Denaro v. Maryland Baking Co.

PER CURIAM. The main contention of appellant on this appeal is that the court below in its opinion (Denaro v. Maryland Baking Co., 40 F.(2d) 513) erroneously applied the principles laid down in the opinion of the Supreme Court in the case of Alexander Milburn Co. v. Davis-Bournonville Co., 270 U. S. 390, 46 S. Ct. 324, 70 L. Ed. 651. A careful consideration of the briefs and argument before us, and a study of the record, lead us to the conclusion that the judge below not only properly applied the principles laid down by the Supreme Court in the Milbum Case, but also reached the correct conclusion on the merits. The judge below had the advantage of seeing machines used by the appellee in actual operation, and his conclusion should be given all the more weight because of that fact. The questions raised by the counterclaim of defendant are not before us, as defendant [1075] did not appeal; but, so far as tbe opinion of the judge below relates to the patents relied on by complainant and the alleged infringement thereof, same is adopted as the opinion of this court, and the decree below will accordingly be affirmed.