else.
    This was a suit in equity by the Ballou Shoe-Machine Company against C. M. Dizer and others for alleged infringement of a patent. The cause was heard on a motion for preliminary injunction.
    T. W. Clarke, for complainant.
    E. P. Howe, for defendants.
    
      
       This ease has been heretofore reported in 5 Ban. & A. 540, and is now published in this series, so as to include therein all circuit and district court cases elsewhere reported which have been inadvertently omitted from the Federal Reporter or the Federal Oases.
    
   LOWELL, Circuit Judge.

This is one of those cases in which the complainants should be required to take the testimony in the regular way before an injunction. The machine which they proceed against was made by the Goodyear & McKay Sewing-Machine Company, and is by them leased to the defendants. The complainants have known for several years that the above-named company were making these machines, and have not warned them, nor proceeded against them, nor against any one. The only reason given for the delay is that it would be more convenient to proceed in Massachusetts, where the plaintiff company have their usual place of business, but this does not appear to be a sufficient excuse. Add to this that there is a fair doubt in my mind whether the defendants’ machine is an infringement of the twice reissued patent of the plaintiffs, and I find that the motion for a preliminary injunction should be denied. Motion denied.  