U.S. Court of Appeals for the Seventh Circuit, 1923

Milwaukee Printing Co. v. Stover

U.S. Court of Appeals for the Seventh Circuit · Decided April 18, 1923 · Baker

290 F. 387; 1923 U.S. App. LEXIS 1836

Counsel

E. C. Wheeler, of Milwaukee, Wis., for appellants., A. C. Paul, of Minneapolis, Minn., and Edward Rector, of Chicago, Ill., for appellees.

Cases that cite this one

8 later published cases cite this decision.

Tropic-Aire, Inc. v. Jumper (D. Minn. 1928)
Western Electric Co. v. Cinema Supplies, Inc. (8th Cir. 1935)
P. L. & M. Co. v. Ballagh (United States District Court for the Southern District of California 1931)
W. A. Sheaffer Pen Co. v. Worth Featherweight Pen Co. (District Court, S.D. New York 1930)
Anderson & Writer Corp. v. Hanky Beret, Inc. (District Court, S.D. New York 1929)
Eskimo Pie Corp. v. Honeymoon Pie Corp. (District Court, E.D. New York 1928)
Eskimo Pie Corporation v. National Ice Cream Co. (District Court, W.D. Kentucky 1927)
Hutto Engineering Co. v. Grinder Sales Co. (District Court, E.D. Michigan 1927)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

BAKER, Circuit Judge.

Appellees’ bill of complaint charged appellants with infringement of patent No. 1,404,539, January 24, 1922, to Nelson, for a confection, and further charged appellants with unfair competition between the alleged infringing article and the patented article. On appellees’ motion, supported and opposed by affidavits, the court entered a preliminary injunction covering both features of the bill.

It has been said quite generally that a preliminary injunction ought not to be granted in a patent suit, except where the validity of the patent has been upheld in other litigation, or where the public has *388acquiesced in the patentee’s domination of the market. But such a rule cannot be accepted as being invariably true. A patent is presumptively valid, and that presumption might be so strongly buttressed bn the initial showing that it would be an injustice to deny the motion for a preliminary injunction.

In the present case it may be conceded that the presumptive validity of the patent has not been fortified in the contest by affidavits beyond the possibility of appellants’ prevailing on final hearing. But, inasmuch as appellants have not shown to a certainty that the patent is invalid, we find that the circumstances and methods of infringement of the presumptively valid patent were such as to justify the District Judge, without abuse of discretion, in awarding a preliminary injunction. Appellants had been in close business relations with appellees in marketing appellees’ product. When appellants cut loose and'began to market a product of their own, they did not do so in a way to present only a clear-cut question of patent infringement. They marketed their product in a dress and by methods that appeared on this preliminary hearing' to constitute unfair competition. Having mixed their present form of infringement with fraud, they are in no position to complain, of the decree.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.