OPINION

This action was instituted by appellant Rex Chainbelt Inc. in the Federal District Court for the Central District of California against Harco Products, Inc. for infringement of Rex’s U. S. Patent No. 2,970,783. Harco answered the complaint alleging that the patent was unenforceable because of misuse, and that the patent was void as being “obvious” under 35 U.S.C. § 103 . Harco also filed a cross-complaint alleging that Rex’s misuse of its patent and the bringing of this patent infringement suit constituted a violation of § 1 of the Sherman Act in that the patented process was being used to “tie” the sales of an unpatented component used in the process.

The district court found that it had jurisdiction over this contest under both the patent law ( 28 U.S.C. § 1338 ) and the antitrust law ( 28 U.S.C. § 1337 ).

After a trial on the merits, the court found: (1) the patent in question was void for obviousness under 35 U.S.C. § 103 ; (2) if the patent were valid, then while Harco had not directly ( 35 U.S.C. § 271 (a)) or contributorily ( 35 U.S.C. § 271 (c)) infringed the patent, they had actively induced others to infringe on the patent ( 35 U.S.C. § 271 (b)); (3) Rex’s sales of an unpatented staple commodity (epoxy resin) accompanied by an implied (can label) license to practice the patent constituted a non de minimis tying arrangement in violation of § 1 of the Sherman Act; (4) that Rex’s tying arrangement also constituted a misuse of its patent (making the patent unenforceable) which misuse was not absolved because Rex had for royalties licensed other manufacturers of epoxy resin to issue “can label” licenses to practice the patent in question; and (5) that Harco has shown no damages to it as a consequence of Rex’s antitrust violation, and was not entitled to attorney’s fees, although costs were awarded.

Both Rex and Harco appeal to this court.

Rex appeals from the decision of the court below holding: 1) that the patent is void for obviousness, and 2) that Rex’s “can label” licensing program constituted an antitrust violation or a misuse of its patent.

Harco appeals the decision of the district court holding that they were not entitled under the antitrust laws to treble the amount of the attorney’s fees which they had expended in defending against the patent infringement suit.

I. Validity of Patent

To provide a background with which to view the arguments as to the validity of the patent, we quote from Rex’s Statement of Facts, which is, as quoted, essentially a conversational version of the facts agreed upon in the Pre-Trial Order (C.T. 1005-1031).

35 U.S.C. § 103 , under which the district court held Rex’s patent invalid reads:

In the leading case of Graham v. John Deere Co., 383 U.S. 1 , 86 S.Ct. 684 , 15 L.Ed.2d 545 (1966), the Supreme Court interpreted § 103 so that a decision of obviousness is to be based on a three step analysis.

We have little difficulty in determining the first two elements in this test. We have heretofore outlined the most important facts concerning element one, the state of the prior art. We now look to the second element, the difference between the prior art and Rex’s patent.

The crusher structure of the Cheyette (Rex’s) Patent is old and well known as can be seen by a comparison with the Gruender Patent (No. 2,223,956) which was issued in 1940. Indeed, the only difference between the two patents is the substitution of an epoxy backing material for the prior zinc one. (C.T. 1017 # 65, C.T. 1090 # 9.)

At the time of the invention of the process (use of epoxy backing instead of zinc) upon which the Cheyette Patent was based, the properties of epoxy resins were well known. (C.T. 1090 — 91 # 10); including its ability to impregnate and fill voids, to cure at low temperatures, to resist impact and mechanical shock, its low shrinkage, and its extensibility with fillers. (C.T. 1091 # 13.) It should be noted that Rex did not invent a special type of epoxy resin with special properties for use in the process. Nordbak (Rex’s commercial name for its epoxy resin formulation for use as a crusher backing) is an unpatented combination of epoxy resin “extended” by several inert “fillers.” (C.T. 1093-94 # # 33, 36, 37.) The Cheyette Patent does not call for a specific formulation of epoxy resin, although it does mention that certain fillers may be used to obtain a variety of results. What the Cheyette Patent does call for is epoxy resin “having a high dimensional stability and a modulus of elasticity on the order of 1 — 3% of that of steel and a compression strength on the order of from 8 — 10 thousand psi.” (C.T. 1090 # 6.) Epoxy resin of such specifications were well known prior to the Cheyette Patent. (C.T. 1090-91 # 10.)

