HAKE v. BROWN et al.

Circuit Court, S. D. New York.

December 15, 1890.

1. PATENTS FOR INVENTIONS—BEVEL-EDGED CARDS—NOVELTY.

The first claim of letters patent No. 219,464, granted to Philip Hake, September 9, 1879, for a device for making and ornamenting bevel-edged cards, is void, as it appears that the method of such claim was known and practiced prior to plaintiff's discovery there of.

2. SAME;—SUITS FOR INFRINGMENT—REHEARING.

In a suit for infringement of a patent not previously adjudicated upon, after a decree for complainant, defendant's motion to reopen the case and take further proofs will be granted on condition that defendant pay complainant's counsel fee for the previous argument, where the testimony sought appears to be newly discovered, material, and not merely cumulative, and defendants have not been guilty of great laches.

In Equity.

Suit by Philip Hake against George F. Brown and another for the infringement of a patent. A motion for rehearing was made in this case, and denied. Another motion was thereafter made to reopen the case, amend answer, and take further proofs.

Arthur v. Briesen, for orator.

Walter D. Edmonds, for defendants.

WHEELER, J. This cause has now been heard on motion of defendants for leave to amend the answer and to take further proofs. The testimony sought appears to be newly discovered, material, and not merely cumulative. The defendants do not appear to have used all due diligence, but their laches do not seem so great that they should be deprived of all relief in this direction. A motion for a rehearing has been before made and overruled, but this motion has not been before made. This is the first adjudication upon this patent, and it should, if it can be consistently, made upon a full showing. Upon the whole, the motion is granted, without prejudice to the injunction now in force, upon the express condition that the defendants pay to the clerk of this court for the orator's counsel a reasonable counsel fee for the argument on final hearing already had, to be fixed by the clerk within 20 days, and that in case the defendants finally prevail upon the evidence sought, the orator shall recover of the defendants the taxable costs of the cause hitherto as they would be taxed in ordinary cases where costs are recovered.

ON REHEARING UPON ADDITIONAL PROOFS.

The new evidence in this case shows satisfactorily and beyond fair doubt that the method of making and ornamenting bevel-edged cards of the first claim of plaintiff's patent was known to and practised by Thomas J. Mooney and others prior to the plaintiff's discovery there of, as set up in the answer of the defendants. The defendants are therefore entitled to a decree upon the terms imposed in granting the motion for a rehearing. Let a decree be entered dismissing the bill of complaint, with costs to the plaintiff to the granting of the motion for rehearing, and with costs to the defendant subsequent thereto.

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