Page:Federal Reporter, 1st Series, Volume 1.djvu/879

AM.* DIAMOND BOOE BOBINO CO. V. SHELDON. 871 �The brief has been carefully examined, and it presents scarcçly anything not before presented by counsel, and fuUy considered. The validity of the reissued patent was estab- lished by Jadge Shipman, upon Bubstantially the same record in the eouthem district of New York. Am. Diam. Rock Bor- ing Co. v. Sullivan Machine Co. 14 Blatchf. 119. That decis- ion was foUowed and concurred in in this case, and the decision in that respect could not be changed in this case without overruling that as well as the one in this case. The only other questions are those relating to infringement and to the effect of the New Hampshire decree. The question of infringement by the means held to be an infringement in this case was not determined by Judge Shipman in either case before him. It was merely postponed to final hearing ; so that question was fuUy open. It was very carefully consid- ered, and nothing new is presented in regard to it. �It seems to be understood or assumed that the patent has been held to cover a conical boring head, but that is not cor- rect. It has been merely held that fiUing into the center to make a conical head to bore by the same means as the an- nular head infringes the patent for the annular head, although it may be, and probably is, an improvement upon the annu- lar head. And likewise in regard to filling out the stock even with the laterally projecting diamonds. �And there is nothing new about the New Hampshire decree. The fact remains that the causes of action there were differ- ent from those here, so they had not pas'sed under judgment. And the issue here is not shown to bave been aetually decided by the court there, for nothing was decided there relating to the merits of either case. �It is urged that the plaintiff doesnotproceedtoanaccount- ing under the decree, so that the defendants can appeal. This motion, however, was filed before there was any time for such accounting, and its pendency may have thus far pre- vented. Whether it has or not, that is no ground for a rehearing, although it might become a ground for dismissing the bill for want of proseoution. On the whole, it is quite apparent that a rehearing, under the rules, would not, with ��� �