Roemer v. Simon

20 F. Cas. 1100, 2 Ban. & A. 72

Opinion

NIXON, District Judge.

This was a suit for an injunction and an account in a patent ease, and the court, on final hearing, dismissed it, for the want of novelty in the complainaant’s patent. [Case No. 11,997.]

An appeal was regularly taken to the supreme court, and is there pending. The complainant, since the appeal, has filed here a number of affidavits, showing that certain witnesses whose testimony tended to show prior use of the invention, claimed by him, were in fact mistaken at least one year in the date fixed by them, when they saw in use articles embodying the complainant’s invention. On these affidavits he bases an application to the court, for a request to the supreme court, to send the case back for rehearing. The only authority, that the counsel for the complainant has shown for such a procedure is section 701 of the Revised Statutes of the United States.

A careful reading of that section will reveal the fact, that the complainant has applied to the wrong court for redress. It authorizes the supreme court to affirm, modify, or reverse any decree of a circuit court, or to order such further proceedings to be had in the inferior court as the justice of the case may require.

These affidavits should be laid before the supreme court, to be considered by them, in looking at the whole case, and if in their judgments they so modify the testimony of the witnesses, heard in the case, as to satisfy that court, that justice requires a rehearing upon the merits, it will doubtless make such order.