The opinion
On Rehearing.
(October 8, 1897.)
PUTNAM, Circuit Judge.
On this motion for a rehearing, the complainant does not point out any mere slip or oversight on the part of the court, or any other peculiar matter which raises any reasonable probability that a rehearing would give any new result. His main purpose is to supplement and strengthen his propositions submitted in argument at the hearing. Matters of that character do not ordinarily justify a rehearing.. While the court is not inclined to insist too strictly on the application of rules of this nature, and would especially be inclined to relax them if there were not ample remedy by appeal for any errors it may have committed, it is certain that there does not appear such a degree of probability in favor of the complainant on this application as to justify the expense, delay, and vexation of further litigation in this court.'
The complainant insists that we have misapprehended the considerations that were had in view by the court of appeals for the Second circuit in Manufacturing Co. v. Beach, 18 C. C. A. 165 , 71 Fed. 420 , in construing claims 1, 2, and 3 of the patent in litigation. In determining- this matter, we were governed by what we found on the face of the opinion of the court, coupled with what further appeared in the case as reported. The complainant now asks to bring in the briefs submitted to the court, and also certain affidavits of counsel who took part in the arguments, for the purpose of showing that all the considerations urged upon us were also urged upon the court of appeals in the Second circuit. If in any instance, not of an exceptional character, we could be required to go into an incidental investigation of this kind, so full of labor and uncertainties that it might involve more than all the rest, even of an important and complicated case, it would result in no advantage here, because a study of the opinions on appeal and at the circuit in the prior litigation shows that the infringement of claims 1, 2, and 3 was admitted; so that the construction of them did not come in issue in the way in which it comes in issue here. Moreover, we are governed on this point by Machine Co. v. Lancaster, 129 U. S. 263, 266 , 9 Sup. Ct. 299, referred to in our opinion passed down August 23, 1897, whatever may have been the view of the courts in the Second circuit. The petition for a rehearing is denied.