instead of going before that court on ex parte affidavits for a rehearing, we might take the testimony, giving them the right of cross-examination, and that they might have the like right to introduce evidence to meet this new matter. Therefore, if it should turn out that his honor, Judge Baxter, should hold that, inasmuch as this time has elapsed, and this excuse which I now present should not be held by him to be sufficient to introduce this new testimony, and that case" were appealed, it would go to the supreme court without this, new testimony, which we think is vital, and as to which there was not even a hint or suggestion in the record as it now stands before Judge Baxter.
Judge McCrary. We will of course be just as much at liberty after you have settled that case to act on this as we are now, so that you waive nothing in that respect: I say that the principal question in the case, or one very important question, is as to the patentability of this particular improvement, and that you have fairly and fully raised, as I understand, in the case decided by Judge Baxter.
Mr. Boyd. Not as fully as it is now raised, because there is this proof of a prior use which went to the whole extent.
Judge Treat. It is not a question as to use, but as to pat entability; whether it is a matter that is within the purview of the patent law anyhow.
Mr. Boyd. Yes, sir; but still we do not like to go to the supreme court simply upon that, inasmuch as since that time we have found this evidence, which we think, even if it was patentable, shows a prior use. I propose, then, to make a motion for rehearing there, as your honor suggests.
Judge MCCRARY. I think that will be the proper way to proceed.
NOTE. See United States & Foreign Felting Co. v. Asbestos Felting Co., 4 FED. REP, 813.
