(after stating the facts'as above).
[1,2] It is entirely clear that the- injunction order appealed from must be reversed. The decision of the Circuit Court of Appeals of the First Circuit, to say the least, makes a recovery by the complainant exceedingly doubtful and a preliminary injunction should not issue in a doubtful case. The complainant practically concedes this proposition. The defendants, however, are not satisfied with this relief and demand that the court, upon the record now before it on this appeal, enter a final decree dismissing the bill, upon the authority of Smith v. Vulcan Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. Ed. 810, and other similar’ cases. Conceding that this court, upon an appeal from an order granting a preliminary injunction, has the power to dismiss a bill if it appears that there is no equity to support it, we do not think that this is such a case.
The patent, as before stated, contains 35 claims of which but 16 were involved in the case decided in the First Circuit and these were held not to be infringed. The court declined to pass upon the validity of any of the claims. The complainant asserts that it intends to rely upon other claims not considered in the Maine case.
The questions arising regarding the validity of the claims and of their infringement by the corporation and the individual defendants cannot be determined properly until the court is informed as to the claims relied upon and has considered the proof as to their validity and infringement. To attempt to dispose of these questions upon the meagre record before us might result in injustice being done to one or the other of the parties.
It is sufficient to say that if the complainant sees fit, notwithstanding the decision of the First Circuit, to proceed with this action, we see no way to prevent its doing so.
The order granting a preliminary injunction is reversed.