WELSBACH LIGHT CO. v. APOLLO INCANDESCENT GASLIGHT CO.

WELSBACH LIGHT CO. v. APOLLO INCANDESCENT GASLIGHT CO. (Circuit Court, S. D. New York. July 12, 1898.) Patbstts — Preliminary Injunction-Lapsing op Foreign Patent. The question whether or not the granting of an American patent is improper where a foreign patent for the same invention has lapsed between the application for and the granting of the American patent is of so doubtful a character, under the decisions of the supreme court, that it should not be decided on a motion for preliminary injunction, and such motion should accordingly be denied. This was a suit in equity by the Welsbach Light Company against the Apollo Incandescent Gaslight Company for alleged infringement of letters patent No. 407,963, granted July 30,1889, to F. W. & W. H. liawson, for improvements in incandescent mantles for lights. The cause was heard on a motion for preliminary injunction. John B. Bennett and Joseph II. Choate, for the motion. Edmund Wetinore, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. Upon this application the question is raised, whether or not, by reason of the circumstance that a pr-ior foreign patent for the same invention lapsed subsequent to the application, but before the issue of the United States, patent, such United States patent was improperly issued. Under decisions of the supreme court fhere is so much doubt as to the correct answer to this question that it should not be decided upon preliminary motion, but upon final hearing, so that the party who may be defeated upon appeal may be in a position to apply to that court for a certiorari, should it be so advised. Motion denied.