TRICO PRODUCTS CORPORATION v. E. A. LABORATORIES, Inc.

TRICO PRODUCTS CORPORATION v. E. A. LABORATORIES, Inc. No. 388. Circuit Court of Appeals, Second Circuit. June 18, 1934. See, also, 49 F.(2d) 404; 1 F. Supp. 22. Prindle, Bean & Maim, of New York City (George T. Bean, of New York City, Barton A. Bean, Jr., and Edwin T. Bear,, 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. [MAJORITY — MANTON, Circuit Judge.] MANTON, Circuit Judge. 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 ease, 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 he dismissed, for the question now presented becomes moot. Appeal dismissed.