Page:Federal Reporter, 1st Series, Volume 1.djvu/617

 KIBBY BUNO MANUl-'ô CO. ». WHITE. 609 �18 an infringement of this patent, the complainant would be correct. But it is not bo. It is a particalar way of doing a panicular thing. It is a mechanical device wrought out by coaibinations, which combinations are not in defendant's machine. �To support this motion the complainant, Mr. Kirby, gives a general affidavit, which on examination amounts practically to nothing more than his verification of the original bill. On the other hand, we have a description given of what the de- fendant's operations are. They are not produced by plain- tilî's combination of mechanical devices. The conseq[uence is that the motion must be denied. But it is proper to remark, in this connection, that it is desirable that on these motions for preliminary injunction the court should give no elaborate opinions because the merits are not fairly before it; and this case illustrates it. We have the opinion of the complainant in the bill that the defendant has infringed his patent, but whàt does that amount to ? He ought to give us what the defendant is doing. It is not for him to assume the funo- tions of the court and swear that his case is as he has averred. He should give the facts to the court and let it determine on those facts whether there is an infringement or not. On the other hand, we bave from the defendant a description of what he is doing, illustrated by drawings. �In this imperfect state of the case, without passing upon the merits, the court decides that there is nothing before it at this stage of the case to show an infringement. That is ail the court decides this morning. �The motion for a provisional injunction is denied, �McCbaby, J., concurred. ���v.l.no.S— S9 ��� �