Viewed in light of the prior art, we must determine whether the substitution of one backing material for another is patentable, or alternatively, whether it was obvious “to a person having ordinary skill in the art.” ( 35 U.S.C. § 103 ) (Element three of the Graham test).

As the Court notes in the Graham case, supra, at 17, 86 S.Ct. 684 , the requirement of nonobviousness as expressed in 35 U.S.C. § 103 is but a codification of the leading case on the patent-ability of substituted materials: Hotchkiss v. Greenwood, 11 How. (52 U.S.) 248, 13 L.Ed. 683 (1850).

In Hotchkiss the issue was whether the substitution of clay or porcelain for wood or metal as the bulbous part of a doorknob was a patentable invention. The court held:

We feel that Hotchkiss is controlling of the factual situation present in this case. See in addition, our decision in Griffith Rubber Mills v. Hoffar, 313 F.2d 1 (9th Cir. 1963).

Rex’s principal arguments seeking to distinguish Hotchkiss and its progeny from the instant case are: 1) Rex’s allegation that the discovery that epoxy resin wouldn’t “powder out” was an unusual, surprising and unexpected result, citing: Hewlett-Packard Co. v. Tel-Design, Inc., 460 F.2d 625 (9th Cir. 1972); and Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152 , 71 S.Ct. 127 , 95 L.Ed. 162 (1950); and 2) that Rex’s process (in the language of the Graham case) filled a “long felt but unresolved need” in the industry, and was “commercially successful.”

Concerning the first argument, Rex assures us that it was truly astounded when it learned that epoxy resin wouldn’t “powder out” when used as a backing material in crushers. In their brief Rex amplifies on this point:

We find Rex’s argument specious. It is true that a material which breaks may not disintegrate, but the converse of that statement, and the question before us, seems hardly true. Given the known impact resistance of epoxy resin, which the court finds and both parties admit, it certainly was within the ordinary skill of the art, that from a knowledge that a material had a high impact resistance one would postulate that it also would be a very likely candidate not to “powder out.”

The very cases which Rex cites in support of their first argument weighs against them on the facts of this case. The A&P case supra, the leading statement on the law of combination patents states:

As to Rex’s second argument, apart from the fact that we could readily dispose of it on the basis of the contrary finding of fact by the trial court (C.T. 1092 # 24), we note that even if we assume that the epoxy backing did fill a long felt need for crushers users, this is only an indication, and not a prima facie demonstration, of invention. As the Supreme Court said in Anderson’s-Black Rock v. Pavement Salvage Co., Inc., 396 U.S. 57 , 90 S.Ct. 305 , 24 L.Ed.2d 258 (1969):

Likewise, Rex’s reliance upon our decision in Reeves Instrument Corp. v. Beckman Instruments, Inc., 444 F.2d 263 (9th Cir. 1971), cert. denied 404 U.S. 951 , 92 S.Ct. 283 , 30 L.Ed.2d 268 (1971), is misplaced. Looking at the Cheyette crusher as a whole (Cf. Radiator Specialty Co. v. Micek, 327 F.2d 554 (9th Cir. 1964), cert. denied 379 U.S. 821 , 85 S.Ct. 41 , 13 L.Ed.2d 31 (1964)), we see an improved product but not an innovatively different one. Looking at the problem of finding a suitable means for handling the internal stresses in crushers, in substituting epoxy for zinc we see the development and refinement of an old concept (i. e. a backing material) but not an inventive or new approach to the problem.

In sum, the record discloses ample evidence to support the district court’s finding that Rex’s patent was void for obviousness under 35 U.S.C. § 103 .

