
    Foote v. Stein et al.
    
    
      (Circuit Court, S. D. New York.
    
    May 22, 1888.)
    Patents fob Inventions—Tnfbingemknt—Hat-Racks—Gbain-Bands.
    .Letters patent No. 56,569, July 24, 1866, lor improvement in hat-racks, granted to Charles II. Keener, act on a different plan, and do not anticipate, letters patent No. 135,899, February 18, 1873, granted to Elisha Foote for improvements in grain-bands, bag-ties, etc.
    Iii Equity. Bill for infringement of patent. On motion to open default.
    Eunice N. Foote, administratrix, complainant, filed a bill to enjoin Edward A. Stone and Louis Stein, defendants, from infringing patent jSTo. 135,899, February 18, 1873, granted to Elisha Foote for improvement in grain-bands, bag-ties, etc. Judgment by default against defendants; who moved to set it aside on the ground that the Foote patent had been anticipated by letters patent No. 56,569, July 24, 1866, for improvement in hat-racks.
    
      O. M. Plymplon, for complainant.
    
      H. A. West, for defendants.
   Lacoaibe, J.

Waiving all question as to the regularity of defendants’ practice, and treating this as a motion to open a default upon nowlydiseovered evidence, I am nevertheless of the opinion that the relief they ask must be denied. The patent is undoubtedly a narrow one; and with every respect for the opinion of the able judges who have heretofore sustained it, (Foote v. Frost, 14 O. G. 860; Frost v. Marcus, 13 Fed. Rep. 88,) it is by no means certain that, upon a record which should contain the earlier Butterfield patent, No. 57,247, the supreme court would find that complainant’s device exhibited either novelty or invention. If, therefore, it were a question of allowing the interposition of a defense which set up the last-named patent, the present application would stand upon a different footing. Such, however, is not the case. The Butter-field patent was well known to defendants when they confessed judgment, and the patent which they submit as newly discovered (Keener’s improvement in hat-racks, No. 56,569) acts upon an entirely different principle, and is in no sense an anticipation of the patent here sued on.  