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October 6, 1943


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. Patent Office. The motion is said to be merely to conform the pleadings to the proof.

 Reference is made to the decision by the United States Supreme Court in Marconi Wireless Telegraph Co. v. United States, 63 S. Ct. 1393, 87 L. Ed. . The facts before the Court in that controversy were very wide of those contained in this record.

 That Roberts knew in general of the existence and operation of the water cooled brake device in the Baltimore refinery is not open to question; however, there is nothing in the record to suggest that he knew the details of the interior design, nor does it appear how the defendant could demonstrate that he did from the evidence in the case.

 It is said in the brief for the defendant: "The whole subject was fully aired in court." I do not so understand the evidence.

 This is not a case in which the patentee is chargeable with knowledge of the details of his own prior device.

 It seems to me that, if this motion were to be granted, it would necessarily involve the taking of testimony on an issue which was not tendered by the original pleadings; this means that Roberts would have to be recalled and questioned at length pro and con concerning his actual knowledge of the structural details of the brake-cooling device used in the Baltimore refinery. The structure was enclosed, and I should not suppose that he would have been able to discover what was inside without taking it apart.

 Perhaps other evidence would be relevant, but probably nothing of real importance would be developed, for the Court would be slow to conclude that it could possibly know more about the contents of Roberts' mind than he himself disclosed.

 At most, it would be an argumentative enterprise, which is not timely.

 The facts were not newly brought to light at the time of trial in October and November, 1942, but were known to the defendant's counsel during the taking of deposition prior to trial.

 Probably the present motion reflects the defendant's disappointment in not defeating all of the claims in suit in the Roberts patent; had it been made at the close of the trial, or at least in advance of decision, that comment would not be in order.

 A discussion of the proper application of Federal Rule 15b, 28 U.S.C.A. following section 723c, is found in Simms v. Andrews, 10 Cir., 118 F.2d 803, at page 807, and the passage is applicable to this record.

 The motion will be denied, in the exercise of what is believed to be a sound discretion, first because a new issue is sought to be imported, and second because the Court cannot see from what has been shown in the record, that there is a fair chance for the defendant to succeed on that issue.

 The plaintiff's motion for reargument is granted to the extent above indicated, and reargument having been had, the decision is corrected as indicated; otherwise the plaintiff's motion is denied.

 Both motions made by the defendant are denied.

 Settle order.


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