H. Channon Co. v. Parsons Non-Skid Co.

BAKER, Circuit Judge. Appellees began this suit to restrain appellant from continuing an alleged infringement of the Parsons patent, Nó. 723,299, for antiskidding means, commonly used on automobile tires, and applied for and obtained a preliminary injunction. In the Parsons patent the essence of the invention is that the anti-skidding means shall be held across the tread of the tire by means of two rings, one at each side of the wheel, of less diameter than that of the wheel, but held so loosely that the antiskidding means may travel circumferentially about the wheel and thus not injure the tire, as would antiskidding means held fixedly in place. Excelsior Supply Co. v. Weed Chain Co., 192 Fed. 35, 113 C. C. A. 1. For the purposes of the hearing of the application for the preliminary injunction, the trial court, in view of our decision above cited, did not commit an abuse of judicial discretion in accepting the patent as valid and in believing that appellant on full proofs might be unable to make a more effective assault upon the patent than had the Excelsior Supply Company. Respecting the fact of infringement there was a cloud of conflicting affidavits. No matter to what conclusion any member of this court, if he were acting as the trial judge, might come in regard to the preponderance of the affidavits, this court as an appellate tribunal will not undertake to settle the fact of infringement on the preliminary record. It is enough that we find in the showing a fair basis for the trial judge’s present finding of the fact of infringement; that is, there is evidence in the affidavits to the effect that appellant was making the identical structure of the Parsons patent and that his supplying a means with which to fasten his structure rigidly to the wheel (with instructions that his structure should be so used) was a cover and a sham. See Parsons Non-Skid Co. v. Atlas Chain Co. (C. C. A.) 198 Fed. 399. In short, as to both válidity and infringement,, appellant fails to establish by this record that the trial court abused that judicial discretion which may properly be exercised in granting or withholding a preliminary injunction. Compare Winchester Repeating Arms Co. v. Olmsted, 203 Fed. 493, at this term. The decree is affirmed.