The opinion
Defendant’s Petition for Rehearing.
[4] After filing of an opinion in favor of the complainants, the defendant files a petition asking that the case be reopened in order that it may be permitted to introduce in evidence letters patent to Ellis, No. 790,253; and also for reconsideration of the case in view of proceedings in interference between Doherty, the inventor of the patents in suit, and Ellis, wherein it is claimed that certain concessions of priority were made by Doherty to Ellis. The discovery, after final *165 hearing and'decision, of another United States patent, and particularly the discovery of a patent referred to in defendant’s record, and spe - cifically referred to in defendant’s brief, is not, under the circumstances, a sufficient justification for reopening the case. In re Gamewell Fire-Alarm Tel. Co., 73 Fed. 908 , 20 C. C. A. 111 ; Kissinger-Ison Co. v. Bradford Belting Co., 123 Fed. 91 , 59 C. C. A. 221 ; Lafferty Mfg. Co. v. Acme Ry. Signal & Mfg. Co., 143 Fed. 321 , 74 C. C. A. 521 ; Boston & R. Electric St. Ry. Co. v. Bemis Car-Box Co., 98 Fed. 121 , 38 C. C. A. 661 .
Furthermore, the Ellis patent was granted in pursuance of an application of later date than the first Doherty patent, and, as the Doherty inventions are so closely related (see Steinmetz v. Allen, 192 U. S. 543, 559, 561 , 24 Sup. Ct. 416, 48 L. Ed. 555 ), Ellis, upon the showing made by the petition, is later than Doherty. The petition does not indicate that a different result should have followed if the Ellis patent had been before the court at the final hearing-. The concessions of Doherty to Ellis and of Ellis to Doherty for the purposes of an interference were upon the record in an exhibit offered by the defendant. It is doubtful if these concessions, made for the purposes of an interference, can create an estoppel upon Doherty as against a defendant who is not in privity with Ellis. As admissions, they have little force, in view of the concessions made by Ellis to Doherty and of the claims allowed to Doherty in interference. The argument that the concessions of Doherty to Ellis are destructive of Doherty’s claims to priority seems equally applicable to show the destruction of Ellis’ claims to priority by his concessions to Doherty. It is a question whether the mutual concessions are not so inconsistent as to neutralize each other However this may he, the defendant does not make a case which justifies the reopening and continuance of this already protracted litigation. 'filie defendant has chosen the grounds upon which to contest the Doherty patent. This choice has shaped the course of the testimony, and the rule that the party who has his day in court must present his case, and not reserve arguments, then fully available, for use in case he shall not prevail upon his chosen defenses, seems specially applicable to the present petition.
Petition denied.