
    REPUBLIC ELECTRIC CO., Inc., et al. v. GENERAL ELECTRIC CO.
    Circuit Court of Appeals, Third Circuit.
    July 16, 1928.
    No. 3701.
    1. Patents <S=>324(5) — On appeal from decree granting preliminary injunction, court should not determine precise scope of patent.
    On appeal from a decree for a preliminary injunction in a patent infringement suit, awarded on supporting and against controverting affidavits, without full opportunity of examination and cross-examination of witnesses learned in the art, appellate court should not attempt to determine the precise scope of a patent repeatedly found valid.
    2. Patents <@=b-303 — Evidence of infringement of No. 1,018,502 and No. 1,180,159 for incandescent lamps having tungsten filament held sufficient to justify granting preliminary injunction.
    In suit for infringement of Just and Hanaman patent, No. 1,018,502, and Langmuir patent, No. 1,180,159, for incandescent lamps having tungsten filament, evidence tending to show that filaments of automobile lamps manufactured by defendant were substantially pure tungsten field suflieient to justify trial judge in exercise of his discretion in granting preliminary injunction.
    3. Patents <@=>303 — Preliminary injunction against some of alleged patent infringers reversed, in view of very weak support of charge of infringement.
    In patent infringement suit, where plaintiff as to some of defendants supported its charge very weakly by affidavit based on affiant’s information, yet not even on his belief, and relied chiefly for proof of infringement on construction of statements contained in such defendants’ own affidavits filed in opposition to plaintiff’s motion for preliminary injunction, field, that court will reverse decree in so far as it grants preliminary injunction against such defendants, since the evidence is not of the character that rule requires to induce judge to award extraordinary remedy of preliminary' injunction.
    Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.
    Patent infringement suit by the General Electrie Company .against the Republic Electric Company, Inc., and others. From a decree granting plaintiff a preliminary injunction, defendants appeal.
    Reversed in part, and affirmed in part.
    Charles J. Holland, of New York City, for appellants.
    Howson & Howson, of New York City (Hubert Howson, of New York City, Albert G. Davis, of Schenectady, N. Y., and Frederick P. Fish, of Boston, Mass., of counsel), for appellee.
    Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
   WOOLLEY, Circuit Judge.

By the complaint in this suit (the fourth in a group of suits for infringement of patents for incandescent lamps) the General Electric Company charges the defendants with infringing the Just and Hanaman patent No. 1,018,-502 and the Langmuir patent No. 1,180,159 by making and selling incandescent lamps of the type known as No. 1129, which are headlights for automobiles, and of the type known as No. 82, which are tail lights for automobiles. From a decree for a preliminary injunction the defendants took this appeal:

The case on the facts is closely related to the Desmond Case (C. C. A.) 27 F.(2d) 590, the Atlas Specialty Case (C. C. A.) 27 F.(2d) 593, and the Sunray Lamp Case (C. C. A.) 27 F.(2d) 595, and has been considered and will be disposed of on the principles of law applicable to the allowance and review of preliminary injunctions in patent cases briefly stated and adequately supported by authorities- cited in the opinion in the Desmond Case.

The Republic Company admits that it makes automobile lamps of the No. 1129 type, but denies that it makes lamps of the No. 82 type, and says that those of the No. 1129 type do not infringe the patents in suit. To sustain this contention it directs an attack mainly against the scope of the Langmuir patent which covers, roughly stated, a filament of tungsten centered in an atmosphere of inert gas, preferably dry nitrogen. It claims that the Langmuir patent, if valid (and in a proceeding of this kind where the patent has been frequently sustained we assume that it is valid) is for the inventive conception of a correlation between the filament material and the gaseous atmosphere whereby the atmosphere reduces the'tendency of the material to vaporize and makes it possible to operate commercially at higher efficiency and for a longer time than can be realized with the same material in a vacuum; that such correlation is efficient only in a very large vacuum and that the alleged infringing automobile lamps of the defendants with small vacuums do not contain that correlation. The Republic Company says that in its headlights ‘ ‘1 everything is missing from the correlation except the gas and the coiled filament” and asserts that lamps of that sort are no more effective when operated in gas than when operated in a vacuum. Naturally we pause to wonder why the defendant used the Langmuir gas. However, that is a matter with which we are not presently concerned, first, because on an appeal from a decree for a preliminary injunction awarded on supporting and against .controverting affidavits without full opportunity of examination and cross-examination of witnesses learned in the art, we should not attempt to determine the precise scope of a patent repeatedly found valid; and, second, because, whether or not the defendants use the Langmuir gas in the manner and with the result of the patent disclosure, their lamps contained, as it is alleged, the tungsten filament of the Just and Hanaman patent. If they did, that alone would be evidence of infringement in measure and character sufficient to justify the award of a preliminary injunction. On this point the defendants deny that the filament material in their lamps was tungsten but admit it was “identical with the filament material of the lamps in the case against Atlas and in the case against Sunray which are now before this court. ’ Aside from the inferences to be drawn from the defendants’ written purchase order, on which it sold the infringing lamps, calling for ‘1 Tungsten Lamps,” and aside from the defendants’ advertised price list of “Tungsten Miniature Lamps” and “Improved Wire Drawn Tungsten Lamp,” we find evidence, sufficient to sway the discretion of the trial judge, that the filaments of the lamps here charged as infringements were substantially pure tungsten (though in one instance with a thoria content of 0.41 per cent.) determined by the usual scientific tests in the hands of skilled operators.

Beside the Republic Electric Company, two other corporations and six persons are charged as infringers, of whom two persons were omitted from the decree. On this appeal these two corporations and four persons vigorously protest their innocence and pray that they be dismissed from the operation of the decree. So far as we can determine from the incomplete record, these parties have relations to the Republic Electric Company, the alleged main infringer, which may or may not involve them severally or jointly in the infringements. The plaintiff in the bill charges that all infringed but supports its charge very weakly by an affidavit based on the affiant’s information yet not even on his belief. Moreover, the plaintiff relies chiefly for proof of their infringement on its construction of statements contained in their own affidavits filed in opposition to the motion. Clearly this is not evidence of the character that the rule requires to induce a judge to award the extraordinary remedy of injunction, even though preliminary. As it is quite impossible, on the plaintiff’s meager record, to determine even probably the complicity of these six defendants in the infringement .by the Republic Electric Company, we are constrained to reverse the decree in so far as it awards a preliminary injunction against H. J. Jaeger Co., Inc., Jaeger Research Laboratories, Inc., Herman J. Jaeger, Thomas Talbot, E. L. Crans and David Wolf, their officers, agents, etc.

The decree is in all other respects affirmed.  