Michigan Cent. R. v. Consolidated Car Heating Co.

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 [2] 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.