Goodman

(specially concurring).

Without abandoning my view as expressed in the dissenting opinion herein, I concur in the denial of the petition for rehearing because the majority adheres to its former view.

I express no opinion as to whether or not the Thompson patent anticipates the patent in suit because I hold that the patent in *443 suit was anticipated by the Doughty patent and therefore think it immaterial whether or not the Thompson patent also anticipates. For this reason I think it unnecessary to grant leave to seek a rehearing in the District Court

Appellant has filed a petition for rehearing. In addition thereto he claims to have discovered an anticipating, patent issued September 28, 1920 to A. R. Thompson, No. 1,354,227, for a tire mold. In order to take advantage of this discovery appellant presents the same to this court with affidavits purporting to show due diligence in the search of patent office records and that, notwithstanding such diligence, the Thompson patent was not discovered. These affidavits accompany a petition to this court for leave to present to the trial court a petition for rehearing in order that the newly discovered evidence may be considered by the trial court.

These matters were set down for hearing after a reply had been filed by the appellee, and were fully argued.

From an examination of the Thompson patent we are satisfied that it does not anticipate the patent in suit. The Thompson patent is for a tire mold. This construction, as stated in the specifications of the patent, is particularly well adapted for rebuilding old tires and provides an “efficient form of construction” that “may be adjusted to fit tires that have become permanently enlarged or stretched by use”. The Thompson patent is…