Art Metal Works, Inc. v. Abraham & Straus, Inc., 107 F.2d 944 (2d Cir. 1939)

No. 2.

Nov. 20, 1939.

Writ of Certiorari Denied Dee. 11, 1939.

See 60 S.Ct. 293, 84 L.Ed.-.

Haaren & Barrett, of New York City (David S. Kane, of New York City, of counsel), for defendant-appellant.

Ward, Crosby & Neal, of New York City (Kenneth S. Neal and Joseph Lorenz, both of New York City, of counsel), for complainant-appellee.

Before L. HAND, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.

PER CURIAM.

This suit- to obtain an injunction and recover damages for infringement by the defendant of Claims 7, 12, 13 and 14 of United States Patent No. 1,673,727 to one Aronson through the sale of cigar lightets came before this court in 1932 and the patent was held valid and the claims infringed. Art Metal Works v. Abraham & Straus, 2 Cir., 61 F.2d 122. Thereafter the defendant was allowed to amend its answer in order to set forth alleged inequitable conduct on the part of the complainant in misrepresenting to the trade the scope and effect of the decision which had been rendered by this court.

An amended answer was thereupon filed praying that all relief, benefits and advantages which the complainant might be entitled to in view of the decree adjudging its patent valid and infringed should be denied because of its alleged inequitable conduct. After a hearing upon thé • issues raised by the amended answer a decree was entered in the District Court, 4 F.Supp. 298, holding that the defendant had failed to establish any inequitable conduct of the complainant and denying the relief prayed for' in such amended answer. An appeal taken from that decree to this court resulted in the reversal of- the decree and in the granting to the defendant of the relief prayed for. One of the judges dissented holding that no inequitable conduct on the part of the complainant had been shown and that the decree of the District Court should be affirmed. Art Metal Works v. Abraham & Straus, 2 Cir., 70 F.2d 641, at page 645. We have since sustained a petition for review and the cause now comes before us for a rehearing upon the original record. We are satisfied that an incorrect result was reáched by the majority of the court on the former appeal and that the decree of the District Court should be affirmed for the reasons stated in the dissenting opinion of Judge L. Hand.

Decree affirmed upon the opinion of Judge L. Hand, 70 F.2d at page 645.