
    MICHIGAN CENT. R. CO. v. CONSOLIDATED CAR HEATING CO.
    (Circuit Court of Appeals, Sixth Circuit.
    June 14, 1895
    No. 250.
    Appear—Assignments of Error—Waiver of Defects—Rehearing.
    Where counsel have discussed in their briefs a question as to the effect of amending the specifications of a patent in the patent office, under a general assignment that the court erred in holding the patent valid, without raising any objection in regard to the sufficiency of the assignment of errors, they cannot afterwards insist, on motion for rehearing, that the assignment was not sufficiently specific.
    .Appeal from the Circuit Court of the United States for the Eastern District of Michigan.
    This was a suit in equity hy the Consolidated Car Heating Company against the Michigan Central Railroad Company for infringement of letters patent No. 329,017, for improvements iu steam car heaters granted October 27, 1885, to Elmore D. Gody. The circuit court entered a decree for complainant. Defendant appealed to this court, which, on April 2, 1895, reversed the decree, and ordered the bill dismissed, holding that the second claim of the patent was void for reasons stated in the opinion. 14 C. 0. A. 232, 67 Fed. 121. A petition has now been filed for a rehearing.
    J. C. Sturgeon and J. B. Foraker, for appellant.
    R. A. Darker, for appellee.
    Before TAFT and LURTON, Circuit Judges, and SE VERENS, District Judge.
   SEYERENS, District Judge.

The grounds upon which a rehearing is prayed in this case are such only as have been already argued by counsel and fully considered by the court in its former opinion, with the exception of one, which is that there was no assignment of error upon which the court could consider the effect of the amendment of the specifications of the Cody patent while his application was pending in the patent office. The first of the errors assigned was that the court erred,“in that it ordered, adjudged, and decreed that the letters patent No. 329,017, granted on the 27th day of October, 1885, to Elmore D. Cody and John W. Hayes, assignee of a one-half interest therein, for a new and useful improvement in steam car heaters, are good and valid letters patent.” In the brief of the appellant’s counsel the objection to the validity of the patent, founded upon the change of the specifications, was distinctly taken. The brief of counsel for appellee, under a distinct head of the argument, took up and discussed this subject at considerable length without any suggestion that the assignment of error was not sufficiently specific. As the assignment in general terms covered this subject-matter, and it was treated and discussed as falling under the assignment, we think it is too late to complain of the failure to more specifically assign the error, and that the appellee should be deemed to have waived a more definite assignment, if indeed that was necessary.

The petition is overruled.  