II. The Antitrust Violation and Patent Misuse Claims

We next review the district court’s determination that Rex’s label licensing program constituted a tying arrangement, per se violative of § 1 of the Sherman Act, and consequently, a misuse of its patent. (Cf. Ansul Co. v. Uniroyal, Inc., 448 F.2d 872, 879-81 (2d Cir. 1971), cert. denied 404 U.S. 1018 , 92 S.Ct. 680 , 30 L.Ed.2d 666 (1972).)

We agree with the court below that it did.

The findings of the court below relevant to this portion of the appeal are quoted in the margin.

Rex sells its unpatented epoxy crusher backing material (Nordbak) with a “can label” license authorizing the purchaser thereof to use the contents in the practice of Rex’s Cheyette Patent No. 2,970,-783. Rex has never issued a direct license (i. e. one apart from the can label license) to a crusher user to practice the patent, and Rex has no company policy in connection with the issuance of such licenses. (C.T. 1017 # 62.)

Given the fact that the label license is the only apparent way that a crusher user can obtain a license to exercise the Cheyette process, and because no other licensing program for the patent was visibly available, we have little difficulty in holding that there was sufficient evidence from which the trial judge could conclude that a tying agreement was implicit in the label license. (C.T. 1094 — 95 # 40) and that such an arrangement constituted a misuse of the patent. See Leitch Mfg. Co. v. Barber Co., 302 U.S. 458 , 58 S.Ct. 288 , 82 L.Ed. 371 (1938); B. B. Chemical Co. v. Ellis, 314 U.S. 495 , 62 S.Ct. 406 , 86 L.Ed. 367 (1942).

This court in Stearns v. Tinker & Rasor, 252 F.2d 589 (9th Cir. 1957), cert. denied 350 U.S. 830 , 76 S.Ct. 62 , 100 L.Ed. 741 (1955), long ago noted in the patent misuse context:

A patentee, such as appellant, who does not affirmatively offer, or express a willingness to offer, a licensing program separate from the label license attached to a staple article of commerce, runs the risk that the court may, in conjunction with the particularized evidence in the case, conclude that a tying arrangement is implicit, and that a misuse of the patent has occurred. Our holding is certainly not intended to rule out or otherwise affect the certain narrow “packaging” “component” or “total product” justifications previously enunciated by the courts for certain marketing techniques which may appear to have the technical appearance of a tying arrangement without the economic coercion. See, e. g., United States v. Jerrold Electronics Corp., 187 F.Supp. 545 (E.D.Penn. 1960), aff’d 365 U.S. 567 , 81 S.Ct. 755 , 5 L.Ed.2d 806 (1961). We merely indicate that any patentee who sells the patented item only in conjunction with some other unpatented staple good raises serious suspicions of tying behavior and misuse. The users of such marketing programs bear a heavy burden in overcoming this suspicion and in bringing themselves within one of the aforementioned justifications. Additionally we note, that as in the instant case, where there has been a factual determination by the trial court that such an arrangement is indeed coercive tying, that determination will not be easily reviewable, nor likely to be reversed, in this court.

The record discloses that Rex has had a consistent program of bringing patent infringement suits against all other sellers of epoxy resin to be used as backing material for crushers. In doing so Rex has effectively dried up any source of supply which a crusher user might look to, except for Rex and its licensees. (C.T. 1094 # 39.)

Admittedly, Rex has acted attendant to a bona fide belief that it was done in protection of their patent, but the effect upon the tied market has been to restrain commerce in epoxy resins nonetheless. Tying is still a per se violation of § 1.

In short, Rex has exercised the market power attendant to its rights under the Cheyette patent (the tying product) in the epoxy resin market (the tied product). Such power is significant and the amount of commerce affected is not de minimis.

