
    KENDALL CO. v. EARNSHAW KNITTING CO.
    No. 311.
    District Court, D. Massachusetts.
    May 1, 1940.
    H. F. Lyman, H. L. Kirkpatrick, and Fish, Richardson & Neave, all of Boston, Mass., for plaintiff.
    George P. Dike, Cedric W. Porter, George P. Towle, Jr., and Dike, Calver & Gray, all of Boston, Mass., for defendant.
   McLELLAN, District Judge.

The defendant’s motion for a summary judgment which is based in part upon an averment that a patent is invalid for want of invention in view of the prior art is denied because, after hearing counsel, I cannot say with assurance that “there is no genuine issue as to any material fact” within the meaning of those words as appearing in rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. This denial of the defendant’s motion is, of course, without prejudice to either of the parties and no costs are to be awarded in connection therewith.  