HAND, District Judge
(after stating the facts as above). I see no ground whatever for a temporary injunction. The complainant, by sending to the government signed drawings to be used in the specific actions, directly invited the defendant to make bids upon the contract. It seems to me preposterous to say that now, having procured a subsequent patent, it should come into a court of equity and ask that the defendant be prevented from fulfilling that very contract, the execution of which the complainant alone made possible. It may be that every article which the defendant shall sell to the government is a violation of the complainant’s monopoly. I decide nothing upon that score; but I do say it can rely alone on its legal rights, and that I will issue no injunction. I think it inequitable to enjoin the defendant when the complainant directly invited! him into the competition, relying upon its own ability to secure the contract by tinderbidding him. The act of complainant in sending the drawings to. the government of his unpatented article could have meant nothing, except a consent on its part to the use of those specifications by the successful bidder. Of course, in deciding this, I do not decide that, had the patent already issued when drawings were sent, the defendant could perform it. In that case the contract would have contemplated an act which the law forbade. Here the contract was quite legal when made, and, even if the defendant knew that the patent was being applied for, he must have understood that the patentee interided this contract to be open to the successful bidder.
So far as concerns the claim of unfair use, it was abandoned upon the argument.
Motion denied.