
    BYERLEY v. ELLIS CO.
    (Circuit Court, D. Delaware.
    May 17, 1911.)
    No. 306.
    1. Patents (§ 297) — Suits for Infringement — Effect Given to Prior Adjudications.
    Where, in an earlier adjudication of a patent, a rule determining infringement or noninfringement upon a given state of facts has been laid down or recognized by the appellate court, a lower court, in subsequently dealing with the patent on a similar or substantially similar state of facts, is as much bound to follow such rule of infringement as to recognize the validity of the patent theretofore upheld by the higher court.
    [Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 481-488; Dec. Dig. § 297.
    
    Operation and effect of decision in equitable suit for infringement, see note to Westinghouse Electric & Mfg. Co. v. Stanley I. Co., 68 C. C. A. 541.]
    2. Patents ■(§ 328) — Validity and Infringement — Asphaltic Petroleum Products and Process of Making Same.
    The Byerley patent, No. 524,130, for a process of making asphaltic products from the residuum of petroleum after distillation and for the product itself, held valid and infringed, on a motion for preliminary injunction, following prior adjudications.
    In Equity. Suit by Francis A. Byerley, as executor, trustee, and individually, against the Ellis Company. On motion for preliminary injunction.
    Motion granted.
    Fish, Richardson, Herrick & Neave, for complainant.
    Marvel & Marvel and Robert P. Graham, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   • BRADFORD, District Judge.

This ?s an application for a preliminary injunction. The bill charges infringement by the Ellis Company of United States letters patent No. 524,130, dated August 7, 1894, and granted to Francis X. Byerley, now deceased, and prays an injunction and account. The patent in suit is for alleged improvements in the manufacture of asphalt and other products from petroleum, and relates more particularly to the manufacture of solid bodies from petroleum. The-patent contains twelve claims of which claims Nos. 1, 2, 3, 6, 7, 8, 9 and 10 are in issue. These claims were sustained by the Circuit Court for the Eastern District of Pennsylvania in Byerley v. Sun Co. (C. C.) 181 Fed. 138, and by the Circuit Court of Appeals in the same case, 184 Fed. 455. Their validity, therefore, is not open to question in this court unless under exceptional circumstances. Cohen v. Stephenson & Co., 142 Fed. 467, 73 C. C. A. 583. After examining the affidavits on both sides I have failed to find anything so conclusively pointing to the invalidity of the claims in suit, or any of them, as to prevent the application of the general rule. The question of infringement must be determined on the particular facts in any given case, regard being had to the scope of the claims as governed bj^ their language and the- liberality or strictness of construction properly applicable to them. But this is subject to the qualification that where in the earlier adjudication of the patent a rule determining infringement or noninfringemeut upon a given state of facts has been laid down or recognized by the appellate court, the lower court in subsequently dealing with the same patent on a similar or substantially similar state of facts is as much bound to follow such rule of infringement as to recognize the validity of the patent theretofore upheld by the higher court. On the whole I have, not without some hesitation, reached the conclusion that the several claims in issue have been infringed by the defendant and a case made for the awarding of a preliminary injunction on the giving by the complainant of a substantial injunction bond with surety. L,et an interlocutory decree be prepared and submitted accordingly.  