Foote v. Stein

U.S. Circuit Court for the District of Southern New York

Foote v. Stein

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

CourtU.S. Circuit Court for the District of Southern New York

DecidedMay 22, 1888

StatusPublished

This text of 35 F. 205 (Foote v. Stein) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foote v. Stein, 35 F. 205, 1888 U.S. App. LEXIS 2442 (circtsdny 1888).

Pincite

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.

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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.

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Bluebook (online)

35 F. 205, 1888 U.S. App. LEXIS 2442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foote-v-stein-circtsdny-1888.