HASTIE, Circuit Judge.
This is an appeal from an order of the District Court for the District of Delaware denying a preliminary injunction sought to restrain the prosecution of a suit pending in the District Court for the Northern District of Illinois.
The controversy concerns the validity and alleged infringement of two patents. It is the contention of C-O-Two Fire Equipment Company, a Delaware corporation, that in the manufacture and sale of certain fire extinguishing equipment Kerotest Manufacturing Company, a Pennsylvania corporation, has infringed its patents. Kerotest filed the present suit in Delaware seeking a declaratory judgment decreeing the invalidity of the patents in question and thereafter moved for a preliminary injunction to restrain C-O-Two from going forward with certain litigation in Illinois concerning the same patents. C-O-Two countered with a motion for a stay of the Delaware proceedings until after final determination of the Illinois suit. The district court disposed of both motions by an order (1) denying the motion for preliminary injunction, (2) staying the Delaware proceedings for 90 days and (3) expressly according to each party the privilege of renewing its motion without prejudice upon the expiration of the 90-day period.
The order is based upon findings of fact which are consistent with affidavits properly before the court. The district court found that the Illinois suit, charging patent infringement, was filed January 11, 1950, by C-O-Two against Acme Equipment Co., an Illinois corporation; that it involved the patents later brought into controversy in this Delaware suit; that some of the structures accused as infringement in the Illinois suit were manufactured by Kerotest and sold to Acme; that Kerotest commenced the present suit on March 9, 1950; that on March 22, 1950 C-O-Two filed an amendment to its Illinois complaint for the purpose of adding as a party defendant Kerotest, which is licensed to do business and has a resident agent in Illinois; that no answer had been filed in either suit; that there was pending in the Illinois suit a motion by Acme to stay the Illinois proceedings until after the disposition of the Delaware suit.
The 90-day period began to run April 28, 1950. It will soon expire. If Kerotest then believes that it is entitled to have C-O-Two restrained from proceeding against it in Illinois, it can renew its motion without prejudice.
The judgment will be affirmed.