Uрon petition for rehearing with respect to claims 14 and 15 of Gullborg patent, No. 1,307,734, Adams Grease Gun Cоrporation has insisted that purchasers from the plaintiff of Alemite pin fittings, separately patеnted under Gullborg patent, No. 1,307,733, have an implied license to use them in the only way possible, namely, in thе patented combination, and that the seller is estopped to assert the contrary and tо charge defendant with contributory infringement by furnishing grease gun and coupler for such use.
The defense оf implied license or estoppel was not pleaded below, nor was it mentioned in the defendant’s brief upon appeal. It might, indeed, be now disposed of upon the principle that it is too late to present a question for the first time on a petition for rehearing. Independent Wireless Co. v. Radio Corp.,
Had the issue been framed and tried in the court below, no dоubt the evidence as to the plaintiff’s method of selling would have been more clear. As it is, counsel are in' dispute as to just what the record shows on this subject. The method of selling appears to bе to supply automobile manufacturers and dealers with a stock of fittings, guns, and couplers, separately priced, and to let them
We adhere to our fprmer opinion.
On Motion to Recall and Modify Mandate.
After the mandate of this сourt had gone down, Adams Grease Gun Corporation (hereafter referred to as the defendant) moved that the mandate be recalled and amended to allow the defendant to apply to the District Court for permission to amend its answer by including therein the defense of implied license or estoppel and to reopen the proofs to take newly discovered evidencе to establish such defense. The evidence, it is alleged, will show that, to some extent prior to the time of the trial and to an increasing extent thereafter, the plaintiff abandoned its former practice of selling its hand gun and coupler to ear manufacturers who equipped their ears with Alemite pin fittings, and adopted the practice of selling its pin fittings with the knowledge and intent that cars equipped with such pin fittings would be sold to purchasers without any gun or coupler for use with such fittings and would be greasеd at public greasing stations without regard to the make of gun to be used for such greasing.
This ease was triеd in June, 1929, was decided by the District Judge in March, 1930, and was argued on appeal in February, 1931. Of the eleven еar manufacturers who have abandoned, according to the moving affidavit, the practicе of supplying hand guns for cars equipped with plaintiff’s Alemite pin fittings, one did so prior, to the starting of this suit, threе others prior to the trial, three more pri- or to the District Court’s decision, and the remaining four sevеral months prior to the argument on appeal. There is no showing that these facts were not rеadily accessible to the defendant at all times. Apparently all that was necessary to оbtain them was to write or interview the various ear manufacturers, for this is all the defendant finally did on Octоber 24, 1931, after hope of succeeding on the issues as framed by the original pleadings had been еnded by denial of a petition for rehearing. It is well established, and on sound reasons, that the right to a rеhearing for newly discovered evidence is conditioned upon diligence in discovering it and bringing it to thе attention of the court. Particularly is this true where a party seeks to amend the pleadings and mаke a substantially new and different ease after litigating to an unsuccessful finish the issues as originally framed. Wаlden v. Bodley,
Accordingly the motion will be denied. We do not pass upon the question whether sales, if there be such, by plaintiff of Alemite pin fittings without a proper complement of its own grease guns, and not in replacement of fittings originally sold with such a complement, gave an implied license to the purchasers to use guns of any other manufacturer to complete the combination.
Motion denied.