636 F2d 907 Champion Spark Plug Company v. Gyromat Corporation

636 F.2d 907

CHAMPION SPARK PLUG COMPANY, Appellant,
v.
The GYROMAT CORPORATION, Appellee.

No. 211, Docket 80-7516.

United States Court of Appeals,
Second Circuit.

Argued Dec. 1, 1980.
Decided Jan. 6, 1981.

Appeal from denial by United States District Court for the District of Connecticut, 88 F.R.D. 526, Warren W. Eginton, Judge, of motion by plaintiff to reopen patent trial, in which plaintiff had sought judgment declaring defendant's United States Patent No. 3,219,276 invalid. Motion to reopen was based on "newly discovered" evidence of alleged statutory bar sale of device similar to that disclosed in claims 5 and 6 of defendant's patent. Denial of motion was based on plaintiff's knowledge of sale from knowledge of litigation in respect to bar sale, lack of exercise of due diligence in attempting to uncover evidence, and lack of support for position that this evidence would change decision of this court in Champion Spark Plug Co. v. Gyromat Corp., 603 F.2d 361 (2d Cir. 1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1276, 63 L.Ed.2d 600 (1980).

Affirmed on the opinion below.

Mark C. Schaffer, Emch, Schaffer, Schaub & Todd Co., L.P.A., Toledo, Ohio (John C. Vassil, Morgan, Finnegan, Pine, Foley & Lee, New York City, of counsel), for appellant.

Fritz L. Schweitzer, Jr., New York City (Michael A. Cornman, Mandeville & Schweitzer, New York City, of counsel), for appellee.

Before OAKES and MESKILL, Circuit Judges, and WERKER, District Judge.*

PER CURIAM:

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1

We affirm on the memorandum opinion of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, 88 F.R.D. 526 (D.Conn. 1980), declining to grant under Fed.R.Civ.P. 59 or 60(b)(2) a motion to reopen the trial proceedings on the basis of newly discovered evidence, filed following remand after Champion Spark Plug Co. v. Gyromat Corp., 603 F.2d 361 (2d Cir. 1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1276, 63 L.Ed.2d 600 (1980).

2

Appellee's request for double costs under 28 U.S.C. § 1912 and Fed.R.App.P. 38 is denied.

*

Of the Southern District of New York, sitting by designation