Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before DAVIS, Circuit Judge, and McVICAR and AVIS, District Judges.
These cases involve three distinct questions. A statement of the prior proceedings is necessary for the purpose of intelligently stating the issues involved in the present appeals.
George Haiss, claiming to be the inventor of a new and useful improvement in wagon loaders, on April 26, 1919, made formal application to the Commissioner of Patents of the United States for a patent thereon, and on June 29, 1920, letters patent of the United States No. 1,345,172 were duly issued to him. Subsequently, on or about August 15, 1921, the said Haiss surrendered the aforesaid letters patent and made due application for a reissue thereof, and on January 2, 1923, letters patent reissue No. 15,515 were granted to him. By assignment, executed on about February 20, 1926, said letters patent reissue No. 15,515 became the property of the George Haiss Manufacturing Company, Incorporated (hereinafter called Haiss Company), one of the parties to these appeals.
Suit was brought under the patent by Haiss Company against Link-Belt Company, on or about March 23, 1926, alleging infringement of the said patent, and praying for injunction, accounting, and damages. This action was heard in the United States District Court for the Eastern District of Pennsylvania, and a decree entered holding the patent to be invalid. 27 F.2d 397. On appeal to this court, the decree was reversed, the patent held to be valid and infringed by Link-Belt Company. 31 F.2d 432. The decree below was vacated, and the cause remanded, with instructions to enter a decree adjudging claims 8 and 9 of the patent valid and infringed, and the mandate directed the District Court to take such further proceedings in said cause as ought to be had, according to right and justice, and the laws of the United States.
On this mandate the District Court entered a decree in accordance with the conclusion of this court, ordering a perpetual injunction, enjoining the Link-Belt Company from "making, using or selling or aiding or abetting others in the making, using or selling of any apparatus embodying the said patented inventions or any part thereof in violation of the rights of the plaintiff as aforesaid."
This decree was dated April 5, 1929.
The decree further directed the payment of costs, and referred the matters to a master to make an accounting of the profits derived by Link-Belt Company, and the damages sustained by Haiss Company, by reason of said infringement.
The master commenced the taking of testimony on this reference on May 13, 1929, and made his report on January 29, 1931.
On January 21, 1930, application was made to this court for leave to file a bill in the nature of a bill of review, and on that date an order was made by this court authorizing the District Court to entertain a motion for leave to file such a bill. Application was subsequently made to the District Court, and that court, on February 5, 1930, granted the application, "to the extent that defendant is permitted, as under an appropriate amendment of its answer in this cause, to adduce evidence as to the said newly discovered matters, and plaintiff is permitted to adduce evidence in opposition thereto."
Evidence was taken under this order and presented to this court at the argument, under the claim that the patent in suit was anticipated by prior German patents, not produced to, or considered by, this court, upon the disposal of the original appeal herein; the Link-Belt Company endeavoring to have this court reverse the original decision hereinbefore referred to.
The District Court returned to this court the evidence taken on its order, and reported to this court, among other things, as follows: "In the character of Master, we find due dillgence upon the part of the defendant in presenting this new matter, but in respect to its materiality, we are of opinion, and so find, that there is nothing in this new evidence sufficient to change the opinion formed in respect to the validity of the reissued Letters Patent."
On January 29, 1930, the Haiss Company presented its petition to the District Court, alleging that the Link-Belt Company, since the issuance of the injunction, "has sold and is continuing to sell repair parts for use in the infringing wagon loaders embodying the invention of said letters patent which were sold by the defendant prior to the service of said injunction, thereby in violation of ...