Foote v. Stein

35 F. 205, 1888 U.S. App. LEXIS 2442

Opinion

Lacoaibe, J.

Waiving all question as to the regularity of defendants’ practice, and treating this as a motion to open a default upon nowlydiseovered evidence, I am nevertheless of the opinion that the relief they ask must be denied. The patent is undoubtedly a narrow one; and with every respect for the opinion of the able judges who have heretofore sustained it, (Foote v. Frost, 14 O. G. 860; Frost v. Marcus, 13 Fed. Rep. 88,) it is by no means certain that, upon a record which should contain the earlier Butterfield patent, No. 57,247, the supreme court would find that complainant’s device exhibited either novelty or invention. If, therefore, it were a question of allowing the interposition of a defense which set up the last-named patent, the present application would stand upon a different footing. Such, however, is not the case. The Butter-field patent was well known to defendants when they confessed judgment, and the patent which they submit as newly discovered (Keener’s improvement in hat-racks, No. 56,569) acts upon an entirely different principle, and is in no sense an anticipation of the patent here sued on.