As to claim 1 of the first patent we concur with the opinion of the Circuit Judge that the question whether defendant’s device has the particular rocking movement required by the claim in question, in view of the conflicting testimony, is too doubtful to be determined as the basis for granting a preliminary injunction.
As to claim 2 of the second patent it was held that one type of machine made by defendant infringed and that another type did not. Since defendant is now making solely the noninfringing type, it is not concerned with the continuance of the preliminary injunction, and therefore did not argue for a reversal. No question as to this claim, therefore, requires consideration. The order in that particular is affirmed.
Claim 3 of-the third patent (No. 705,326) reads as follows:
“In a blind stitcb sewing machine, the combination of a suitable stitch-forming mechanism and a stationary presser-foot with a ridge-forming rib constructed and arranged to engage the work beneath the presser-foot, and an upper feed device constructed and arranged to engage the upper exposed face of the work adjacent to said ridge-forming rib, substantially as set forth.”
One type of defendant’s machines concededla infringes. Of the other type it -is contended that it avoids infringement because its presser-foot has a slight vibratory motion during the time the goods are being fed forward. Such vibratory motion, complainant insists, is wholly without function. The Circuit Judge inclined to the opinion that defendants were merely attempting to get away , from the precise form of the patent while retaining its advantages, and he granted an injunction against both types unless defendants should file a bond in the amount of $2,000. It is undesirable, especially in the Court of Appeals, to discuss the details of mechanism and the construction of claims, where a crowded art is concerned, upon a record composed of ex parte statements, and which may possibly be materially modified when the cause is presented at final hearing.
It is sufficient to say that in our opinion the disposition made in the Circuit Court of the motion for preliminary injunction was, upon the record before it, a proper exercise of its discretion. The order, however, should be modified by eliminating the first patent (No. 639,669), and, as modified, it is affirmed, without costs.