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MERSHON v. O'NEILL

DISTRICT COURT, E.D. NEW YORK


October 6, 1932

MERSHON et al.
v.
O'NEILL

Supplemental Opinion.

In connection with the settlement of findings and a decree in this case, and the consequent re-examination of the opinion dated July 22, 1932, it becomes apparent that there are inadvertent errors appearing in the latter, which should be corrected.

In the preoccupation attending an examination of a long record, many lengthy exhibits, and four briefs, sight was lost of the distinction between the defendant in this case and the Sprague Specialties Company, of North Adams, Mass., a Massachusetts corporation, and the manufacturer of the infringing device purchased by the plaintiff from the defendant.

The defendant's cause was presented by solicitors retained and compensated by the Sprague Company, and the entire trial assumed the aspect of a contest between the plaintiff and the Sprague Company. For this reason, the Sprague Company came to be regarded as the defendant, and was so treated in the trial and on the argument, and the Court fell into the manifest error of so referring to it frequently in the opinion.

 The many references to the defendant corporation, its hiring of individuals formerly in the employ of the plaintiff, and its factory practice in the matter of forming the heatresistant film, are unfortunate, and are regretted; these references were intended to apply to the Sprague Specialties Company, and not to the defendant, John Frederick O'Neill.

 In the early part of the opinion, reference is made to a Mr. Appleton, who is said to have entered the employ of the defendant. That statement was based upon conflicting evidence, and is now withdrawn, in light of a further consideration of the record, which indicates that Mr. Appleton never actually entered the employ of the Sprague Company.

 In discussing the prior art and in reference to the Pollak Patent No. 672,913, a typographical error occurs, in that the word "electrolyte" was used before the word "transforming." This was intended to be "electrolytic."

 In connection with the same patent, there is a discussion of its bearing upon the second patent in suit, and communications from the Patent Office are quoted. In the third paragraph following the second quotation, reference is made to the distinction between a rectifier and a condenser.Near the end of that paragraph the phrase occurs: "was intended to be used as a rectifier." The correct rendition of this phrase is "was attempted to be used as a rectifier."

19321006

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