The facts in this case are controlled as to its antitrust aspects by International Salt Co., Inc. v. United States, 332 U.S. 392 , 68 S.Ct. 12 , 92 L.Ed. 20 (1947); and as to the patent misuse claim by Leitch Mfg. Co. v. Barber Co., 302 U.S. 458 , 58 S.Ct. 288 , 82 L.Ed. 371 (1938).

The district court did not err in holding that Rex’s can label licensing program violated § 1 of the Sherman Act, and constituted a misuse of its patent.

III. Attorney’s Fees

We turn now to Harco’s appeal from the district court’s holding that Harco could not recover as part of treble damages under the antitrust laws, the attorney’s fees which it incurred in defending against the patent infringement action brought by Rex.

The holdings of the court below, as stated in its findings of facts and conclusions of law (C.T. 1089 — 98), which are relevant to our consideration of this issue, are quoted in the margin.

Harco was unable in the court below to produce any credible evidence that it was damaged by Rex’s antitrust violation (tying). Indeed, Harco concedes this point on appeal (Harco’s Brief at 4). However, Harco urges that the bringing of the infringement action by Rex is per se an action in furtherance of the tying situation and hence under 15 U.S.C. § 15 there would exist damages (i. e. the cost of defending against the patent infringement suit) for which Harco should be allowed to recover threefold the amount. In support of this proposition Harco cites: Kobe v. Dempsey Pump Co., 198 F.2d 416, 424-25 (10th Cir. 1952), cert. denied 344 U.S. 837 , 73 S.Ct. 46 , 97 L.Ed. 651 (1952); Hazeltine Research, Inc. v. Zenith Radio Corp., 388 F.2d 25, 35 (7th Cir. 1967), aff’d in part, rev’d in part, 395 U.S. 100 , 89 S.Ct. 1562 , 23 L.Ed.2d 129 (1969); Clapper v. Original Tractor Cab Co., 270 F.2d 616, 623-24 (7th Cir. 1959), cert. denied 361 U.S. 967 , 80 S.Ct. 588 , 4 L.Ed.2d 547 (1960); Switzer Brothers Inc. v. Locklin, 297 F.2d 39 (7th Cir. 1961), cert. denied 369 U.S. 851 , 82 S.Ct. 934 , 8 L.Ed.2d 9 (1962); and to which list we add: Dairy Foods, Inc. v. Dairy Maid Products Coop., 297 F.2d 805 (7th Cir. 1961); which ease succinctly declares:

We agree with the holdings in the above cases, but feel that Harco’s reliance upon them to create a per se right to treble attorney’s fees in all combination patent-infringement-antitrust actions is misfounded, and based on a misreading of the relevant precedents.

The Report of the Attorney General’s National Committee to Study the Antitrust Laws (1955) at 247 — 48 analyses and balances the policy and issues on both sides, and properly states the law in this area. We quote therefrom:

Accordingly we make the following recommendations:

In those cases which have awarded as part of antitrust treble damages, attorney’s fees incurred in defending patent infringement actions, we see the consistent thread of the patent infringement suit being used with ulterior motives as a predatory means — an aggressive weapon to attain some other anticompetitive end — •, as opposed to its being used as a defensive shield with which to protect the patent interests.

The language of the Kobe case, supra, is instructive as to this distinction:

The mere coincidence of an antitrust violation and a patent infringement suit is not sufficient to entitle Harco to attorney’s fees expended in defense of the patent infringement claim absent some showing from which the trial court can find, or infer, that the patent infringement suit was brought in furtherance and as an integral part of a plan to violate the antitrust laws. See La Salle Street Press, Inc. v. McCormick & Henderson, Inc., 445 F.2d 84 at 96 (7th Cir. 1971); American Infra-Red Radiant Co. v. Lambert Ind. Inc., 360 F.2d 977 at 996-97 (8th Cir. 1966), cert. denied 385 U.S. 920 , 87 S.Ct. 233 , 17 L.Ed.2d 144 (1966).

