The opinion
On Petition for Rehearing.
PER CURIAM.
As shown by the opinion in this case, we reached the conclusion that thd’Tee Pee lifts did not have the peculiarly shaped surface, called saucer shape, which was characteristic of the Tufford *257 invention, but bad, rather the scoop shape which served to classify them with the earlier Nerger device. This conclusion was fortified by observation of the samples submitted, and by certain manipulation by us of the exhibits, as recited. From these, we inferred that the Tee Pee lifts did not have that automatic, intensive sealing at the edges which was symptomatic of the Tufford invention, as we interpreted the claim under discussion. Upon application for rehearing, counsel for plaintiff now challenge the accuracy of the observation and experiments recited in the opinion, and insist that they can, by experiment in open court, if permitted a reargument, demonstrate that the Tee Pee lifts will adhere by suction and will have this intensive sealing, even at the center of the breast edge.
Since counsel have not had the opportunity, we must, in passing on the rehearing petition, assume that they would be able to succeed in their proposed experiments; and, if what was said in the opinion on this subject were vital to the conclusion reached, a rehearing should be permitted. However, we do not regard it as vital. The fact remains that the upper surface of the Tee Pee lift is not concave, in the sense in which that word was used by Tufford in order to distinguish from Nerger and get his patent allowed. If it may be true that sufficiently skillful manipulation of the Tee Pee lifts will make them, for a time and in a degree, act like the Tufford lifts, and if it should therefrom be inferred that this distinction in shape between Tufford and the Tee Pee is immaterial, the further inference will be inevitable — • since the Tee Pee must be classed with Nerger as to this shape — that there was no substantial distinction in this respect between Nerger and Tufford, and that Tufford and the Patent Office were wrong in the theory upon which alone issue of the Tufford patent was procured.
The application for rehearing is denied.