
    TOLMAN BROS. MFG. CO. v. SILBERSTEIN.
    (Circuit Court, S. D. New York.
    December 16, 1909.)
    Patents (§ 312) — Suit foe Infringement — Peeliminart Injunction.
    Evidence held insufficient to warrant the granting of a preliminary injunction against infringement of an unadjudieated patent, or to restrain alleged unfair competition.
    [Ed. Note — For other eases, see Patents, Dec. Dig. § 312.
    
    Grounds for denying temporary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]
    In Equity. Suit by the Tolman Bros. Manufacturing Company against Albert L. Silberstein. On motion for preliminary injunction.
    Application denied.
    Alan M. Johnson, for complainant.
    A. B. Keve, for defendant.
    
      
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   NOYES, Circuit Judge.

The patent in suit has never been adjudicated, and the defendant asserts that he intends to contest its validity. The affidav its and earlier patents show that there is a serious question as to its novelty. The proof as to long-continued acquiescence is not sufficient. Regarded as a suit to restrain the infringement of a patent, the case is too doubtful to warrant the issuance of a preliminary injunction.

If it be possible to regard tlie suit as one to restrain unfair competition, the same conclusion must be reached. The affidavits fail to show imitation of the complainant’s article in unessential particulars.

The application for a preliminary injunction is denied.  