First, it wishes to produce new evidence, of the prior art for the purpose of showing that these machines do not infringe. This it concedes it can not do before the master. But if the reasoning of the Court in Flat Slab Patents Company v. Turner, 8 Cir., 285 F. 257, be studied it will appear that the situation would be no different before the Court. Evidence of the prior art is relevant upon the scope and validity of the patent, but those issues have already been decided and are res adjudicata. The only question now before the Court is infringement, and that question must be determined entirely in the light of its decision in the original case.
Second, Olsen fears injury to its business by reason of the fact that Baldwin-Southwark is asserting in notices to customers its charge that these particular machines infringe. This is a situation which frequently arises in controversies of this kind. It may or may not be that Baldwin-Southwark is acting within its rights and in good faith, but I do not think its acts require this Court to adopt the procedure asked for.
Third, Olsen believes that it can get a speedier disposition of these questions by bringing them directly before the Court in this proceeding. There has been a great deal of delay in this case, largely due, I have no doubt, to mutual accommodation of counsel. If the parties or the master desire the Court to make a peremptory order expediating the hearings before the master the Court is ready to do so.
I do not think that any of the reasons stated justify taking this case out of the ordinary course. The petition may be dismissed.
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