CLARY, District Judge.
This is a patent infringement suit involving a design for ladies stockings. The matter is presently before me on defendant's motion for summary judgment. The defendant is asking me to enter judgment in its favor on the ground that its product does not infringe the design which is the subject matter of the plaintiffs' patent.
Even accepting as fact the allegations contained in the affidavits in support of defendant's motion, I would not be disposed to say that I am convinced that there is no infringement.Further, I may not accept as fact the allegations of the affidavits in support of the motion. Such affidavits may only be considered for the purpose of ascertaining whether an issue of fact is presented. They may not be used as a basis for deciding the fact issues. Frederick Hart & Co., Inc., v. Recordgraph Corporation, 3 Cir., 169 F.2d 580.
There are clearly issues of fact presented in the pleadings before me and those issues must await a proper determination at trial.
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