Hoeme v. Jeoffroy
| Decision Date | 07 December 1938 |
| Docket Number | No. 8899.,8899. |
| Citation | 100 F.2d 225 |
| Parties | HOEME v. JEOFFROY et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. Harry Crowell, of Washington, D. C., and Ben H. Stone, of Amarillo, Texas, for appellant.
H. E. Hoover, of Canadian, Tex., and Jack R. Allen, of Perryton, Tex., for appellees.
Before SIBLEY, HUTCHESON and McCORD, Circuit Judges.
Appellant, as owner of three United States patents relating to mobile ground working devices, variously called "Shovel Plows, Chisel Plows or Cultivators" brought this suit, alleging infringement and praying injunction and damages. This appeal is from an order refusing, on his motion, to grant a preliminary injunction.
Appellant recognizes that whether a preliminary injunction should be granted in a patent case is discretionary, and that the refusal of such an injunction is the rule, its granting, the exception. He insists that his case is within the exception and that, in refusing the injunction, the Court abused its discretion.
We do not think so; rather, it would have been an abuse of discretion to have granted it.
The governing rule is clearly and simply stated in George Cutter Co. v. Metropolitan Electric Mfg. Co., 2 Cir., 275 F. 158, A. B. Dick Co. v. Barnett, 2 Cir., 277 F. 423, 424, and Simson Bros. v. Blancard & Co., 2 Cir., 22 F.2d 498.
In the first case cited, reversing an order granting a preliminary injunction, it was said page 164:
In the second cited case, an order for preliminary injunction was reversed, the court saying page 424:
While in the third case, it is said page 499: "We have often said that an injunction pendente lite in a patent suit should not go except when the patent is beyond question valid and infringed."
Plaintiff's position below was that of seeking an injunction pendente lite upon unadjudicated patents, quite new as to their granting, all of them within two years, against...
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