The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a motion by the defendant to reopen a patent suit on the ground of newly discovered evidence.
The interlocutory decree herein was granted on October 1, 1935, holding the Stargardter patent, No. 1,948,192, for the process of simultaneously hardening and bluing razor blade steel, valid and infringed as to claims 1, 3, 4, 5, 8, and 11.
An appeal was taken by the defendant from that decree on October 29, 1935, and defendant has continued to prosecute its appeal by preparing the record for filing until April 15, 1936, when it applied to the Circuit Court of Appeals for permission to petition this court for leave to reopen.
That motion was heard by the Circuit Court of Appeals on April 20, 1936, and an order was entered upon consent giving the defendant such permission.
The timeliness or merits of the motion were not argued or submitted for consideration by the Circuit Court of Appeals which merely referred the matter to this court for disposition.
Subsequent to the granting of the interlocutory decree herein, to wit, between January 2, 1936, and February 14, 1936, there was tried before Hon. Guy L. Fake, United States District Judge, in the District of New Jersey, the case of Gillette Safety Razor Co. v. Windsor Manufacturing Company, for the infringement of the same patent. The solicitor and counsel for the defendant in the instant suit was counsel for the defendant in the New Jersey case. Printed briefs were submitted to Judge Fake on April 2, 1936.
In the instant suit there is a supersedeas order staying the injunction and accounting proceedings.
This case again presents the time-honored question of whether there is to be any finality as to an interlocutory decree in a patent case.
This motion is made for the purpose of allowing the defendant to add to the record in this case evidence concerning the following: (1) An alleged Pollock prior use supposed to have been discovered after the trial and decision herein; and (2) certain printed publications and technical metallurgical data, known prior to the trial, but which defendant's counsel now puts forward as newly discovered evidence.
Counsel for the defendant learned of the alleged Pollock use on November 17, 1935, and communicated with him two days later. Under an order of Judge Fake in the New Jersey case, the counsel for the defendant in that case, who is the counsel for the defendant in the instant suit, supplied full particulars regarding the alleged Pollock use as early as November 29, 1935, giving a description, exhibits, and names of witnesses, but made no motion to reopen this case at that time.
At the close of the trial in the New Jersey case on February 14, 1936, counsel for the defendant had all the knowledge that he had on making this motion, but made no motion at that time to reopen.
In fact, no steps were taken by defendant to reopen this case until notice of a motion therefor was served on April 20, 1936, of a motion returnable on April 22, 1936, argument on which was heard on May 4, 1936, and all papers submitted May 12, 1936, and even now defendant's counsel asks that I grant the motion and suspend taking testimony until Judge Fake shall have decided the New Jersey case.
The injunction and accounting proceedings being stayed by the supersedeas order herein, delay at this time will carry argument on ...