On Motion for Rehearing.
(January 3, 1903.)
LACOMBE, Circuit Judge.The defense of license from some one who it is claimed has some interest in a patent sued upon is one to be made out by defendant by a fair preponderance of proof. In this case there seems not to be sufficient identification of the invention of the patent in suit to Armat & Jenkins with the invention of Jenkins himself, which was the subject of his contract with the Graphophone Company. It is thought, therefore, that the moving papers do not present sufficient reasons for modifying the injunction already granted, and the motion for rehearing is denied.
The order of denial should itself contain a clause continuing the injunction, so that, if defendant decides to appeal, all the papers used on original- hearing and on application for rehearing may be brought before the appellate court.