Wright Co. v. Herring-Curtiss Co.

PER CURIAM. There is no dispute as to the proposition that the question whether or not there has been infringement of this patent, however broadly it may be construed, dépends upon the question whether or not in defendant’s machine a tendency to spin or swerve is checked or counteracted by the operation of the vertical rudder. That of course — on its theoretical and on its practical side — is a question of fact. The. record before us contains numerous affidavits which were not presented until after original decision and which, as both sides state, were admitted upon motion for rehearing without discussion of their contents by the court, but for the purpose of bringing the case more fully before the Court of Appeals. In this record, upon the question of fact above stated, there is a sharp conflict of evidence, numerous affiants testifying. All their statements are ex parte affidavits made without any opportunity to test their probative force by cross-examination. Under such circumstances, it seems to us, irrespective of any of the other questions in the case, that infringement was not so clearly established as to justify a preliminary injunction. See decisions of this court in Westinghouse v. Montgomery, 139 Fed. 868, 71 C. C. A. 582; Hall Signal Co. v. General Railway Co., 153 Fed. 907, 82 C. C. A. 653. The order is reversed, with costs.