This distinction was recently applied by the Second Circuit in an able opinion by Judge Lumbard which held:

Ansul Co. v. Uniroyal Inc., 448 F.2d 872 at 882 (2d Cir. 1971), cert. denied, 404 U.S. 1018 , 92 S.Ct. 680 , 30 L.Ed.2d 666 (1972).

The institution of a patent infringement suit when the patent also is the tying product is not necessarily or always an action brought in furtherance of the illegal tying situation. Mere coexistence of a tying situation and the patent infringement suit is not sufficient to demonstrate that the suit was brought in furtherance, or as an integral part of a plan to violate the antitrust laws. Tying is a per se violation of Section 1 of the Sherman Act. Purely negligent and unintentional acts can and do constitute violations ■ of the antitrust laws if they have, or are presumed at law to have, the required anticompetitive economic effect. The focus of the antitrust laws is not upon the intentions of the actor, but rather upon the effect of the actions upon commerce. Hence, we can have the situation of a patentee who is unintentionally or negligently in violation of the antitrust laws 1) bringing an infringement suit to protect his rights under a valid patent (or a patent he in good faith believes to be valid) and 2) believing in good faith that he is neither misusing his patent nor violating the antitrust laws. In cases such as the one just illustrated we cannot say that the patent infringement suit is brought in furtherance of an antitrust violation. Whether the case sub judice falls into this classification we cannot determine from the record on appeal. We therefore remand to the district court for a determination of whether Rex brought this infringement suit in furtherance of the antitrust violation.

The court below held: “plaintiff has not been guilty of bad faith or inequitable or unconscionable conduct in the prosecution of this action.” (C.T. 1096.) But, from this holding we cannot determine whether 1) Rex merely had a good faith belief in the validity of its patent, but was intentionally using its patent in furtherance of a tying scheme (cf. Kobe, supra); or 2) whether Rex not only in good faith believed that its patent was valid, but also believed that it was not misusing its patent or violating the antitrust laws. On remand, if the district court finds the former situation existed, damages should be awarded based on the basis of an antitrust violation. If the court below finds the latter, then they should not be awarded under the antitrust laws.

Harco is not entitled to recover reasonable attorney’s fees under the patent laws ( 35 U.S.C. § 285 ). Indeed, Harco practically admits his point on appeal. Quoting from Harco’s Reply Brief at p. 5.:

In the instant case the district court explicitly found that this was not “an extraordinary or exceptional case” warranting an award of reasonable attorney’s fees under the patent law. (C.T. 1096, 1098.)

We hold that the district court did not err in construing the patent laws in denying Harco’s prayer for attorney’s fees.

This case is remanded to the district court for a determination of whether Harco is entitled to attorney’s fees under the antitrust laws, in accordance with the tests set forth in this opinion. In all other respects, the decision of the district court is affirmed.

