Gairing Tool Co. v. Eclipse Interchangeable Counterbore Co‪.‬

Appellant, defendant below, files a petition for rehearing upon the ground of newly discovered evidence of prior public use by the Dayton Engineering Laboratories Company of Dayton, Ohio. Although this petition is supported by affidavits and drawings, such evidence is not of the type which we may consider upon an appeal, it not having been presented to the court below, and it is therefore incompetent to support a petition for rehearing as such. However, we are at liberty to consider such petition for a rehearing as an application for leave to file a petition in the District Court to reopen the case, and to remand the cause to the District Court for that purpose. This action will be taken only if the newly discovered evidence is of that substantial character which seems, prima facie, to seriously threaten the validity of the patent, and if it does not appear upon the showing made that the petitioner was guilty of leaches in the discovery and presentation of such evidence to the court.