It is unnecessary to discuss the questions as to title which arise upon the construction of an agreement between the parties. It is not disputed that, although that agreement be construed precisely as complainant contends it should be, defendants are free to show that the device they are making is not within the claims of the patent as the same should be interpreted in view of the prior state of the art.
The improvement relates to certain details of construction of the plunger, the stuffing box through which it- mo.ves, and certain guiding *771mechanism at the lower end of the plunger. The patent has never been adjudicated, and there are no unusual considerations to justify making this case an exception to the rule that the complainant must prove a clear case to warrant the issuing of a preliminary injunction. To sustain a charge of infringement against defendant’s device, the three claims in controversy would have to be given a broad construction; and this, too, despite the presence in the art of earlier patents in which, apparently, Larsson had found the source of his operative parts. From his study of the case the District Judge reached the conclusion that the inventive thought described in the claims is not employed in defendant’s structure. We do not think it necessary to discuss this proposition, because the record at final hearing may be fuller than this one; but we fully concur with the conclusion, also expressed by the District Judge, that, whatever be the result on final hearing, the complainant’s contention that defendants’ structure infringes is by no means so clear as to warrant the issue of a preliminary injunction on an unadjudicated patent.
The order'is affirmed, with costs.