Cimiotti Unhairing Co. v. Nearseal Unhairing Co.

118 F. 1021, 1902 U.S. App. LEXIS 5243

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 24, 1902
• Status: Published

Opinion

LACOMBE, Circuit Judge.

It is not perceived that the record here presented is materially different from that which was before the circuit court of appeals (115 Fed. 507) on appeal from the order for preliminary injunction. No additional prior patent or publication is introduced. No additional prior machine is shown. The experts’ testimony in response to question and cross-question is fuller than it was when presented on affidavits merely, and the prior decision is, of course, discussed by them and criticised for supposed errors of assumption or reasoning; but the entire argument of defendant is in reality a plea for reconsideration of the former opinion on substantially the same state of facts. That plea should be addressed properly to the court of appeals. This court will follow the construction already placed upon the eighth claim of the Sutton patent, although that construction was not by a unanimous court. The machines asserted to be infringements are the identical machines already held to be within the eighth claim, and the decree here should be in accordance with the decision of the appellate tribunal. Complainants may take the usual decree, with costs.