directional control which did not require a shroud.
We cannot see that this presents any reason for retrying this case. In the first place, the Grocholl-Hollingsworth interference was on the question of priority as between Grocholl and Hollingsworth on claims different from those of the Peik patent, which was not involved in that interference. Certainly arguments of counsel and statements of patentees involved in that interference case have no probative value in the instant case.
The Circuit Court of Appeals of the Second Circuit passed on this very question in General Electric Co. v. P.R. Mallory & Co. et al., 298 F. 579, 585, and ruled against the type of evidence sought to be introduced in the instant case. Circuit Judge Hough said, at page 585 of 298 F.:
"* * * Appellant's objections suggest three questions:
"(a) Should statements, arguments, or opinions of attorneys have been received?
"(b) Should statements of Just and Hanaman, made with respect to patents other than the one at bar and in the Patent Office, have beeen received?
"(c) Should statements of the patentees, made in litigation other than this one, have been received?
"We are of opinion that the rulings below were right in every instance. No authority is produced justifying the reception of statements by a patentee made in other litigations, and it would be a waste of time to point out how repugnant such a procedure would be to every Anglo-American legal concept. The distinction is obvious between using such statements upon the cross-examination of a litigant or privy, and throwing in as original evidence what such a man said somewhere else and under other circumstances."
In the second place, even if it could be shown that plaintiff introduced incorrect evidence as to the limitations of the Hollingsworth device, that fact would not constitute a valid ground for reopening this case. In United States v. Throckmorton, 98 U.S. 61, on page 68, 25 L. Ed. 93, Mr. Justice Miller said: "* * * We think these decisions establish the doctrine on which we decide the present case; namely, that the acts for which a court of equity will on account of fraud set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds, extrinsic or collateral, to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered."
See also Egry Register Co. v. Standard Register Co., 1 F.2d 11, in which the Circuit Court of Appeals of the Sixth Circuit held that alleged fraud in misrepresenting the result produced by a patent device would not present a cause of action in a bill of review.
In the third place, we cannot see that the United States Grocholl patent presents a case of newly discovered evidence.Its German counterpart was introduced in evidence in this case. The Pangborn Corporation had full knowledge of Grocholl's actual work, for Grocholl visited the plant of the Pangborn Corporation in September, 1934, and discussed his machine and patent with Rosenberger, Chief Engineer of the Pangborn Corporation. (Trial Record, pp. 204, 210-213, 219.)
The Pangborn Corporation was originally a party to the interference involving the applications of Grocholl and Hollingsworth, referred to in the petition for review. In August 1935, Strauch & Hoffman, attorneys for the Pangborn Corporation, obtained copies of the Grocholl and Hollingsworth applications, and filed a brief in the Patent Office in opposition to Hollingsworth's motion to add two new claims. (See affidavit of Carlson, Pars. 4, 5, 6.)
We have a similar case in Obear-Nester Glass Co. v. Hartford-Empire Co., 8 Cir., 61 F.2d 31, in which it was sought to reopen because of the issuance, subsequent to the decree, of a patent having a filing date earlier than the patent in suit, and in which the court denied the petition to re-open.
On the trial of the instant case, this court, on objection of plaintiff's counsel, excluded the proceedings in the Hollingsworth-Grocholl interference (Trial Record, p. 575) and also excluded a copy of the Hollingsworth application. (Trial Record, pp. 498-592.) Certainly, a bill of review will not lie to permit Pangborn Corporation to go over the same ground.
We therefore conclude the petitioners are not entitled to a review in this case, and shall deny the petition to file a complaint in the nature of a bill of review. An order may be submitted accordingly.
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