BALL & SOCKET FASTENER CO. v. BALL GLOVE FASTENING CO., 60 F. 399

PUTNAM, Circuit Judge. The appellee filed, October 30, 1893, a petition for a rehearing in this cause, and a brief in support of it. The matters which it desired to reargue were two, and were stated in the following: “Your honors, in considering the Mead buttonhole member, have mentioned, and apparently have considered, only one of the forms of this device as made by the appellant. The record discloses a number of forms of the Mead device, and it is only by an examination and knowledge of each and all of these buttonhole members that they can be considered as a whole, or separately.

The appellee, your petitioner, does not believe it necessary to present arguments to change in any degree the construction given by your honors to the fourth claim of the Kraetzor patent No. 306,021; it desires the opportunity to present the various buttonhole members which the recr ord discloses the appellant has made, and to show that, under the very construction which your honors have put upon this claim, it covers these devices. * * * In relation to Kraetzer patent, No. 290,067, it is respectfully desired to argue what the record discloses the ‘eyelet’ of that patent is.” The brief had prefixed to it a drawing showing the appellee’s construction of what it styles the Mead fastener as made by the appellant with a so-called “perforate cap,” and the Mead fastener as made by appellant with á so-called “imperforate cap,” and tbe brief stated fiat tlie court bad apparently considered “only tbe Mead fastener with tbe perforate cap,” and added: “We asls you now to consider tlie Head fastener with the imperforate cap, made almost, in the minutest detail, in accordance with the language of the fourth claim of the Kraetzer patent No. 306,021.” Thereupon tbe court entered tbe following order: “The appellant and appellee may each, on or before January 1, 1894, file a brief on the question whether any of the various buttonhole members which the record discloses the appellant has made-are covered by the construction the court has already put upon the fourth claim of the Kraetzer patent No. 306,021, and are within the contract of the parties; and upon the further question what the record discloses the 'eyelet’ of Kraetzer patent No. 290,067 to be, — the briefs to be limited to the above questions, and to contain references to such parts of the record as each relies on in this connection; and the court will dispose of the matter on the briefs without oral or further argument, unless it shall hereafter otherwise order.” Under, color of tbis order tbe appellee filed an elaborate brief, taxing tbe court with a new discussion of tbe larger part of tbe entire case, and closing with tbe proposition: “There can be no' question whatever that all of appellant’s buttonhole members come within the second claim of patent 290,067.” Tbe appellee, however, fails to point out any evidence in tbe record that tbe appellant manufactured fasteners with tbe imperforate cap, tbe appellant denies that there is any such evidence, and tbe court has been unable to find any.

All tbe exhibits put in proof have tbe perforate cap. Therefore, we are not called on to consider any propositions based on that distinction. With reference to tbe point touching tbe “eyelet” of tbe Kraetzer patent No. 290,067, which we permitted should be covered by tbe briefs referred to, because there was some confusion arising from tbe peculiar use of tbe word, in tbe patent, tbe appellee now says that it was used to' designate tbe buttonhole member as an entirety.

Tbis was tbe view taken by us; so that no further consideration need be given that topic. Ñor that reason, and because tbe court, in its former conclusions, considered only tbe perforate cap, and there is no evidence in the record that appellant manufactured the im-perforate cap, and without any intimation whether or not tbis distinction is essential, tbe petition for a rehearing must be denied. Tbe appellee has apparently proceeded on tbe theory that tbe issues in the case were with the Mead pátent of September 8, 1885, some of tbe drawings attached to which show imperforate caps.

Tbis is erroneous, as the sole issues were with such fasteners only as tbe evidence in tbe record shows were manufactured by appellant. Tbe appellee also refers us to Fastener Co. v. Kraetzer, 150 U. S. 111, 14 Sup. Ct. 48. In our view, tbis decision tends to confirm tbe conclusion reached by us in the case at bar, because the supreme court (page 116, 150 U. S., and page 48, 14 Sup.

Ct.) recognize “different principles” of construction as between tbe Mead fasteners and those constructed by Kraetzer as shown to that court, although the- latter bad tbe semblance of a button, on which tbe appellee relies so much in this case, and an elastic ring, which answers for the Kraetzer eyelet, if the latter is to be so broadly construed as the ap-pellee claims. Petition for rehearing denied. Mandate according to the order entered October 27, 1893, may issue forthwith.