Wilson
Wilson v. Union Tool Co.
Opinion
lead Opinion
Cushman, J.
The two foregoing causes have been consolidated, and were tried and submitted at the same time as case No. 1540, this day decided. 237 Fed. 837 . The consolidated cases both-involve the same underreamer patent, and the general statement in the decision in No. 1540 is applicable to these causes. The Double patent involved in that suit—No. 734,833—was granted in 1903. The application for the Wilson patent, No. 827,595, in suit in these two consolidated cases, was filed in 1905, and patent granted in 1906. *848 Departures by the defendant from the structure, as described in the Double patent, it is complained by the complainant, infringe the patent in suit.
Cause A-4 was first begun, the alleged infringement being limited to claims 16 and 17 of the Wilson patent. Thereafter, it appearing, as alleged by the complainant, that defendant had further departed from the structure covered by the Double patent, by which he averred other claims of the patent in suit were infringed, cause B-62 was brought, on account of the latter alleged infringements. In both A-4 and B-62 novelty and infringement are denied; anticipation pleaded, and the further averment made that another than Wilson was the…
rehearing Opinion
On Petition for Rehearing.
Prior to the order consolidating A-4 and B-62, much was said by complainant’s counsel in the proceedings in A-4 to support the contention now made by defendant upon its petition for a rehearing; but it must be borne in mind that such statements were made with a view to securing, after the taking of complainant’s opening proof, or the greater part of it, a stipulation from defendant’s counsel to- waive complainant’s election (which had been announced early in the taking of such proof) to stand—in A-4—upon claims 16 and 17 of the patent, and to discontinue the suit upon the other claims of the patent. The stipulation was not made. B-62 was begun and consolidated with A-4.
All that is said by complainant’s counsel, after the commencement of B-62, and especially after the consolidation—upon which statements defendant relies—does not warrant the narrowing in any way of the issues' tendered by the allegations of the bill in B-62. Especially is this true in view of the notice given by complainant’s counsel after ,such consolidation and before defendant began taking testimony. This notice was as follows: