Opinion
No. 388.
June 18, 1934.
Appeal from the District Court of the United States for the Eastern District of New York.
Patent infringement suit by the Trico Products Corporation against the E.A. Laboratories, Inc. From an order denying plaintiff's motion for leave to file a bill of review after trial on issues raised as to validity and infringement, plaintiff appeals.
Appeal dismissed.
See, also, 49 F.2d 404; 1 F. Supp. 22.
Prindle, Bean Mann, of New York City (George T. Bean, of New York City, Barton A. Bean, Jr., and Edwin T. Bean both of Buffalo, N.Y., of counsel), for appellant.
Duell, Dunn Anderson, of New York City (Holland Duell and David S. Kane, both of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
This appeal is from an order denying appellant's motion that the District Court apply to this court for leave to receive and consider a bill of review to proceed with a hearing of the proofs thereunder. Baltimore S.S. Co. v. Phillips, 9 F.2d 902 (C.C.A. 2). The petition was denied below because of lack of diligence and because the court held the new evidence offered would not change its opinion that there was no infringement of the patents upon which suit was filed. We need not refer to the new evidence offered or its effect upon the questions of infringement or the validity of patents, for the reason that in a companion case, 71 F.2d 677, we have considered the decision of the same District Judge, who held that the patents here in question were not infringed by the appellee's horn. In that cause, decided this day, we held patents No. 1,434,655 (claims 1, 2, 3) and No. 1, 391,887 (claim 4) valid and infringed on the record made at the trial without considering the effect of the new evidence. This appeal will be dismissed, for the question now presented becomes moot.
Appeal dismissed.