The chief question involved in this case is the validity of U.S.L.P. 2,123,847. The very issuance to defendant July, 12, 1938, carries a presumption of validity. If the patent is sustained the production for inspection sought by plaintiff will have been a waste of time. The documents sought to be produced are similar in character to exhibits whose genuineness has already been admitted and only bear on the question of damage. The fact that defendant advertised that its customers were being vigorously protected, when, according to the plaintiff’s office record, only one action was brought, and that discontinued, while the effort to seek an adjudication of the patent, so far as the plaintiff is concerned, was only availed of by counterclaim, after plaintiff brought this action for a declaratory judgment, are matters that may have some weight with the Trial Court. The papers sought to be produced can be brought to the trial on subpoena duces tecum. Then, if plaintiff prevails, it can secure adequate protection in the decree to be entered.

Motion denied. Submit order.