
    ENGINEERING SPECIALTIES CO., Inc., v. BURGESS BATTERY CO.
    District Court, S. D. New York.
    July 12, 1941.
    Hoguet, Neary & Campbell, of New York City, for plaintiff.
    Kenyon & Kenyon, of New York' City,. for defendant.
   CONGER, District Judge.

From a reading of the conflicting affidavits of the experts here, I feel constrained to deny the defendant’s application for summary judgment. Plaintiff’s patent has never been adjudicated and the fact that certain references herein were before the Patent Office lends greater presumptive force to the issuance of said patent. General Electric Co. v. Save Sales Co., 6 Cir., 82 F.2d 100. In view of this presumption of validity of plaintiff’s patent, defendant’s contention that said patent does not evidence sufficient improvement over the prior art to constitute invention should be resolved upon a trial wherein experts of both parties may be subjected to cross-examination. Weil v. N. J. Richman Co., Inc., D.C., 34 F.Supp. 401; Refractolite Corp. v. Prismo Holding Corp., D.C., 25 F.Supp. 965.

Accordingly defendant’s motion for summary judgment herein is denied. Settle order on notice.  