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WESTERN STATES MACH. CO. v. S.S. HEPWORTH CO.

October 6, 1943

WESTERN STATES MACH. CO.
v.
S.S. HEPWORTH CO.



Supplementary Opinion

The parties seem to be in accord that the decision herein is incorrect, that is to say:

The defendant moves for reargument as to so much thereof as has to do with the alleged infringement of claim 3 of Roberts patent No. 1,861,978 by the Georgia control machine manufactured by the defendant. Attention is called to a variance between plaintiff's Exhibit 66 and defendant's Exhibit AA, both of which were prepared by the defendant, as presenting the salient features of construction of this machine in simplified form. On Exhibit AA the lower of the two push buttons denominated PB-1 and PB-2 on Exhibit 66 is called "reset" and the upper is called "start", while on Exhibit 66, it has now been pointed out, the upper button, PB-2, is the "reset" and the lower button, PB-1, is the "start" button, which actuates the timing control residing in TR-1, TR-2, and TR-3.

It is true that this diversity is responsible for the reference in the decision to the "start" button as PB-2 in Exhibit 66, and the correction will be made in connection with the discussion of claim 3 of this patent in the last complete paragraph under the heading "The Georgia control", the third word of which is changed from "start" to "reset".

 In so much of the decision as follows the said heading, the following changes are made:

 In the sixth paragraph, in the first line, the words "the lower of two buttons" are deleted, and after the word "reset" on the next line the word "button" is inserted, so the sentence will now read: "The operator pushes the reset button."

 In the third paragraph following the one just corrected, in line 3, the first word "start" is deleted and the word "reset" is inserted in its place.

 With these changes, the mistakes in references are believed to have been corrected and, as amended, the decision will stand.

 The plaintiff also seeks reargument, i.e., asks the Court to change its opinion, in connection with the alleged infringement of claim 3 of this patent by the Igualdad control.

 The views originally stated are adhered to.

 The plaintiff makes the same request as to so much of the decision as deals with the validity of claims 3, 6, 7 and 8 of Roberts' brake cooling patent No. 2,145,633.

 However mistaken the views of this Court may prove to have been, they were the result of deliberation, and are adhered to.

 The defendant is persuaded that the decision is in error in holding claim 9 of the last-mentioned patent valid, and reargument, i.e., a change of opinion, is sought in a separate motion addressed to that relief.

 The opinion is sufficiently long, tedious and uninteresting as it is, and will not bear expansion. It was not the purpose of the Court to pass upon the commercial practices of the plaintiff which were not in evidence, in construing this claim. The decision is adhered to.

 Separtely the defendant has moved for leave to amend its answer by asserting a Fifth Defense touching the brake cooling patent, by alleging that the same is void because the plaintiff was aware of the invalidity of the claims 4, 5 and 11, and unreasonably neglected and delayed filing a disclaimer thereof in the U.S. ...


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