Layne v. Getty

• Decision Date: 20 April 1915
• Docket Number: 2760.
• Citation: 222 F. 917
• Parties: LAYNE et al. v. GETTY.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F. 917

LAYNE et al. v. GETTY.

No. 2760.

United States Court of Appeals, Fifth Circuit.

April 20, 1915

Coke K. Burns, of Houston, Tex., J. D. Wilkinson, of Shreveport, La., and Paul Synnestvedt, of Philadelphia, Pa., for appellants.

Edgar H. Farrar, of New Orleans, La., and Francis M. Phelps, of Washington, D.C., for appellee.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

PER CURIAM.

Bill was filed by the appellants, in the court below, charging infringement of letters patent No. 821,653, and praying an injunction and for profits and damages. A hearing was had upon the motion for a preliminary injunction, based upon ex parte affidavits, and the injunction was refused. To review this order the appellants have brought the case to this court.

Claim 20, sustained as valid by this court in Van Ness v. Layne, 213 F. 804, 130 C.C.A. 462, is the only claim of the patent involved in the present controversy. As before stated, the hearing before the District Judge was had upon mere ex parte affidavits. Appellee denied that his improvement infringed claim 20 of appellants' patent, and it is apparent from an examination of the contradictory affidavits that the question of infringement vel non is left in considerable doubt. Without expressing an opinion upon the merits of the question submitted, we think that the discretion exercised by the trial judge in refusing the preliminary injunction should not be revised by this court. When the cause comes up for final hearing upon full proofs, the court will be in a position to intelligently determine whether an injunction should issue. See Texas Traction Co. v. Barron G. Collier, Incorporated, 195 F. 65, 115 C.C.A. 82; Stearns-Roger Mfg. Co. v. Brown, 114 F. 939, 52 C.C.A. 559; Crescent Specialty Co. v. National Fireworks Distributing Co., 219 F. 130, 135 C.C.A. 28; Whippany Mfg. Co. v. United Indurated Fibre Co., 87 F. 215, 30 C.C.A. 615.

The order of the lower court is affirmed.