Opinion
Nos. 7363, 7364.
June 4, 1937.
Appeal and Cross-Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.
On petition for rehearing.
Former mandate recalled for amplification and amendment so as to direct District Court to dismiss bill of complaint in part.
For prior opinion, see 87 F.2d 390.
Bodman, Longley, Bogle, Middleton Farley, of Detroit, Mich., and Cooper, Kerr Dunham, of New York City, for appellant Ford Motor Co.
Swan, Frye Hardesty, of Detroit, Mich., Bottum, Hudnall, Lecher, McNamara Michael, of Milwaukee, Wis., and Richey Watts, of Cleveland, Ohio, for appellee Gordon Form Lathe Co.
Before HICKS and SIMONS, Circuit Judges, and RAYMOND, District Judge.
Both parties have made application for clarification of the opinion and mandate with respect to claims 12, 23, 24, and 38 of the patent in suit. Both suggest possible but extreme and contradictory interpretations. The court's conclusion, as indicated by the opinion, that the plaintiff intended to and did withdraw the claims referred to from consideration by the court and that defendant acquiesced in this procedure, was warranted not only by the briefs but by the oral arguments. The legal effect was an abandonment of certain issues submitted to the trial court. We find no merit in the contention of plaintiff that the opinion and mandate should be interpreted to mean that the findings and decree of the trial court with reference to validity and infringement of the claims under consideration was affirmed, nor is there substantial basis for defendant's assertion that the bill of complaint should be dismissed with prejudice as to these claims. The logical interpretation of the opinion is that the bill of complaint should be dismissed without prejudice as to these claims. In view of the controversy which has arisen, an order will be entered recalling the mandate for amplification in this regard, and when so recalled it will be amended so as to direct the District Court to dismiss the bill of complaint as to claims 12, 23, 24, and 38 of the patent in suit, without prejudice.
The court having considered the joint application of the parties for clarification of the opinion and mandates with respect to claims 12, 23, 24, and 38 of the patent in suit, it is now ordered, pursuant to Per Curiam memorandum this day filed, that the mandates be recalled and amended, with directions to the District Court to dismiss the bill of complaint as to claims 12, 23, 24, and 38 of the patent in suit, without prejudice.