Page:Federal Reporter, 1st Series, Volume 1.djvu/349

 ATLANTIC GIANT POWDEE CO. V. DITTMAR POWDEE CO. 341 �the knowledge of Dittraar, with mixtures of nitro-glycerine and absorbentg. Dittmar did not regard the compound he used in October, 1866, of nitro-glycerine and infusorial earth, as one of entire success, and as a compound showing a sub- stance which would, without decomposition, absorb the largest quantity of nitro-gl^oerine without detracting from its explo- sive force, because, after October, 1866, he continued his experiments until the fall of 1867, -with a view of discovering that substance. For some time before the fall of 1867 he seems to have confîned his attention to mixtures of nitro- glycerine with sawdust. There is nothing in the entire state- ment of Dittmar which goes to show that Nobel derived from Dittmar knowledge of what is describedin re-issue No. 5,799, or in patent No. 78,317, or that Dittmar made any invention that is described in his patent of January 18, 1870, before Nobel made the invention described in reissue No. 5,799. �If it were the fact that what Dittmar now says as to his being the real inventer of the invention described in reissue No. 5,799, amounted to enough to warrant the deniai of the plaintiff's motion, it would be impossible to accept what he saj's as worthy of reliance, in View of the circumstances under which he says it now, after having been silent about it in former litigations, in one of which, the suit against Parker, he made an affidavit, the only purport of which was to show that reissue No. 5,799 was void for want of novelty. �In regard to the contention that the plaintiff has, by its conduct towards Dittmar, deprived itself of the right to a pre- liminary injunction, it appears that the plaintif has been engaged in a series of litigations, for several years, to estab- ■> lish that reissue No. 5,799 covers powders substantially the same as those involved in this motion ; that the plaintiff has done nothing to induce Dittmar to believe that a claim to the right on his part to make powders such as those involved in this motion was acquiesced in by the plaintiff; and that, on behalf of the plaintiff, Mr. Kix denies the allegations of Ditt- mar as to his making such powders without objection from the plaintiff; and as to there being any understanding or agree- ment between Eix and Dittmar that Dittmar was the real ��� �