. FEDERAL REPORTER.
ALBANY STEAM-TRAP CO.
Oourt, N. D. NeJUJ York.
PATENTS FOR INVENTIONS-ApPLICATION FOR REHEARING FOR NEWLy-DISCOVERED EVIDENCE.
Where patents have been sustained after animated, persistent controversy for over five years, and a petition for rehearing has been filed on the ground of newly-discovered evidence, the criticism naturally suggests itself, why was not the testimony adduced before the examiner? Excuses for delay in presenting evidence, being vague as to dates. and otherwise insufficient and unsatisfactory, a rehearing was denied.
SAME-ExcUSES FOR DELAY.
SAME-NEWLy-DISCOVERED EVIDENCE CONFLICTING.
Where neWly-discovered evidence is conflicting, it is entitled to but slight consideration, and, if offered at a late day, the cause should not be reopened to receive it.
Petition by the Defendant for a Rehearing. E. N. Dickerson, Jr., for complainant. Matthew Hale and E. H. Bottum, for defendant. Before WALLACE and Cou, JJ. UOXE, J. This action was commenced in November, 1880, the bill alleging infringement of four patents owned by the complainant. It was decided, after two elaborate arguments, in May, 1884. The decision was in favor of the defendant upon three of the patents, and in favor of the complainant upon one,-the third Blessing patent. 22 Blatchf. 169, and 20 Fed. Rep. 633. In January, 1885, both parties tiled motions for a rehearing. The complainant's motion prevailed, and the cause was reargued, as to the second Blessing patent, in June, 1885, before Mr. Justice BLaTCHFORD. 24 Fed. Rep. 699. For over five years, therefore, this controversy has been the subject of animated, persistent, and apparently inexhaustible litigation. In January, 1886, this motion is made by the defendant for a rehearing, on the ground of newly-discovered evidence. The criticism naturally suggests itself, why was not the testimony adduced before the examiner? Why, at least, has this motion been so long delayed? An excuse is attempted, bU,t it is vague as to dates, and, in other respects, insufficient and unsatisfactory. Regarding that part of the petition which relates to priof sales by the defendant of steam-traps to parties in Milwaukee, it is enough to say that there can be no pretense that this testimony is newly discovered, and no reason is advanced; which at all commends itself to the court, why it was not produced before the examiner. In addition to these considerations, we are of the opinion that such discredit is thrown upon the statements of the Albany witnesses that their testimony, were it before the court, could hardly be expected to throw much light upon the point in controversy. Several of them
Reported by Charles C. Linthicum, Esq., of the Chicago bar.
CONSOLIDATED SAF.ETY VALVE CO. t1. ASHTON VALVE CO.
have made affidavits for the complainant in direct conflict with those read by the defendant. Such testimony is entitled to but slight consideration, and at this late day the cause should not be reopened to receive it. We see no reason why the complainant is not entitled to the usual decree. It would not be wise, in our judgment, to instruct the master in advance as to the course he shall pursue. Both parties will be fully protected by exceptions to his report, and, should the m,aster be in doubt, he can, if he desires to do so, apply at any time to the court for instructions. The motion for a rehearing is denied. WALLACE, J., concurs.
CONSOLIDATED SAFETY VALVE Co. v. ASHTON VALVE Co. and others. (Two Cases.)1
«(Ji;rcuit Oourt, D. Massachusetts. January, 1886.)
In a bill filed more than a year after the patent expired, an injunction was asked against the use or sale of infringing devices, should any be found in defendant's possession, and also against the use of the tools and paraphernalia of infringement made during the life of the patent for the purpose of infringement. Held, that the bill was not for diSCOVery in aid of a SUlt at law, but was a bill for discovery and relief, and as such within the decisions in Root v. Railway 00., 105 U. B. 189, and Lord v. Whitelwad. 24 Fed. Rep. 801. J. SAME-RICHARDSON VALVE-PATENT No. 85.963. On motion for preliminary injunction, complainant relied on the decision of the supreme court sustaining the Richardson patent. Oonsolidated Valve 00. v. Safety Valve 00., 113 U. B. 157; B. C. 5 Bup. Ct. Rep. 513. Held, that if applicable to the present case, that decision would, of course, be conclusive; but, there being a doubt whether defendants' device came within it, a preliminary injunction was refused. 1.
PATENTS FOR INVENTIONs-BILL IN EQUITy-ExPIRED PATENT.
SAME-OFFICERS OF CORPORATION AS DEFENDANTS·
.A. demurrer by two of the defendants, officers of the corporation defendant, based upon the ground that they had no connection with the alleged infringement, overruled.
In Equity. Thomas W. Clarke, for complainant. James E. Maynadier, for defendant. COLT, J. The bill in equity No. 2,164, brought upon patent No. 58,294, granted to George W. Richardson, which expired September 25, 1883, is not a bill for discovery in aid of a suit at law, but is a bill for discovery and relief, and as such it falls within the decisions of Root v. Railway 00., 105 U. S. 189, and Lord v. Whitehead, 24 Fed. Rep. 801. Equitable jurisdiction iB Bought to be sustained on the ground that the bill seeks relief, by way of injunction, against
1 Reported by
Charles C. Linthicum, Esq., of the Chicago bar.