DEPPE et al. v. GENERAL MOTORS CORPORATION, 52 F.2d 726

BUFFINGTON, Circuit Judge. This is a motion of William P. Deppe and Deppe Motors Corporation, hereafter caEed plaintiffs, to grant them leave to file a bEl of review in a patent case decided by the United States District Court for the District of New Jersey October 20, 1926. 15 F.(2d) 419. The appeal therefrom was decided adversely to plaintiffs by this court June 7, 1927. 21 F.(2d) 44. A petition for rehearing was denied August 23, 1927. Following, and shortly thereafter, the 'Supreme Court refused a certiorari. 275 U. S. 572, 48 S. Ct. 204, 72 L. Ed. 433.

As the sustaining of that suit would have seriously affected the automobüe industry of the country, that industry has, in its expenditures and operations during these four intervening years, presumably relied on the stabüity and finality of the decision of this court. It is now sought to explain the plaintiffs’ several years’ apparent acquiescence in, and submission to, such decree by the contention of lack of money on their part to make a motion to review.

But we infer such motion is even now made by them at their own expense, as the statement is here made that, if their motion is now granted, third parties wiE hereafter furnish the additional funds to carry on the consequent costly Htigation. Possibly we might rest our decision to deny plaintiffs’ motion on their laches, hut we have re-examined our decision and are satisfied our estimate of the patent was right. Moreover, no question of reaEy after-discovered evidence is shown.

In point of fact, such alleged after discovery is a buEetin issued by the United States Bureau of Standards whieh it is alleged confirms the plain-1 tiffs’ contention of the scope and basic character of their patent and the use of heated screens. But the possible use of such screens was known to plaintiffs and by them disclosed before the decision by this court.

Moreover, in our view, had this government report .been made before our decision and been given in evidence before us, it would not, important as it is, have affected our view of the issue before us as to what Deppe really invented, as to what he disclosed in his specification, and as to what, in the Eght of such disclosure, his patent was restricted. Judge DAVIS took no

part in the dispo- ' sition of this case.