This is an appeal from an order denying a preliminary injunction upon claims 8, 10, and 11 of the Richard patent, No. 791,501, June 6, 1905.

Shortly after the denial of the motion the District Court heard the case on the merits, and held the claims valid and infringed by two Zenith structures and not infringed by a third.

An appeal was taken from that decree, and was lodged in this court shortly after the .present appeal, and by agreement of the parties the two cases were heard at the same time.

Inasmuch as we have found that no Zenith structure infringes.the Richard claims (see Stromberg Motor Devices Co. v. Zenith Carburetor Co., 254 Fed. 68, - C. C. A. -,, herewith decided), it is quite obvious that the questions of infringement, presented by affidavits, were not so clearly in favor of the Stromberg Company that the District Court abused its discretion in denying the motion for a preliminary injunction.

The order is affirmed.