BLAKEY v. KURTZ

BLAKEY v. KURTZ. (Circuit Court, W. D. Pennsylvania. January 13, 1897.) No. 7. Patents — Preliminary Injunction — Delay. A delay of five years in bringing suit, where defendant was operating under a subsequent patent, and the parties had factories in the same locality, and were engaged in active competition, luid fatal to an application for a preliminary injunction, there.being no allegation of inability to respond in damages. This was a suit in equity by Mildred Blakey against Jacob H. Kurtz for alleged infringement of a patent. The cause was heard on au application for a preliminary injunction. Geo. EL Christy, for complainant. W. L. Pierce, for defendant. [MAJORITY — BUFFINGTON, District Judge.] BUFFINGTON, District Judge. This is an application for a preliminary injunction to enjoin alleged infringement of letters patent No. 31.1,171, granted January 27,1885, to Mildred Blakey, for an improvement in thread protectors for wrought-iron pipes. Under a patent granted in 1890, the respondent or his company has been manufacturing thread protectors for five years and upward, has been in active competition with complainant, and both parties have had factories in this immediate locality. During that time the respondent has equipped a manufacturing establishment, and has acquired a very considerable trade. No allegation is made of respondent’s. inability to respond on final decree to damages recovered against him. The complainant meanwhile has brought no suit for alleged infringement. This fact should weigh heavily against him when he asks at this late day for a preliminary injunction (see Hockholzer v. Eager, 2 Sawy. 361, Fed. Cas. No. 6,556; Curt. Pat. par. 417; Walk. Pat. par. 684; Keyes v. Refining Co., 31 Fed. 560); and, unaccounted for, such delay, in view of the facts shown in this case, is decisive against his application. The claim made of such financial inability as precluded his making the application at an earlier day has not been substantiated. Without expressing any opinion on the question of infringement, we are of opinion that owing to the delay of the complainant, accompanied, as it has been, with knowledge of respondent’s alleged infringement, application for a preliminary injunction should now be denied.