. (C.T. 1094-98) (Findings as numbered) “34. Epoxy resin with additives of the type involved in this case, as exemplified in “Rockfill” and “Nordbak” is a staple article of commerce having substantial non-infringing uses. * * St! * * 38. Plaintiff-counterdefendant sells, and since at least April 28, 1960, has sold “Nordbak” epoxy resin to crusher users with directions for using the same in the practice of United States Letters Patent No. 2,970,783, and an implied license under said patent has accompanied the sale of every can of “Nordbak.” “Nordbak” is sold with the instructions and directions as shown by Plaintiffs can labels and brochures for using the backing material in the practice of the alleged invention claimed in United States Letters Patent No. 2,970,783. Plaintiff does not identify or otherwise specify any portion of the sales price of the epoxy sold under the name “Nordbak” as being a royalty and it does not demand payment of royalties from purchasers of backing material sold under the name “Nordbak” or otherwise require an accounting to it for the practice of the alleged invention covered by said patent. 39. Plaintiff-counterdefendant has brought actions for infringement of Patent No. 2,970,-783 against each supplier of epoxy resin products competing with “Nordbak,” which actions have resulted either in a settlement and a license to the competitor, or the competitor’s stopping competitive sales. 40. Each of the Plaintiffs licensees sells epoxy resin to crusher users under circumstances which imply a license under Patent No. 2,970,783 with every can of epoxy resin sold. 41. Defendant began selling its epoxy resin under the name “Rockfill” in 1970 and since that time Plaintiff and Defendant have been direct competitors in the sale of epoxy resin to crusher users. 42. Prior to the filing of the present action, Defendant requested a license under Patent No. 2,970,783 from Plaintiff. Plaintiff did not offer Defendant a license under Patent No. 2,970,783 until after the filing of Defendant’s antitrust counterclaim herein, and then offered a license at a royalty rate four times greater than the royalty rate provided in the Plaintiffs other licenses. 43. The sales of “Nordbak” with said implied license to practice Patent No. 2,970,783 constitute tying contracts between Plaintiff and crusher users buying “Nordbak” from it. 44. The tying item is the right to practice Patent No. 2,970,783 which accompanies each, can of “Nordbak.” The requisite economic power in the tying item is provided by the purported Patent No. 2,970,783. 45. The tied item is epoxy resin, and the relevant market and line of commerce herein affected is the national market in epoxy resin. 46. The sales of “Nordbak” epoxy resin to crusher users in the above-described manner have been substantial, exceeding Five Hundred Fifty Thousand ($550,000) Dollars in 1971. 47. The effect of Plaintiff-counterdefendant’s tie-in sales of “Nordbak” with an implied license and its infringement actions has been to restrain trade and to substantially lessen competition in the sale of epoxy resin to crusher users in violation of Section 1 of the Sherman Act, Section 1, Title 15, United States Code. 48. Defendant is entitled to an injunction against the continuation of said antitrust violation pending the within adjudication of the invalidity of the patent in suit becoming final. When the said finding of invalidity becomes final, no further injunction will be required. If Patent No. 2,970,783 is later found to be valid, Defendant shall be entitled to a permanent injunction. 49. Plaintiff by its use of Patent No. 2,970,783, as set forth in Findings 31-47, has misused said patent, rendering the patent unenforceable.” . Rex is correct in its contention that the fact that no one has yet asked them for a direct license (and consequently no one was refused one) is evidence that there is no economic tying effect or misuse present. Federal Sign & Signal Corp. v. Bangor Punta Op. Inc., 357 F.Supp. 1222 at 1240 (S.D.N.Y.1973); Ansul Co. v. Uniroyal Inc., 306 F.Supp. 541, 562-63 (S.D.N.Y.1969), 448 F.2d 872 (2d Cir. 1971), cert. denied 404 U.S. 1018 , 92 S.Ct. 680 , 30 L.Ed.2d 666 (1972); however, it is not conclusive of the point. It is merely one factor to be considered by the district court. E. g “At the oral argument it seemed to me that the method of business adopted by the plaintiff in the case at bar could not be considered objectionable in the absence of a finding that the plaintiff had. refused or would refuse to grant an unrestricted license to any shoe manufacturer who chose to buy from some other source the materials used in reinforcing the insoles by the patented process. That is, if the plaintiff is prepared to grant an unrestricted license on a royalty basis to any shoe manufacturers who prefer to obtain the unpatented precoated duck and top coat elsewhere, it is difficult at first blush to see how the plaintiff would be doing anything wrong in furnishing the unpatented materials and incidental services at so much per web yard of duck to those shoe manufacturers who prefer to do business with the plaintiff on that basis. But this point was urged in Leitch Mfg. Co. v. Barber Co., supra, and it was pointed out in the plaintiff’s brief before the Supreme Court that the plaintiff was ‘not shown to have refused to grant any license under the patent, much less granted any license conditioned on purchase of emulsion from it.’ The argument was to no avail. The court considered it sufficient to condemn the plaintiffs method of doing business, that, as matters stood, no road contractor had a license to practice the patented process except those contractors who bought their bituminous emulsion from the plaintiff.” B. B. Chemical Co. v. Ellis, 117 F.2d 829 at 838 (1st Cir. 1941) (Magruder, C. J., concurring), aff’d 314 U.S. 495 , 62 S.Ct. 406 , 86 L.Ed. 367 (1942). . There is ample evidence in the record to support the district court’s finding that “Nordbak” was a staple commodity. It is well settled that the mere addition of extenders to a staple article does not make the article nonstaple. Dr. Salsbury’s Laboratories v. I. D. Russell Co., 212 F.2d 414 (8th Cir. 1954), cert. denied 348 U.S. 837 , 75 S.Ct. 50 , 99 L.Ed. 660 (1954). There the court held that the addition of other dilutive ingredients to a staple article of commerce does not cause the article “to lose its characteristics as a common raw material.” (212 F.2d p. 416) This is particularly true here since the extenders are not “components” of the invention. The epoxy resin present in “Nordbak” is the only component of the patent at issue and that is a staple article of commerce. . In oral argument counsel for Rex argued that crusher users have an alternative to the can label license in that users can purchase a new crusher from Rex. In view of the fact that the backing material in a crusher will wear out many times during the life of a crusher, we hardly think that being required to purchase an expensive new machine when the backing wears out is a viable alternative to the can label license. A great economic disparity in alternatives will just as effectively create or enforce a tie as the absence of choice. Rex argues that if it wanted to, under the patent laws, it could sell the crusher alone, and not grant can label licenses. This may well be so, but Rex has not chosen to follow this course. A patentee has a privilege to exploit its patent, but this privilege does not encompass tying. Tying is disapproved because of its anticompetitive effects upon the market of the tied product. If Rex had chosen to sell crushers alone, an affect on a tied market would be absent; but as it stands now, the can label licensing program adopted by Rex, by effectively and practically foreclosing and limiting the sources to which crusher users may look to purchase staple epoxy resin, has substantially burdened competition in the market of that tied product. . Rex’s licensees are producers of epoxy resin whom Rex has in the past sued for contributory infringement and with whom it has settled. This is further evidence of the effect upon the tied market. Rex has in effect achieved the result that it is licensing its licensees to produce epoxy resin for use in its patent process. That is, part of the royalties are derived not from the right to practice the patent, but rather from the right to sell unpatented epoxy resin (the tied product). . (C.T. 1092, 1096-98) (Findings as numbered) “27. Assuming the patent were valid, then Defendant has, by its bulletin for epoxy resin sold under the name “Rockfill,” and its can labels actively induced Livingston-Graham Inc., a purchaser of said epoxy resin from Defendant, to directly infringe U. S. Patent No. 2,970,783. Defendant has actively induced infringement under Section 271(b), Title 35, United States Code. ****** 50. Defendant has failed to meet its burden of proof that it has been damaged by plaintiffs antitrust violation. There is no credible evidence that defendant has been damaged by plaintiffs conduct up to this time. There is no credible evidence that defendant has lost any customer or failed to gain any other customer that it could have reasonably expected to gain, because of any act of plaintiff. There is no evidence that plaintiff has sued or even threatened to sue any customer or potential customer of defendant. 51. This is neither an extraordinary nor an exceptional case, and defendant is not entitled to recover its attorney’s fees under either the antitrust or patent aspects of the case. Plaintiff has not been guilty of bad faith or inequi-' table or unconscionable conduct in the prosecution of the action. 52. Defendant is entitled to recover its costs. ****** From the foregoing facts the Court concludes: [Conclusions as numbered] 7. If the patent is valid, Defendant has actively induced infringement of the patent by crusher users, Section 271(b), Title 35, United States Code. ****** 14. Defendant has failed to prove that it has been damaged by the antitrust violations and no damages are awarded, Richfield Oil Company v. Karseal, 271 F.2d 709 (CA9 1959). 15. This is not an exceptional case, and no attorneys fees are awarded, Section 285, Title 35, United States Code.”