The petition for rehearing is based upon our affirmance of Knaust Bros. Inc. v. Goldschlag, 2 Cir., 119 F.2d 1022, on the opinion below, D.C., 28 F.Supp. 188. When that case was in this court the appellant's brief (page 2) contained the following passages: "Plaintiff does not appeal from such judgment insofar as it relates to the higher numbered patent in suit (No. 2,097,766)." No. 2,097,766 ws the patent which the plaintiff had acknowledged that the defendant did not infringe, but on whose validity the district judge had nevertheless passed. Again: "The sole issue raised on this appeal is whether the claims of the Knaust patent No. 2,034,678 involved invention." No. 2,034,678 was the other patent: i.e., that which the plaintiff continued to charge the defendant with infringing.Also in the appellee's brief (page 2) appeared the following: "Since the appellant in its brief now obviously concedes the invalidity of No. 2,097,766 in view of the form of its notice of appeal (II, 1250) that part of the judgment should be affirmed without further comment. It leaves, therefore, the sole issue on this appeal, insofar as the plaintiff is concerned, whether the claims of patent No. 2,034,678 involve invention." In view of the foregoing, it is unnecessary to labor the argument that we did not pass upon the point involved in this appeal.